Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329

• Jurisdiction: Papua New Guinea
• Citation: [1986] PNGLR 329
• Date: 30 October 1986
• Court: Supreme Court
• Year: 1986

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

1 Criminal law—practice and procedure—proceedings in absence of defendants—implied consent—behaviour of counsel—bias of magistrate

2 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, s37(5).

3 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, s37(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) S37(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 s37(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.

Kavali v Hoihoi [1984] PNGLR 182, R v Jones (No 2) [1972] 1 WLR 887; 2 All ER 731; 56 Cr App R 413 and Rakatani Peter v South Pacific Brewery Ltd [1976] PNGLR 537 referred to

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.

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Kidu CJ:

The appellant, Sir Thomas Kavali, was convicted of an offence under s6(1) of the Liquor (Miscellaneous Provisions) Act (Ch313) 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 s131(b) of the District Courts Act.

2. That the learned judge was wrong in law in finding that s37(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...