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Avini and Acosta v The State [1997] PGSC 9; SC523 (15 July 1997)

Unreported Supreme Court Decisions

SC523

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCRA NO 77 OF 1996
JOSHUA YAIP AVINI AND PLARIDEL NONY ACOSTA - Appellants
v
THE STATE - Respondent

Waigani

Kapi DCJ Los J Salika J
19 May 1997
15 July 1997

CRIMINAL LAW - Practice and procedure - Items and documents acknowledged in a record of interview should be admitted as part of the record of interview.

CRIMINAL LAW - Practice and procedure - Where Counsel is not allowed to make a no case submission - the test is whether this irregularity results in miscarriage of justice.

Counsel:

G Shepherd for the appellants

F Kuvi for the respondent

15 July 1997

KAPI DCJ SALIKA J: On 24 October 1996, the State presented an indictment against both appellants on two counts, namely, misappropriation pursuant to s. 383A and conspiracy to defraud pursuant to s. 407 (1) (b) of the Criminal Code. Initially the trial began before Batari AJ. However, he disqualified himself on the basis that he was well acquainted with a key witness in the case.

The trial began again before Jalina J on 4 November 1996. At the hearing, Counsel for the appellants made an application to quash the indictment on the basis that the trial of two counts in the one indictment would be prejudicial to the appellants. The trial judge dismissed the application and the trial continued.

The evidence presented against the appellants included documentary evidence tendered by consent. This included records of interview with the two appellants. The record of interview conducted with the appellant Avini is marked Exhibit “A”. The police conducted several records of interview with the appellant Acosta and they are marked Exhibits “B1”, “B2”, “B3” and “B4”. All these records of interview were admitted on the opening day of the trial on 4 November 1996.

On 5 November 1996, the trial judge directed that all documents referred to in the respective records of interview be admitted as part of the records of interview. Regarding the interview with Avini, the trial judge admitted documents marked “A1” to “A12”. Regarding the interviews with Acosta, documents admitted are marked Exhibit “B5” to “B14”. All of these documents were not tendered at the time of tendering the respective records of interview. It appears that the trial judge must have read the records of interview overnight and examined the documents in the court file and simply determined that these documents should be admitted as part of the respective records of interview. When the trial judge gave the directions to admit these documents, Counsel for the appellants asked the trial judge to note his objection to the manner in which these documents were admitted. The basis of the objection was simply noted “They were simply put to the accused without proof of the veracity”. (see page 26 of the appeal book).

The State then called three other witnesses and closed its case.

At the close of the prosecution case, Counsel for the appellants sought to make a no case submission. The trial judge did not allow Counsel to make such a submission as in his view there was a case to answer. The case was adjourned to enable the appellants to consider what option they should take at the next stage of the trial.

When the case resumed on 7 November 1996, Counsel for the appellants made an application for a mistrial on the basis that the trial judge refused to hear Counsel on the question of a no case submission. The trial judge dismissed this application.

The appellants then exercised their right not to give evidence at the trial.

The trial judge took time to consider his verdict and found the appellants guilty of misappropriation and returned a verdict of not guilty regarding the count of conspiracy to defraud. They were both sentenced to 8 years imprisonment for misappropriation.

The appellants have appealed against their convictions only. Counsel for the appellants attacked the convictions on the grounds that the trial judge made errors in respect of:

(a) a refusal to quash the indictment for improper joinder of counts in the same indictment.

(b) wrongful admission of documents which were referred to by the appellants in their respective records of interview.

(c) failure to hear Counsel for the appellants on a no case submission.

During submissions, Counsel for the appellants abandoned the ground of appeal concerning the question of improper joinder of the counts, as the appellants were acquitted of the offence of conspiracy to defraud. It is therefore not necessary to consider this issue.

Regarding the admission of documents (Exhibits “A1” to “A12” and Exhibits “B5” to “B14”), Counsel for the appellants submitted that the trial judge fell into error in admitting these documents in that there was no evidence to show that the documents were verified as to their veracity.

