SC2809
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCREV 107 OF 2023 

JACK MATHEW
Applicant

V

THE STATE 
 Respondent 

WAIGANI: YAGI J, CROWLEY J, CHRISTENSEN J 
2, 3 OCTOBER 2025

CRIMINAL – REVIEW – Review of conviction – right to a fair hearing – right to the full protection of the law – presumption of innocence – interjections and interruptions by trial judge – prejudice to defence – whether there was opportunity to be fully heard – inherent power of court to control processes – fairness to witnesses – prevention of irrelevant, peripheral, repetitive, misleading, or confusing questions – no miscarriage of justice 

The applicant sought review of a conviction following a trial for persistent sexual abuse of a child.  The applicant claims that the trial judge intervened and interjected to such an extent that his defence was prejudiced and his right to a fair trial breached.   

Held

(1)	The court has inherent power of control over its process. 

(2)	A trial judge is obliged to ensure a trial is conducted in a manner that is fair and just. 

(3)	It is appropriate for a trial judge to intervene to prevent questioning that is directed towards matters that are irrelevant or peripheral, or questions that are repetitive, misleading, or confusing for a witness. 

Cases cited
Avia Aihi v The State [1981] PNGLR 81
Birch v The State [1979] PNGLR 75
Kaiyo v Pawa [2015] PGSC 61
Kalup v The State [2020] PGSC 142 
Morea v The State [2020] PGSC 47
Sunu & Ors v The State [1984] PNGLR 305
Titus Wafi v The State, SCRA No 24 of 2009, 27.07.12 Unreported

Counsel
N Hukula for the applicant 
T Aihi for the respondent 

1.	BY THE COURT: On 6 May 2020 the applicant was convicted after a trial of an offence of persistent sexual abuse of a child contrary to s 229D(1), (6) of the Criminal Code. The appellant was sentenced to a term of 18 years imprisonment. 

2.	The persistent sexual abuse was alleged to have occurred between 1 August 2016 and 30 March 2017. It was alleged that in the course of the persistent sexual abuse the applicant engaged in acts of sexual penetration and sexual touching of the then 13 and 14 year old girl. 

3.	By way of leave granted to review on 7 February 2024, the appellant seeks a review as to his conviction. The applicant contends that a miscarriage of justice has occurred and seeks that the conviction be set aside and a not guilty verdict be entered. 

THE REVIEW

4.	Being a review of the conviction, the nature of the enquiry involves whether there are cogent and convincing reasons and exceptional circumstances such that some substantial injustice is manifest, there are clear legal grounds, or the case is one of special gravity: Avia Aihi v The State [1981] PNGLR 81; Sunu & Ors v The State [1984] PNGLR 305.  

5.	In this matter, leave has already been granted for the applicant to review the conviction, and this Court is now concerned with the merits of the review.  Section 155(2)(b) of the Constitution provides the Court with the inherent power to review all judicial acts of the National Court.  As Sunu & Ors v The State provides, adopting what was said in The Secretary of Law v Tisunkac Nawok Domstock [1974] PNGLR 246 at 248, we are concerned with whether there is “grave reason to apprehend that justice has actually miscarried”.  

6.	Further, it is clear that the Supreme Court has the power, indeed a duty, to set aside a decision where there is a clear manifestation of injustice and if a breach of fundamental rights in the conduct of a trial has occurred: Morea v The State [2020] PGSC 47; Kaiyo v Pawa [2015] PGSC 61. 

7.	The appellant contends that the trial judge erred in law, expressed in the review hearing as follows:

(a)	The applicant was not given the adequate opportunity to present its case fairly and under 59 of the Constitution. The interjections and interruptions by the trial judge amidst the trial has prevented the applicant to put to the state all its defence. 

(b)	The applicants right to the full protection of the law under s 37(1) has been breached – the right to a fair trial under s 59 of the Constitution. 

(c)	The applicants right to presume and maintain his innocence under the Constitution has been breached. 

8.	Properly understood, the review can be stated as contending one ground as follows: 

(1)	The applicant’s rights under the Constitution as to a fair hearing (ss 37, 59), the full protection of the law (s 37), and to the presumption of innocence (s 37) were not afforded to the applicant as the interjections and interruptions by the trial judge prevented the applicant from relying on his defence. 

GROUND OF REVIEW

The applicant’s rights under the Constitution as to a fair hearing, the full protection of the law, and to the presumption of innocence were not afforded to the applicant as the interjections and interruptions by the trial judge prevented the applicant from relying on his defence. 

9.	The trial was heard on 25 and 26 November and 10 December 2019 in Waigani. The decision on verdict was reserved and delivered on 6 May 2020. 

10.	The prosecution called three witnesses, being the complainant, her father, and her mother. The prosecution also tendered in evidence, without objection, the complainant’s statement, the applicant’s record of interview, the medical report of an examination of the complainant, and the complainant’s health card. The statements of police officers were also tendered without objection. 

