Steven Isaac Awoda v The State [1984] PNGLR 165

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Pratt J, Bredmeyer J
• Judgment Date: 28 June 1984
• Court: Supreme Court
• Judgement Number: SC271

Full Title: Steven Isaac Awoda v The State [1984] PNGLR 165

Supreme Court: Kapi DCJ, Pratt J, Bredmeyer J

Judgment Delivered: 28 June 1984

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

AWODA

V

THE STATE

Waigani

Kapi DCJ Pratt Bredmeyer JJ

26 March 1984

28 June 1984

CRIMINAL LAW — Practice and procedure — Disclosure of defence — Trial judge may not order — Trial judge may request.

CRIMINAL LAW — Evidence — Inadmissible evidence — Objections to — Duty of counsel — Duty of trial judge.

CRIMINAL LAW — Evidence — Cross-examination on — Duties of counsel.

APPEAL — Miscarriage of justice — Ground of rejection of inadmissible evidence — No objection by counsel — A relevant consideration — Ultimate test substantial miscarriage of justice.

Held

(1) In criminal proceedings the trial judge may request but cannot order counsel to disclose his defence.

(2) On appeal against conviction for a criminal offence on the ground of reception of inadmissible evidence, failure to object to the admissibility of the evidence at the proper time, either by design or accident, is a circumstance, but not a conclusive one, to be taken into consideration in determining whether there has been a substantial miscarriage of justice.

R. v. Branscombe (1921) 21 S.R. (N.S.W.) 363 at 390; Stirland v. D.P.P. [1944] A.C. 315 at 327 and Teper v. The Queen [1952] 2 All E.R. 447 at 451, considered.

Discussion of the overall duty of the trial judge to ensure the reception of admissible evidence.

Discussion of the duty of counsel to object to the reception of inadmissible evidence.

Discussion of the duties of counsel in relation to cross-examination with reference to the rule in Browne v. Dunn.

Cases Cited

Browne v. Dunn (1894) 6 R. 67, H.L.

R. v. Benson (1909) 3 Cr. App. R. 70.

R. v. Branscombe (1921) 21 S.R. (N.S.W.) 363.

R. v. Davis and Ridley (1909) 2 Cr. App. R. 133.

R. v. Ellis [1910] K.B. 746.

R. v. Gibson (1887) 18 Q.B.D. 537.

R. v. Hart (1932) 23 Cr. App. R. 202.

R. v. Sanders [1919] 1 K.B. 550.

R. v. Wattam (1941) 28 Cr. App. R. 80.

State, The v. Ogadi Minjipa [1977] P.N.G.L.R. 293.

Stirland v. D.P.P. [1944] A.C. 315.

Teper v. The Queen [1952] A.C. 480; 2 All E.R. 447.

Appeal

This was an appeal against conviction on a charge of murder.

Counsel

N. Kirriwom, for the appellant.

L. Gavara-Nanu, for the respondent.

Cur. adv. vult.

28 June 1984

KAPI DCJ PRATT BREDMEYER JJ: The appellant was charged that on 26 April 1981 he murdered a man Nime Makam. The accused was a policeman and the deceased was a suspect for attempted rape. The appellant was convicted after a trial before Kaputin J. and sentenced to three years imprisonment with hard labour. He was represented at the trial by an experienced counsel Mr I. Glasgow. The appellant appeals against conviction only.

The first ground of appeal relates to something which happened at the beginning of the trial. After the opening by the State Prosecutor the following exchange occurred.

" (His Honour to Glasgow). I think it is quite proper for court to ask defence as for indications as to what their defences would be. (Mr Glasgow). The defence will not do that. It is up to State to prove this case. What authority has your Honour got to ask the defence to disclose their defences?

(His Honour). I've no authority. In any case I am my own authority. I am ordering you now to disclose your defences and if my ruling is wrong, you can take matter up to the Supreme Court. We are not here for head-hunting. (Mr Glasgow). Defences are now disclosed under protest. Defence denied that accused assaulted deceased. Not denied that he was at area at some stage. Not instructed to make any admission. Not raising self-defence or provocation. Only that he did not take part in the assault.

