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Kavali v Hoihoi [1984] PGNC 31; [1984] PNGLR 182; N472(M) (16 July 1984)

N472(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THOMAS KAVALI

V

THOMAS HOIHOI

Waigani
Bredmeyer J

20 October 1983
16 July 1984

CRIMINAL LAW - Practice and procedure - Hearing in absence of accused - Consent to - Voluntary absence may be consent - Constitution, s. 37(5).

CRIMINAL LAW - Practice and procedure - Information - Who may lay - Police officer may lay unless right taken away by statute - Liquor (Miscellaneous Provisions) Act (Ch. No. 313) - Liquor Licensing Act (Ch. No. 312).

APPEAL - Bias as ground for - Need for real likelihood or reasonable suspicion - Natural justice.

A Minister of the State was charged on information laid by a police officer with drinking liquor in a moving vehicle contrary to s. 6(1) of the Liquor (Miscellaneous Provisions) Act (Ch. No. 313) on 1 February 1982. On 17 February the hearing commenced with the defendant represented by counsel. The proceedings were twice adjourned and on 24 February, after an altercation between counsel and the magistrate, the magistrate banned counsel from further appearing in his court until an apology was received and adjourned the matter to 26 February. On 26 February the magistrate rejected a no case submission for the defendant who then requested and was granted an adjournment until 6 July so that he might find a lawyer and attend to business matters. On 17 March counsel made a full apology to the court.

On 6 July there being no appearance of or for the defendant, the magistrate proceeded to hear and determine the charge in his absence and sentenced him to three weeks imprisonment.

The Constitution, s. 37(5), provides that:

"Except with his own consent, the trial [of a person charged with an offence] shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable ...".

On appeal against conviction and sentence.

Held

(1) The constitutional right which a defendant has under the Constitution, s. 37(5), to be present at his trial may be waived where a defendant voluntarily absents himself: in such a case the court has a discretion which should be exercised with a view to the due administration of justice rather than the convenience or comfort of anyone, whether to proceed with the trial in the absence of the defendant or not.
Jones (No. 2) (1972) 56 Cr. App. R. 413, followed.

(2) In the circumstances the defendant should be taken to have waived his constitutional right to be present and to have consented to the hearing proceeding in his absence.

(3) An information for any criminal offence may be laid by a police officer unless a statute takes away that right and confers it on anyone else.

(4) There being nothing in the Liquor (Miscellaneous Provisions) Act (Ch. No. 312) to take away that right, the information laid by the police officer was not open to challenge.

(5) A conviction is open to review on the ground of bias only where there is a real likelihood of bias or a reasonable suspicion of bias.
Anderton v. Auckland City Council [1978] 1 N.Z.L.R. 657 at 687, adopted and applied.
R. v. Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 C.L.R. 248, considered.

(6) In the circumstances a ground of appeal that the magistrate had erred in law in failing to disqualify himself for likelihood of bias had not been made out.

Cases Cited

Anderton v. Auckland City Council [1978] 1 N.Z.L.R. 657 at 687.
Jaminan v. The State [1983] P.N.G.L.R. 318.
Jones (No. 2) (1972) 56 Cr. App. R. 413.
Metropolitan Properties Co. (F.G.C.) Ltd v. Lannon [1968] EWCA Civ 5; [1969] 1 Q.B. 577.
Norris v. The State [1979] P.N.G.L.R. 605.
Public Prosecutor v. Holloway [1981] P.N.G.L.R. 482.
Reference No. 1 of 1976, In re, and Rakatani Peter v. South Pacific Brewery Ltd [1976] P.N.G.L.R. 537.
R. v. Billington [1980] VicRp 58; [1980] V.R. 625.
R. v. Cross [1973] Q.B. 937.
R. v. Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 C.L.R. 248.

Appeal

This was an appeal from a decision of the District Court at Ela Beach convicting the appellant of an offence under s. 6(1) of the Liquor (Miscellaneous Provisions) Act (Ch. No. 313). The appeal was against conviction and sentence.

Editorial Note

An appeal to the Supreme Court has been lodged.

Counsel

J. Gawi, for the appellant.
G. Towaluta, for the respondent.
Cur. adv. vult.

16 July 1984

BREDMEYER J: This is an appeal against conviction and sentence. The Honourable Thomas Kavali O.B.E., Minister for Lands, was charged that on 1 February 1982 he was drinking liquor in a moving vehicle contrary to s. 6(1) of the Liquor (Miscellaneous Provisions) Act (Ch. No. 313). On 6 July he was convicted and sentenced to three weeks imprisonment with hard labour. The maximum penalty provided for the offence is a fine not exceeding K100 or one months imprisonment. Mr Kavali is now Sir Thomas Kavali but as this case relates to events in 1982 I will refer to him by his then title.