Counsel for the respondent simply submitted that as a matter of admissibility, all documents that were acknowledged by the appellants in their respective records of interview were part of the records of interview and were correctly admitted into evidence. He submitted that there is enough evidence in the respective records of interview in which the appellants sufficiently identified and acknowledged these documents and therefore they become a necessary part of the records of interview.

We have not been referred to any authority that deals with this issue. We are of the opinion that where an accused person is shown a document and it is sufficiently identified or is acknowledged, that document becomes part of the contents of the record of interview and should be admitted as part of the record of interview. What weight may be given to such documents is a different matter and it is not relevant to the question of admissibility.

As a matter of practice, where a record of interview is admitted by consent, Counsel should also identify any documents or items that are sufficiently identified in the record of interview and those documents or items should be admitted together with the record of interview. In the present case we have to examine each document in question and determine whether the appellants in their respective records of interview sufficiently identified and acknowledged these documents.

Regarding the record of interview with the appellant Avini (Exhibit “A”), the trial judge admitted 12 documents (Exhibits “A1” to “A12”). We will deal with each of them. It is convenient to quote the relevant questions and answers in the record of interview concerning all the 12 documents that have been admitted. The questions themselves sufficiently raise the particulars of each of the documents and the answers given by the appellant:

“Q17. Please have a look at this letter dated 10 February 1993, addressed to the then suspended Morobe Provincial Government. The letter talks about a member of on-going and new proposed Road Projects which were approved for 1993 & 1994 funding. Were you the author of this letter?

A. Yes. (This document is marked Ex. “A1”).

Q18. I produce to you this letter dated 25/2/93 from the Manager of Finchhafen Kabwum Construction Pty Ltd (FKC) which was addressed to you. The contents of this letter was about a number of proposed road projects which you have requested them to provide you a Road Survey Report [sic]. It is understood that this letter was faxed to your office at the National Parliament on that same date, being 25/2/93. Do you have knowledge of this letter?

A. Yes. (This document is marked Ex. “A2”).

...

Q20. I produce to you copy [sic] of the Department of Transport 1993 Rural Transport Development Program Scope of Work Form dated 23/8/93 which gave approval for the funding of the Hapohandong-Makini Road in your electorate for K100,000.00. Did you request for this funding?

A. Yes. (This document is marked Ex. “A3”).

Q21. Subsequently a Cash Fund Certificate No 259-031 dated 6/8/93 was issued for the funding of Hapohandong-Makini Road for K100,000.00 and Merikeo-Zafirio Road for K100,000.00 (produced). The CFC was sent to the Assistant Secretary, Finance & Administration or BMS Lae. Do you have knowledge of this?

A. Yes. (This document is marked Ex. “A4”).

Q22. Now please look at this letter dated 16 August 1993 from A & Z Investment Pty Ltd which was addressed to yourself. This was a quotation for a Caterpillar Grader for K40,000.00 and a Komatsu D850 Bull Dozer for K60,000.00. The letter was signed by Mr Jackson Zozingao as Chairman of the company. Did you request A & Z Investment to give you this quotation?

A. Yes. (This document is marked Ex. “A5”).

Q23. Subsequent to this letter from A & Z Investment you then wrote to the Honourable Titus Philemon, Under Secretary for Finance in your letter (produced) dated 26 august 1993 [sic] in which you requested that Tender be waived and that the K100,000.00 be paid to A & Z Investment Pty Ltd. Did you sign this latter?

A. Yes. (This document is marked Ex. “A6”).

...

Q25. As a result of your letter to the Hon. Titus Philemon, Under Secretary for Finance, he then wrote to the then Administrator of the Department of Morobe. I understand that you send [sic] this fax together with Finance Form 3. Do you wish to comment?

A. Yes. I’m aware of this. (This document is marked Ex. “A7”).

Q26. I produce to you a Fax Message dated 28/10/93 sent to Mr Clant Alok, the then Administrator of the Department of Morobe. I understand that you sent this fax together with Finance Form 3. Do you wish to comment?

A. Yes. I am aware of this. (This document is marked Ex. “A8”).

Q27. I produce to you BMS Lae Ilpoc No S81865 & S81866 both of which were raised and issued in the name of A & Z Investment Pty Ltd for K50,000.00 each. Do you have knowledge of these documents?

