Mai Kuri v The State (No 2) [1991] PNGLR 311

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Hinchliffe J, Sheehan J, Brown J, Jalina J
• Judgment Date: 23 August 1991
• Citation: [1991] PNGLR 311
• Court: Supreme Court
• Year: 1991
• Judgement Number: SC414

Full Title: Mai Kuri v The State (No 2) [1991] PNGLR 311

Supreme Court: Kidu CJ, Hinchliffe J, Sheehan J, Brown J, Jalina J

Judgment Delivered: 23 August 1991

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

S.C. APPEAL NO. 7 OF 1987

MAI KURI

V

THE STATE (NO. 2)

Waigani

Kidu CJ Hinchliffe Sheehan Brown Jalina JJ

17 December 1990

21 December 1990

23 August 1991

CRIMINAL LAW — Appeal — Fresh Evidence — Supreme Court Act (Ch 37), Section 61.

APPEAL — Supplemental Powers of the Supreme Court — Supreme Court Act (Ch 37), Section 8.

Held

Section 8 is a machinery provision for the purpose, inter alia, of implementing powers granted under Section 6.

Cases Cited

John Peng v The State [1982] PNGLR 331.

Ted Abiari v The State (1990) Unreported Judgement SC 389.

Busina Tabe v The State [1983] PNGLR 10.

Legislation Cited

Supreme Court Act (Ch 37)

Appeal

This was an appeal against conviction in which the appellant sought to adduce new evidence under Section 8 of the Supreme Court Act.

Counsel

P K Kunai for the Appellant

S Soi for the State

KIDU CJ HINCHLIFFE SHEEHAN BROWN JALINA JJ: In S.C. 410 we said we would give in a separate judgement our reasons for rejecting an application by the Appellant to adduce evidence pursuant to s 8 of the Supreme Court Act (Ch No 37). We now do so.

We pointed out from the outset that the Court was specially constituted of 5 Justices to determine the conflict of opinion that has arisen on s 8 of the Supreme Court Act (Ch No 37). The two cases relevant are John Peng v The State (1982) PNGLR 331 (Kidu CJ and Pratt and McDermott JJ) and Ted Abiari v The State (1990) SC 389 (Unreported judgement of Kapi DCJ & Los J with Amet J dissenting). Busina Tabe v The State (1983) PNGLR 10 was also mentioned during the hearing of the appeal and we make comments about it in this judgement.

In an appeal to the Supreme Court s 6 (1) of the Supreme Court Act allows fresh evidence to be called.

" (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

(b) ....." (our emphasis)

For Section 6 (1) (a) to apply the Court must be satisfied that the evidence sought to be adduced is "fresh evidence" and that the "justice of the case warrants it" to be adduced. This Court, in John Peng v The State (supra) pp 333-334, determined what "fresh evidence" is and it is not our intention to traverse the matter.

In John Peng v The State (supra) this Court, in an unanimous decision said of s 8 at p 337 as follows:

"Whatever power as previously spelt out of the present s 8 (then s 15) combined with s 28 (then s 33) to permit the Old Full Court to receive fresh evidence, it would appear that s 8 now occupies the role of a machinery provision for the purpose, inter alia, of implementing the powers granted under s 6."

In the later case of Ted Abiari v The State (supra) the Court was divided — Kapi DCJ and Los J on one side and Amet J on the other. The majority view was as follows:

Kapi DCJ:

"This passage (i.e. page 9) insofar as it relates to the application of s 8 is obiter dicter as the Supreme Court was only concerned with the application of s 6 of the Supreme Court Act (Ch No 37). With respect, s 8 of the Supreme Court Act (Ch No 37) is not a machinery provision for purposes of s 6 of the Act but is a grant of power quite separate from s 6 of the Act."

Los J:

"It is my view that s 8 of the Supreme Court Act suggests other evidence not necessarily fresh evidence may be taken if the Court "thinks it necessary or expedient in the interest of justice to do so". I note in John Peng's case at p 337, it is said that s 8 provides machinery for implementing the powers granted under s 6. I think that is true only to an extent. A closer reading of the sections indicate to me that each section grants independent discretionary powers: the powers under s 8 are not necessarily limited to receiving of the evidence qualified under s 6 as fresh evidence."

With respect to the Deputy Chief Justice and Los J both failed in their judgement to consider the introductory words of s 8, which are underlined hereunder:

"8. Supplemental Powers of Supreme Court

(1) For the purposes of this Act, the Supreme Court may, if it thinks it necessary or expedient in the interests of justice to do so:

(a) order the production of any document, exhibit or other thing connected with the proceedings the production of which appears to it necessary for the determination of the case; and

(b) order any persons who would have been compellable witnesses at the trial...