[1971-72] PNGLR 222

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

REGINA

V

P.M.

Port Moresby
Minogue CJ Clarkson Prentice JJ

29-30 June 1971
1 July 1971

PRACTICE - Full Court - Jurisdiction - Reference under s. 30[ccliv]1 of the Full Court (Supreme Court) Ordinance 1968.

CRIMINAL LAW - Practice and procedure - Jurisdiction of Full Court - Reference under s. 30[cclv]2 of the Full Court (Supreme Court) Ordinance 1968.

On the proper construction of s. 30 of the Supreme Court (Full Court) Ordinance in its context and as a matter of the practice or policy to be adopted in the exercise of the discretion conferred on it by that section, the Full Court should generally decline to answer questions unless they are specific questions of criminal law raised at the trial and which, being decided by the trial judge adversely to the Crown, might if otherwise decided have led to a different result at the trial.

The practice of the Full Court of the Supreme Court of New South Wales in this regard as set out in Young v. Campbell (1949), 49 S.R. (N.S.W.) 103, Re Van Der Lubbe (1949), 49 S.R. (N.S.W.) 309, R. v. Diakakis (1953), 53 S.R. (N.S.W.) 15, R. v. S. (1953), 53 S.R. (N.S.W.) 460, R. v. Davy (1964-5), N.S.W.R. 40, R. v. A. and B. (1953), 70 W.N. (N.S.W.) 90, considered.

The accused was indicted on counts of unlawfully doing grievous bodily harm, unlawful assault doing bodily harm, and unlawful wounding.

The trial judge, after having refused to act on medical evidence before him and upon the statement of and the cross-examination of the accused at the committal proceedings, acquitted the accused of the first count, convicted him of the second and returned no verdict on the third.

At the request of the Crown Prosecutor, with the Secretary for Law consenting, the trial judge referred four questions to the Full Court for decision under the provisions of s. 30 of the Supreme Court (Full Court) Ordinance 1968.

Held

By the Court, that the Full Court should decline to answer any of the four questions contained in the reference.

Reference to Full Court

The facts and particulars of the questions referred to the Full Court are sufficiently contained in the reasons for judgment.

Counsel

Laucis, for the appellant
Lalor (with him Stevenson), for the respondent.

1 July 1971

MINOGUE CJ CLARKSON PRENTICE JJ:  This is a reference to this Court of four questions by Frost S.P.J. arising out of the trial of one P.M. at Wewak in February last, made at the request of the prosecutor and with the consent of the Secretary for Law by virtue of s. 30 of the Supreme Court (Full Court) Ordinance 1968.

P.M. stood trial before Frost S.P.J. on charges of (a) unlawfully doing grievous bodily harm, (b) unlawful assault doing bodily harm and (c) unlawful wounding.

On 21st November, 1970, at Wewak, Prentice J. had made an order on notice of motion by the Crown, purportedly under s. 4(1)(c) of the Evidence by Affidavit Ordinance No. 37 of 1969, that the evidence of a medical witness be taken before him as examiner. Prentice J. expressed some doubt as to the procedure but defence counsel not objecting the order was made and the evidence taken. Depositions of evidence so taken on 24th November, 1970, pursuant to that order were tendered without objection and admitted at the trial before Frost S.P.J. Also at the trial His Honour admitted depositions of evidence-in-chief given by the accused at the committal proceedings but rejected the subsequent cross-examination of the accused therein. In his judgment His Honour stated:

"Now it will be noticed that I have not and I do not act on the two pieces of evidence which I have admitted. One is the statement made by the defendant to the Court below and I have not referred to the evidence taken before Mr. Justice Prentice . . . I propose to take the case as far as I can in favour of the accused man and have regard to the evidence only which was given before me."

His Honour proceeded to convict the accused of unlawful assault doing bodily harm and acquit him of the charge of unlawfully doing grievous bodily harm. He returned no verdict on the third count.