(His Honour). Well, those are as far as I was asking you to do. I was not asking the defence to make admissions to all the elements of the charge."

We consider that the learned trial judge erred in ordering defence counsel to disclose his defence. We know of no authority or practice in Papua New Guinea or elsewhere which allows a trial judge to do that. But in our view it was an error which did not in the circumstances of this case confer any advantage on the prosecutor nor did it disadvantage the defence counsel in his conduct of the defence. The error did not in our view produce any actual miscarriage of justice and, by itself, would not enable this appeal to succeed.

We consider that it is permissible for a trial judge to ask defence counsel certain questions about the case, for example, will the medical report be challenged? Will the record of interview be challenged? And even, what will be your defence or defences? The answers to those questions can be helpful to a trial judge. They can give a judge a better idea of the anticipated length of a trial and enable him to plan his work accordingly. They can lead to a more expeditious trial. For example, if, in a trial for dangerous driving causing death, defence counsel says that he will not contest the fact that the accused was the driver, that the accident occurred, and that the victim died, the prosecutor can lead his witnesses on these matters more fully than he would otherwise have done. If the defence counsel is inexperienced, and the trial judge knows what the defence is, for example provocation, he can remind the defence counsel to cross-examine State witnesses on that issue. The trial judge may wish to assist an ineperienced defence counsel in that way in the interests of ensuring a fair trial.

Some judges ask such questions of defence counsel at a prior call-over or conference. Others may do it during or just after the opening by the State Prosecutor. Other judges may not ask those questions at all. As has been stated, the answers to such questions can be helpful to the judge. But two points should be stressed. Defence counsel cannot be forced or ordered to answer those questions. He can only be asked. Secondly, defence counsel is not bound by his answers. He may say for example that he is running the defence of provocation but that statement does not preclude him calling evidence on some other defence, nor from exploiting some other weakness in the State case, such as lack of intent or lack of identification, which may emerge in the course of the trial. A defence counsel is entitled not only to run a positive defence, such as provocation or accident but also to test other aspects of the State case. Flexibility and latitude to the defence must be allowed. An apparently strong State case can suddenl weaken if a key witness is not called, or does not come up to proof, and defence counsel is entitled to exploit that weakness irrespective of what he might have said to the trial judge before the start of evidence. In this case the learned trial judge was not wrong in asking, but erred in ordering, defence counsel to disclose his defence.

The second ground of appeal is expressed in the following terms:

"The evidence in relation to the identification of the body of the deceased is so insufficient that no reasonable tribunal of fact could find that the body examined by the doctor was the same body named in the indictment."

The third ground alleging that it is unsafe and unsatisfactory to uphold the conviction is really a repetition of the first and second grounds.

There is an initial difficulty faced by learned counsel for the appellant stemming from the way the defence was conducted at the trial. No one knew the name of the victim as set forth in the indictment until after the man had died, but his name did appear on the top of the post mortem report which was received in evidence during the trial without any objection by counsel for the accused. This counsel was experienced, and one would not readily assume he had not observed the name of the deceased typed at the top of the post mortem report. Further, evidence was also given on oath by the doctor who carried out the post mortem examination that the deceased was identified to him as the person whose name he placed at the head of the report. No cross-examination was made of any of the medical evidence. Thus:

(a) the hearsay evidence as to the name of the deceased as given to the doctor by an alleged relative was neither objected to nor cross-examined.

(b) the failure to cross-examine, gave no indication that the defence was in any way taking exception to the date appearing on the post-mortem report as 26 April and not 27 April.

The doctor's evidence however, made it clear that he carried out one post-mortem examination on 27 April. The body upon which this post-mortem examination was performed had arrived at the hospital in a "fully unconscious condition" at about 11.00 p.m. and was there received by a male nurse, Singh Moses, who immediately sought and obtained the assistance of Dr Seta in view of the patient's condition. Dr Seta there and then proclaimed life extinct but there was no person who could advise him of the identity of the body. Consequently, he...