Police v Pirake [2008] CKHC 41; JPAppeal 10.08 (2 October 2008)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)

JP Appeal 10/08

POLICE

v

GOODMAN PIRAKE
Defendant

Mr Tetava for Police
Mr N George for Defendant
Dated: 2 October 2008

DECISION OF WESTON J

1. This is an appeal from the decision of Justices of the Peace given on 13th August 2008, where they declined leave to admit a statement of the deceased complainant on the basis that:

1. The statement of the victim cannot be proven by way of examination and cross-examination.

2. There is dispute in the location of the scene where the incident happened.

2. The statement referred to above has been shown to me in the course of the hearing. It is a type statement dated 28 December 2007, apparently signed by the deceased on 1 January 2008 and witnessed by Inspector Tera. This is the statement that the Police seek to have admitted as evidence at the trial of a number of offences arising out of the incident to which that statement relates.

3. The Police submit that the Justices of the Peace were wrong to exclude the statement and effectively to dismiss the charges as a consequence. In the course of submissions, the Deputy Commissioner referred me to two New Zealand decisions. Queen v Hovell [1986] 1 NZLR 500 and [1987] NZCA 51; [1987] 1 NZLR 610. The first of these concerned a pre-trial ruling and the second one concerned the admissibility of the same statement but following the actual trial.

4. The Court in each case considered Section 3 of the Evidence Amendment Act (2) 1980, which is a New Zealand Act. I observe that there is considerable similarity between that provision and Section 22 of the Evidence Act in the Cook Islands.

5. The Police referred me to Section 22(1) and I now quote the relevant portion:

"In any criminal proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact....if the maker of the statement ... had personal knowledge of the matters dealt with by the statement. Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead..."

6. I find that, on the basis of this provision, the statement is admissible and should have been admitted by the JPs. Mr. George referred me to Section 22(4) and he also referred me to Section 23 of the Evidence Act in support of his argument that I should not so order. I'm satisfied however, that the statement is properly admissible. That is not to say that the question of weight to be placed on that statement is thereby determined.

7. Mr. George has forcibly put the difficulties that will face his client at trial because he will not able to test the statement by way of cross-examination. It may also present him with difficulties because of his client's right not to give evidence but these are all difficulties that I cannot address at this time. They may well provide him with formidable grounds at trial to argue that the statement, although admitted, should be given no or virtually no weight. Again, though, I repeat I cannot determine that now.

8. I make the point that in the Queen v. Hovell, matters were determined by the High Court and the then Court of Appeal initially on the basis of depositions and then following trial. In other words, there was sworn evidence before the Court and the Court was not required to speculate as I would be required to speculate if I was to rule in Mr. George's favour.

9. Mr. George, during argument accepted the force of the propositions I was putting to him but argued that in the justice of this case, the status quo should prevail. That is, even if I was to clarify the law on this point, the outcome as determined by the JP's should stand.

10. While it is tempting to do so, I am not prepared to accept that invitation. The Police believe they have a strong case and have made that submission to me. Equally, Mr. George has made a strong case that there will be a direct contest of credibility that cannot be tested by him. I repeat, I cannot resolve that. That is a matter that will be before the JP's. They will then have the difficult task of assessing whether and what the weight should be given to the statement. They will need to ensure that Mr. George's client has a fair trial. These are all matters of judgment for the JP's at trial. Of course, if following the trial Mr. George believes his client may have been convicted (assuming that is the outcome) because of the prejudicial effect of the statement, he will still have a right of appeal as was the case in the Queen v Hovell.

11. Appeal allowed. This statement is admissible.

____________
Weston J