Ted Abiari v The State (No 1)

• Jurisdiction: Papua New Guinea
• Judge: Los J:
• Judgment Date: 15 June 1990
• Citation: [1990] PNGLR 250
• Court: Supreme Court
• Year: 1990
• Judgement Number: SC389

Supreme Court: Kapi DCJ, Amet J, Los J

Judgment Delivered: 15 June 1990

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ABIARI

V

THE STATE

Waigani

Kapi DCJ Amet Los JJ

2 March 1990

15 June 1990

APPEAL — Evidence — "Fresh evidence" — Where justice of case warrants -Must be admissible, relevant and cogent — Supreme Court Act (Ch No 37), s 6 (1) (a).

APPEAL — Evidence — Additional evidence — Not "fresh evidence" — Power to allow — Where necessary or expedient in interests of justice — Separate head of power — Supreme Court Act (Ch No 37), s 8.

The Supreme Court Act (Ch No 37), s 6 (1) (a), provides that an appeal to the Supreme Court shall be by way of rehearing on the evidence give in the court below "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".

The Supreme Court Act, s 8, provides:

" (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" — inter alia, order the examination of any persons who would have been compellable witnesses at the trial, whether or not they were called at the trial and receive the evidence, if tendered, of any competent witness.

Held

(1) For the purposes of the Supreme Court Act, s 6 (1) (a), "fresh evidence" means:

(a) evidence that has become available since the hearing or trial;

(b) evidence that has come to the knowledge of the party applying since the hearing or trial and which could not by reasonable means have come to his knowledge before that time.

Johnson v Johnson [1900] P 19 at 21 and R v Medical Appeal Tribunal (North Midland Region); Ex parte Hubble [1959] 2 QB 408 at 422, 424, applied.

Busina Tabe v The State [1983] PNGLR 10 and John Peng v The State [1982] PNGLR 331, considered.

(2) Where evidence is "fresh evidence" so defined, it must also be relevant, credible, admissible according to the rules of evidence and by it a reasonable man would be given cause to doubt before the Supreme Court might exercise the discretion to allow it "where it is satisfied that the justice of the case warrants it".

John Peng v The State [1982] PNGLR 331 at 337, followed.

(3) (Amet J dissenting) Where evidence sought to be adduced on appeal is not "fresh evidence", the Supreme Court has power nonetheless, under the Supreme Court Act, s 8, to admit such evidence "if it thinks it necessary or expedient in the interests of justice to do so". What is necessary or expedient in the interests of justice must be determined within the facts of each particular case.

Perry and Harvey (1909) 2 Cr App R 89 at 92 and Lattimore Salih and Leighton (1976) 62 Cr App R 53 at 55, adopted and applied.

Dicta in John Peng v The State [1982] PNGLR 331 at 337, disapproved.

(4) (Amet J dissenting) Evidence which was not "fresh evidence" but which alleged a conspiracy as to the evidence to be given on a murder trial, should be allowed on appeal against conviction pursuant to the Supreme Court Act (Ch No 37), s 8 (1) (b).

Cases Cited

Bank of England v Vagliano Brothers [1891] AC 107.

Brennan v The King (1936) 55 CLR 253.

Busina Tabe v The State [1983] PNGLR 10.

Government of Papua New Guinea and Davis v Barker [1977] PNGLR 386.

Green v The King (1938) 61 CLR 167.

Johnson v Johnson [1900] P 19.

Ladd v Marshall [1954] 1 WLR 1489; [1954] 3 All ER 745.

Neap v Independent State of Papua New Guinea (Supreme Court, SC 228, 3 May 1982, unreported).

Parao Tunboro v Motor Vehicles Insurance (PNG) Trust [1984] PNGLR 272.

Peng v The State [1982] PNGLR 331.

R v Hare [1910] 29 NZLR 641.

R v Home Secretary; Ex parte Momin Ali [1984] 1 WLR 663.

R v Lattimore Salih and Leighton (1976) 62 Cr App R 53.