11.	The complainant gave evidence as to the sexual abuse commencing in August 2016 when she was 13 years of age. The applicant offered her a lift home in his taxi but instead took her to Pari village and sexually assaulted her. Thereafter, on three other occasions, the applicant picked the complainant up in his taxi and took her to the village where sexual abuse occurred. The complainant’s account included that sexual abuse occurred inside of the accused’s taxi. The last occasion of abuse occurred on 6 March 2017.  

12.	The alleged abuse was disclosed on 22 March 2017 after the complainant’s father found messages between the applicant and the complainant in a Facebook account. On 23 March 2017 the complainant was medically examined and findings consistent with sexual activity having occurred were reported. 

13.	In cross examination, the complainant maintained her account that the sexual abuse occurred and that it was abuse done by the applicant. She knew him as a person who usually lived in their block, and she had known him for two years. She maintained that the accused was using his taxi at the time and that he was a Facebook friend that she messaged with.  

14.	In the record of interview of the applicant, conducted on 29 March 2017, the applicant acknowledged that he knew the complainant but denied sexually abuse her. The allegations that he picked up the complainant and he abused her in his car were put to him and denied by the applicant. He further denied that he was a Facebook friend with the complainant. He told the police that his occupation is as a taxi driver. 

15.	A defence case was adduced, with the applicant giving evidence and calling a witness. The applicant explained that he knew the complainant but denied that he sexually abused her. He denied having a Facebook account. He said that during the time period of the alleged offending, he did not have a taxi as the engine had seized, and he never picked the complainant up. The applicant expressed that “her father might force her to say that [the allegations]” because “I fought with her father in early March”. 

16.	In cross examination, the applicant maintained that he never picked up the complainant and never abused her. He said that he did not tell the police in his record of interview about his vehicle been broken down as the police did not ask him about that. 

17.	The witness called in the defence case was a colleague of the applicant. The witness confirmed that the applicant had come to live with him and that at the relevant time the applicant’s taxi was broken down. The witness also stated that he had heard there was a fight between the applicant and the complainant’s father. 

Submissions 

18.	The applicant submits that the applicant was not afforded a fair trial due to “consistent interjections” during cross examination. It is submitted that the conduct of the trial judge was tantamount to denying the applicant his fundamental rights.  It is submitted that the interjections evidence the trial judge having formed a preliminary opinion that was prejudicial to the applicant.  The “fine line” as to the judge’s role was crossed and it is submitted that the trial judge descended into the role of a litigant.  

19.	The respondent submits that the trial judge did not intervene to such an extent that a miscarriage of justice has occurred.  The respondent provides examples where the trial judge intervened to ensure fairness was done to the applicant, or where interruptions occurred to ensure only relevant evidence and submissions. 

Law

20.	On behalf of the applicant reliance was placed on Kalup v The State [2020] PGSC 142 and Birch v The State [1979] PNGLR 75. As the applicant submitted, these authorities establish that a trial judge must conduct a trial with fairness being the overriding principle. It is plain from these authorities that to ensure fairness a trial judge is not to descend into the “litigant arena” and is not to play a too active part in the examination of witnesses.  

21.	The respondent acknowledges these principles, and also submitted that the application in Birch v The State of Yuill v Yill [1945] 1 All ER 183 at 185 is relevant, namely:

If there are matters which the judge considers have not been sufficiently cleared up or questions which he himself thinks ought to have been put, he can, of course, take steps to see that the deficiency is made good.

22.	It is relevant to also recall that in Birch v The State it was held that a trial judge has power to intervene (but not unduly) by asking questions if that course is considered necessary to the ascertainment of truth or in the interests of justice. 

23.	Similarly, in Titus Wafi v The State, SCRA No 24 of 2009, 27.07.12 Unreported, Manuhu J, Yagi J and Sawong J observed (at [28]):

It is trite principle that the Court has inherent power of control over its process and must protect it from abuse by litigants…

At the same time the Court must ensure that it does not use its power that will not attain the ends of justice or that the use of such power will impinge on the fundamental principles of fair justice.  

24.	It is apparent that the law to be applied is not in issue. Determination of this ground of the review is directed towards consideration of the transcript to ascertain whether the trial was conducted fairly. 

Consideration 
25.	The applicant drew the courts attention to two portions from the trial transcript that were contended to demonstrate the excessive interference and pre-determination by the trial judge. However, both of these involve the trial judge engaging in exchanges with the defence counsel as to the relevance of particular lines of questioning. 

26.	Having carefully considered the transcript of the trial proceeding, it is apparent that there were instances in which the trial judge engaged in robust exchanges with the lawyer for the applicant. His Honour also did so with the prosecution lawyer on occasion. However, those exchanges were directed towards progressing the trial in an expedient and efficient manner, which is not necessarily contrary to securing a fair and just trial.  The applicant had his opportunity to be fully heard.  