The appeal was lodged within the thirty day time limit but was not prosecuted with any vigor. It was listed for hearing before Woods A.J. on 19 August 1983. There was no appearance by Mr Kavali or his lawyer on that day and the judge struck out the appeal for lack of prosecution. Mr Gawi, the lawyer for Mr Kavali, applied for reinstatement before Pratt J. and the appeal was reinstated on 23 September 1983. No objection has been made to me about that reinstatement and I do not think that any objection could be made because Pratt J. followed the practice which applies elsewhere, for example in England see R. v. Cross [1973] Q.B. 937, and in Victoria R. v. Billington [1980] VicRp 58; [1980] V.R. 625. The practice is that when an appeal has been dismissed ex parte it may be reinstated upon application, for good reasons shown, before the same judge or another judge provided that the dismissal has not passed into the record. If the dismissal has been formally recorded then, in the absence of any rules which allow for reinstatement, the appellant’s only avenue for reinstatement is to appeal against dismissal, in our case to the Supreme Court within the forty day time limit. In this case as the dismissal order of Woods A.J. had not been formally entered the reinstatement by Pratt J. was proper.

The trial in the Ela Beach District Court proceeded in an unusual way. The incident occurred on 1 February and the information was laid against the two defendants Mr Kavali and Theodore Banda on 2 February. They pleaded not guilty and the trial commenced on 17 February 1982 when two police witnesses were examined and cross-examined at length. Mr Gawi represented both defendants at that hearing. The case was then adjourned to 19 February on which date the defendants were present but Mr Gawi was not present. He was engaged apparently in the National Court and at the defendant’s request the case was adjourned to 24 February at 9.30 a.m. so Mr Gawi could be present. On 24 February at 9.30 a.m. Mr Gawi was not present. The case was adjourned to 10.00 a.m. Mr Gawi arrived and he was asked to apologise for being late. He did so and he then made some disparaging remarks about the court. He said among other things that the Ela Beach Court is the worst court in Papua New Guinea, that the prosecutors are inexperienced and that the magistrates are slack, that the defendants suffer because the prosecutors turn up late and the defendants have to wait until the prosecutors arrive, but when the prosecutors arrive on time, the cases are called and if the defendant is not present, a warrant of arrest is issued. The magistrate, Mr Clement Malaisa, according to the transcript said that he accepted Mr Gawi’s apology which I take to mean accepted his apology for being late. However he did not accept the remarks and was upset by them. He said that he considered the remarks to be foundless and ruthless and that a learned counsel like Mr Gawi should not have made such statements. He then adjourned the case to 26 February 1982 at 1.30 p.m. and barred Mr Gawi from further appearance in the Ela Beach Court during that period until he received an apology from him. The magistrate "ordered" Mr Kavali and Mr Banda to seek another defence counsel.

On 26 February both defendants were present. They were not represented by any lawyer. No further prosecution evidence was called and the defendant Theodore Banda on behalf of both defendants made a detailed no case submission. Mr Banda is a law graduate. The case was adjourned until 2 March 1982 and on that date the magistrate ruled Mr Kavali had a case to answer but that Mr Banda had no case to answer and he was discharged. Mr Kavali then requested an adjournment to allow him to find a lawyer. He asked for an adjournment until July and explained that he would be attending a meeting in Mt Hagen the next day, a Cabinet meeting the next week and in the following week there were nominations in Jimi for the National elections, he therefore sought an adjournment until the first week of July. The magistrate adjourned the case until 6 July 1982.

On 6 July there was no appearance by Mr Kavali or any lawyer on his behalf and the prosecutor asked that his oral bail be withdrawn and that a warrant of arrest be issued. The magistrate declined to follow that course. He considered that Mr Kavali well knew of the hearing date and had not offered any reasons why he was not there and that it would be in the best interests of justice to proceed with the case. The magistrate then received a written submission from the prosecutor which was the prosecutor’s address and then convicted Mr Kavali. He received antecedents from the police prosecutor that the defendant was a Member of Parliament, the Minister for Lands, was married with three children earning K300 per fortnight and lived in Boroko. Details of five previous convictions were given to the magistrate and following that the magistrate sentenced Mr Kavali to three weeks imprisonment with hard labour and gave brief reasons for doing so.

