Busina Tabe v The State [1983] PNGLR 10

• Jurisdiction: Papua New Guinea
• Judge: McDermott J:
• Judgment Date: 29 October 1982
• Citation: [1983] PNGLR 10
• Court: Supreme Court
• Year: 1983
• Judgement Number: SC260

Full Title: Busina Tabe v The State [1983] PNGLR 10

Supreme Court: Kaputin J, Gajewicz J, McDermott J

Judgment Delivered: 29 October 1982 or 29 October 1983

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

BUSINA TABE

V

THE STATE

Waigani

Kaputin Gajewicz McDermott JJ

1 October 1982

29 October 1982

APPEAL — Evidence — "Fresh evidence" — Principles for allowing — Evidence available — Counsel not presenting or explaining evidence — Material irregularity — Justice of case — Supreme Court Act (Ch. No. 37), s. 6 (1) (a).

Under the Supreme Court Act (Ch. No. 37), s. 6 (1) (a), the Supreme Court may admit fresh evidence on an appeal thereto "where it is satisfied that the justice of the case warrants it".

Evidence sought to be admitted on an appeal was not fresh evidence within the meaning of s. 6 (1) (a) but was in existence at the time of trial and was known to and available to both the prosecutor and the defence but was (without explanation) not used by either: the nature of the evidence was such that a serious doubt was raised.

Held

The evidence should be admitted:

(a) (By Kaputin J): Because the conduct of the prosecution and the defence in not seeking the admission of the evidence on the trial was a material irregularity resulting in a miscarriage of justice;

(b) (By McDermott J with whom Gajewicz J agreed). Because the justice of the case required that it should.

Edward Donald Ward (1981) 3 A. Crim. R. 171, considered.

Cases Cited

Green v. The King (1938) 61 C.L.R. 167.

Neap, James v. The State (Unreported Supreme Court judgment No. SC228 dated 4 May 1982).

Peng, John v. The State [1982] P.N.G.L.R. 331.

Perry & Harvey (1909) 2 Cr. App. R. 89.

Ratten v. The Queen (1974) 131 C.L.R. 510.

Salih, Lattimore & Leighton (1976) 62 Cr. App. R. 53.

Ward, Edward Donald (1981) 3 A. Crim. R. 171.

Appeal

This was an appeal against conviction and sentence on a charge of stealing.

Counsel

E. I. M. Nwokolo, for the appellant.

K. Bona, for the respondent.

Cur. adv. vult.

29 October 1982

KAPUTIN J: The appellant applies for leave to appeal against his conviction and sentence by the trial judge at Mendi. He was convicted of the charge that on 4 January 1980, he stole K4,500 the property of the P.N.G. Banking Corporation and/or the Mendi Local Government Council.

On the preliminary application counsel for the appellant sought to adduce "fresh evidence" under s. 6 (1) (a) of the Supreme Court Act (Ch. No. 37). The section reads:

" (1) An appeal to the Supreme Court shall be by way of rehearing on the evidence given in the court the decision of which is appealed against, subject to the right of the Supreme Court:

(a) to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it; and..."

There are two issues involved in this application. The first is whether the material sought to be adduced is to be regarded as fresh evidence within the well recognized principles governing such issue. The other is whether counsel's incompetency can be advanced as a ground for allowing fresh evidence on appeal.

The facts of the case have been canvassed by my brother, McDermott J The so-called fresh evidence sought to be admitted at this stage is that of a bank teller, Thomas Tua, who processed a deposit slip in relation to the money in question. The evidence was sought through a sworn affidavit which I quote:

"I, Thomas Tua, Bank Teller, of Papua New Guinea Banking Corporation Branch at Mendi Southern Highlands make oath and say as follows:

(1) That I am employed as a Bank Teller in the aforementioned Bank.

(2) That I was so employed on 4 January 1980.

(3) That I know Busina Tabe as a former Senior Executive Officer of the Mendi Local Government Council and Simon Karl as a Clerk employed by the same Council.