A. Yes. (This document is marked Ex. “A9”).

Q28. Subsequent to the issuance of these two Ilpoc, A & Z Investment then send their invoice No 41 to BMS Lae dated 10/11/93. Do you have knowledge of this document?

A. Yes. (This document is marked Ex. “A10”).

Q29. I produce to you a copy of the BMS cheque No 251489 issued in the name of A & Z Investment Pty Ltd dated 15/11/93 in the amount of K100,000.00. Do you have any knowledge of this cheque?

A. Yes. (This document is marked Ex. “A11”).

Q30. My enquiries with BMS Lae revealed that you personally collected this cheque on the 15/11/93 in which you signed on this Cheque Remittance Advice. Do you wish to comment?

A. Yes I collected it.” (This document is marked Ex. “A12”).

It is abundantly clear from these questions and answers that each of the documents were clearly and fairly put to the appellant. He was asked if he knew the document, to acknowledge the document or to make a comment. Each time the appellant indicated that he knew the document or was aware of the document. In our opinion these answers in themselves verified the nature of the documents.

Regarding documents (Exhibits “B5” to “B14”) referred to in the records of interview with the appellant Acosta, these documents were conveniently referred to the appellant in the record of interview conducted on 11 August 1995 which is marked Ex. “B1”. We also consider that it is convenient to simply quote the questions and answers. This will indicate whether the appellant verified the nature and the contents of the documents in question.

“Q11. According to Investment Promotion Authority (IPA), Office of Registrar of Companies facsimile correspondence dated 31st March 1995 (produced) you are one of the Directors of a company A & Z Investment Pty Ltd. Is that correct?

A. Yes. (This document is marked Ex. “B5”).

....

Q14. The other Directors of the company are Jackson Zogingao and Samuel Mulina according to the facsimile correspondence from the Registrar of Companies as per produced to you. Is that correct?

A. Yes. (This document is marked Ex. “B6”).

......

Q25. Have a look at this Credit voucher dated 16/11/93 for K100,000.00 in favour of A & Z Investment P/L. Tell me who deposited this cheque to this account? (produced).

A. Yes. (This document is marked Ex. “B7”).

.....

Q32. Have a look at the cheque, PNGBC Lae dated 15/11/93 for K100,000.00 in favour of A & Z Investment P/L of P.O. Box 7272, Boroko. Is this the cheque that was deposited into the A & Z Investment account at BSP Boroko on 16/11/93? (produced).

A. Yes. (This document is marked Ex. “B8”).

....

Q34. Now have a look at the Bank Statements from A & Z Investment Account dated 3/12/93. Do you agree that K100,000.00 was credited to A & Z Investment P/L on 16/11/93? (produced).

A. Yes. (This document is marked Ex. “B9”).

....

Q44. I will now produce to you two (2) Claim forms numbers S81865 & S81866 raised by BMS - Lae for purchase and delivery of goods/services to Finance - Lae by A & Z Investments Pty Ltd, PO Box 7272 Boroko, NCD for purchase of Caterpillar Grader and Komatsu D850 Bull Dozer dated 06/11/93. Have a look at them & tell me if you have any knowledge about these claims?

A. Yes. It was submitted by BMS - Lae upon receiving our quotation. (This document is marked Ex. “B10”).

Q45. I will now produce to you A & Z Investment P/L quotation for one Caterpillar Grader and one Komatsu D850 Dozer at a price of K40,000.00 & K60,000.00 each - total K100,000.00 dated 16/8/93 addressed to Hon. Yaip J Avini, PNG National Parliament, Waigani, NCD. Have a look at it and tell me if you have some knowledge about it? (produced).

A. Yes. It was submitted by Jackson Zozingao. (This document is marked Ex. “B11”).

...

Q56. I will now produce to you Invoice/Statement number 41 addressed to BMS - Lae PO Box 2345 Lae on 10/11/93 by A & Z Investment P/L PO Box 7272 Boroko, quoting Order numbers S81865 & S81866 being for 1 X Caterpillar Grader and 1 X Komatsu D850 Bull Dozer, both costs K50,000.00 each - total K100,000.00. Have a look at it and tell me if you have some knowledge about it?