The evidence of the medical witness could have been relevant on the issue of the most serious charge--unlawfully doing grievous bodily harm. But neither the sworn evidence of the accused in the committal which was received but not "acted on", nor the rejected depositions of the cross-examination of him, could have gone to this issue.

At the request of the Crown Prosecutor, and the Secretary for Law consenting, the trial judge referred to this Court the following questions:

"1.      Did I err in law in excluding from consideration the evidence of Dr. Buddee tendered by the Crown and received in evidence at the trial?

2.       Did I err in law in failing to convict the accused of doing grievous bodily harm?

3.       Did I err in law in excluding from consideration the evidence given by the accused at the committal proceedings in the District Court under the provisions of s. 103 of the District Courts Ordinance and proved by the Crown and received in evidence at the trial under the provisions of s. 104 of the said trial?

4.       Did I err in law in refusing to admit in evidence under the provisions of s. 103 of the District Courts Ordinance the District Court record duly authenticated of the evidence given by the accused under cross-examination consequent upon the giving of evidence-in-chief by the accused at the committal proceedings on the ground that ss. 103 and 104 of the said Ordinance whilst they had application to that part of the evidence given by the accused in chief had no application to that part of the evidence given in consequence by the accused under cross-examination?"

We were informed that these questions prepared by the Crown Prosecutor were not referred to the Public Solicitor before submission to the trial judge who may well have thought they had been. In our view a procedure akin to that on a case stated should have been followed and the form of the questions discussed and if possible agreed before submission to the trial judge.

Before considering these questions we turn to an examination of s. 30 of the Supreme Court (Full Court) Ordinance 1968. This section occurs in Pt. III Div. 3 of the Ordinance which is headed "Additional Provisions Relating to Appeals in Criminal Cases". The section occurs between s. 29 which gives the Secretary for Law the right of appeal as to sentence and s. 31 which gives a similar right of appeal against a judgment quashing a charge or any count or part of a charge.

Section 30 provides in effect that where a person is tried and acquitted and the prosecutor so requests, the Supreme Court shall refer for decision by the Full Court any question of law arising at or in connection with the trial and that the Full Court may determine that question. The determination does not in any way affect or invalidate any verdict or decision given at the trial.

The origin of the section appears to be certain provisions in the Criminal Appeals Act 1912-51 of New South Wales.

This is the first time that an application under s. 30 has been made and there is therefore from this jurisdiction no guidance on the proper construction of the section nor on the circumstances in which the Full Court should exercise the discretion conferred on it by the provision.

There are however a number of helpful decisions on similar provisions in New South Wales. In Young v. Campbell[cclvi]3 it was held in relation to a reference under s. 5b of the Criminal Appeals Act as it then stood that if the matter were a purely civil one and involved no criminal element then the section did not apply. In Re Van Der Lubbe[cclvii]4 the practice to be followed in proceedings under s. 5b of the New South Wales Act was considered. This section referred to the submission by the Chairman of Quarter Sessions to the Court of Criminal Appeal for determination any question of law arising on an appeal to a Court of Quarter Sessions. Jordan C.J. at p. 312 said: "In the first place, the only matters of law proper to be submitted are such as are suggested to invalidate the conviction if wrongly decided by the learned Chairman, not matters, however interesting or important, which are not involved in the correctness of the particular conviction. Next, the particular matter or matters of law as to which it is desired to have determined questions whether the Chairman's decisions thereon were erroneous should be specifically stated. It is not proper to ask whether, as a matter of law, the Chairman, on the facts found by him, was entitled to find the appellant guilty of the offence charged, leaving the Court of Criminal Appeal to grope through the case stated and try to discover for itself what are the specific questions of law involved."

In R. v. Diakakis[cclviii]5 Jordan C.J. referring to s. 5a(2) of the New South Wales Act, the equivalent of our s. 30, said that under the section there was a clear right given to the Crown to come to the Court of Criminal Appeal in certain circumstances notwithstanding the acquittal to have a point of law determined "which, if it had been properly decided at the trial, might have resulted in the conviction of the accused person."

