John Rumet Kaputin v The State

• Jurisdiction: Papua New Guinea
• Judge: Wilson J:
• Judgment Date: 02 November 1979
• Citation: [1979] PNGLR 559
• Court: Supreme Court
• Year: 1979
• Judgement Number: SC168

Supreme Court: Prentice CJ, Raine DCJ, Wilson J

Judgment Delivered: 2 November 1979

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

JOHN RUMET KAPUTIN

V

THE STATE

Waigani

Prentice CJ Raine DCJ Wilson J

2 November 1979

6 November 1979

CRIMINAL LAW — Appeal against sentence — Fresh evidence sought to be adduced — Principles — No exceptional circumstances — Leave refused.

APPEAL — Evidence — Appeal against sentence — Fresh evidence sought to be adduced — Principles — No exceptional circumstances — Leave refused.

CRIMINAL LAW — Appeal against sentence — Appeal against severity — Disobeying lawful order of court — Consent order of National Court — Company secretary ordered to make good company's default as to returns — Whether custodial sentence appropriate — Sentence of ten weeks' imprisonment confirmed.

This was an appeal against severity of sentence of ten weeks' imprisonment with hard labour imposed on the appellant, a Member of Parliament and Minister of State, on conviction for disobeying a lawful order issued by the National Court of Justice, and as provided by s. 209 of the Criminal Code. The order made by the National Court was one made by consent directing the appellant as Secretary of the New Guinea Development Corporation Limited to lodge the 1977 annual return of the company and other supporting documents within three months of 30th March, 1978. The documents were eventually filed some fourteen months later but before trial. The evidence disclosed that the company had been persistently remiss in filing documents as required by the Companies Act 1963, despite continuing co-operation from the Registrar of Companies. At the trial the appellant made a statement from the dock attributing blame for the failures, to accountancy difficulties and on the hearing of the appeal sought to adduce fresh evidenceas to the structure and sanctions in the Tolai society, to which the appellant belonged, which it was urged should have affected the sentencing policy adopted by the trial judge.

Held

(1) On appeal against sentence, fresh evidence, which was available and which, with reasonable diligence, could have been disclosed to the sentencing judge and was not so placed before him should not be admitted except in exceptional circumstances.

R. v. Peter Ivoro, [1971-72] P. & N.G.L.R. 374; and

Green v. The King (1939) 61 C.L.R. 167, at p. 176, referred to.

(2) The application to allow fresh evidence to be called should be refused.

(3) (Wilson J. dissenting) In the circumstances including inter alia, the education of the appellant, the length of time over which the disobedience extended, the circumstances calling for the setting of a good example for the appellant's particular society and other similar enterprises, a custodial sentence was appropriate and the sentence of ten weeks' imprisonment with hard labour was not excessive.

(4) (Per Wilson J. dissenting) In the light of sentencing policies adopted by other courts in Papua New Guinea and by other courts in other jurisdictions, particularly those from which the company law, and the law of statutory contempt in Papua New Guinea have derived, a custodial sentence was not appropriate, and the sentence actually imposed was so disproportionate as to be manifestly excessive.

Re Rooney (No. 2), [1979] P.N.G.L.R. 448 referred to.

Appeal

This was an appeal against severity of a sentence of ten weeks' imprisonment imposed on the appellant, a Member of Parliament and Minister of State as secretary of a public company for disobeying a lawful order issued by the court, and contrary to s. 209 of the Criminal Code. (See The State v. John Rumet Kaputin, [1979] P.N.G.L.R. 532.)

On the hearing of the appeal on the grounds set out at pp. 569-570 in the reasons for judgment of Wilson J., counsel for the accused sought to adduce fresh evidence as to the structure and sanctions in Tolai society to which the appellant belonged. An interlocutory judgment refusing leave to adduce such evidence was delivered on 2nd November, 1979, and on 6th November reasons for judgment on the substantive appeal were handed down. Both sets of the reasons for judgment appear hereunder.

Counsel

W. Kaputin, for the appellant.

K. B. Egan, for the State.

Cur. adv. vult.

2 November 1979

INTERLOCUTORY JUDGMENT

PRENTICE CJ: This is an appeal against severity of sentence. It is sought now to adduce evidence that was not called at the trial. In my opinion no proper basis has been established that would admit of such a course being allowed. It is true that in Ivoro's case [R. v. Peter Ivoro] [1971-1972] P. & N.G.L.R. 374.1 admission of evidence to establish a condition described as psychopathic tendency — without establishment of the usual ground, was allowed. But that was a special case, in which the death penalty had been imposed by the trial judge in respect of multiple murders. Even there, the evidence was admitted only by majority.

It has not been shown here that the evidence sought to be given was not available at the trial, nor that it was undiscoverable by use of ordinary diligence (the usual basic pre-requisites). It is known that the trial was not a hurried one — it had twice been interrupted by references to this Court. The appellant, as appears from the appeal book, was represented by a senior practitioner who as is well known had been a lecturer in Criminal Law at the University of Papua New Guinea. The appellant far from being an uneducated man who might be unable to give proper instructions, is a Minister of the Government and of superior education and of long experience in the company law field in which the proceedings which had their climax in this prosecution, had their distant origin.

The overall duty of this Court is to do justice between State and subject; but that does not allow it to proceed other than in accordance with statute and well-recognized rules of procedure. The court has always set its face against any attempt to have two trials of any issue — and it can easily be seen why this should be so. See Green v. The King (1939) 61 C.L.R. 167, at p. 176.2:

"If persons who become subject to the processes of the law were allowed to try again because they had chosen not to use evidence which was available or which with reasonable diligence could have been discovered by them, legal proceedings would tend to become interminable and grave injustice would, in practice, result in many cases."

Behind this application lies the fact that the appellant elected to make a statement in the National Court and did so. I do not believe it would be proper to allow him to give evidence now in this Court. In addition, for myself, I cannot see the relevance of the evidence sought to be called as to the structure and sanctions in Tolai society. What was in question here was the breach of an order of this Court, not a breach of any customary law, and the National Court was concerned with the question of whether a sanction provided for in the Criminal Code should be applied. This Court is concerned as to whether that sanction was or was not appropriate. What customary society might have done to ensure compliance with the order of this Court, but apparently did not do, seems beside the point. And it would be open to customary society in any case to mould its sanctions to a particular case in the light of what sanction has been imposed in the National Court.

I would refuse the application to allow fresh evidence to be called.

RAINE DCJ: I agree that the evidence ought not to be admitted.

WILSON J: I too would refuse this application to have placed before this Court material which could all too easily have been placed before the trial court. It must be remembered that we are sitting as a court of appeal and not to conduct a fresh hearing.

The appellant was represented before the trial judge by a relatively experienced counsel by Papua New Guinea standards, my own experience of that counsel in other cases before me during the past two years has revealed that he is well aware of the need to provide the sentencing judge with full material which would operate in his client's favour and the consequences that sometimes flow from decisions to withhold such material. The counsel concerned is also well aware of the opportunity which always exists in a criminal case before the sentence is determined for either the prosecution or the defence or both to adduce evidence or place material before the sentencing judge regarding matters of custom as they may affect either the type or severity of sentence. It is unfair to suggest that he, not being a Papua New Guinean, did not perceive or appreciate the significance of those issues.

If the social structure of Tolai society is such that traditional social constraints and sanctions exist of such a kind as to involve for the appellant the incurring of penalties or the suffering of punishment that a non-Tolai would not be subject to, then evidence of the type sought to be adduced before this Court should have been adduced before the sentencing...