Papua New Guinea Law Reports - 1983
[1983] PNGLR 10
SC260
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
BUSINA TABE
V
THE STATE
Waigani
Kaputin Gajewicz McDermott JJ
1 October 1982
29 October 1982
APPEAL - Evidence - “Fresh evidence” - Principles for allowing - Evidence available - Counsel not presenting or explaining evidence - Material irregularity - Justice of case - Supreme Court Act (Ch. No. 37), s. 6(1)(a).
Under the Supreme Court Act (Ch. No. 37), s. 6(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 s. 6(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.
Cases Cited
Green v. The King (1938) 61 C.L.R. 167.
Neap, James v. The State (Unreported Supreme Court judgment No. SC228 dated 4 May 1982).
Peng, John v. The State [1982] P.N.G.L.R. 331.
Perry & Harvey (1909) 2 Cr. App. R. 89.
Ratten v. The Queen (1974) 131 C.L.R. 510.
Salih, Lattimore & Leighton (1976) 62 Cr. App. R. 53.
Ward, Edward Donald (1981) 3 A. Crim. R. 171.
Appeal
This was an appeal against conviction and sentence on a charge of stealing.
Counsel
E. I. M. Nwokolo, for the appellant.
K. Bona, for the respondent.
Cur. adv. vult.
29 October 1982
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 P.N.G. Banking Corporation and/or the Mendi Local Government Council.
On the preliminary application counsel for the appellant sought to adduce “fresh evidence” under s. 6(1)(a) of the Supreme Court Act (Ch. No. 37). 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 recognized 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 K4500 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 K4949.17 made up of the K4500, 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 ‘P.B.’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 best of my knowledge and belief.”
This evidence is also supported by other evidence. If the evidence were before the National Court at the time, it would have given a different picture to the trial judge’s findings. Section 6(1)(a) has been discussed in a number of recent Supreme Court cases — James Neap v. The State (Unreported Supreme Court judgment No. SC 228 dated 3 May 1982) and John Peng v. The State [1982] P.N.G.L.R. 331, and the principles in relation to the admissibility of fresh evidence have been well canvassed therein.
But the new material in question is not fresh evidence at all. It was in existence at the time of the trial and both the prosecutor and the defence counsel knew about it. The defence counsel could have adduced it with little effort, yet he did nothing about it for reasons known only to himself. As to the other argument, that even though the material was in existence at the trial, nevertheless, it should be admitted as fresh evidence on the basis of defence counsel’s incompetence, because if it were not allowed a miscarriage of justice will occur.
I hesitate to take the view that incompetency of counsel can be advanced as a ground for allowing new material which was known to exist at the trial to be admitted. It is a very serious matter as far as the legal profession is concerned. It affects the credibility of counsel and may lead to allegations of professional misconduct, and naturally, will have to be proved as a fact. The counsel at the trial may have to seek to defend himself on this preliminary issue. It would be wrong for the court to make a conclusive finding of incompetency just from the result of the trial. The court would not know whether there was error and whether the counsel had misjudged the situation according to his instructions. In order for the court to establish these things, it will have to inquire into what instructions he had, what his knowledge of the law was, and how and why he approached the trial as he did. These are necessary to establish whether or not he had handled the case competently to the best of his professional skills and ability. The process may bring into the open as matters of disputable facts before the court, the entire aspects of what amount to professionalism and thus throws it into disarray. The privilege of solicitor and client particularly will become a farce because every time the court hears a case of incompetency, the matters covered by such privilege, would inevitably be dragged into the court for debate. I do not think it is wise for the court readily to allow that to happen. Incompetency which may amount to professional misconduct should very well be dealt with as is usually the case by the profession itself, and the accused in this case may very well sue the defence counsel for professional negligence. So for this court to decide on the issue now would be pre-empting the decision of a court in which a proper claim of professional negligence may be filed and properly proved.
