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Kataka v Kuman [1977] PGLawRp 553; [1977] PNGLR 358 (19 October 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 358 - Maring Kataka v Peter Kuman�

[1977] PNGLR 358

N111

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MARING KATAKA

V

PETER KUMAN

Waigani

Williams J

30 September 1977

19 October 1977

APPEAL - Wrongly admitted hearsay evidence - Test to be applied - Whether reasonably probable that hearsay evidence influenced the decision.

APPEAL - Inferior Courts - District Courts - Traffic offence - Order for suspension of driver�s licence expiring before hearing of appeal - Inability of court on appeal to make effective order in respect thereof - Recommendation made by magistrate under s. 94(2) of the Police Force (Interim Arrangements) Act 1973 - Recommendation cannot be subject of appeal - District Courts Act 1953 s. 225(1) - Police Force (Interim Arrangements) Act 1973 s. 94(2)[ccclxvii]¹.

N1>VEHICLES AND TRAFFIC - Licensing of drivers - Person convicted of traffic offence - Fine and suspension of licence imposed - Appeal heard after expiration period of suspension - Inability of court on appeal to make effective order in respect thereof.

The appellant, a commissioned police officer, was convicted of the offence of driving a motor vehicle upon a public street, whilst under the influence of intoxicating liquor contrary to s. 9(1)(a) of the Motor Traffic Act, 1950; he was fined K50, his driver�s licence was suspended for 6 months and the magistrate further recommended to the Commissioner of Police pursuant to s. 94(2) of the Police Force (Interim Arrangements) Act 1973, that the appellant be relieved of his commission and �be reduced to lower ranks of the police force�.

On appeal against conviction and sentence, which came on for hearing after the expiration of the period of 6 months suspension, on the ground inter alia, that hearsay evidence had been wrongly admitted;

Held

N1>(1)����� The admission of hearsay evidence does not itself vitiate a conviction: the test to be applied is whether or not it is reasonably probable that the evidence wrongly admitted influenced the decision.

Armat v. Little, Ex parte Little, [1909] St.R.Qd. 83, and Anide v. Denehy [1973] P.N.G.L.R. 215 followed.

N1>(2)����� The admission of hearsay evidence viz., �your wife said you had been drinking with friends�, when the fact that the appellant had been drinking with friends was not really in issue, could have had no prejudicial effect on the appellant�s case nor any bearing on the ultimate result.

N1>(3)����� The order for suspension of licence, being an order which the magistrate had jurisdiction to make and having legal effect until it was stayed or set aside by a court of competent jurisdiction, having run its course, no effective order could be made on appeal with respect to it even if the court were of the opinion that the period of suspension was excessive.

Eastwood v. Kaspar Bernar Samar [1976] P.N.G.L.R. 206 followed.

N1>(4)����� A recommendation made under s. 94(2) of the Police Force (Interim Arrangements) Act 1973, is not a �conviction order or adjudication� within the meaning of s. 225(1) of the District Courts Act, and cannot be the subject of an appeal to the National Court (even if it were (as in the circumstances) probably ineffective).

N1>(5)����� In all the circumstances the appeal should be dismissed.

Appeal

This was an appeal against conviction and sentence in respect of an offence of driving under the influence of liquor contrary to s. 9(1)(a) of the Motor Traffic Act, 1950.

Counsel

D. S. Awaita, for the appellant.

W. J. Karczewski, for the respondent.

Cur. adv. vult.

19 October 1977

WILLIAMS J: The above-named appellant, a commissioned police officer, was convicted in the National Capital District Court in Port Moresby of the offence of driving a motor vehicle upon a public street whilst under the influence of intoxicating liquor contrary to s. 9(1)(a) of the Motor Traffic Act, 1950, as amended. He was fined the sum of K50.00 and his driver�s licence was suspended for a period of six months. Further, the magistrate recommended to the Commissioner of Police that the appellant be relieved of his commission and �be reduced to lower ranks of the police force.�

The appellant appeals to this Court both as to conviction and sentence.

As to his appeal against conviction it is said that the magistrate erred in law in that he admitted hearsay evidence. The evidence claimed to be wrongly admitted is to be found in a statement contained in the evidence of the respondent where the following words appear: �Your wife said you had been drinking with friends.� As appears from the context this was an answer given by the witness in response to a question asked by the appellant.

