Police v Kaiwi [2020] PGDC 61; DC5052 (20 November 2020)

DC5052

Papua New Guinea

In the District Court

Held at Waigani

Sitting in its Committal Jurisdiction

Comm. No. 752 of 2020

BETWEEN:
THE POLICE
Informant

AND:
BHOSIP KAIWI
Defendant

Port Moresby: T. Ganaii, SM
2020: 20^th November

COMMITTAL PROCEEDINGS – Practice and Procedure - Application to tender additional evidence namely Translation Certificate for Witness Statements after service of Police Hand Up Brief - Objection raised by Defence - Arguing unfairness after Police Hand Up Brief had been served and Submissions on sufficiency of evidence filed and served on Prosecutions

COMMITTAL PROCEEDINGS - Practice and Procedure - At committal proceedings there cannot be any argument on prejudicial effect to a defence - Any defence raised is a matter for trial proper – Court has a duty to enquire into the admissibility of witness statements – Court had not yet considered a ruling on sufficiency of evidence – Defence had no objection to authenticity of Translation Certificate and it was admissible - There is no discretion to exclude admissible evidence at committal proceedings - Translation Certificate is allowed into evidence

COMMITTAL PROCEEDINGS – Practice and Procedure – In the consideration of principles of natural justice - Court is required to consider the interest of the State, the victim and the fairness to the committal process – The fairness of the committal process requires the court to make an enquiry into the admissibility of witness statements - In so doing the additional evidence is allowed into evidence - Parties to address the court on submissions on sufficiency of evidence in the light of the additional evidence
Cases cited
Akia v Francis PGNC 335; N6555
Les Gavara-Nanu v Peter O’Neill (2018) N7562
Maladina v Principal District Magistrate Posain Poloh [2004] PGNC 208
R-v- McEachern [1967-68] PNGLR 48
The State v Helen Markus (2015) N5944
The State v Kai Wabu [1994] PNGLR 498 N1227
The State v Robin Andolu (2012) N5127
Yarume v Euga [1996] PGNC 24; N1476

Overseas Cases
R v Horsham Justices: Ex parte Bukhari (1982) 74 Cr App
R v Kings Lynn Magistrates’ Court, Ex parte Holland [1993] 2 ALL ER
R v Sanghera [1983] 2VR 130 at 131 per Mc Garvie J

Legislation
Criminal Code Act, Chapter 262
District Court Act, Chapter 40

Text
J.D. Heydon, Cross on Evidence, Seventh Australian Edition, 2004

Counsel
Police Prosecutor: Joseph Sangam For the Informant
Mr. Wenge, Luthers Lawyers For the Defendant

Ruling on an Objection raised by the Defence
on the tendering of Additional Evidence by the Prosecutions
after Service of the Police Hand Up Brief

20^th November 2020

Introduction
Ganaii, SM. This is a ruling on an objection raised by the Defence after the Prosecutions sought to tender a Translation Certificate for the Police star witnesses’ statements where the Police Hand Up Brief (PHUB) had been served on the defendant and the defence had filed and served on the prosecutions their submissions on sufficiency of evidence.

Facts
2. The defendant’s charge is one of Willful Murder under section 299 of the Criminal Code Act. The PHUB was served on him. Through his legal representative the learned counsel Mr. Wenge, Defence filed and served their submissions on sufficiency of evidence on the prosecutions. Among others the Defence submitted that Police witness statements which were obtained in the pidgin language and compiled in the PHUB did not contain a Translation Certificate to make such statements admissible so that the court can rely on them. The prosecutions filed their reply submissions on sufficiency of evidence. When the matter returned for submissions hearing, Prosecutions sought to tender the Translation Certificate through an amended PHUB.

3. The Defence objected to the tendering of the Translation Certificate. They did not raise any legal basis for the objection except to say that the Prosecutions filing of the additional evidence came about only after they (the defence) raised it in their submissions. As such, and on this basis the defence say that it is unfair and prejudicial to their case if the Translation Certificate is admitted into evidence.