A. Yes. I submitted it on behalf of the company. (This document is marked Ex. “B12”).

Q57. Would you agree then that a PNGBC Cheque number 251489 in the sum of K100,000.00 as per shown to you in question number 32 was payable to A & Z Investment P/L upon the Claims and the Invoice/Statement submitted by you on 10/11/93 on behalf of the company?

A. Yes. (This document is marked Ex. “B13”).

....

Q66. Have a look at the cheque you paid out from you [sic] Bank Account between 18/11/93 and 4/11/94. Do you agree that almost all are written for cash payments?

A. Yes. Most of these cheques are salary cheques.” (This document is marked Ex. “B14”).

We should point out that the following documents were the same documents also acknowledged and identified by the appellant Avini in his record of interview:

· Ex. “B8” - same as Ex. “A11”.

· Ex. “B10” - same as Ex. “A9”.

· Ex. “B11” - same as Ex. “A5”.

· Ex. “B12” - same as Ex “A10”.

· Ex. “B13” - same as Ex. “A9”.

It is clear from the examination of both records of interview that the documents in question were clearly identified and acknowledged by both appellants. At no stage of the interview or the trial did the appellants raise any question or any objection to the authenticity or accuracy of any of the documents in question. The appellants did not call any evidence at the trial. Consequently we find that there is no basis for the objection regarding the documents in question. We would dismiss this ground of appeal.

Counsel for the appellants placed heavy reliance on the ground of appeal regarding the denial of the right to make a no case submission. Counsel in brief submitted that the appellants were denied a basic procedural right to make a no case submission under the law and this amounted to a miscarriage of justice. This ground of appeal raises the question of the proper place of a no case submission under our law. It is helpful to trace the background to this practice. A brief history of this practice is conveniently set out in R v Mansfield [1977] 1 WLR 1102. At page 1107 Lawton LJ traced the history of this practice:

“In order to deal with this point it is necessary to go back a few years. The rules applied in the criminal courts about submissions of no case and the speeches of Counsel are partly statutory and partly practice. The Criminal Evidence Act 1865, as amended by the Criminal Evidence Act 1898 and the Criminal Procedure (Right of Reply) Act 1964, regulates the final speeches of Counsel. Those statutes have no bearing upon the problem whether Counsel can make a submission of no case. It has long been the practice of the courts to allow Counsel to do so. Up till the early sixties the practice seems to have been that Counsel submitted on the basis that there was no evidence upon which, if uncontradicted, a reasonable jury could convict. It is understandable why the submissions of Counsel up to the early sixties took that form because under the Criminal Appeal Act 1907, if there was evidence upon which a reasonable jury could convict, the Court of Criminal Appeal would not interfere to quash the conviction.

There grew up in the two or three decades before the early sixties, and probably for a short time after the early sixties, a practice of inviting the jury to stop the case. This court, in Reg v Young, ruled that that practice was bad and should stop. In 1968 the Criminal Appeal Act 1907 was repealed and a new one came into existence in which the basis for allowing an appeal in a criminal case was changed. The court was no longer to be concerned with the problem whether there was evidence upon which a reasonable jury could convict but with the question whether the verdict was unsafe or unsatisfactory. That change now finds its place in section 2 of the Criminal Appeal Act 1968.

Mr Matthew’s recollection is that about the time when the change came into existence, namely 1966, the practice began at the Bar of inviting the judge at the end of the prosecution’s case to say that on the prosecution’s evidence it would be unsafe for the jury to convict and accordingly the judge ought to withdraw the case from the jury. Mr Cockburn submitted that that is now a well established practice. That accords with the trial experience of the three members of this court.”

This procedure is now well established in our jurisdiction: see State v Paul Kundi Rape [1976] PNGLR 96. The principles are applicable in our jurisdiction where decider of law and decider of facts are vested in a single judge: see Haw Tua Tau v Public Prosecutor [1981] 3 WLR 395 at 403. The need for this procedure in our jurisdiction is bolstered by the presumption of innocence in s. 37 (4) (a) and the accused’s right to silence in s. 37 (10) of the Constitution: see SCR No 2 of 1990 [1991] PNGLR 211 at 219. The proper principles to be applied are now well established by the Supreme Court in The State v Roka Pep (No 2) [1983] PNGLR 287.

