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Kairu v The State [2005] PGSC 41; SC782 (27 April 2005)

SC782

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA 64 of 2002

Between:

BEN KAIRU
-Appellant-

And:

THE STATE
-Respondent-

KOKOPO: JALINA, KIRRIWOM, KANDAKASI, JJ.
2005: 26th and 27th April

APPEALS – Fresh evidence – Application to adduce – Relevant tests for fresh evidence - Evidence available at time of trial and could have been ascertained with the exercise of reasonable care – Purported fresh evidence expression of medical opinion upon earlier medical opinion -- No explanation provided for failure – Purpose of alleged "fresh evidence" not part of issues before trial judge – Evidence not "fresh evidence" and not relevant on issues at the trial - Application dismissed.

Facts:

The Appellant applied for leave to adduce as "fresh evidence" medical opinions based on an earlier medical report by the doctor who conducted a post mortem on the deceased as to the cause of death of the deceased. The appellant came to the alleged "fresh evidence" during a conversation with another doctor well after his trial and conviction. The issue before the trial judge was identification and not necessarily the cause of death.

Held:

1. The law in relation to applications for admission of fresh evidence are well settled. An applicant in an application to adduce "fresh evidence" must show that:
   
   • (a) The evidence in question was not available at the time of the trial and that it could not with the exercise of reasonable care and attention be ascertained, secured and adduced in evidence before the trial judge; and
     
   • (b) The justice of the case warrants an admission of the evidence in question.

James Pari & Anor v. The State [1993] PNGLR 173 and Rawson Construction & Ors v. The State (04/03/05) SC777 followed.

2. In this case, the applicant did not meet the required tests and the evidence sought to adduce are therefore not "fresh evidence" because:
   
   • (a) The evidence was available and or could have been ascertained, secured and adduced before the trial judge with the exercise of reasonable care and attention but the Appellants failed to do that;
     
   • (b) Given that the issue for trial was identification with no contest on the cause of the death, the alleged fresh evidence is irrelevant and in any case would not serve the interest of justice to admit the evidence in question because of the need to ensure finality and certainty in litigation;
     

Papua New Guinea Cases Cited:
Rawson Construction & Ors v. The State (04/03/05) SC777.
AGC (Pacific) Limited -v- Sir Albert Kipalan and Ors (Unreported judgment delivered on 24/02/00) N1944.
Koitaki Farms Limited v. Kemoko Kenge and Other Squatters at Itikinumu (Unreported judgment delivered 09/11/01) N2143.

Counsel:
Mr. P. Aeva for the Applicant/Appellant
Mr. C. Manek and Ms. T. Berrigan for the Respondent/Respondent.

27th April 2005

BY THE COURT: The Appellant in this matter is appealing against a decision of the National Court delivered on 27th June 2002, which found him guilty on one count of murder after a trial. However, before proceeding with his appeal, the Appellant has filed an application for leave to adduced "fresh evidence". We heard that application yesterday and reserved our decision on it. This is now the decision of the Court.

Background and Relevant Facts

The trial of the Appellant before the National Court was on the issue of identification, in terms of whether the Appellant acted in concert with a brother of his in the murder of a 60 years old man on 3rd February 1998, by effecting several kicks to the deceased using boots. That being the case, all the other elements of the offence, such as, death and the cause of the deceased death were not in issue.

Given the issue for trial, the Appellant through his counsel did not contest the admission into evidence the only available medical evidence, being a medical report by a Dr. Wats, then of the Kaveing General Hospital. That report in relevant parts reported the discovery upon a post mortem on the deceased of a number of both internal and external injuries to the deceased body and a conclusion in these terms:

"The above finding confirm that the deceased was assaulted before he died. He probably died of respiratory difficulty due to the injuries he sustained to his right lungs."[1]

Although the author of the medical reported was called as a witness by the prosecution, the defence did not cross-examine him in relation to the cause of the deceased death. Additionally, the defence did not seek further expert medical evidence in view of the apparent inconclusiveness of the report on the cause of the deceased death. There is no explanation for theses failures. However, it is consistent with the fact that, the only issue for trial was one of identification.