Issue
4. The main issue before this court is whether the Translation Certificate can be tendered to court at this stage of the criminal proceedings? The sub issues arising in my view are twofold:

1. Firstly, whether it is proper for the defence to raise the ground of prejudicial effect and unfairness to and on their case so that the court should refuse admission of the Translation Certificate? and
   
2. Secondly, whether it is in the interest of natural justice that the Translation Certificate be admitted into evidence after service of the PHUB and before ruling on sufficiency of evidence?
   

The Law
The Law on Committal Proceedings

5. Part VI of the District Courts Act (DCA) provides the legal basis for committal proceedings specifically under Section 94 to Section 100 of the DCA.

6. The Committal Process whilst requiring the Court to make a finding on the evidence presented by the Police, this process is very administrative in that the Court need only to form an opinion that there is a bona fide prima facie case against the Defendant; as per Akia v Francis ^[1]and R-v- McEachern^[2].

7. In the matter of Maladina v Principal District Magistrate Posain Poloh ^[3] His Honour Injia DCJ (as he then was); expressed in his opinion that the Committal process involves two phases, the first is when the committing magistrate makes a finding on whether or not there is sufficient evidence and whether a prima facie case is made out under Section 95 of the DCA on whether to discharge or commit the defendant only after the Court administers an examination of a defendant under Section 96 where the defendant is asked whether he desires to give evidence.

8. Furthermore, in the case of Yarume v Euga ^[4] the National Court said in respect to committal hearings that the process of committal requires proper and reasonable assessment of the evidence with a view to seeing whether all the elements or ingredients of the offence is present before he can commit the accused; Section 94B, 94C, 95 and 100 to be read together.

9. In the case of The State v Kai Wabu ^[5] the court held that the combined effect of ss 94 (1A) and 94C (2) of the District Courts Act is that the committal Court must conduct an enquiry to ensure that the makers of statements had full knowledge of the contents, correctness, and truth of written statements they are responsible for signing. This requirement is mandatory and requires strict compliance. This enquiry is an independent one, which the Court must conduct in the exercise of its judicial function. The court further stated that after having conducted the enquiry, the Court has discretion to admit or reject the written statement. The Court must then record the nature and extent of the enquiry conducted and record its findings. A failure to conduct such enquiry and record its finding may result in voiding the committal.
Prosecution Submission
10. In support of its case, the prosecutions only submission was that the only additional document in the amended PHUB is the Translation Certificate. The court has a duty to receive that into evidence and the parties can make submissions on it to assist the court rule on sufficiency of evidence.

Defence Submission
11. The Defence only submission in this regard is that it is unfair on their case for the court to allow into evidence the Translation Certificate when the PHUB had been served and submissions had been filed. The way in which the defence case is prejudiced or the way in which prosecutions action is unfair on the defence case was not deliberated on.

Application of law Facts
12. This court was not given much assistance on case authorities or legal basis for each of the parties’ stance on the issue arising before me. I propose to deal with the issues by answering the following related sub issues:

1. Can the Translation Certificate be tendered to court at this stage of the criminal proceedings?
   
2. Is it proper for the defence to rely on the argument of prejudicial effect to the Defence case?
   
3. Is it proper for the defence to rely on the police failure to properly compile the PHUB to ask the court to refuse admission of the Translation Certificate? and
   
4. Does the principle of interest of natural justice where the duties and functions of the committal court are considered require that the Translation Certificate be admitted into evidence after service of the PHUB and before a ruling on sufficiency of evidence?
   

Can additional evidence be tendered at this stage of the criminal proceedings?
13. The answer to this sub issue must come from an appreciation and understanding of the purpose and intent of the committal jurisdiction and the role of the magistrate in discharging its preliminary investigative function. This administrative function requires the magistrate to make an inquiry into the evidence contained in the PHUB and rule on the strength or otherwise of the police evidence to make out a prima facie case against the defendant.