In this case there is one thing which is clear and this is that both counsel knew that the evidence now in question existed at the time of the trial but none of them did anything about it. And we simply do not know what the defence lawyer’s judgment and approach at the trial was. He might have elected not to call the evidence, and deliberately decided to set up a particular defence. Under the circumstances of this case one should therefore take heed of the caution expressed by Latham C.J in Green v. The King (1938) 61 C.L.R. 167 at 175, 176. After outlining the general principles in regard to the ground of discovery of fresh evidence the Chief Justice has this to say:
“But those principles are not in themselves directly applicable in the Court of Criminal Appeal. They are applicable, not as independent rules, but as related to the subject of miscarriage of justice. They should not, particularly in the Court of Criminal Appeal, be regarded as absolute or hard and fast rules. The relevant proposition in that jurisdiction is that (in Victoria, though not in England) a new trial may be granted if the court thinks ‘that on any ground there was a miscarriage of justice’ (Crimes Act 1928, s. 594(1)). In considering whether there has been a miscarriage of justice the court should consider all the circumstances of the case. If, for example, there being no elements of fraud, mistake or surprise, an accused person has, by himself or by his legal advisers, deliberately decided to set up a particular defence, he cannot complain as of a miscarriage of justice for the sole reason that, that defence having failed, he comes to the conclusion, or a court comes to the conclusion, that he might succeed if he set up another defence. Thus, if an accused person deliberately chooses to abstain from calling evidence which is available to him, it cannot be said that the course of justice has miscarried for the sole reason that it cannot be asserted with certainty that the result would have been the same if such evidence had been given. There is no miscarriage in such a case. Thus the rules as to the availability of alleged fresh evidence and the weight of that evidence must enter into a consideration of the propriety of granting a new trial in a criminal case. These rules, as stated in the reasons for judgment of the Court of Criminal Appeal in this case, are based upon important principles of public policy. There is grave risk of impeding the administration of justice if new trials are readily granted upon the ground of discovery of fresh evidence. If persons who become subject to the processes of the law were allowed to try again because they had chosen not to use evidence which was available or which with reasonable diligence could have been discovered by them, legal proceedings would tend to become interminable and grave injustice would, in practice, result in many cases.”
These words are quite pertinent to this application.
However, I will of course allow the material in question on the basis that an irregularity in the conduct of the trial has occurred. I find that the irregularity has occurred where the prosecution has failed to some extent in carrying out its duties as I will later explain, and where at the same time although the defence counsel may have conducted the trial according to his instructions, but for some reasons there would be some aspects of it that could not be attributable to him, which would have led, for instance, to material evidence not being called as in the present case. At the trial the material in question, more favourable to the defence, was not called by either of them.
In my view both the prosecutor and the defence counsel at a trial are officials of the court in a sense that while they press their respective cases to the best of their professional ability, they must do so according to law to arrive at justice. And it is a milestone in law in democratic societies that the prosecution bears the burden of proof on the question of guilt or otherwise of an accused man on trial from beginning to end. And that the accused person remains innocent until proven guilty or otherwise. It is not the accused’s duty to prove his innocence.
Now, as far as the prosecution is concerned, it is a fundamental principle as I see it, that all conceivable material pertaining to the case and at the disposal of the prosecution must be called in evidence before the court. At the trial the prosecutor also knew about the existence of the material concerned and it was at his disposal to call evidence on it, but he did nothing about it. The duties of the prosecutor especially are to present all the known relevant facts surrounding the case to the court, whether or not they are favourable to the prosecution. The prosecutor is not there to beat the defendant and secure a conviction at any cost. Of course it is his duty to press the case to obtain the conviction of a guilty person but not by undue means such as leaving out evidence that may be favourable to the accused’s case as in this case. It should not unduly press its case for the conviction of a person who may be innocent and perhaps not professionally represented or represented by someone less able than him. In this case the material may have been left out through mere inadvertence by the prosecution. This I do not know. But whether it was deliberate or by inadvertence it matters not.
However if the prosecution had not been aware of the existence of this material and it would therefore not have been at his disposal, he would not as I see it, be bound by law to produce it or call it. This means that I would not readily have allowed the material to be admitted because the appellant (defence) could have been caught, under the principles enunciated by Latham C.J in Green’s case (supra). However, it is my opinion that the conduct of the prosecution and that of the defence have amounted to what I have come to conclude as a material irregularity, finding that a miscarriage of justice has occurred. It is on the basis of the irregularity therefore that I would allow the material to be admitted on appeal, because such irregularity has led to a miscarriage of justice.
The application to introduce fresh evidence and the appeal itself were heard together. On the whole where the Supreme Court has a reasonable doubt about the verdict which makes it wonder whether an injustice has been done, the verdict must be quashed without more. This has been the case with the appeal before us. It is for that reason that the verdict should be set aside on the ground that it is unsafe or unsatisfactory to stand.
But the appropriate orders to make under the circumstances would be to allow the appeal, quash the conviction and order a new trial.
GAJEWICZ J:  I had the advantage of reading the draft of the reasons for judgment of McDermott J For the reasons which he states I agree that the appeal should be allowed, the verdict set aside and a new trial ordered.
MCDERMOTT J:  The accused was indicted... “that he on the fourth day of January 1980 stole K4500 the property of the Papua New Guinea Banking Corporation and or the Mendi Local Government Council.”
The accused was the Senior Council Executive Officer of the Mendi Local Government Council. The bank was its bankers.
As the evidence was presented at the trial, attention was focused on what occurred on 4 January 1980, and a later “cover up” on 11 August 1980.