In R. v. S.[cclix]6 where the same section was again considered Street C.J. for the Court said he was satisfied that there was no right in the Crown to refer questions relating to decisions of the trial judge given in favour of the Crown. The jurisdiction conferred was he said a corrective jurisdiction and that it was never intended that the authority of the Court of Criminal Appeal should be used merely for the purpose of fortifying in favour of the Crown a decision on a point of law on which the Crown had succeeded in the Court below. The same view was taken in relation to questions which had not been determined by the trial judge. ". . . this Court is only entitled to entertain and determine questions of law which in fact arose at the trial and were determined by the trial judge adversely to the Crown . . ." See also R. v. Davy[cclx]7.

In R. v. A and B[cclxi]8 the same Court pointed out that the application under the New South Wales s. 5a(2) was required to be made by "counsel who was at the trial and who recognized the point as necessarily arising in the decision given by the judge".

The Courts have always been reluctant to answer academic questions. Their experience shows that it is usually undesirable to attempt a formulation of the law except in relation to the issues necessary to be resolved in order to determine the particular case before it. This is especially true of matters as in the present case relating to the admissibility of evidence which may fall to be determined on the manner in which either party conducts his own case or attacks that of the other party, the time at which the evidence is tendered or the exercise of a discretion by the trial judge.

Furthermore it must be remembered that while a question referred under s. 30 may be academic in the sense that it has no effect on the verdict already given in those proceedings it might be of more than academic interest to the accused who faces further similar proceedings or to other persons against whom similar proceedings are pending. Although this is technically not an appeal, the section contemplates the exercise of a corrective jurisdiction by an appellate court and considerations which apply to appeals are not therefore wholly irrelevant.

There seem to be good reasons why this Court should have regard to the experience of the Court of Criminal Appeal in New South Wales gained in administering the provisions on which s. 30 is based.

The view we adopt is that on the proper construction of s. 30 in its context and as a matter of the practice or policy to be adopted in the exercise of the discretion conferred on it by that section this Court should generally decline to answer questions unless they are specific questions of criminal law raised at the trial and which being decided by the trial judge adversely to the Crown might if otherwise decided have led to a different result at the trial.

The Public Solicitor has taken a number of preliminary objections. As to questions 1 and 3, he maintains they raise not questions of law but of fact, and as to question 2 it is not a specific question of law. In addition two further matters arose in the course of argument; firstly that the evidence of the surgeon, Dr. Buddee, was strictly inadmissible and, secondly, that the matters raised in questions 3 and 4 could have had no effect on the decision.

Approaching this reference in the manner suggested by what we have already said we have concluded that we should decline to answer any of the questions.

We do not think we should answer the first question because it was formulated on the assumption that the evidence was properly admissible and in our view that assumption was not correct because it was not obtained in accordance with s. 4 of the Evidence by Affidavit Ordinance.

The second question contains the vice commented on in Re Van Der Lubbe[cclxii]9 that it is not specific and amounts in effect to a request to this Court to attempt to discover what are the specific questions involved.

The third and fourth questions relate to matters which clearly had no effect on the decision. The trial judge expressly rejected the accused's evidence where it conflicted with that of the prosecutor and the evidence referred to did not touch the only live issue left in the trial, namely the nature or extent of the bodily harm.

For these reasons we decline to answer any of the four questions contained in the reference.

Order: That none of the questions contained in the reference shall be answered.

Solicitor for the Crown: P. J. Clay, Crown Solicitor.
Solicitor for P.M.: W. A. Lalor, Public Solicitor.

[ccliv]Infra, at p. 225.
[cclv]Infra, at p. 225.
[cclvi](1949) 49 SR. (N.S.W.) 103.
[cclvii](1949) 49 SR. (N.S.W.) 309.
[cclviii](1953) 53 SR. (N.S.W.) 15, at p. 18.
[cclix](1953) 53 SR. (N.S.W.) 460.
[cclx](1964-5) NSWR. 40, at p. 51.
[cclxi](1953) 70 WN. (N.S.W.) 90.
[cclxii](1949) 49 SR. (N.S.W.) 309.