We wish to point out however that this procedure does not have to be adopted in every case. It will depend on the facts of each case. The failure to adopt this procedure in itself cannot invalidate subsequent proceedings. Even when such a submission is made, whether or not it will be successful depends on the facts of each case.

The question that arises in this case is whether a conviction should be quashed where a defence Counsel is not allowed to make a no case submission. Counsel for the appellants has submitted that a denial of such submissions would result in a miscarriage of justice. On the other hand, Counsel for the respondent has submitted that while a refusal to hear Counsel on such a submission may result in an irregularity, the question whether there is a miscarriage of justice is a matter which has to be determined from the facts of each case.

In R v Mansfield (supra), a similar issue was dealt with. The court said:

“Mr Cockburn intended to submit to the judge that some of the evidence was so conflicting as to be unreliable and therefore if the jury did rely upon it the verdict would be unsafe.

In our judgement he was entitled to make that submission to the judge and the judge was not entitled to rule that he could not. To that extent there has been an irregularity; there was a failure to follow what has now become well established practice. But it does not follow that because there has been an irregularity this court should quash the verdict. An irregularity does not begin to be a factor justifying a court quashing a verdict unless it was a material one. Even then the court is entitled to ask the question: ‘Has there been a miscarriage of justice?’ It is manifest from the transcript that the judge did apply his mind to the question whether the evidence was sufficiently strong to make it safe to allow the case to go on. We have looked carefully at the prosecution’s evidence and we have come to the conclusion that the judge could not reasonably have withdrawn the case from the jury at that stage on the ground that there was not sufficient evidence to make a safe conviction. It follows that on any view of this matter there has been no miscarriage of justice on this ground. We are also of the opinion that the irregularity, which we adjudged there was, did not amount to a material irregularity such as would bring into operation section 2 of the Criminal Appeal Act 1968.” [sic]

We find that when the trial judge did not allow Counsel to make a no case submission, this resulted in an irregularity. The question is whether this irregularity has resulted in a miscarriage of justice in the present case. The essence of a no case submission is that if there is no case to answer in an appropriate case, the trial judge is entitled to stop the trial and discharge the accused person at this point.

The trial judge did not allow Counsel to make a no case submission on the basis that he considered that there was a case to answer. We are satisfied that the trial judge directed his mind to the issue of whether there was a case to answer. The question we need to determine is whether the trial judge erred in coming to the conclusion that there was a case to answer in the circumstances of this case.

Submissions by Counsel for the appellants in this regard were very much based upon the ground of appeal concerning the documents (Exhibits “A1” to “A12” & Exhibits “B5” to “B14”) that were admitted by the trial judge. He submitted that if all these documents are inadmissible, the appellants would have no case to answer regarding the misappropriation charge. However, he conceded that if the documents were properly admitted then he would not press this submission.

First, we have already ruled that documents (Exhibits “A1” to “A12” & Exhibits “B5” to “B14”) were properly admitted into evidence. All these documents are relevant to the offence of misappropriation. In the light of this, we agree with the concession made by Counsel for the appellants. We have examined all the facts led by the prosecution and find that there was a case to answer regarding the offence of misappropriation. Therefore we find that there is no miscarriage of justice. We would dismiss this ground of appeal.

In the result we would dismiss the appeal and confirm the conviction and sentence imposed by the trial judge.

LOS J: The background leading to this appeal and the issues on the appeal have been appropriately raised in the majority judgment. They have sufficiently addressed the issues on the first two grounds. On the third ground however, I beg to differ from the conclusions they have reached, in particular, their conclusion that an irregular process used on a no case procedure did not render the proceedings null so long as that irregularity did not amount to a miscarriage of justice. Their reasoning was based upon the historical development of no case procedure in England discussed in R v Mansfield (1977) 1 WLR 1102 and also in absence of any statutory provisions in our jurisdiction on no case procedure.