The Council operates two accounts — a general and a reserve fund. The second cannot be operated without Council’s resolution and approval of the Provincial Local Government Officer. Exhibit “C” is the Papua New Guinea Banking Corporation withdrawal form for the reserve fund account passbook. Exhibit “X” is the Council’s general account deposit book used on 4 January 1980. Exhibit “D” is the auditor’s report which includes the banking done on 4 January 1980. These exhibits indicate that K4949.17 cash was then deposited, being money previously receipted into Council’s revenue shown in O/R 11816 - 11897 and 11899 - 11950 as written on exhibit “X”. The auditor indicated a shortfall of K7500 in this banking.
On the same day, 4 January 1980, K4500 was withdrawn from the Reserve Fund Account. The audit inspection done by witness Knights in August 1980 revealed the use of this account on that day, without recourse to laid down procedures. The withdrawn money was not officially received into Council revenue by way of official receipt (O/R) nor was the subsequent payment into the general account noted. The auditor could not trace it.
The later “cover up” came about as follows:
An inspection of the reserve account passbook by witness Taylor, (it was also seen by Knights after his audit) revealed a withdrawal of K4500 on 4/1/80 and a later deposit of this sum, the same day. A closer inspection showed the deposit date had been changed from the actual date of 11/8/80. The funds for this deposit were withdrawn from the general account evidenced by vouchers, exhibit “A”, composed of false items enabling the withdrawal and rebanking to be done. The suspicion generated by these discoveries led to the charging of the accused.
Apart from what he said in his record of interview and in the lower court, the accused elected not to give or call evidence.
Defence counsel in address said:
“Dishonesty in the vouchers and overwriting in the passbook was to cover up a breach of accounting procedure rather than a theft. What really occurred was a cross transfer of money from one account to another.”
He obviously relied upon his clients statements, see record of interview Q. 15, Q. 43, and Q. 58 together with the lower court statement, in part, as follows:
“On the above date (4 January 1980), I did took out K4500 from the Council reserve fund, probably the same day or next day, this money was deposited in the Mendi Local Government Council general account.... I can admit that I have put this money into Council’s general account to make the balance of the Council’s general account look good.”
His statement was consistent with the record of interview.
The trial judge concluded:
“The accused thus did three false and/or dishonest things:
(a)      he withdrew K4500 from the reserve account without authority.
(b)      he prepared two false vouchers, and
(c)      he falsified the date of the deposit.”
His conclusion on the K4500 withdrawal was put thus:
“The problem of the accused is not simply no receipt — but that no record can be found of this sum having been banked in the general fund nor is there any record of it in any of the Council books. The Auditor found no trace of it.”
It is easy to see how the trial judge reached this conclusion in the face of the auditors report and exhibits, there being only self serving statements of the accused in reply.
The present problem is that evidence in support of the accused’s statements exists and could have been called at the trial with a little effort. It is clear to me defence counsel knew of and understood the nature of the defence which his client raised, yet he did nothing to adduce it in anyway, for reasons known only to himself.
Curiously enough, this defence evidence is contained in exhibit “X” in the form of a sum, which totals the amount corresponding to the amount of the “notes” banked.
The prosecutor must have been aware of this addition, it is prominent. He did not explain it and the trial judge rightly assumed it was an irrelevancy: That, it is not.
The “fresh” evidence is that of the bank teller, Thomas Tua, who did this sum and wrote it on the deposit slip. The “K4500 P/B” which he wrote means that this is the sum debited to the passbook (P/B) account and deposited in the general account as part of the “notes” sum of K4910. There is also further supporting evidence of two clerks.
Thus, the whole complexion of the case is immediately changed. It is obvious that K4500 (and more) was missing before 4 January 1980, and this was dishonestly covered by the accused and he continued to so cover the underbanking until 11 August 1980.
Can and should this fresh evidence be admitted now? Section 6(1)(a) of the Supreme Court Act was recently discussed in James Neap v. The State (Unreported Supreme Court judgment No. SC228 dated 3 May 1982) and John Peng v. The State [1982] P.N.G.L.R. 331. Admissibility was summarized in Peng’s case at 337:
“If a party can show that the evidence is fresh in the accepted judicial interpretation, that is relevant, credible, admissible according to the rules of evidence and by it a reasonable man would be given cause to doubt, then a proper case exists where the court can exercise its discretion to admit it.”
In my opinion, the new evidence is not encompassed by this summary, whilst it appears relevant, credible, admissible and causes a doubt, it is just not “fresh”.
It was submitted that it is admissible now, simply because of the way counsel conducted the accused’s case. Dr Nwokolo has forcefully submitted that in the interests of justice, the court exercise its discretion and referred to Lattimore Salih & Leighton (1976) 62 Cr. App. R. 53 where the following from Perry & Harvey (1909) 2 Cr. App. R. 89 was approved:
“... this Court ought not to consider itself bound by any hard and fast rule never to allow further evidence to be called when the fact that it was not called was due to the mistaken conduct of the case... If it was plainly made out that justice required it, I think this Court would interfere.”
