James Pari and Tine Bomai Kaupa v The State [1993] PNGLR 173

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Ellis J, Brown J
• Judgment Date: 30 December 1991
• Citation: [1993] PNGLR 173
• Court: Supreme Court
• Year: 1993
• Judgement Number: SC420

Full Title: James Pari and Tine Bomai Kaupa v The State [1993] PNGLR 173

Supreme Court: Kapi DCJ, Ellis J, Brown J

Judgment Delivered: 20 or 30 December 1991

1 Criminal law—evidence—fresh evidence—s6 (1) (a) Supreme Court Act (Ch37) —evidence of same witness at trial materially different on appeal—whether fresh evidence—principles—leave granted

2 Criminal law—appeal against conviction and sentence—evidence of same witness at trial materially different on appeal—police protection and air-fare expenses not improper—assessment of reliability of witness on appeal—whether retrial required in the interest of justice

3 Busina Tabe v The State [1983] PNGLR 10, John Peng v The State [1982] PNGLR 331, Mai Kuri v The State (No 2) [1991] PNGLR 311, Ted Abiari v The State (No 1) [1990] PNGLR 250, The State v Manasseh Voeto [1978] PNGLR 119, Craig v R (1933) 49 CLR 429, Davies & Cody v R [1937] 57 CLR 170, Hurley v R (1919) 22 WALR 25, McGrath v R (1916) 18 ALR 124, Queensland v The Commonwealth (1977) 139 CLR 585, R v Catherine Hullett (1922) 17 Crim AR 8, R v Flower [1965] 3 All ER 669; [1966] 1 QB 146, R v Kelly (1946) 46 SR (NSW) 344, R v McDermott (No 1) (147) 47 SR (NSW) 379, R v Robinson [1917] 2 KB 108, R v Ryan [1940] St R Qd 170, R v Stone (1926) 26 SR (NSW) 394, R v Thomas (1959) 43 Cr App R 210, R v Townes [1942] QJPR 129, R v Wakefield [1957] VR 547, R v Kadar (1955) 56 SR (NSW) 1, Steele & Phillips v R (1919) 22 WALR 22, Taylor v R (1918) 20 WALR 47 and R v Poulter [1978] 19 SASR 370 at 376 referred to

Facts

The appellants were tried, convicted and sentenced to life imprisonment for wilful murder of one, Heather Mitchell. After conviction and sentence, the prosecution eyewitness stated that she was coerced and promised favours to lie at the trial. The nature of her evidence was contained in her affidavit which explains that she gave three statements to the police. The first statement was given on 6 July 1987 and did not implicate James Pari. The second statement was given on 23 July 1987 and stated that James Pari confessed to the murder of the deceased. The third statement was made on 25 September 1987 and this version was told to the trial court.

Subsequently, the witness went to the media and revealed that she gave false evidence at the trial. The appellants appealed against their conviction and sentence on the grounds that the evidence given by the eyewitness was contradictory and that she was coerced and promised favours to give evidence for the State against the appellants, and further, that the evidence was concocted by the police to mislead the court as to the roles played by the appellants. The appellants sought and were granted leave to call fresh evidence from the prosecution eyewitness, Regina Marepo Moria.

Held

1. (Per Kapi DCJ, Ellis J) Two requirements must be satisfied if fresh evidence is to be admitted on appeal. Firstly that there is fresh evidence within the meaning of s6 (1) (a) of the Supreme Court Act (Ch37) which means evidence which has come to light since the hearing or trial, or evidence which has come to the knowledge of the party applying since that hearing or trial and which could not by reasonable means have come to his knowledge before that time. Secondly that the court is satisfied that the justice of the case warrants it.

2. (Per Ellis J) S8 of the Supreme Court Act (Ch37) is not a separate basis for fresh evidence but is merely a machinery provision which is supplemental to s6 of that Act. Any submission or judgment to the contrary effect is wrong in law.

3. (Brown J dissenting) Evidence which is sought to be tendered in the Supreme Court by a witness who has changed his/her story from the one given at trial is fresh evidence and subject to the following test:

Firstly, was the evidence available at the time of the trial, and if so, was there any good reason why it was not called? Secondly, is the fresh evidence relevant, cogent and plausible?

