[1997] PNGLR 699

PAPUA NEW GUINEA

[supreme court of justice]

CHARLES BOUGAPA OMBUSU

v

THE STATE

waigani: amet, cj; kapi, dcj; los, injia, sawong, jj
17 April, 17 June 1996

Criminal Law - Appeal - New trial - When retrial should be ordered - Relevant factors – Interest of justice.

Practice & Procedure - Procedural irregularity in conduct of trial by court of first instance – Retrial ordered – Appeal against retrial – Relevant factors – Interest of justice on guilt or innocence.

Facts

The appellant was previously convicted and appealed to the Supreme Court and the case was remitted for re-trial at the National Court. He now appeals against the retrial.

Held

1.	The interest of justice requires that the case be retried in the National Court in order to determine the guilt or otherwise.

2.	That two separate indictments, that of rape and wilful murder be prepared and the Public Prosecutor to elect on which indictment to proceed with first.

Papua New Guinea cases cited

Boateng v The State [1990] PNGLR 343.
Damane v The State [1991] PNGLR 244.
Davinga v The State [1995] PNGLR 263.
Kiso v Angela Manumanua [1981] PNGLR 507.
Laku v The State [1981] PNGLR 350.
Tuguin v Michael Gotaha [1984] PNGLR 137.

Counsel

D S Koeget, for the appellant.
P Mogish, for the respondent.

17 June 1996

By the court. The court has already held that the joint trial of the charge of the wilful murder with that of rape was irregular and occasioned a miscarriage of justice. The court consequently upheld the appeal, quashed the convictions for rape and wilful murder against the appellant and set aside the sentences that were imposed for those charges in Davinga v The State [1995] PNGLR 263. The convictions and sentences were quashed and set aside on the basis that the trial judge had made procedural errors in the conduct of the trial. We did not consider the grounds of appeal against conviction.

The issue before us is whether the charges for rape and wilful murder should now be remitted to the National Court for a new trial.

The history and the circumstances giving rise to the quashing of the convictions and the setting aside of the sentences that were imposed are sufficiently set out in our earlier decision. We do not consider it necessary to repeat them here.

The powers of the Supreme Court to order a new trial is set out in the Supreme Court Act (Ch 37). The relevant sections are ss. 16 and 28.

Section 16 reads:

"16.	Decision, etc., on Appeal.

On the hearing of the Appeal, the Supreme Court, shall enquire into the matter and may -

(a)	adjourn the hearing from time to time; or

(b)	affirm, reverse or modify the judgements; or

(c)	give such judgement which ought to be given in the first instance; or

(d)	remit the case in whole or in part for further hearing; or

(e)	order a new trial."

Section 28 reads:

"28.	New trial -

(1)	If the Supreme Court thinks that -

(a)	a miscarriage of justice has occurred; and

(b)	having regard to all the circumstances, the miscarriage of justice can be more adequately remedied by an order for a new trial rather than by any other order that the Court has power to make, the Court may, of it’s own motion or on the application of the appellant, order a new trial in such manner as it thinks proper.

(2)	Where a new trial is ordered, the Supreme Court make such order as it thinks proper for the safe custody of the appellant or for admitting him to bail."

These sections provide that a new trial may be ordered where the Supreme Court considers that a miscarriage of justice has occurred, and that "having regard to all the circumstances, the miscarriage of justice can be more adequately remedied by an order for a new trial rather than by any other order the Court is empowered to make…".

It is also quite clear that whether a new trial is ordered or not is a matter for the court’s discretion. In our view, it is not possible for the court to lay down any general propositions to govern each class of case.

Counsel for the appellant has submitted that the charges against the accused should not be remitted to the National Court for retrial. The gist of his submission was that the wide publicity the case has attracted is likely to prejudice the conduct of the appellant’s new trial. Consequently the matter should not be remitted to the National Court for a new trial and the appellant should be discharged.

The Public Prosecutor has submitted in essence that the convictions were quashed on the basis that there had been a procedural irregularity in the conduct of the trial. Consequently, he submitted, this court, in the exercise of its discretion, should order a new trial.

Mr Mogish submitted that, whether the court in the exercise of its discretion orders a new trial or not depends upon a number of factors, which may be relevant. He relied on Oscar Tuguin v Michael Gotaha [1984] PNGLR 137. The facts of the case are quite different from the facts of the present case. 

In that case, in the proceedings for assault against a police officer, the depositions in a previous proceedings containing admissions were tendered to the magistrate who admitted them into evidence under the Evidence Act. Bredmeyer, J. allowed the appeal and having allowed the appeal considered whether the matter should be remitted for retrial or not. His Honour adopted and applied the guidelines set out by the Privy Council in Reid v The Queen [1979] 2 All ER 904. These matters are carefully considered and set out in the judgement of Bredmeyer, J in Oscar Tuguin v Michael Gotaha (supra). They are that, in determining whether or not a retrial should be ordered, the following matters (inter-alia) may be relevant:

(a)	The public interest in bringing to justice those guilty of serious crimes and ensuring that they do not escape because of technical blunders by the trial judge in the conduct of the trial;

(b)	the expense and inconvenience to witnesses who would be involved in a new trial when weighed against the strength of the evidence;

(c)	The seriousness and prevalence of the particular offence;

(d)	the consideration that the criminal trial is an ordeal which the defendant ought not to be condemned to undergo for a second time through no fault of his own unless the interests of justice require that he should do so;

(e)	the length of time elapsing between the offence and the new trial if ordered; and

(f)	the strength and availability of the evidence.

With respect, we endorse and adopt his Honour’s observations. The list is not exhaustive.

It is quite clearly established in this jurisdiction that where a trial judge has erred procedurally or has made procedural irregularities in the conduct of a trial, the appellate court has ordered that a new trial be conducted. See Epeli Dawinga v The State [1995] PNGLR 263; Gabriel Laku v The State [1981] PNGLR 350; Dinge Damane v The State [1991] PNGLR 244; Madeline Kiso v Angela Manumanua [1981] PNGLR 507.

We accept Mr Mogish’s submission that because there has been no determination of the issue of appellant’s guilt or innocence, the interest of the justice requires, that a retrial must follow to determine this issue.

We consider the following circumstances are relevant and apply to this case, warranting a retrial:

(a)	The public interest in bringing the accused to justice, by a full trial.

(b)	The seriousness and prevalence of the offences of rape and wilful murder.

(c)	Though a criminal trial is an ordeal, which the accused ought not to be condemned to undergo for a second time through no fault of his own, the interests of justice require that he should do so.

(d)	The strength and availability of the evidence.

The special environment in the country at the present time in relation to the administration of criminal justice is a circumstance that compels a retrial. There is general concern in the community over apparent increase in incidences of serious crimes such as rape, robbery and unlawful killing.

Consequently in all circumstances and for the reasons that we have given, we make the following orders:

1.	The matter be remitted to the National Court for re-trial.

2.	The Prosecutor elect on which of the two separate indictments he would proceed with first.

3.	The appellant be transferred to Biru Corrective Institution and remain in custody awaiting his trial.

4.	The appellant reserves his right to apply for bail.

Lawyers for appellant: Public Solicitor.
Lawyer for the respondent: Public Prosecutor.