27.	It is not apparent that the exchanges limited the opportunity for the applicant to have presented his defence, nor to adduce evidence. For example: 

(a)	the defence counsel questioned the complainant as to the circumstances of the disclosure to her father; 

(b)	the defence counsel questioned the complainant as to whether there was a fight between the applicant and the complainant’s father; 

(c)	the defence counsel questioned the complainant as to whether she lied to the police and the court because her father forced her to because of a fight he had with the applicant; 

(d)	the defence counsel put to the complainant that the accused’s vehicle was defective and he was not driving it at the relevant time; 

(e)	the defence counsel put to the complainant that the applicant never picked her up;  

(f)	the defence questioned the complainant’s father as to the circumstances of the complainant’s disclosure;  
(g)	the defence questioned the complainant’s father as to the applicant’s contention that there was a fight between them shortly before the complaint was made to the police; and 

(h)	the defence questioned the complainant’s mother as to the circumstances of the complainant’s disclosure.  

28.	All of these matters, and the evidence adduced in relation to them, were then relied upon by the defence counsel in the written and oral submissions made to the trial judge as to verdict. Further, the accused’s account was before the court in both the record of interview, and from the evidence he gave during the trial. Neither the applicant, nor the defence counsel, were obstructed or prevented from putting the defence case before the court. 

29.	Indeed, on several occasions the trial judge assisted the applicant’s counsel with presenting the defence. For example, in an exchange with the defence counsel, the trial judge said to the counsel:

If you are saying that the father forced her to implicate the accused then she is here, put that to her that she was forced; it is not true…if that is your line of defence then she is here for you to put your questions to her.  

	And further:

The exchange we just had is between you and I as officer of the court. But I will allow you to put your case to her, okay. Put it to her. Tell her “You lied because you – because of the fight between your father and the accused”? Something like that. Be direct and see what she says. 

30.	On an occasion when the defence counsel sought to tender the statement of the complainant’s father, the trial judge cautioned him as to that approach. While the counsel sought to rely on it as a prior inconsistent statement, the trial judge, not inappropriately, observed to counsel that: 

Sometimes when you tender statements you have to be careful because it works both ways. It is like a double-edged sword… 

When a statement is tendered, it is tendered for all purposes. The evidence in it that are considered are for all purposes. That, counsel should not forget. 

31.	After the defence counsel had completed his questioning of the complainant, the trial judge did question the complainant as to whether she had engaged in sexual activity with any person after the last occasion she alleged the applicant abused her and when she was medically examined.  However, this was a critical issue that went to the defence case which had seemingly been overlooked by counsel during the cross examination. 

32.	Similarly, during the evidence in chief of the defence witness, the trial judge himself directed some questions to the witness as to the condition of the car during particular months, a matter of relevance to the defence case, and the trial judge permitted, over objection, questioning of this witness as to his knowledge of a fight between the applicant and the complainant’s father. 

33.	Rather than, as the applicant contends, obstructing the presentation of the defence case, to the extent there were interventions by the trial judge, they were directed towards assisting the defence counsel and ensuring a fair trial for the applicant. 

34.	In doing so, the trial judge was also appropriately concerned to also ensure a fair trial for the prosecution, and that the evidence presented assisted the court. His Honour observed that “I just want to make sure we do not confuse her [the complainant] okay. And I just want to make sure that the answers that she will give is reliable – is good answer; good answer in the sense that it will be relevant”.  Further, the trial judge intervened during a line of questioning by the defence counsel that was observed to be, inappropriately, trying to “trick” the witness. 

35.	It is trite that a judge is obliged to ensure a trial is conducted in a manner that is fair and just. This may require intervening to prevent questions, or lines of questioning, that are directed towards matters that are irrelevant or peripheral to the issues in the trial or that are repetitive, misleading or confusing for the witness. There must also be fairness to witnesses, whether they are the complainant or the accused, are called by the State, or are called in the defence case. This facilitates cogent evidence that is relevant and will be of assistance to the Court in determining the issues in the trial. 

36.	There is no basis to conclude, as occurred in Kalup v The State at [25] per Kirriwom J, that there was a “bombardment” of questioning by the trial judge, or that during questioning, the applicant was “unfairly and unjustly toasted and fried on a frying pan vigorously and aggressively in an inquisitive manner”.  Similarly, there is no basis to conclude, as occurred in Wafi v The State, that “there is clear evidence showing that in almost every page of the transcript the trial Judge was involved” during questioning of witnesses (at [33]).  

37.	The trial judge did not unduly enter the arena and instead conducted the trial in a manner that was fair and would be seen by a reasonable and objective observer to have been fair.  There was no miscarriage of justice, nor breach of fundamental rights as to the conduct of the applicant’s trial. 

38.	The ground on the review is dismissed. 

ORDERS

(1)	The review of the conviction is dismissed. 

(2)	The conviction by the National Court of the applicant is affirmed. 
________________________________________________________________
Lawyer for the applicant: Public Solicitor 
Lawyer for the respondent: Acting Public Prosecutor