14. In my respectful view, the answer to this question is yes, additional evidence can be tendered at any stage of the committal proceedings so long as it is not after or when the court is considering or has considered a ruling. In this instant, submissions were filed and the court was in the process of hearing parties on their submissions when the Prosecutions sought to tender the additional evidence. Further, pursuant to the legal requirements in Kai Wabu’s^[6] case, and as it was necessary to do so by calling of the case investigator to verify how statements were obtained and compiled as evidence in the PHUB, the court was yet to make that enquiry when the Police sought to tender the Translation Certificate. In my view without first conducting that inquiry on its own volition, the court was already put to task to fulfill this requirement by making a ruling on the issue when the Defence raised it and the Prosecutions obtained and sought to tender the Translation Certificate from the case investigator. Where the defence raised an objection to the tendering of the Translation Certificate on other grounds but did not object to its authenticity, there was no issue with the admissibility of the Translation Certificate. Consequently the Translation Certificate is admissible and so are the witness statements at this stage of the criminal proceedings.

Two main grounds for admitting evidence
15. The general guidelines that must apply in tendering evidence is the general rules on admissibility of evidence. Pursuant to these rules, the court can allow any additional evidence to be tendered and admitted into evidence on two main grounds. Firstly, where the additional evidence is relevant to the issue at hand. In this case, it will assist the court in the determination of sufficiency of evidence to make out a prima facie case on the charge brought against the defendant so that the function of the committal court is maintained and finalized. Secondly, where the interest of justice which connotes fairness to all parties and court processes requires such evidence to be tendered. In summary, generally, admissibility of evidence is based on relevance and fairness.

Admissibility of Evidence based on Relevance
16. The legal requirement for providing and tendering a Translation Certificate for Police witness statements which have been obtained in another language, translated into English and compiled in a PHUB is found in section 94C of the DCA and in the principles enunciated in the case of Kai Wabu^[7] as earlier stated. It is an important administrative task to aid in Police investigations and compilation of a PHUB. It is one task that the case investigator must carry out diligently before the close of investigations, compilation of the evidence into a Police file and service of it on the defendant. It is therefore relevant for this part of the criminal process.

17. Where the Police have failed to include such evidence in the PHUB, which can be detrimental to their case, the court does not have the discretion to refuse to admit it if it is admissible and further in my respectful view if it becomes available for tendering. In Cross on Evidence^[8], the author stated: “...when magistrates act in committal proceedings, the rules of evidence differ from those which apply when they are conducting a summary trial.” In the English case law of R v Horsham Justices: Ex parte Bukhari^[9], the court held that: “there was no discretion to exclude admissible evidence in committal proceedings”. And further, in the case of R v Kings Lynn Magistrates’ Court, Ex parte Holland^[10], the court held that: “At common law, a magistrate has no discretion in a Preliminary Investigations Inquiry ‘to refuse to admit evidence on grounds that it’s prejudicial effect outweighs its probative value”. (Underlined emphasis mine)

18. This court adopts and applies the principles in these above mentioned cited cases so that where the argument on prejudicial effect on the defence case is not applicable and where evidence is admissible at committal proceedings due to relevance and fairness, the court has no discretion to exclude but to admit into evidence the Translation Certificate. In the specific circumstance of this case where the court has not yet gone into the process of assessing the evidence, considering the submissions and making a ruling, the Translation Certificate is admissible for its relevance, as its authenticity is not questioned and that it aids in achieving the purpose and outcome of the committal process which is to rule on sufficiency of evidence on the charge against the defendant.

Is it proper for the defence to rely on the argument of prejudicial effect to the defence case so as to ask the court to refuse admission of the Translation Certificate?
19. In this case, the only explanation given by the defence in support of their objection was that the Police failed to do their job properly until the defence raised it as an issue and so they say this is unfair for the defence case. The question I ask is: in what specific way is this unfair on the defence case? That part of their argument was not clarified or advanced. In any case, any argument about prejudicial effect to the defence case does not hold and is not relevant now because a committal magistrate’s role does not involve a determination on guilt or otherwise which requires an assessment of the credibility of a witness’s statement or testimony. That is the role of a trial court. As such, the objection which had been raised in this instance based on an argument of unfairness or prejudicial effect to the defence case whatever the defence case may be, for now is not proper and is rejected. The principle of R v Kings Lynn Magistrates’ Court, Ex parte Holland^[11] is applied.

