Kinau v Sariman (No 1) [2004] PGDC 55; DC285 (26 August 2004)

DC285

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO1109, 1115 OF 2003

BETWEEN

PHILIP KINAU
Informant

V

ANGELINE THERESA SARIMAN
Defendant

WAIGANI: PINSSON PINDIPIA
26th AUGUST 2004

DECISION

The Defendant through her Lawyers have filed a Notice of Objection to the use of various State Witnesses’ Affidavits pursuant to Section 35 (2) of the Evidence Act.

The Notice inter alia (amongst other things) raises four (4) main grounds in support of the Objection.

They include:--

(i) The Evidence of the Witnesses do not meet the form and content requirements of Section 94 (1 A) of the District Court Act, 1963.

(ii) Defendant is not identified in the evidence of the Witnesses.

(iii) Relevancy of the Witnesses' evidence to the charges of conspiracy and misappropriations, and

(iv) The Statements do not confirm to the Rules of Evidence Law.

Also noted from the Court files is the Prosecution reply to the Notice of Objection to the use of State Witnesses affidavits.

The State has generally not disputed the Defendant's contention but have requested the Court instead observe the following issues:--

First, it was argued for the State that Section 94 (1A) requirements of the District Act relates only to Statements and not affidavits. All its witnesses' evidence are in the form of affidavit evidence and therefore the Section 94 (1A) of the Act de "not apply".

Secondly, it has been argued that, the defendant is identified by all its witnesses evidence of the Offences he stand charged before the Court.

In relation to the other grounds raised by the Defendant it was submitted that the issues of admissibility of Evidence, Relevancy of Evidence and or Evidence not conforming to the Rules of the Evidence Law are matters more appropriate to be determined by the trial Court (National Court). Hence the Committal Court was only required to receive the evidence and pass it onto the National Court for proper consideration.

I have been advantaged to have viewed both these opposing arguments, but first let me observe that the Notice of Objection to the use of the Affidavits dates back to 17th May 2004. Unfortunately it has not being ruled despite it has been before a number of his and her worships for reasons only known to them. I have been requested to make a ruling at this stage when in my view the substantive matters are also due for ruling. I intend to observe its ground as raised in the Notice and where necessary ruling made on each ground. However, any ground which in my mind raises the substantive issues, the ruling in respect of that ground shall be reserved until the substantive matters are scheduled for ruling.

Perhaps it would be necessary to briefly state the prime responsibility of the Committal Court in light of observations made by the Prosecution in their arguments against the defendant's Notice of Objection.

It is true to say - Committal Court is not a trial Court. The Committal Court is however, empowered by the District Court Act, to perform a very important role. That is to diligently enquire into all the evidence in the Police files to determine sufficiency of the State's evidence against the defendant in relation to the Offences he/she stand charged.

That is whether Police have made out a prima facie case against the defendant for the offences he stand charged. Although Committal Court is not a trial court, the court in determining sufficiency of Police evidence must make reliance of the rules of evidence law. The Court is empowered to see that the Police action in the first instance is provided by a written law and' the procedural requirements have been compiled with in bringing about the Police actions and evidence.

If the Court is at this stage satisfied that there is sufficient evidence disclosed in Police files it shall committal the defendant to stand trial at the National Court pursuant to Section 100 (3) of the District Act, or alternatively discharge the defendant under Section 100 (2) of the said Act, if there is insufficient evidence.

As we have observed, the Notice of Objection raises four (4) main grounds which the defendant rely upon.

First, is the Section 94 (1A) requirement of the District Court Act. This Section deals with the form 3-Tld content requirements of a statement tendered in Court to establish or prove a fact in issue.

The defendants contention is that the affidavits of the witnesses (as named) do not contain the warning certification required by Section 94 (1A) which provides:-

"a Statement referred to in subsection (1) (d) shall contain the following warning to the maker of the Statement and shall be signed by the maker of the statement. "I. . . . . . . ..Certify that this statement is true to the best of my knowledge and belief. I make it knowing that if it is tendered in evidence 1 will be liable to prosecution if I have knowingly stated anything that is false or misleading in any particular".

Evidence is usually given to the Court using three (3) different methods.

They are:-

(i) Oral Evidence.

(ii) Evidence by Affidavit, and

(iii) Evidence by Statement.

1. ORAL EVIDENCE:

The witness in this process appears in person, personally or upon being summonsed to court testifies on oath from the "Witness Box" matters within his/her personal knowledge about the issue disputed in Court.

2. EVIDENCE BY AFFIDAVIT:

This method requires the witness to reduce his/her evidence into writing about matters personally known to him/her in respect of the contested issue. The witness is required to sign before a Commissioner for oaths. This document is called an affidavit.

3. EVIDENCE BY STATEMENT:

In this situation the witness's evidence is also reduced to writing. The written document is called a statement but unlike an affidavit, a statement is not signed before a Commissioner for Oaths. . Since a Statement is not signed before a Commissioner for Oaths, a warning certification is required to be inserted at the end as required by Section 94 (1A) of the District Court Act. This serves as a warning to the maker of the Statement, the consequences that may fail for making false or misleading statements. Even though Statements are not signed before a Commissioner for Oaths, and as long as the warning certification is inserted as required by Section 94 (1A), Section 94 (1B) of the same Act authorities such statements to be treated as an affidavit for the purposes of Section 35 of the Evidence Act.

Hence the Defence contention that the State Witness's affidavits were not signed with a Section 94 (1A) warning unfortunately falls short of the content requirement envisaged by Section 94 (I A). The Section 94 (1 A) warning is only necessary for statements not made before a Commissioner for Oaths made on Oath. Though a number of State Witnesses affidavits have not been signed and others had hand written alterations made and not signed before a Commissioner for Oaths. The authenticity of such affidavits may be tested l' '

The Defendants' second ground relates to the State witnesses' affidavit evidence not identify the defendant of the charges of conspiracy and misappropriation. This ground in my view raises the substantive issue that must be considered by the Committal Court, when it sits to enquire into the evidence to establish sufficiency of the evidence against the defendant for the offences he stand charged. This court will reserve ruling for this ground at the substantive ruling.

The last two grounds relates to or involve around the rules of the Evidence Law and its admissibility. I think these two grounds must be reserved till the substantive matters are scheduled for Court’s ruling on the sufficiency of Police evidence against the defendant of the Charges he stand charged.

Since the Court has reserved three out of the four (4) main grounds relied upon by the defendant to file the Notice of objection, the application must stand adjourned to coincide with the substantive ruling.

Maladina Lawyers: Informant
Koniu Polon: Respondent