R v Martyr [1962] Qd R 398.

R v Medical Appeal Tribunal (North Midland Region); Ex parte Hubble [1959] 2 QB 408.

R v Perry and Harvey (1909) 2 Cr App R 89.

R v Robinson [1917] 2 KB 108.

R v Thomas (1959) 43 Cr App R 210.

R v Williams (1964) Crim LR 90.

Raphael Warakau v The State (Supreme Court, No SC184, 3 November 1980, unreported).

Ratten v The Queen (1974) 131 CLR 510.

Straits Contracting (PNG) Pty Ltd v Branfill Investment Ltd [1988] PNGLR 239.

Sutcliffe v Pressdram Ltd [1990] 2 WLR 271; [1990] 1 All ER 269.

Ward v The Queen [1972] WAR 36.

Appeal — Application

This was a preliminary application in an appeal against conviction of murder, to be permitted to call evidence not adduced at the trial.

Counsel

G Langtry, for the appellant.

S L Soi, for the respondent.

Cur adv vult

15 June 1990

KAPI DCJ: This is an appeal from a decision of the National Court against a conviction of murder. At the hearing of the appeal, counsel for the appellant sought to adduce fresh evidence under the provisions of the appellant sought to adduce fresh evidence under the provisions of the Supreme Court Act (Ch No 37). The Court heard submissions from both parties on the question of the nature of the fresh evidence and has reserved its decision on this matter before dealing with the merits of the appeal.

It is said that the principles relating to admissibility of fresh evidence on appeal are well settled in the reported cases commencing with the case of Government of Papua New Guinea and Davis v Barker [1977] 386; Raphael Warakau v The State (Supreme Court, No SC184, 3 November 1980, unreported), James Neap v PNG (Supreme Court, No SC228, 3 May 1982, unreported), John Peng v The State [1982] PNGLR 331 and Busina Tabe v The State [1983] PNGLR 10.

Adducement of fresh evidence on appeal in this jurisdiction is governed by s 6 (1) (a) of the Supreme Court Act (Ch No 37):

"6. Appeal to be by way of rehearing

(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 ..."

An examination of the Government of Papua New Guinea and Davis v Barker, Raphael Warakau v The State, and James Neap v PNG reveal that they adopted principles of the common law. These cases fell into error in this regard. The discretion of the Court in admitting fresh evidence is now governed by s 6 (1) (a) of the Supreme Court Act (Ch No 37) and not the common law. The scope of discretion granted by other provisions of the Act such as s 8 is exceptionally wider than the common law. I will return to this matter later.

The exercise of discretion under s 6 (1) (a) of the Supreme Court Act (Ch No 37) was considered in the case of John Peng v The State. Before going to the terms of this provision, I wish to make some general remarks. The principles of common law cannot be readily introduced into the interpretation of the provisions of a statute. In Bank of England v Vagliano Brothers [1891] AC 107 at 145, Lord Herschell, in dealing with the Bills of Exchange Act 1882 (Eng) said:

"I think the proper cause is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with enquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.

If a statute, intended to embody in a code a particular branch of the law, if to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, by roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions, dependent upon the knowledge of the exact effect even of an absolute proceeding such as a demurrer to evidence. I am of course far from asserting that resort may never be had to the previous state of the law for the purpose of aiding in the construction of the provisions of the Code. If, for example, a provision be of doubtful input, such resort would be perfectly legitimate. Or, again, if in the code of the law of negotiable instruments words e found which previously acquired a technical meaning, or being used in a sense other than their ordinary one, in relation to such instruments, the same interpretation might well be put upon them in the Code. I give these as examples merely, they, of course, do not exhaust the category. What, however, I am venturing to insist upon is, that the first step taken should be to interpret the language of the statute, and that an appeal to earlier decisions can only be justified on some special ground."

See also Brennan v The King (1936) 55 CLR 253, R v Hare [1910] 29 NZLR...