A year later in June 2003, the Appellant visited the Kavieng General Hospital as a prisoner patient. There a Dr. Wangnapi treated the Appellant. In the course of it, the doctor asked the Appellant about the outcome of the latter’s case and the Appellant informed the doctor that he was appealing against his conviction. At the same time, the Appellant asked the doctor to do a medical opinion in the form of an affidavit based on Dr. Wat’s medical report. That is what Dr. Wangnapi agreed to do and eventually swore to an affidavit on 19th May 2004.

Doctor Wangnapi’s affidavit in relevant parts read:

"8. From a perusal and review of the said Medical Report I have reached an opinion that if the deceased was normal physiologically he would probably not have died from the kind of injuries he received, especially the injury to the right jaw which was queried, fractured and the right upper anterior aspect of right shoulder muscle.

9. The deceased has some abnormal growth other then the normal lung tissue (pathology) in the left lung. The abnormal growth was like a size of a golf ball, on the lateral aspect of the left lung. There was also 300mls of bloodstain fluid in the left lung cavity, which is usually not normal unless there were some injuries in the left lung.
   
10. It is clearly stated that there were no obvious injuries whatsoever in the left lung and the left lung tissues in and around it during the Post Mortem examination. In my opinion there must have been a disease already existing in the left lung by taking BIOSPY to exclude or confirm the medical evidence to this particular case.
    
11. In my opinion, the deceased may have died of respiratory arrest (lung stop functioning) because of limited normal lung tissue. As there were 300mls of bloodstain fluid in both lung cavity and the lesion in the left lung."
    

Although not specified, it is clear that subsequently, Mr. Aeava of counsel for the Appellant/Applicant requested a further medical opinion from Dr. Golpak. That doctor provided a medical report based entirely on the primary report by Dr. Wat. In essence, Dr. Golpak concluded that the cause of the death of the deceased was by respiratory difficulty caused by advanced tuberculosis, which the earlier medical report did not rule out by carrying out the necessary tests to eliminate that as a possible cause of the death.

The Appellant did not provided Dr. Wat with a copy of neither of the medical opinions by Dr. Wangnapi and Dr. Golpak. Consequently, the Appellant did not give Dr. Wat the opportunity to reconsider his medical opinion based on his post mortem.

Equipped with the opinions of doctors Wangnapi and Golpak, the Appellant filed some two years after the decision on his verdict and subsequently his sentence, his application for leave to adduced "fresh evidence" in the form of the opinions of doctors Wangnapi and Golpak.

The Relevant Law

The law governing applications for leave to adduce "fresh evidence" is trite. In its most recent judgment in the matter of Rawson Constructions Limited & 238 Ors v. The Independent State of Papua New Guinea & Anor.,[2] this Court stated the law in the following terms:

"In James Pari & Anor v. The State[3] the Supreme Court spoke of two basic requirements or test for the admission of fresh evidence. These are from the head note to the judgment:

‘Firstly, there must be fresh evidence within the meaning of s. 6(1) (a) of the Supreme Court Act Ch 37, which means evidence which has come to light since the hearing or trial, or evidence which as come to the knowledge of the party applying since that hearing or trial and which could not by reasonable means have come to his knowledge before that time. Secondly, the court must be satisfied that the justice of the case warrants admission of the evidence.’

This was a restatement of what the Supreme Court had already stated in the earlier cases of Peng v. The State[4] and Abiari v. The State.[5]

Applying the principles enunciated in the above authorities, the Supreme Court in the Rawson Construction case, stated the following as the relevant issues which are also the issues in the case before us:

"1. Were the evidence the Appellants seeking to admit as fresh evidence, fresh evidence within the meaning of s. 6 of the Supreme Court Act Chp.37, in that they were evidence that came to light after the trial and could not with reasonable means be ascertained, secured and admitted at the trial?