(4) That I have been shown and recognise a document marked Exhibit 'X' said to have been received in evidence and so marked by Mr Justice Bredmeyer, as a deposit slip which I processed on 4 January 1980.

(5) That on that day a completed application for the transfer of K4500 from the Reserve Funds Account, to the Current Account, of the Mendi Local Government Council, was presented to me, at the bank aforesaid by Simon Karl. It was in the form of a withdrawal form signed by the former president of the Mendi Local Government Council, Mr Tubiri Wagep and Mr Busina Tabe, Senior Executive Officer aforesaid, accompanied by a completed deposit slip for a total of K4949.17 made up of the K4500, a cheque for K2 and K37.17 in coins.

(6) That on the receipt of the papers and money mentioned in paragraph 5, I made the necessary entries in the books of the bank indicating that K4500 had been debited against the Mendi Local Government Council Reserve Funds Account and that the same Council's Current Account had been credited with the same sum of K4500.

(7) That as far as the transaction that day connected with the sum of K4500 aforesaid was concerned, there was only a book transfer from one account to the other and no handling of cash.

(8) That I recognise the tallying I did on the face of Exhibit 'X' aforesaid and my notation of the initials 'P.B.'against the sum of K4500. The said initials represent the short form of the words 'Pass Book' and was meant to indicate that the component of the sum of K4500 on the deposit slip was transferred from the Council's Reserve Account Pass Book.

(9) That what I depose to herein of my own knowledge is true and what I depose to on the information of others is true to the best of my knowledge and belief."

This evidence is also supported by other evidence. If the evidence were before the National Court at the time, it would have given a different picture to the trial judge's findings. Section 6 (1) (a) has been discussed in a number of recent Supreme Court cases — James Neap v. The State (Unreported Supreme Court judgment No. SC 228 dated 3 May 1982) and John Peng v. The State [1982] P.N.G.L.R. 331, and the principles in relation to the admissibility of fresh evidence have been well canvassed therein.

But the new material in question is not fresh evidence at all. It was in existence at the time of the trial and both the prosecutor and the defence counsel knew about it. The defence counsel could have adduced it with little effort, yet he did nothing about it for reasons known only to himself. As to the other argument, that even though the material was in existence at the trial, nevertheless, it should be admitted as fresh evidence on the basis of defence counsel's incompetence, because if it were not allowed a miscarriage of justice will occur.

I hesitate to take the view that incompetency of counsel can be advanced as a ground for allowing new material which was known to exist at the trial to be admitted. It is a very serious matter as far as the legal profession is concerned. It affects the credibility of counsel and may lead to allegations of professional misconduct, and naturally, will have to be proved as a fact. The counsel at the trial may have to seek to defend himself on this preliminary issue. It would be wrong for the court to make a conclusive finding of incompetency just from the result of the trial. The court would not know whether there was error and whether the counsel had misjudged the situation according to his instructions. In order for the court to establish these things, it will have to inquire into what instructions he had, what his knowledge of the law was, and how and why he approached the trial as he did. These are necessary to establish whether or not he had handled the case competently to the best of his professional skill and ability. The process may bring into the open as matters of disputable facts before the court, the entire aspects of what amount to professionalism and thus throws it into disarray. The privilege of solicitor and client particularly will become a farce because every time the court hears a case of incompetency, the matters covered by such privilege, would inevitably be dragged into the court for debate. I do not think it is wise for the court readily to allow that to happen. Incompetency which may amount to professional misconduct should very well be dealt with as is usually the case by the profession itself, and the accused in this case may very well sue the defence counsel for professional negligence. So for this court to decide on the issue now would be pre-empting the decision of a court in which a proper claim of professional negligence may be filed and properly proved.

In this case there is one thing which is clear and this is that both counsel knew that the evidence now in question existed at the time of the trial but none of them did anything about it. And we simply do not know what the defence lawyer's judgment and approach at the trial was. He might have elected not to call the evidence, and deliberately decided to set up a particular defence. Under the circumstances of this case one should therefore take heed of the caution expressed by...