Rolf Schubert v The State

• Jurisdiction: Papua New Guinea
• Judge: Prentice CJ, Raine DCJ, Andrew J
• Judgment Date: 28 March 1979
• Court: Supreme Court
• Judgement Number: SC145

Supreme Court: Prentice CJ, Raine DCJ, Andrew J

Judgment Delivered: 28 March 1979

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ROLF SCHUBERT

V

THE STATE

Waigani

Prentice CJ Raine DCJ Andrew J

6 March 1979

28 March 1979

EVIDENCE — Swearing and Oaths — Competency — Child of tender years — Manner in which evidence to be taken — Inquiry as to whether understands liability to punishment for false evidence — When inquiry to be made — Oaths, Affirmations and Statutory Declarations Act 1962, ss. 18 and 19Section 19 (1) of the Oaths, Affirmations and Statutory Declarations Act 1962 provides:

Where a person called as a witness in a court or before a justice or other person authorized to administer an oath, whether in a civil or criminal proceeding, appears to the court, justice or person authorized to be incapable of comprehending the nature of an oath or of understanding the meaning of the solemn declaration or affirmation referred to in the last preceding section, the court, justice or person authorized shall, if satisfied that the person called as a witness understands that he will be liable to punishment if his evidence is false, declare in what manner the evidence of that person shall be taken, and when evidence is so taken the same consequences follow as if an oath had been administered in the ordinary manner.1.

APPEAL — Practice and procedure — Leave to add ground of appeal — Out of time — Leave in exceptional circumstances only — Matter for court's discretion — Leave granted.

On appeal against conviction on a charge of unlawfully and indecently dealing with a girl under the age of twelve years, application was made for leave to amend the notice of appeal by adding five new grounds of appeal, the appeal and the application were then adjourned and on the adjourned hearing, one ground of appeal only was pursued namely "that the court did not satisfy itself that the (prosecutrix) was competent to give evidence".

It was not in dispute that the prosecutrix was aged nine or ten, and that when called to give evidence, the trial judge, having observed her, inquired of the prosecutor as to her age. On asking the prosecutor whether she could be sworn or whether she would understand the nature of an oath, he was informed that she either should not be sworn or that she would not understand the nature of an oath. The witness was then affirmed and gave her evidence in pidgin, the trial judge stating in his report pursuant to r. 33 (d) of the Supreme Court Rules 1977:

"I did not embark on any preliminary examination of the witness concerning her capacity for understanding the nature of an oath in view of what Mr. Karczewski told me. Having satisfied myself that she understood what Mr. Turukai had told her in a language she fully understood, I then permitted her to give evidence and from that point closely observed her demeanour and capacity to follow the questions she was being asked."

Held

(1) Leave to amend a notice of appeal where the time limit contained in s. 27 of the Supreme Court Act 1975 has expired, should only be allowed in exceptional circumstances and in the discretion of the court.

(2) In the circumstances including the sudden late change of counsel for the appellant and the broad merits of the point taken, leave to add the new ground of appeal should be granted.

(3) Where it appears that a child is incapable of comprehending the nature of an oath, the manner in which his or her evidence shall be given is laid down by s. 19 of the Oaths, Affirmations and Statutory Declarations Act 1962.

(4) (Per Prentice C.J. and Andrew J.) It is not necessary under s. 19 (1) of the Oaths, Affirmations and Statutory Declarations Act 1962, to inquire whether a witness to whom the section applies, understands that he or she is liable to punishment if he or she gives false evidence before an affirmation is administered; it is the overall effect of the section which is to be complied with.

R. v. Campbell, [1956] 2 Q.B. 432, referred to.

(5) (Per Prentice C.J. and Andrew J.) In the circumstances, the inquiry required by s. 19 of the Act was adequately made in spirit and no miscarriage of justice had occurred.

(6) (Per Raine Dep. C.J.) Section 19 (1) of the Oaths, Affirmations and Statutory Declarations Act 1962, requires that once a court is alerted that a witness may be incapable of comprehending the nature of an oath, it must examine the witness and ensure that the latter clearly understands that he or she can be punished if his or her evidence is false before declaring how the evidence shall be taken.

(7) (Per Raine Dep. C.J.) As no miscarriage of justice resulted from the trial judge's failure to comply strictly with s. 19 (1) of the Oaths, Affirmations and Statutory Declarations Act 1962, the appeal should be dismissed pursuant to s. 22 (2) of the Supreme Court ActSection 22 (2) of the Supreme Court Act 1975 provides: The Supreme Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred.2.

R. v. Surgenor, [1940] 2 All E.R. 249, referred to.

Appeal

This was an appeal against conviction on a charge of unlawfully and indecently dealing with a girl under the age of twelve years.

Counsel

F. McAlary Q.C. and I. R. Molloy, for the appellant.

K. B. Egan, for the State.

Cur. adv. vult.

28 March 1979

PRENTICE CJ ANDREW J: This is an appeal against the conviction of the appellant at the June sittings 1978 of the National Court at Mt. Hagen, for unlawfully and indecently dealing with a girl under the age of twelve years.

The original notice of appeal contained three grounds for appeal and the matter first came on for hearing before this court on 2nd November, 1978. Counsel for the appellant then made application to amend the notice of appeal by adding an additional five grounds. Counsel for the respondent objected to this course on the basis that he was taken by surprise and that in any event he needed further time in which to consider whether or not the court had power to allow the extra grounds to be so added. The hearing of this application and of the appeal was adjourned and taken out of the list generally. Only one ground of appeal is now being pursued, that being one of the proposed fresh grounds. Counsel for the State again objects to this course on the basis that the proposed new ground amounts to a fresh notice of appeal being lodged and that the appellant is now well outside the time limit contained in s. 27 of the Supreme Court Act 1975.

We should like at the outset to voice our disapproval of this growing practice of seeking to add new grounds at the eleventh hour. Any departure from the grounds of appeal stated in the notice of appeal is and will only be allowed in exceptional cases, and such allowance is in the discretion of the court. We think it is also timely to draw attention to the fact that a fresh ground of appeal may well be regarded as being more than an amendment of existing grounds and amount to a new notice of appeal, in which case it will invariably be struck down by s. 27 of the Supreme Court Act 1975.

The proposed ground of appeal is: "That the court did not satisfy itself that the witness Dinah Popondi was competent to give evidence". It appears to us that in the special circumstances of this case where the respondent is not now taken by surprise and where the original adjournment was granted at the request of the respondent, then as no prejudice could be said to have arisen, we propose in the exercise of our discretion, to allow the amendment.

The point of the appeal is whether or not the learned trial judge complied with the provisions of the Oaths, Affirmations and Statutory Declarations Act 1962. It was not in dispute on the trial that the witness Dinah Popondi, who was the prosecutrix, was under the age of twelve. It seemed that she was aged nine or ten. Upon her being called to give...