2. Does justice of the case warrant the admission of the evidence the Appellants seek to admit?"
   

During the course of his submission, Mr. Aeava of counsel for the Appellant/Applicant, conceded that, the medical report by Dr. Wat created a window of opportunity for his client to undertake the very steps he undertook well after his conviction and sentence. Counsel also conceded that, if his client exercised reasonable care and attention at the trial level, the evidence he now seeks to adduce by way of "fresh evidence" could have been easily ascertained and adduced before the trial judge. However, for reasons not properly disclosed to this Court, the Appellant/Applicant did not take the appropriate steps that were open to him.

The only explanation for the kind of conduct adopted by the Appellant/Applicant and his counsel at the trial level, in the absence of any other explanation is as we already noted, was the fact that the only issue for trial was one of identification. The cause of the deceased death was therefore not an issue at the trial level. Hence, it would have been unnecessary for the Appellant/Applicant and his counsel to take the kind of steps he and his current counsel have undertaken. This brings into consideration the other important considerations of, whether the evidence sought to be adduced as "fresh evidence" is relevant and would have affected the decision appealed against and therefore justice of the case warrants an admission of the evidence to be adduced.

The Appellant/Applicant does not question in any manner or form the agreement of the parties in relation to the only issue for trial, which was one of identification. Consequentially, this means the Appellant/Applicant could not go outside the agreed issues for trial without first seeking and obtaining leave to do so. The Appellant/Applicant’s substantive notice of appeal does not seek to move away from the only issue for trial. That being the case, we are of the view that, the evidence sought to be adduced goes into a matter that was not an issue and not an issue raised in the appeal.

Further, we find that, if the application for the alleged "fresh evidence" was allowed, it would not serve the interest of justice both in this case and any other case that might follow. The right of appeal and the process of appeal are there and available to an aggrieved party to correct identifiable errors committed by a trial judge that sufficiently warrants an interference or correction by this Court. Accordingly, the appeal process is not there to enable parties who fail to properly present their cases before a trial judge to take another chance before the Supreme Court. Similarly, the provisions in the Supreme Court Act and practice on adducing "fresh evidence" is not there to enable a party who has failed to exercise reasonable care, skill and attention to preparing and presenting his or her case by amongst others, securing all of the relevant and available evidence on the issues before a trial court, to re-visit the case. This is so because, one of the important tenets of justice is to ensure finality and certainty in litigation subject only to a proper exercise of one’s right of appeal.[6]

In the end therefore, we find that the evidence sought to be adduced as "fresh evidence" is not fresh evidence in that, the evidence was available or could have been easily ascertained and adduced before the trial judge. We also find that, the evidence in question was nevertheless, irrelevant given the only issue for trial before the learned trial judge, being one of identity. Further, we find that it would not serve the interest of justice to admit the evidence sought to be admitted as "fresh evidence", in the interest of ensuring finality and certainty in litigation. For these reasons, we decline the application for leave to adduce "fresh evidence as having no merit on account of which we order its dismissal.
______________________________________________________________________
Lawyers for the Appellant/Applicant: AMPS Logohus Lawyers.
Lawyers for the Respondent/Respondents: The Public Prosecutor

^[1] The medical report is reproduced at page 208 of the Appeal Book.
^[2] (Unreported judgment delivered on 04/03/05) SC777, per Sawong, Kirriwom and Kandakasi. JJ.
^[3] [1993] PNGLR 173.
^[4] [1982] PNGLR 331.
^[5] [1990] PNGLR 250.
^[6] See AGC (Pacific) Limited -v- Sir Albert Kipalan and Ors (Unreported judgment delivered on 24/02/00) N1944, per Sakora J. and Koitaki Farms Limited v. Kemoko Kenge and Other Squatters at Itikinumu (Unreported judgment delivered 09/11/01) N2143, per Kandakasi J.