I note Barwick C.J’s view in Ratten v. The Queen (1974-75) 131 C.L.R. 510 at 520 and cited by this Court in Peng’s case (supra at 337) is similar:
“To sum up, if the new material, whether or not it is fresh evidence, convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty would not be allowed to stand, the verdict will be quashed without more.”
On the other hand, Mr Bona cited Green v. The King (1938) 61 C.L.R. 167 at 175 where Latham C.J said:
“If, for example, there being no elements of fraud, mistake or surprise an accused person has, by himself or by his legal advisors, deliberately decided to set up a particular defence, he cannot complain as of a miscarriage of justice for the sole reason that, that defence having failed, he comes to the conclusion, or a court comes to the conclusion, that he might succeed if he set up another defence. Thus if an accused person deliberately chooses to abstain from calling evidence which is available to him, it cannot be said that the course of justice has miscarried for the sole reason that it cannot be asserted with certainty that the result would have been the same if such evidence had been given.”
Counsel also referred to Edward Donald Ward (1981) 3 A. Crim. R. 171. At the trial of that accused, counsel did not claim legal professional privilege of medical evidence adduced by a Crown witness. It was prejudicial and damaged the accused’s defence of diminished responsibility. A conviction resulted. At 189, Moffitt P. (dissenting) discussed the implications raised by counsel’s conduct of the case:
“... a question might be asked whether in principle it is open to an appellate court to intervene and if so whether it should do so and quash the conviction on the basis that there has been a miscarriage of justice resulting from the error or incompetence of counsel for the accused.”
Whilst not deciding, but assuming such an approach was open in principle, he concluded that the senior experienced counsel in the case elected to let the trial proceed as it did. He added:
“Even if contrary to what I have said, counsel did misjudge the situation, it should be said the concepts in this country in relation to unwise or even incompetent decisions of counsel differ somewhat from those in the United States, based on due process as applied to the conduct of counsel.
... Even if there may be exceptional cases where an appellate court should find there has been a miscarriage of justice by reason of an unwise decision of the counsel for the accused, the present is certainly not such a case.”
Whilst Mr Bona sees the present case as one of “election” by counsel, I do not hold that view. Both prosecution and defence counsel in the present case are by no means senior. The entire conduct of the case has left a man convicted of a theft of a particular amount on a particular day. A serious doubt has been raised on both these findings. This doubt has been raised by “fresh” evidence, and I use that term advisedly. The court has been asked to resolve this doubt and should do so.
I am mindful of the cautions (1) of Latham C.J, in Green’s case (supra) at 175:
“These rules [relating to admission of fresh evidence]... are based upon important principles of public policy. There is grave risk of impeding the administration of justice if new trials are readily granted upon the ground of discovery of fresh evidence. If persons who become subject to the processes of the law are allowed to try again because they had chosen not to use evidence which was available or which with reasonable diligence could have been discovered by them, legal proceedings would tend to become interminable and grave injustice would, in practice, result in many cases.”
and (2) of Pratt J, in James Neap v. The Independent State of Papua New Guinea (supra):
“All the information which is now being sought to be adduced as fresh evidence was in existence and there for the asking before the time of taking of evidence on the commission and the trial. In all the circumstances, any compliance by this Court with the appellant’s request might well be construed as an invitation to the profession generally to slacken their efforts to mount a properly prepared case at the original hearing. I would not wish to encourage such a view because it was thought that a losing party could rely on obtaining a rehearing from the Supreme Court.”
Nevertheless, the tenor of the authorities and legislation Supreme Court Act ss 6 and 28 and the Constitution s. 158(2), in my opinion allow for the reception of the fresh evidence in this particular instance. I would admit it.
However, this is not the end of the appeal. The accused is clearly implicated in the Council’s loss. There is ample evidence to support the trial judge’s finding that the accused “did three false and/or dishonest things”. The new evidence shows that there was Council money missing prior to 4 January 1980, and the Council had become a regular milch cow for many. The accused was a senior council officer and appears to have played a role in the Council losses, either as a principal or as an accessory.
In my view, there is only one course consistent with justice in the interests of the community and of the accused and that is to order a new trial.
I would therefore allow the appeal, quash the conviction and order a new trial.
Appeal allowed.
Conviction quashed.
New trial ordered.
Lawyers[i]1 for the appellant: Dr Nwokolo & Co.
Lawyer[ii]2 for the respondent: Public Prosecutor.

[i]See Note at p.ix.
[ii]See Note at p.ix.