While I concede that there is no statutory base for no case procedure in our jurisdiction, it is my view that the practice has become so entrenched in our legal system that it is a mandatory step in the criminal procedure that failure to observe it cannot be lightly dismissed. It is probably a surprise that s. 572 (1) of the Criminal Code has not been considered in our jurisdiction. Maybe it has been but not reported. It reads:

“At the close of the evidence for the prosecution, [sic] the proper officer of the court shall ask the accused person or his Counsel whether accused intends to adduce evidence in his defence or whether he desires to make a statement to the court before he or his Counsel addresses the court.” [sic]

Irrespective of that section, strings of cases in our jurisdiction have unqualifiedly accepted the application of the no case procedure in criminal cases. The procedure has been accepted as a time saving measure as well as a part of the constitutional safe guard of an accused person.

In the State v Roka Pep (No 2) (1983) PNGLR 287 five judges reviewed the historical development of no case procedure and had appropriately dealt with various English cases including R v Mansfield. They also reviewed all the PNG cases relating to no case procedure up to that time. I think that introduction to the discussion of the procedure by Kidu CJ (as he than was) echoed the importance of the procedure. At page 288 His Honour said:

“I consider that the principle applicable to a submission of ‘no case to answer’ [sic] is well settled in this country that it needs only to be re-stated without much comment. This principle is discussed in the State v Paul Kundi Rape (1976) PNGLR 96.”

The practice has been adopted and is well entrenched in the constitutional scheme of equality and full protection of the law in s. 37 of the Constitution. A judge cannot choose when to allow and when not to allow a no case submission. If that happens there is a risk that a judge may secretly read all the evidentiary materials in order to determine whether to allow or not to allow the accused to make any submission. When the latter happens a pressure may be unduly, albeit inferentially, put on the accused to explain why he should not be found guilty. This flies right into the face of the presumption of innocence in s. 37 (4) (a) and right to silence in s. 37 (10) of the Constitution. The purpose and the importance of no case procedure was described by the majority in SCR No 2 of 1990 (1991) PNGLR 211. The importance of this decision is that it questions whether even a statute could undermine a right to apply for no case to answer ruling. At page 219 the majority said:

“The no case practice serves a separate and essential purpose: it is a procedural reinforcement to the presumption of innocence in s. 37 (4) (a), and to the accused’s right to silence in s. 37 (10). These citizen’s rights entail that the State must make out its case by the evidence it adduces, it cannot rely on making good any defects in its own case, by cross-examination of the accused or his witnesses: The State v Kuriday (Kearney Dep CJ 18 June 1981 (N 300) unreported).

The ‘prosecution’ by the procedure of a writ of summons and all the attendant civil case practice and procedure pursuant to s. 327 infringes and denies a defendant these fundamental safeguards of a criminal trial. The right to the presumption of innocence is qualified and undermined by denying him the right to apply for a ‘no case to answer’ ruling. Under the civil process a defendant is ‘compelled’ to give ‘discovery’, provide ‘further and better particulars’ of his ‘defence’ and to file a ‘defence’, in default of which he is liable to be found ‘guilty of an offence’ by the ‘default judgment’ procedure [sic]. He is further required to answer ‘interrogatories’. All of these processes are foreign to the right to ‘presumption of innocence’. Section 327 of the Act which purports to empower this is therefore unconstitutional.”

Mansfield’s case suggests that no case procedure is necessary in the jurisdiction where assessment of facts or evidence and the final decision is reached by the jury. It is suggested therefore in our jurisdiction where a judge is decider of facts and decider of law, no case procedure is not necessary. But it is clear in law that those two functions are separate. A trial judge must keep his mind clear on the two. Otherwise there is real risk in telling an accused that he would only waist the court’s time and his own time if he were to make a no case submission. Whether the evidence might be over whelming against him at the end is irrelevant. For that reason it is my view that no case procedure cannot be subjected to the consideration of what the ultimate result may be as suggested in Mansfield’s case. The decisions in the jurisdictions where criminal cases are tried without juries are more relevant to us. Such is a case of Haw Tua Tau v Public Prosecutor (1981) 3 WLR 396. The combined roles of decider of law and decider of facts are vested in a single judge. At the end of the State’s case what has to be decided remains a question of law only. At that stage, a decider of fact must keep an open mind as to the accuracy of any of the States witnesses until the accused has given evidence, if he chooses to do so. Indeed two members of the Bench in Roka Pep’s case made their inclination very clear. Kidu CJ said at page 291:

“This is one authority of persuasive value and more relevant than English and Australian cases because like Papua New Guinea in Singapore (from where this case originated) indictable offences are entertained by judges without juries.”