Is it proper for the defence to rely on the argument that failure by Police to have the Translation Certificate in the PHUB before it was served entitles the defendant to ask the court to refuse to admit it into evidence when it became available?
20. In my view, if this court was to refuse to admit into evidence the Translation Certificate just because the Police have failed to do their job properly, it can be seen as a way of punishing the Police to teach them a lesson for their laxity. That intent is improper when considered in the light of the function and objective of the committal process. The court does not have the discretion to refuse admissible evidence or additional admissible evidence for that matter in consideration of a prima facie case. Again the principles in R v Kings Lynn Magistrates’ Court, Ex parte Holland^[12] is applied. This court therefore cannot refuse to admit into evidence the Translation Certificate as a form of punishment on the police for their laxity. This ground is not proper and is rejected.

Duty of the Court to receive into evidence the Translation Certificate
21. The court has a duty to admit into evidence admissible statements. The court therefore does not have the discretion to refuse admissible evidence or additional admissible evidence for that matter when it is tasked to consider a ruling on sufficiency of evidence to make out a prima facie case. The court has an administrative responsibility to ensure that in the conduct of its judicial proceedings in the committal court which have strong administrative elements, the court has a duty to take into account the material evidence to aid in the achievement of its purpose and the outcome of that process as a responsible administrator. (R v Sanghera).^[13]

22. In the circumstance, specific to the committal process, in accepting to admit into evidence the Translation Certificate the court has a duty to ensure fairness by giving an opportunity to the parties especially the defence to make submissions for consideration and before proceeding to making a ruling on sufficiency of evidence.

Does the interest of natural justice require that the Translation Certificate be admitted into evidence?

23. The interest of justice dictates that the court is required to uphold the principles of justice and fairness. This means that in the interest of justice, the court must also consider the interest of the State, the victims and the fairness of the committal proceedings. This is the second ground for admission of the evidence on the general rules of admissibility of evidence mentioned earlier –admissibility on grounds of fairness.
    

Admissibility of Evidence based on Fairness and in the Interest of Justice

24. The overriding consideration is ‘the interest of justice’ principle. This principle begs the question: “what is Interest of Justice?” In the case of Les Gavara-Nanu v Peter O’Neill^[14], the court expressed that:
    

“...the phrase “interests of justice” is one which judges employ frequently in exercise of their discretion. It is hardly defined – wisely so, because it depends in large measure on the circumstances of each case. In my mind it is not necessary to unpack the phase other than to say it connotes the principle of fairness. At the end of the day the ends of justice in each case must be done in accordance with the law...”. (underlined emphasis mine)

25. The circumstances of this case are such that at this stage of the criminal justice process the court must give considerations to the following: firstly, the court is not deciding on guilt or otherwise so that it must consider any argument on prejudicial effect to the defence case; secondly, the court had not yet decided on a ruling on sufficiency of evidence or was not yet embarking on such a ruling when the prosecution sought to tender the additional evidence; thirdly, the court still had a legal duty to make enquiries on the admissibility of witness statements (Kai Wabu^[15]; fourthly, the defence was not challenging the authenticity of the additional evidence and so it was already admissible and fifthly, there is no discretion to exclude admissible evidence in the committal proceedings. The case principle in R v Horsham Justices: Ex parte Bukhari is applied. Under these circumstances, what a responsible court administrator must do within the ambits of the law governing the committal process and in the best interest of that process is merely to perform that administrative function by enquiring, receiving the admissible evidence (R v Sanghera ) and allowing amended submissions to be filed and heard before a ruling is considered.
    
26. Further, the principles of natural justice or interest of justice dictates that ‘Justice must not only be done, but must be seen to be done’ . Whilst this applies to the rights of the defendant, equally so it should apply to the right of the State to bring those accused of committing crimes before the courts of law. ‘Justice [therefore] is a double edged sword’, like a blind lady, neither sees nor favours anyone by beauty, colour, sex, nationality, etc. (State v Robin Andolu ^[16]. In this instance, the interest of justice requires this court to consider the view of the State or the people, the prevalence of the offence of domestic violence, the rule of law, fairness and justice to the victim and the purpose or objective of the committal court process.
    
