John Peng v The State [1982] PNGLR 331

• Jurisdiction: Papua New Guinea
• Citation: [1982] PNGLR 331
• Date: 28 July 1982
• Court: Supreme Court
• Year: 1982

Full Title: John Peng v The State [1982] PNGLR 331

Supreme Court: Kidu CJ, Pratt J, McDermott J

Judgment Delivered: 28 July 1982 and 6 September 1982

1 Criminal law—evidence—fresh evidence—statement made to police by appellant shortly after conviction—different to evidence given on trial—respondent seeks introduction on appeal—principles governing discussed

2 Criminal law—evidence—circumstantial evidence—appeal Court draws inferences different to trial judge—missing link fatal to conviction

3 CRIMINAL LAW—Appeal—Evidence—"Fresh evidence"—What constitutes—Supreme Court Act 1975, s6(1)(a).

4 APPEAL—Evidence—"Fresh evidence"—What constitutes—Supreme Court Act 1975, s6(1)(a).

On an appeal to the Supreme Court, the Court may, under the Supreme Court Act 1975, s6(1)(a):

"allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it".

Held:

"Fresh evidence" for the purpose of s6(1)(a) is new evidence that is relevant, credible, admissible according to the rules of evidence and of such a character that combined with the evidence already given at the trial the result in the minds of reasonable men ought to be affected.

Craig v R (1933) 49 CLR 429, James Neap v The State (1982) SC228, Johnson v Johnson [1900] P 19; 69 LJP 13, Lawless v R (1979) 142 CLR 659; 53 ALJR 733, The Government of Papua New Guinea and Davis v Barker [1977] PNGLR 386, R v Aldrich [1962] Crim LR 541, R v Ditch (1969) 53 Cr App R 627, R v Flower and Ors (1966) 50 Cr App R 22, R v Lattimore and Ors (1976) 62 Cr App R 53, R v Liosatos [1964] SASR 40, R v McDermott (No 1) (1947) 47 SR (NSW) 379, Ross v R [1922] VLR 329, R v Medical Appeal Tribunal (North Midland Region) [1959] 2 QB 408, R v Parks (1962) 46 Cr App R 29, R v Robinson [1917] 2 KB 108, R v Sichel (1913) 13 SR (NSW) 259, R v Thomas (1959) 43 Cr App R 210, R v Williams (1964) Crim LR 90, Raphael Warakau v The State (1980) SC184, Ratten v R (1974) 131 CLR 510, Reen and Lintott (1909) 2 Cr App R 310, and Ross v R [1922] VLR 329 referred to

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28 July 1982

By the Court: The appellant appeals against his conviction of the wilful murder of a policeman. The trial evidence was circumstantial. The accused, an escapee from lawful custody, was at a dance place when the police arrived to arrest him. He fought them, called upon his clan for help and in the ensuing melee escaped with others. Sometime later a policeman was found dead not far from this scene in circumstances indicating he had been killed. Some women later came by and were told by one of four men that there was a drunk man. One of these four has also been convicted of the murder of this policeman. Next day the accused was arrested. He was wearing a T–shirt stained with blood of the same group as the deceased. He denied wearing this garment on the night of the murder.

Counsel for the State seeks to introduce new evidence—a statement made by the accused to the investigating officer after the trial in which the murderer is named and thus putting the accused at the scene. This is contrary to his defence.

This evidence, if admitted, is clearly of importance.

Mr Byrne simply relies upon s6(1)(a) of the Supreme Court Act 1975, which reads:

"s6. 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; . . . ".

Counsel neither advanced argument nor relied upon authority which could assist...