Pratt J at page 303 said:

“The most recent decision on the point which has some relevance to the law in Papua New Guinea is that of the Privy Council in Haw Tua Tau v PP [1981] 3 WLR at 402-403. Although such decision is not definitive of the common law of England in 1981, and probably therefore at Independence, it is of course a highly persuasive authority until the House of Lords decides otherwise.”

Having established the importance of no case procedure in criminal law however, how does one get around the fact that s. 572 (1) of the Criminal Code does not mention anything about it. In my view one thing is clear. That is, the whole provision does not prohibit it. In fact all the subsections, i.e. subsections (1), (2) and (3), provide flexibility in that an accused is allowed to make a statement irrespective of whether he intends to call evidence or not. The procedure was adopted under schedule 2.2 of the Constitution and has since operated as an integral part of the criminal procedure and through the years of judicial pronouncements it has established itself as a procedure contributing towards ensuring the “full protection of the law”in s. 37 of the Constitution. In my view therefore, breach of this procedure is such that it can attract enforcement through s. 37 of the Constitution. In SCR No 1 of 1993 (1995) SC 482 one of the issues that the Supreme Court was required to decide was whether legal professional privilege, a common law right adopted under Schedule 2.2, could be protected or enforced by relying on s. 37(1) of the Constitution. Amet CJ said at pages 14 and 15:

“The law, the full protection of which s. 37 (1) guarantees the right to, is to be found in the whole body of the laws of Papua New Guinea, as stipulated by s. 9 of the Constitution which include - (f) the underlying law. It is an all inclusive fundamental basic right, the right to be accorded or to rely on the full protection of the law, whatever that particular law might be. It is, in my view, intended that if in the application of a particular law to an individual, the full protection of that law is not accorded to that individual, then he can rely on s. 37 (1) to claim a breach of his constitutional right and also seek remedial enforcement pursuant to ss. 57 and 58.

The claimant would obviously need to point to the law to demonstrate the right that is being claimed was not fully accorded him/her. That of course, in my view does not make the right any less a right or any less capable of enforcement. The Constitution provides adequate machinery for enforcement or rights; ss. 22, 23, 57 and 58.

Further, many rights under the general body of laws are capable of enforcement without need to resort to fundamental constitutional rights provisions which undergird them. That does not, in my view, mean that such rights cannot be reinforced by reference to the fundamental constitutional right provision, from which that law or right emanated. All laws creating rights and obligations derive their legitimacy and origin from he [sic] Constitution which represents the will of the people.”

In agreeing with the Chief Justice I said at page 40:

“So from the constitutional scheme of Papua New Guinea, and the constructions by courts upon constitutional laws where human rights are involved, I have come to a strong view that section 37 (1) of the constitution [sic] is not merely declaratory of the rights contained and enforceable in other sections of the constitution and the statutes but the section creates an enforceable right. The declaratory theory has a potential of having a vacuum where an individual may find himself not protected at all.”

I have come to a firm view that breach of no case procedure must be viewed seriously because such a breach attempts to undermine the full protection of the law within the meaning of s. 37 (1) of the Constitution. Its application must not be subjected to what evidence may result at the conclusion of a case. An accused is entitled to be heard. When he asks to be heard, he is entitled to be heard. What the trial judge did in this case was to shut the appellants down through their Counsel intimating at that stage the merit of their case. When the Counsel for the appellants raised to his feet, the trial judge immediately and cynically remarked not a no case submission and told the Counsel that there was a case to answer. With respect His Honour fell into a serious error. I would therefore uphold the appeal and quash the conviction and sentence.

The question then arises whether the appellants should be discharged altogether. As the error related to a procedure and not the merit of the case against them, I would order a retrial

Lawyers for the Appellants: Maladinas

Lawyer for the Respondent: Public Prosecutor