Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Woods J, Barnett J
• Judgment Date: 30 October 1986
• Citation: [1986] PNGLR 329
• Court: Supreme Court
• Year: 1986
• Judgement Number: SC321

Full Title: Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329

Supreme Court: Kidu CJ, Woods J, Barnett J

Judgment Delivered: 9 or 30 October 1986

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THOMAS KAVALI

V

THOMAS HOIHOI

Waigani

Kidu CJ Woods Barnett JJ

30 September 1986

30 October 1986

CRIMINAL LAW — Practice and procedure — Hearing in presence of accused — Constitutional right to — Scope of — "Except with his own consent" — When consent "waived" — When consent may be implied — Constitution, s 37 (5).

APPEAL — Bias as ground for — Need for real likelihood or reasonable suspicion — Magistrate closing mind to possible defences where proceedings in absence of accused.

The Constitution, s 37 (5), provides that:

"Except with his own consent, the trial shall not take place in his absence unless he conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to removed and the trial to proceed in his absence...."

Held

(1) Section 37 (5) of the Constitution entrenches the right of the person charged with an offence to be present at his trial. As it is the duty of the courts zealously to guard the rights entrenched in the Constitution, the courts must ensure, before such a right is denied, that the circumstances of the particular person come within the exceptions (if any) specifically outlined in the Constitution.

(2) The right guaranteed by s 37 (5) of the Constitution to be waived by the person charged requires special circumstances from which the court must be satisfied that the person charged elects to be absent, and absents himself through caprice, malice or for the purposes of embarrassing the trial.

R v Jones (No 2) (1972) 56 Cr App R 413 at 428, 433, followed.

Decision of Bredmeyer J in Kavali v Hoihoi [1984] PNGLR 182, reversed.

(4) The "consent" to trial in the absence of the person charged must be the consent of that person and may be conveyed to the court on the proper instructions of that person.

(5) "Consent" to trial in the absence of the person charged may only be implied, where, in the absence of direct consent, there is some good reason, deriving from particular and unambiguous circumstances, upon which the court can base a decision to imply consent: mere failure to appear cannot found implied consent.

Held Further

(6) A conviction is open to review on the ground of bias only where there is a real likelihood of bias or a reasonable suspicion of bias.

Decision of Bredmeyer J in Kavali v Hoihoi [1984] PNGLR 182, affirmed on this ground.

(7) In the circumstances, there was a real likelihood of bias where in relation to a charged of drinking liquor in a moving vehicle, the magistrate not only erred in proceeding to hear and determine the proceedings in the absence of the person charged but then closed his mind to any evidence which the person charged might have been able to bring if he had sought to do so.

Decision of Bredmeyer J in Kavali v Hoihoi [1984] PNGLR 182, reversed.

Cases Cited

Kavali v Hoihoi [1984] PNGLR 182.

R v Jones (No 2) [1972] 1 WLR 887; 2 All ER 731; 56 Cr App R 413.

Reference No 1 of 1976, In re; Rakatani Peter v South Pacific Brewery Ltd [1976] PNGLR 537.

Appeal

This was an appeal from a decision of Bredmeyer J on appeal from a Local Court magistrate, namely, Kavali v Hoihoi [1984] PNGLR 182.

Counsel

J Steele and B Sasu, for the appellant.

M Unagui, for the respondent.

Cur adv vult

October 1986

KIDU CJ: The appellant, Sir Thomas Kavali, was convicted of an offence under s 6 (1) of the Liquor (Miscellaneous Provisions) Act (Ch No 313) by the District Court and sentenced to three weeks imprisonment with hard labour on 6 July 1982. He appealed to the National Court which disallowed his appeal. His appeal to this Court is based on the following grounds:

"1. That the learned judge was wrong in law in finding that the trial was properly held ex parte and that a warrant for the arrest of the defendant should not have issued in accordance with s 131 (b) of the District Courts Act.