4. (Per Kapi DCJ, Brown J) The nature of the fresh evidence, the circumstances surrounding and giving rise to her affidavit, her demeanor in court, the motivation and pressures brought upon the witness to change the story she gave at the trial, and the reasons she gave this Court for those lies, need to be assessed carefully when considering her assertion that her evidence at trial was not the truth.

5. (Per Ellis J) In the application of fresh evidence, it is not whether the witness was reliable at trial but whether the witness's evidence given on appeal was reliable.

6. (Per Brown J) The protection and air-fare are entirely within the realm of proper expenditure which does not taint the worth of the witness's evidence for those reasons alone.

7. (Per Kapi DCJ) The proper approach to a claim by a witness that he or she committed perjury at the trial is set out by the High Court in Davies & Cody v R [1937] 57 CLR 170 at 183 and adopted in this case as a proper principle to apply in this jurisdiction.

Appeal

This was an appeal against conviction and sentence to life imprisonment for wilful murder. Subsequent to the appellants' conviction and sentence, the prosecution eyewitness at the trial revealed that she had lied at the trial court.

On the hearing of the appeal, counsel for the applicants sought to adduce fresh evidence from the prosecution eyewitness of her evidence which is materially different to that given at trial.

On 22 April 1991, the court ruled unanimously that leave should be granted for Regina Marepo Moria to give fresh evidence. Both reasons for judgment on the application for leave and the substantive appeal appear hereunder.

___________________________

SC420

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

JAMES PARI, TINE BOMAI KAUPA

V

THE STATE

Waigani

Kapi DCJ Ellis Brown JJ

22 April 1991

24-25 June 1991

1 August 1991

20 December 1991

CRIMINAL LAW — Appeal — Evidence — Fresh evidence — Supreme Court Act Ch 37 s 6 (1) (a) — Evidence of same witness at trial materially different on appeal — Whether fresh evidence — Principles — Leave granted.

APPEAL — Against conviction and sentence — Evidence of same witness at trial materially different on appeal — Police protection and air-fare expenses not improper — Assessment of reliability of witness on appeal — Whether interest of justice requires retrial.

Facts

The appellants were tried, convicted, and sentenced to life imprisonment for wilful murder of Heather Mitchell. After conviction and sentence, the prosecution eye-witness stated that she was coerced and promised favours to lie at the trial. The nature of her evidence was contained in her affidavit, which explains that she gave three statements to the police. The first statement was given on 6 July 1987 and did not implicate James Pari. The second statement was given on 23 July 1987 and stated that James Pari confessed to the murder of the deceased. The third statement was made on 25 September 1987, and this version was told to the trial court.

Subsequently, the witness went to the media and said that she gave false evidence at the trial. The appellants appealed against their conviction and sentence on the grounds that the evidence given by the eye-witness was contradictory, that she was coerced and promised favours to give evidence for the State against the appellants, and, further, that the evidence was concocted by the police to mislead the court as to the roles played by the appellants. The appellants sought and were granted leave to call fresh evidence from the prosecution eye-witness, Regina Marepo Moria.

Held

1. (Per Kapi Dep CJ, Ellis J) Two requirements must be satisfied if fresh evidence is to be admitted on appeal. Firstly, there must be fresh evidence within the meaning of s 6 (1) (a) of the Supreme Court Act Ch 37, which means evidence which has come to light since the hearing or trial, or evidence which has come to the knowledge of the party applying since that hearing or trial and which could not by reasonable means have come to his knowledge before that time. Secondly, the court must be satisfied that the justice of the case warrants admission of the evidence.

2. (Per Ellis J) Section 8 of the Supreme Court Act is not a separate basis for fresh evidence but is merely a machinery provision which is supplemental to s 6 of that act. Any submission or judgment to the contrary effect is wrong in law.

3. (Brown J dissenting) Evidence which is sought to be tendered in the Supreme Court by a witness who has changed his/her story from the one given at trial is fresh evidence and subject to the following test:

Firstly, was the evidence available at the time of the trial and, if so, was there...