27. In the interest of the State and society as a whole, this case being highly sensitive, involves the serious allegations of a homicide committed within a domestic setting. A crime so prevalent that is breaking up the very fabrics of society, the family and home. In the light of the Government’s efforts in combating domestic and gender based violence in the country, these considerations dictate that a proper trial be allowed to take place. In order for that proper trial to take place, the committal court’s business must be conducted in accordance with the law that governs that process, so as to be able to achieve its intended outcome which is to consider all admissible evidence and rule on submissions on sufficiency of evidence on the elements of the charge. This requires a proper and fair assessment of all of the witnesses’ statements (Yarume v Euga^[17]). Allowing the admissibility of the Translation Certificate whose authenticity is not challenged at this stage is proper and will mean that the parties can hereafter address the court on sufficiency of such statements on the elements of the charge so that a determination of that can be made in a ruling. That is the fair means in which this court sitting as an administrative court must employ. As such, the Translation Certificate is accepted into evidence to allow a proper assessment on the elements of the charge.

Conclusion

28. I find in law that the objection raised by the defence on the tendering of a Translation Certificate at this stage of the criminal process is not proper for the following reasons: firstly, there cannot be any argument raised on prejudicial effect on the defence case as no defence is considered at committal proceedings; secondly, the court has a duty to make enquiries on admissibility of witness statements; thirdly, the additional statement was tendered before the court had actually considered a ruling; fourthly, there were no objections raised on the authenticity of the Translation Certificate so that it was already admissible and fifthly, there was no discretion at committal proceedings to exclude admissible evidence.
    
29. Where the court finds that the prosecutions had failed in their duty to properly investigate, compile and serve a PHUB, and where the Prosecutions had sought to tender additional admissible evidence, the court can make other directions that are fair and relevant for giving effect and meaning to the committal court process and that is to give the defence an opportunity to make submissions in the light of the additional evidence rather than to refuse the Translation Certificate and punish the Police for their laxity. This court is guided by English case law principles which have persuasive effect in our jurisdiction. These case law principles provide that the committal court does not have the discretion to exclude admissible evidence and especially so under the present circumstance where it has become available to it before a ruling is considered.
    
30. In the interest of justice which takes into account the interests of all parties including the society’s interest in brining those who are alleged to have broken the law to justice, the victim’s rights, the rule of law and in the interest of the committal court process and functions of a magistrate sitting as an administrator to make a ruling on sufficiency of evidence, the court will allow the Translation Certificate to be tendered and received into evidence.
    
31. Parties will then make submissions on sufficiency of evidence.

Final Orders

32. The court’s final orders therefore are:

1. The grounds of prejudicial effect to the defence case raised by the defence in objecting to the tendering of the Translation Certificate by the prosecutions cannot be raised at this stage of the criminal proceedings;
   
2. The committal court magistrate does not have the discretion to exclude admissible evidence in committal proceedings. In receiving into evidence the Translation Certificate which is admissible as there is at this stage no objection to its authenticity, the court must allow parties to file and make amended submissions in the light of the additional evidence before considering a ruling;
   
3. In the interest of justice, taking into account the interest of the society in bringing to justice those responsible for commission of crimes, the right of the victim, the rule of law and on the fairness of the purpose and function of the committal court which is to enquire into the admissibility of witness statements and to make a ruling on sufficiency of evidence, the court will receive into evidence the Translation Certificate; and
   
4. Parties will address the court on sufficiency of evidence in their amended submissions in the light of the additional evidence; and
   
5. Orders accordingly.
   

Police Prosecution For the Informant
Luthers Lawyers For the Defendant

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^[1] PGNC 335; N6555
^[2] [1967-68] PNGLR 48
^[3] [2004] PGNC 208
^[4] [1996] PGNC 24; N1476
^[5] [1994] PNGLR 498 N1227
^[6] supra
^[7] supra
^[8] Section 2, entitled “Range of the Law of Evidence”, sub section entitled: “Different Types of Proceedings” at pages 5 - 6, Seventh Australian Edition, J.D. Heydon, 2004
^[9] (1982) 74 Cr App
^[10] [1993] 2 ALL ER 377
^[11] supra
^[12] supra
^[13] [1983] 2VR 130 at 131 per Mc Garvie J).
^[14] (2018) N7562
^[15] supra
^[16] 2012) N5127
^[17] supra