John Peng v The State [1982] PNGLR 331

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Pratt J, McDermott J
• Judgment Date: 28 July 1982
• Citation: [1982] PNGLR 331
• Court: Supreme Court
• Year: 1982
• Judgement Number: SC233

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

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

JOHN PENG

V

THE STATE

Waigani

Kidu CJ Pratt McDermott JJ

28-29 June 1982

28-30 July 1982

2 August 1982

6 September 1982

CRIMINAL LAW — Appeal — Evidence — "Fresh evidence" — What constitutes — Supreme Court Act 1975, s. 6 (1) (a).

APPEAL — Evidence — "Fresh evidence" — What constitutes — Supreme Court Act 1975, s. 6 (1) (a).

On an appeal to the Supreme Court, the Court may, under the Supreme Court Act 1975, s. 6 (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 s. 6 (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.

Cases Cited

Craig v. The King (1933) 49 C.L.R. 429.

James Neap v. The State (Unreported Supreme Court judgment No. SC228, dated 3rd May, 1982).

Johnson v. Johnson [1900] P. 19; 69 L.J.P. 13.

Lawless v. The Queen (1979) 142 C.L.R. 659; 53 A.L.J.R. 733.

Papua New Guinea, The Government of, and Davis v. Barker [1977] P.N.G.L.R. 386.

R. v. Aldrich [1962] Crim. L.R. 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] S.A.S.R. 40.

R. v. McDermott (No. 1) (1947) 47 S.R. (N.S.W.) 379.Ross v. The King [1922] V.L.R. 329.

R. v. Medical Appeal Tribunal (North Midland Region) [1959] 2 Q.B. 408.

R. v. Parks (1962) 46 Cr. App. R. 29.

R. v. Robinson [1917] 2 K.B. 108.

R. v. Sichel (1913) 13 S.R. (N.S.W.) 259.

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

R. v. Williams (1964) Crim. L.R. 90.

Raphael Warakau v. The State (Unreported Supreme Court judgment No. SC184, dated 3rd November, 1980).

Ratten v. The Queen (1974) 131 C.L.R. 510.

Reen and Lintott (1909) 2 Cr. App. R. 310.

Ross v. The King [1922] V.L.R. 329.

Appeal

This was an appeal against conviction on a charge of wilful murder on which the State sought to introduce new evidence.

Counsel

I. Nwokolo, for the appellant.

J. Byrne, for the State.

Cur. adv. vult.

28 July 1982

KIDU CJ PRATT MCDERMOTT JJ: 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 mêlée scaped 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 s. 6 (1) (a) of the Supreme Court Act 1975, which reads:

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 this Court in its interpretation. The issue is important. We have had to research the matter. This is not the primary function of a court. Assistance from the Bar table is essential to the proper administration of the law.

Section 8 also has some relevance to the approach of appeal courts in other jurisdictions.

8. SUPPLEMENTAL POWERS OF SUPREME COURT

(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:

(a) order the production of any document, exhibit or other things connected with the proceedings the production of which appears to it necessary for the determination of the case; and

(b) order any persons who would have been compellable witnesses at the trial to attend and be examined before the court, whether or not they were called at the trial, or order any such person to be examined on oath before —

(i) a judge of the National Court; or

(ii) an officer of the Supreme Court; or

(iii) a magistrate of a court of summary jurisdiction; or

(iv) any other person appointed by the court for the purpose, and may admit as evidence any deposition so taken; and

(c) receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not compellable witness, and, if the appellant consents, of the husband or wife of the appellant in cases where the evidence of the husband or wife could not have been given at the trial except with that consent; and

(d) where any question arising on the appeal involves prolonged examination of documents of accounts or any scientific or local investigation that cannot, in the opinion of the court, conveniently be conducted before the court — order the reference of the question for inquiry and report, in accordance with Part IV., by a referee appointed by the court and act on the report of the referee so far as it thinks fit to adopt it; and

(e) exercise in relation to the proceedings of the court any other powers that may for the time being be exercised by the National Court on appeals or applications; and

(f) issue any warrants necessary for enforcing the orders or sentences of the court.

(2) The Supreme Court shall not increase a sentence in a criminal proceeding by reason of, or in consideration of, any evidence given under sub-section (1).

The Shorter Oxford Dictionary gives similar definitions of "fresh" and "new". Clearly the evidence was not available at the trial, it came into existence afterwards. The meaning of "fresh evidence" has been judicially considered in the English cases dealing with s. 7 and s. 8 of the Summary Jurisdiction (Married Women) Act 1895 (U.K.) where these words form part of s. 7.

In Johnson v. Johnson [1900] P. 19, the President (Sir F. H. Jeune) said:

"It means practically the same sort of evidence as that upon which a new trial would, in the ordinary course, be granted: it must relate to something which has happened since the former hearing or trial, or it must be evidence which has come to the knowledge of the party applying since that hearing or trial, and which could not by reasonable means have come to his knowledge before that time."

This view has been applied in numerous later cases.

The words "fresh evidence" also appear in s. 40 of the National Insurance (Industrial Injuries) Act 1953 (U.K.). In R. v. Medical Appeal Tribunal (North Midland Region) [1959] 2 Q.B. 408, Morris L.J. said of these words, at pp. 422-433:

"If a term with a legal meaning is employed, it is reasonable to consider that the term is employed with its accepted meaning. ... 'Fresh evidence', it seems to me, must have the quality of newness, or the feature of having become newly available and obtainable."

After considering Johnson's case he said at p. 424:

"The definition adopted by the medical appeal tribunal was this: fresh evidence means some evidence which the claimant was unable to produce before the decision was given, or which he could not reasonably be expected to have produced in the circumstances of the case. In my...