THE HEARING IN THE ABSENCE OF THE DEFENDANT

Three of the grounds of appeal relate to the way the trial was conducted. They allege that the magistrate erred in law in proceeding with the trial ex parte in the absence of the defendant. Section 37(5) of the Constitution of Papua New Guinea provides:

"Except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence, but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment, (except in default of payment of a fine), to be heard summarily in his absence if it is established that he has been duly served with a summons in respect of the alleged offence."

Section 131 of the District Courts Act 1963 provides for ex parte hearings. The constitutional legality of that section was challenged: In re Reference No. 1 of 1976 and Rakatani Peter v. South Pacific Brewery Ltd [1976] P.N.G.L.R. 537. The Supreme Court in that case said that s. 131 should be read down in view of s. 37(5) of the Constitution to allow ex parte hearings of offences where the only punishment is a fine (apart from a prison term in default of payment of a fine). In this case I consider that Mr Kavali’s failure to attend on 6 July 1982 is an implied consent to the trial proceeding in his absence. I consider that the magistrate was perfectly right in not granting a further adjournment, not issuing a warrant of arrest, and in proceeding in his absence. The trial was for a minor offence. It had already been adjourned twice at the defence request, once because Mr Gawi was not present to defend his client, and the other on Mr Kavali’s request to find a lawyer and to attend to ministerial and political matters. The latter adjournment, of four months, was inordinately long. It is rarely in the best interests of justice that the trial of a minor offence when part heard should be adjourned for more than a week or so. There is good common law precedent for the stand taken by the magistrate and that authority is relevant because the constitutional right of the defendant to be present at his trial, subject to certain exceptions, conferred by s. 37(5) of the Constitution corresponds to a similar common law right. In Jones (No. 2) (1972) 56 Cr. App. R. 413 the accused absconded at the same point in the trial as Mr Kavali. Jones absconded in a trial for various charges of fraudulent conversion and conspiracy to defraud before a judge and jury at the end of the prosecution evidence and after the judge had overruled his no case submission. The judge decided to proceed with the trial in his absence. Jones’s counsel argued that, notwithstanding the deliberate jumping of bail by his client, the trial should be stopped and the jury discharged. This application was rejected. His counsel then decided not to call witnesses whom he had intended to call because of doubt as to his authority to call them in the absence of the defendant. Counsel then withdrew from the trial and the Court of Criminal Appeal said that his withdrawal was quite proper. The trial then proceeded in the absence of the defendant or counsel. Of course no final defence address was made to the jury. The jury convicted. No allocutus was given to the accused, no address on sentence was made on his behalf and he was sentenced in his absence to concurrent terms of five and three years imprisonment. The Court of Criminal Appeal upheld the trial judge’s decision to proceed. I quote the headnote:

"Whether a defendant be on bail or in custody, and whether he be represented by counsel or not, he has a right to be present at his trial, unless (i) he abuses that right for the purpose of obstructing the proceedings by unseemly, indecent or outrageous behaviour, in which case the judge may have him removed and may proceed with the trial in his absence, or may discharge the jury, (ii) he waives that right by voluntarily absenting himself e.g. by absconding during the trial. In such a case the judge has a discretion, which should be exercised with a view to the due administration of justice rather than the convenience or comfort of anyone, whether to proceed with the trial in the absence of the defendant or not."

I consider that in the circumstances of this case Mr Kavali waived his constitutional right to be present and consented to the trial proceeding in his absence.

THE INFORMATION

The next ground of appeal I consider is the first in the appeal notice and it is that the magistrate erred in law in holding that the police had a right to bring the prosecution under the Liquor (Miscellaneous Provisions) Act (Ch. No. 313). Mr Gawi originally made this submission before the magistrate. He there submitted that the only authority to prosecute lay with the Liquor Licensing Commissioner. He said that the District Court is a court of summary jurisdiction and the onus lies on the prosecution to prove that the court has jurisdiction and that if he were to take the case to the National Court he would be able to prove that the court had no jurisdiction. In this court on appeal Mr Gawi was not able to offer any authority for that proposition. He referred me to the note on p. 1 of the Revised Laws of the Liquor Licensing Act (Ch. No. 312) which says that as at 1 January 1980 the administration of this Chapter was vested in the Minister for Corrective Institutions. The law is otherwise. Any policeman may lay an information for any criminal offence unless a statute takes away that right and confers it on someone else. There is nothing in the Liquor (Miscellaneous Provisions) Act or the Liquor Licensing Act which provides that Liquor Licensing Inspectors can lay informations for offences under those Acts. Contrast this with the offences of adultery and enticement which are contained in the Native Administration (T.N.G.) Act (Ch. No. 315) and the Native Regulation (Papua) Act (Ch. No. 316) which provide that an information for those offences can only be brought by a person who is the husband or wife of the woman or man with whom the offence was committed. Likewise s. 167 of the Customs Act (Ch. No. 101) provides that a prosecution under that Act may be instituted by the comptroller or by a customs officer in the name of the comptroller.