It is clear that this was hearsay evidence. But it is also clear from authority that the admission of hearsay evidence does not of itself vitiate a conviction. The test to be applied is whether or not it is reasonably probable that the evidence wrongly admitted influenced the decision (see Armat v. Little; Ex parte Little[ccclxviii]²�which was followed in the pre-Independence Supreme Court of Papua New Guinea by Kelly J. in Anide v. Denehy[ccclxix]³). It should also be observed that the fact that the appellant had been drinking with friends was not really in issue because this fact emerged clearly from the evidence given by the appellant himself at the trial. It thus appears to me to be plain that the admission of the hearsay evidence could have had no prejudicial effect so far as the appellant�s case was concerned and could have had no bearing on the ultimate result.

A further contention is raised on behalf of the appellant that the magistrate wrongly admitted evidence of statements by police witnesses that the appellant was under the influence of alcohol. It is said that this was opinion evidence and it had not been shown that the witnesses concerned were qualified to express such opinions. It is apparent, however, that the evidence in this respect was not confined to mere expressions of opinions by the witnesses concerned who also gave reasons for the opinions expressed based upon the observation of the appellant�s conduct and behaviour. Accordingly I am of the view that there is no substance in this contention.

On a consideration of the whole of the evidence it is to my mind clear that there was admissible evidence upon which the magistrate could properly conclude that the appellant was guilty of the offence charged.

I turn to the question of the sentence imposed. So far as the suspension of licence is concerned the fact is that the period of suspension had already expired before this appeal was brought on for hearing. It seems to me that it was an order which the magistrate had jurisdiction to make and its legal effect continued to operate until it was stayed or set aside by a court of competent jurisdiction. In consequence it is my opinion that the order having run its course no effective order could now be made by this Court with respect to it even if it were of the opinion that the period of suspension was excessive. In this connection I reiterate what I said in Eastwood v. Kaspar Bernar Samar[ccclxx]⁴.

Dealing with the question of the fine imposed it appears that the fine was not one in excess of the fines usually imposed in cases of this kind. It must be kept in mind that offences of this kind are viewed seriously by the Legislature. In my opinion the fine imposed was not excessive.

It is further contended on behalf of the appellant that this Court should overrule the magistrate�s recommendation to the Commissioner of Police, to which reference has previously been made. In terms the recommendation of the magistrate was that the appellant be relieved of his commission and be reduced to lower ranks of the police force. The powers of the magistrate in this respect are contained in s. 94(2) of the Police Force (Interim Arrangements) Act 1973. The powers there conferred are to recommend that a member of the police force be or not be (a) dismissed from the force, or (b) reduced to a specified lower rank, or (c) reduced in salary. It should thus be observed that the order made did not conform in its terms to the requirements of the Act in that no reduction to a specified lower rank was recommended. Probably, therefore, the recommendation is ineffective. But even so I do not think that a recommendation under s. 94(2) can be the subject of an appeal to this Court. The right of appeal from a decision of the District Court is conferred by s. 225(1) of the District Courts Act. Pursuant to that section a person aggrieved by a conviction, order or adjudication of a court may appeal to the National Court. It does not seem to me that the words �conviction, order or adjudication� are apt to include a recommendation under s. 94(2). Those words connote to my mind a decision by the court which determines rights and liabilities between parties. A recommendation made under s. 94(2) does not have this effect. It is not binding upon the Commissioner who, under s. 94(3) of the Act, may or may not accept the recommendation. In this connection I agree with respect with the decision of Prentice J. (as he then was) in Paul Maniwokin v. Akuila Toburua[ccclxxi]⁵.

For the reasons given it is my opinion that the appeal should be dismissed.

Appeal dismissed.

Solicitors for the respondent: Craig Kirke & Wright.

Solicitor for the respondent: K. B. Egan, Public Prosecutor.

[ccclxvii]Infra p. 360.

[ccclxviii][1909] St.R.Qd. 83.

[ccclxix][1973] P.N.G.L.R. 215.

[ccclxx][1976] P.N.G.L.R. 206.

[ccclxxi](Unreported) Judgment No. 773 dated 9th November, 1973.