State v Wain [2009] PGDC 5; DC750 (9 April 2009)

DC750

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
CRIMINAL JURISDICTION

Com. Case No: 193 & 194 of 2008

THE STATE

V

ROSE WAIN

Wewak: D.Susame

2009: 09th April

DISTRICT COURTS ACT – Committal Proceedings –SS 94B, 94 (1A),
94 (1B), 94C (2) – The Need To Comply with ss. 94 (1A) and 94C (2) and Consequence For Non Compliance.

Cases Cited

The State vs. Kai Wabu [1994] PNGLR 498

Counsel

First Constable Namtane for the Prosecution
Amanda Nambau from Wal & Associates Law firm for the accused

Ruling

9th April 2009

Susame;-The accused is in court for two separate charges of stealing and misappropriation under sections 372(1) and 383A (1) of the Criminal Code respectively. The charges emanate from the same set of facts when the accused was then employed as the Chief Executive Officer of Sepik Savings and Loans Society.

The accused has made a no case submission through her counsel. No rebuttal has been received from the police prosecutor representing the police informant although several weeks have been given for the prosecution to respond.

The defence no case submission as I understand is this. The first part of the argument is based on non compliance of sections 94(1B)(4),94(1) (e) and 94 (1A) of the District Courts Act. Basically, the learned counsel for the accused argues that proof of service of documents on the accused was not endorsed contrary to section 94(1B)(4). I dismiss this argument on the issue of proof of service. The accused has been duly served copy of committal files with respect to her charges. Proof of service of the documents has been properly endorsed and is in order and I cannot find any error in the service process. The counsel further argues that the witnesses’ statements and the list of exhibits in the police hand up brief files do not conform to the mandatory requirements of sections 94(1)(e) and 94 (1A) and should not be admitted as evidence. In support the learned counsel relies on the case of The State v Kai Wabu [1994] PNGLR 498. The second leg of the counsel’s argument is based on her detail diagnosis of the prosecution’s evidence which she argues contains a large number of inconsistencies as such it is difficult to ascertain the true events of what transpired to establish a prima facie case to warrant a committal order.

Section 94B is titled, "Committal for trial without consideration of evidence."

Subsection (1) reads, "Subject to subsection (2), a court inquiring into a offence may, if it is satisfied that all the evidence, whether for the prosecution or the defence, consists of written statements with or without exhibits tendered to the court...........commit the defendant for trial......"(emphasis added).

The written statements referred to must be in the form as stipulated in section 94(1A) which states; "A statement referred in subsection (1) (d) shall contain the following warning to 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 I will be liable to prosecution if I have knowingly stated anything that is false or misleading in any particular.

Signed:"

Section 94 (1B) reads; "A statement referred to in subsection (1)(d) shall for the purposes of Division 111.2 of the Evidence Act (chapter 48 ), shall be treated as an affidavit."

The judgment of His Honour Injia AJ in State v Kai Wabu (supra) is clear on sections 94C (2) and 94 (1A) and I need not elaborate further. What I want to say is that the facts in Kai Wabu’s case are quite different from this one. That case had gone through the committal process and was being tried in the National Court. His honour was dealing with a case in which the accused and the victim were both illiterate and spoke only their Misima dialect. The court noted that there was no certification of interpretation from the person who did the interpretation of the record of interview and victim’s statement before they signed. There was also no inquiry done by the committal magistrate to ensure the accused and the victim had full knowledge of the interpreted versions of their statements, its contents were true and correct before they signed.

This court however, has not and is still in the process of completing the committal process in this particular case. I do not intend to examine the police informant and the authors of the statements to ascertain if they had full knowledge of the contents, correctness and truth of their statements before signing as required of me under s.94C (2). I have reasons for not doing that.

Firstly, I had no easy task identifying the exhibits with the list the informant had provided. I noted that exhibits have not been properly labeled and marked and not in chronological order. The copy of the cheque of K17 450.00 marked as exhibit S7 in the exhibit list has not been included.

Secondly and most importantly, the police hands up brief files consist of investigative reports, lists of exhibits, and written statements of various persons who are professional and literate. I believe the statements were prepared by the witnesses themselves and provided to the police informant when the case was being investigated. Nearly all the statements are in ordinary form and do not conform to s.94 (1A) or in an affidavit form, properly sworn and signed before a Commissioner for Oaths. The only statements that are proper and admissible are those of the investigator and his corroborator which complies with s.94 (1A) and witness Melchior Javin’s affidavit sworn and signed on 22nd January 2008.

My overall impression of the compilation of the committal files is that it was done in haste, without care and diligence as is evident from the omissions and flaws identified and discussed above.

It follows therefore, that this committal court will refuse to admit those statements as evidence for the purposes of criminal trial in the National Court. Having reached that decision there is no point for me to consider the second aspect of the defence argument with regard to inconsistencies found in the statements of witnesses Pius Salle, Joanne Handite, Rex Yawane and other witnesses.

The conclusion reached from the discussions is that there is no evidence sufficient to commit the accused to face trail in the National Court. Accordingly, I order that both charges are struck out and the accused shall have her cash bail refunded forthwith.