BIAS

The appellant’s next ground of appeal relates to bias:

"The magistrate erred in law in failing to disqualify himself from the proceedings for likelihood of bias or in failing to ascertain if the prisoner wished to waive his right to seek a disqualification of the learned magistrate."

Mr Gawi’s argument on this ground is in two parts. The first is that the magistrate showed actual bias in a single sentence of his reasons which I quote below. I have emphasised the offending sentence and have quoted it in its context:

"On 6 July 1982 the prosecutor applied for the case to be adjourned sine die and a warrant of arrest issued for Mr Kavali’s arrest. This application was refused by the court on the following grounds:

(a) The case had been on for a long time.

(b) There were no reasons made available to the court for Mr Kavali’s absence. Had there been reasons available the court would have adjourned the case. The reason the case was adjourned on 3 March 1982 to 6 July 1982 was on the grounds that Mr Kavali was to prepare himself for the National Elections.

(c) Any further adjournment could have caused inconvenience to all concerned in the case.

(d) As far as evidence by prosecution’s witnesses there was enough evidence to convict Mr Kavali. The only element of the charge disputed by the defence was that the consuming of liquor was proved beyond any reasonable doubt. Had defence evidence were [sic] available it could not have caused any doubt."

The sentence clearly means that had defence evidence been available it would not have caused the magistrate to doubt the prosecution evidence; it would not have led to an acquittal.

Natural justice is an important part of the underlying law of Papua New Guinea and the courts have a special duty by s. 60 of the Constitution to develop its principles. By s. 59(2) of the Constitution "the minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly." Another important principle of natural justice is that the court hearing a case should be free of bias. Cases in which superior courts have overthrown a decision for actual bias are rare presumably because it would be unseemly for the court to pry into the mind of another judicial officer. The superior courts have concentrated on determining if there is a real likelihood of bias or a reasonable suspicion of bias which I discuss in a moment. But certainly if a party attacking a decision can prove actual bias the decision will be overturned: see Anderton v. Auckland City Council [1978] 1 N.Z.L.R. 657 at 687. That authority is only of persuasive value in Papua New Guinea but it contains a detailed discussion of the English authorities which are binding and I think it right in principle and it should be followed.

The magistrate’s statement that had defence evidence [been] available it would not have caused any doubt, reveals bias or prejudice against Mr Kavali. It means that had Mr Kavali, and/or witnesses called by him, given evidence it would not have caused the magistrate to doubt the police witnesses. It is a prejudging of the defence evidence, that whatever it was it would not have led to an acquittal. This remark was wrong and should not have been made. But I consider it irrelevant to the result: that is, it had no effect whatsoever on the conviction and therefore should not avoid the conviction. The remark was made after the appeal was lodged. It was not made during the trial. If it had been made during the trial, say at the close of the prosecution case, the conviction would have to be avoided because the remark may have dissuaded or discouraged the defendant from giving evidence, or, if he had given evidence, there was a real likelihood that the evidence was rejected because the magistrate had prejudged it. I will assume in favour of the appellant that, although unstated at that time, the magistrate held the same view at the close of the prosecution case. But because he did not reveal that view and because no evidence was called by the defendant, and because there was no question of weighing up the prosecution and the defence evidence, in my view it cannot be said that there was a real likelihood or a reasonable suspicion that the magistrate convicted the defendant because of his prejudice. It was as if the prejudice was compartmentalised in the magistrate’s mind; the prejudice was there but the magistrate did not use it to decide the case.