2. That the learned judge was wrong in law in finding that s 37 (5) of the Constitution allows for:

(a) An ex parte hearing without the consent of the defendant; and

(b) Implied consent to an ex parte hearing.

3. That the learned judge was wrong in law in finding that the defendant impliedly consented to the trial taking place in his absence by his failure to attend the hearing on 6 June 1982.

4. That the learned judge was wrong in law in finding that the defendant had 'absconded' during the trial.

5. That the learned judge was wrong in law in finding that the magistrate's statement revealed bias yet concluded that there was no real likelihood or reasonable suspicion that the magistrate convicted the defendant because of that bias."

The offence allegedly occurred on 1 February 1982 and the charge was laid on 2 February 1982 (against the appellant and a Mr Theodore Banda). When both defendants were arraigned on 17 February 1982 they pleaded not guilty and were represented by Mr John Gawi, a lawyer. On this day the police called two witnesses (Thomas Hoihoi and Livinai Kenaia) who were examined and cross-examined at length. The case was then adjourned to 19 February 1982.

When the court resumed on 19 February 1982 the two defendants were present but their lawyer, Mr Gawi, was not and at their request the case was adjourned to 24 February 1982 at 9.30 am to enable Mr Gawi to be present.

At 9.30 am on 24 February 1982 the court resumed but once again Mr Gawi was not present. So the case was adjourned to 10.00 am and when the case resumed at 10.00 am Mr Gawi was present. He was then, quite rightly, asked to apologise for being late.

Mr Gawi did apologise but then went on and attacked the court and police prosecutors. Although the magistrate accepted Mr Gawi's apology for turning up late he was upset by Mr Gawi's uncalled for attack on the court and the prosecutors. And in my view the magistrate was quite correct in then adjourning the case to 26 February 1982 and barring Mr Gawi from further appearance in his court.

On 26 February 1982 the court convened again and although the defendants were present they had no lawyer to further represent them. The police then closed their case and Mr Banda made a no-case submission on his behalf and that of the appellant. The case was then adjourned to 3 March 1982. On 3 March 1982 the magistrate ruled that Mr Banda had no case to answer but the appellant had. The appellant then asked that the case be adjourned to the first week of July 1982 to enable him to find a lawyer and prepare himself for the 1982 National Elections. In his reasons for decision the magistrate states:

"The reason the case was adjourned on 3 March 1982 to 6 July 1982 was on the grounds [sic] that Mr Kavali was to prepare himself for the National Elections."

The District Court records show that the police had no objections to the adjournment. When the court resumed on 6 July 1982 at 9.30 am the appellant was not present. So it was stood over to 9.45 am. There was still no appearance by the appellant at 9.45 am. The prosecution then applied for the appellant's bail to be withdrawn and an arrest warrant issued, both very reasonable requests. But the magistrate thought otherwise. He said the following when he ruled that the case should proceed in the absence of the appellant:

"This case has been on from 2.3.82. There has [sic] been many adjournments, more of the adjournments were at the requests by the defence. The last adjournment was accepted on the grounds that the defendant wanted time to do his campaigning for the National Election. Now that the Election is over there is not [sic] reasons available to this Court in respect of Mr Kavali's absence. All through the proceedings of this case the prosecution has been very helpful. This Court further considers too that if any adjournment is granted it would not be of the best of doing justice. Mr Kavali was allowed ample time to complete his electoral duties and be present today. This Court considers that it would be for the best interests for those concerned that this Court proceed without the presence of Mr Kavali."

After this ruling the case proceeded, the prosecutor closed his case and read his written submissions. There was no judgment delivered. The court record merely shows the following:

"Upon prosecution evidence Mr Kavali is found guilty."

The first three grounds of appeal were argued together. They are based on s 37 (5) of the Constitution, which reads as follows:

"Except with his own consent, the trial shall not take place in his absence unless he conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence, but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment, (except in default of payment of a fine), to...