Busina Tabe v The State [1983] PNGLR 10

• Jurisdiction: Papua New Guinea
• Citation: [1983] PNGLR 10
• Date: 29 October 1982
• Court: Supreme Court
• Year: 1983

Full Title: Busina Tabe v The State [1983] PNGLR 10

Supreme Court: Kaputin J, Gajewicz J, McDermott J

Judgment Delivered: 29 October 1982 or 29 October 1983

1 Criminal law—evidence—fresh evidence adduced on appeal—principles for allowing of fresh evidence—conduct of counsel at trial in not presenting or explaining evidence considered

2 APPEAL—Evidence—"Fresh evidence"—Principles for allowing—Evidence available—Counsel not presenting or explaining evidence—Material irregularity—Justice of case—Supreme Court Act (Ch37), s6(1)(a).

Under the Supreme Court Act (Ch37), s6(1)(a), the Supreme Court may admit fresh evidence on an appeal thereto "where it is satisfied that the justice of the case warrants it".

Evidence sought to be admitted on an appeal was not fresh evidence within the meaning of s6(1)(a) but was in existence at the time of trial and was known to and available to both the prosecutor and the defence but was (without explanation) not used by either: the nature of the evidence was such that a serious doubt was raised.

Held:

The evidence should be admitted:

(a) (By Kaputin J): Because the conduct of the prosecution and the defence in not seeking the admission of the evidence on the trial was a material irregularity resulting in a miscarriage of justice;

(b) (By McDermott J with whom Gajewicz J agreed). Because the justice of the case required that it should.

Edward Donald Ward (1981) 3 A Crim R 171, considered.

Green v R (1938) 61 CLR 167, James Neap v The State (1982) SC228, John Peng v The State [1982] PNGLR 331, Perry & Harvey (1909) 2 Cr App R 89, Ratten v R (1974) 131 CLR 510, Salih, Lattimore & Leighton (1976) 62 Cr App R 53, and Edward Donald Ward (1981) 3 A Crim R 171 referred to

Appeal.

This was an appeal against conviction and sentence on a charge of stealing.

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Kaputin J:

The appellant applies for leave to appeal against his conviction and sentence by the trial judge at Mendi. He was convicted of the charge that on 4 January 1980, he stole K4,500 the property of the PNG Banking Corporation and/or the Mendi Local Government Council.

On the preliminary application counsel for the appellant sought to adduce "fresh evidence" under s6(1)(a) of the Supreme Court Act (Ch37). The section reads:

"(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 . . . "

There are two issues involved in this application. The first is whether the material sought to be adduced is to be regarded as fresh evidence within the well recognised principles governing such issue. The other is whether counsel's incompetency can be advanced as a ground for allowing fresh evidence on appeal.

The facts of the case have been canvassed by my brother, McDermott J. The so–called fresh evidence sought to be admitted at this stage is that of a bank teller, Thomas Tua, who processed a deposit slip in relation to the money in question. The evidence was sought through a sworn affidavit which I quote:

"I, Thomas Tua, Bank Teller, of Papua New Guinea Banking Corporation Branch at Mendi Southern Highlands make oath and say as follows:

(1) That I am employed as a Bank Teller in the aforementioned Bank.

(2) That I was so employed on 4 January 1980.

(3) That I know Busina Tabe as a former Senior Executive Officer of the Mendi Local Government Council and Simon Karl as a Clerk employed by the same Council.

(4) That I have been shown and recognise a document marked Exhibit 'X' said to have been received in evidence and so marked by Mr Justice Bredmeyer, as a deposit slip which I processed on 4 January 1980.

(5) That on that day a completed application for the transfer of K4,500 from the Reserve Funds Account, to the Current Account, of the Mendi Local Government Council, was presented to me, at the bank aforesaid by Simon Karl. It was in the form of a withdrawal form signed by the former president of the Mendi Local Government Council, Mr Tubiri Wagep and Mr Busina Tabe, Senior Executive Officer aforesaid, accompanied by a completed deposit slip for a total of K4,949.17 made up of the K4,500, a cheque for K2 and K37.17 in coins.

(6) That on the receipt of the papers and money mentioned in paragraph 5, I made the necessary entries in the books of the bank indicating that K4500 had been debited against the Mendi Local Government Council Reserve Funds Account and that the same Council's Current Account had been credited with the same sum of K4500.

(7) That as far as the transaction that day connected with the sum of K4500 aforesaid was concerned, there was only a book transfer from one account to the other and no handling of cash.

(8) That I recognise the tallying I did on the face of Exhibit 'X' aforesaid and my notation of the initials 'PB'against the sum of K4500. The said initials represent the short form of the words 'Pass Book' and was meant to indicate that the component of the sum of K4500 on the deposit slip was transferred from the Council's Reserve Account Pass Book.

(9) That what I depose to herein of my own knowledge is true and what I depose to on the information of others is true to the...