The second argument Mr Gawi advanced on the ground of bias was that the magistrate’s antipathy to Mr Gawi because of Mr Gawi’s remarks to the court which led to him being barred from the court, may have carried over to Mr Gawi’s client. The test of bias as a principle of barring an adjudicator from sitting, or avoiding the decision if he does sit, has been discussed in a number of cases. Some of the cases relate to courts and some to tribunals but the rules appear to be the same in both areas of law: see de Smith, Judicial Review of Administrative Action (4th ed.), at 251. The pre-Independence English cases are conveniently cited in R. v. Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 C.L.R. 248. There is a conflict in England whether the test is real likelihood of bias or reasonable suspicion of bias. Lord Denning in Metropolitan Properties Co. (F.G.C.) Ltd v. Lannon [1968] EWCA Civ 5; [1969] 1 Q.B. 577 at 599 favoured the former view:

"There must be circumstances from which a reasonable man would think it likely or probable that the justice ... would, or did, favour one side unfairly at the expense of the other."

In Australia and in New Zealand the courts have very clearly come down in favour of the reasonable suspicion test see Watson’s case and Anderton’s case cited above. I cite the test quoted with approval in Watson’s case by the High Court in a joint judgment at 262:

"Those requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds."

It is not necessary for me in this case to decide which test is appropriate for Papua New Guinea. In many cases the two tests will produce the same result. I have heard little argument on the point. Neither counsel cited any cases to me on the question of bias but Mr Gawi referred me to two passages in de Smith’s book. I propose to apply both tests to the facts. What were the questions which the magistrate had to resolve after Mr Gawi was barred? Mr Gawi was barred on 24 February, and no further evidence was heard after that date. On 26 February Mr Banda on behalf of Mr Kavali and himself made a detailed no case submission. Mr Banda is a law graduate and his submission which is recorded in the record is competent. The magistrate reserved until 2 March when he ruled on the no case submission and acquitted Mr Banda. He then granted a four month adjournment as requested by Mr Kavali to allow him to find another lawyer and to attend to Cabinet and election matters. On or before 17 March Mr Gawi made a full apology to the court and on 17 March 1982 Mr Malaisa accepted that apology in these words:

"On behalf of the Ela Beach Court I thank you, Mr Gawi, for your apology. Your apology is deeply accepted by this Court and its members.

A person of your class is very much required by the General Public for legal representation in lower Courts. Which Ela Beach, Local and District Courts are included.

To keep you away is only denying the rights of those people to be represented in court.

To do justice all courts, lawyers and other legal persons co-operate with each other.

Once again I thank you very much indeed and welcome you back in this Court and hope that you appear in the near future."

The result was that Mr Gawi was welcome to continue his representation of Mr Kavali as from that date. On 6 July there was no appearance by or for Mr Kavali, the police prosecutor made his final address and the conviction followed. I cannot see how a party or a member of the public would think that there was a real likelihood or a reasonable suspicion that the enmity that existed between the magistrate and counsel led to the magistrate rejecting the no case submission on behalf of Mr Kavali on 2 March or led to the conviction on 6 July. There was abundant police evidence to justify dismissing the no case submission and to support a conviction. There were good and proper reasons for proceeding with the trial on 6 July in the absence of Mr Kavali and I consider that it was Mr Kavali’s absence on that date, rather than any enmity which then existed between magistrate and counsel, which led to the decision to continue and conclude the hearing of the case.

[His Honour then considered matters going to the weight of the evidence and concluded that the prosecution evidence was convincing, the verdict was not against the evidence and the weight of the evidence and rejected this ground of appeal.

His Honour then considered the appeal against sentence in the light of the principles in Public Prosecutor v. Holloway [1981] P.N.G.L.R. 482 and Norris v. The State [1979] P.N.G.L.R. 605 concluding that the magistrate did not err in principle nor was his sentence manifestly excessive particularly in view of the fact that the appellant had five prior convictions and was a Minister of the State. He quoted from Jaminan v. The State [1983] P.N.G.L.R. 318 as follows]:

"The common expectation would be that such a person would be punished more severely because of his very status and position he holds within the community"

The sentence is stern but not I think manifestly excessive in the circumstances nor does it amount to a substantial miscarriage of justice.

The appeal is rejected on all grounds. I will issue a warrant of Commitment for three weeks imprisonment with hard labour but I will direct that the warrant lie on the file for the next ten days to give the appellant and his legal adviser some time to consider their next step.

Appeal dismissed.

_________________________________

Lawyer for the appellant: Richard Major, Gawi & Associates.
Lawyer for the respondent: Public Prosecutor.

[1984] PNGLR 191 - Danley Tindiwi, for and on behalf of Members of the Suspended Enga Provincial Government v John Nilkare, Minister for Provincial Affairs, and The State