Anton v Chea [2021] PGDC 103; DC6056 (22 July 2021)

DC6056
Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION

COM NO 498 OF 2020

BETWEEN:

ROMAN ANTON
[Informant]

AND:

ADAM CHIN CHEA
[Defendant]

Waigani: Paul Puri Nii

22 July 2021

COMMITTAL PROCEEDINGS: Charge- One Count of Sexual Penetration -Section 229A-Criminal Code Act 1974, Chapter No. 262. Witness proclamations- authenticity of all statements before the court- the maker of the statements-present in person-statement should be understood-signed by the maker-Section 94 (1A)-District Court Act- Statements not signed by the maker- illegal-refuse to accept.

EVIDENCE: The accessible body of facts-information demonstrating whether the allegation against the Defendant is accurate –Evidence statements should reflect the offence of Sexual Penetration– Statements should be proper and legal – improper statements will invalidate the authenticity of evidence. Court satisfies the victim statement was obtained though Watsap. Arresting Officer admitted to signing off for the victim. The explanations given do not warrant someone to sign on behalf of others. The victim statement is inadmissible.

PNG Cases cited:
State v Wabu [1994] PGNC 146; [1994] PNGLR 498; N1227

Overseas cases cited:
Nil

References

Legislation
Criminal Code Act 1974, Chapter 262
District Court Act 1963, Chapter 40

Counsel
Police Prosecutor: Sgt Sagam For the Informant
Public Solicitor: Jeffery Kolowe For the Defendant

Decision On An Enquiry On The Admissibility Of A Watsaap Statement From The Victim That Was Signed By The Arresting Officer

22^th July 2021

INTRODUCTION

NII, Paul Magistrate. This is a ruling on whether to accept and admit victim’s statement made to Police pursuant to Section 94(1A) of the District Court Act 1963, which is part of the evidence enclosed in the Police-Hand-Up-brief served on the court dated 9^th September 2020. The ruling emanated from the court’s enquiry into the statements in the police-hand-up brief.

CHARGE

1. Defendant is charged with one count of Sexual Penetration pursuant to Section 229A of the Criminal Code Act 1974, Chapter No. 262.
   

FACTS

2. Police identified the Defendant as aged 18 years old and of Malaysia who was alleged to have engaged in an act of sexual Penetration with the victim who was 15 years of age at the time of the alleged offence. Police allege the victim was sexually penetrated by the Defendant at Grand Papua Hotel on 22^nd June 2019, while she was under the custody of her aunty. Police file was served on the court on 9^th September 2020. When the court perused the file, it was noted the victim statement was not signed but the arresting officer typed the victim’s initials and hence on 6th July 2021, the arresting officer was tasked by the court to testify his motives for doing this. On 15^th July 2021, the arresting officer was in court and testifies the reasons why the statement was not signed by the victim.
   

ISSUE

3. The question for the enquiry is whether it is permissible for court to consider and concede unsigned witness statements as evidence and for court to accept “watsap” communications into evidence from overseas witness?
   

THE LAW

The guidelines delivered under the Law to provide evidence.

4. The ensuing provisions of the District Court Act^[1], safeguards how the contents of Police evidence should be provided by Police for court’s consideration when administering criminal justice at the Committal Court. The underpinning law under which the enquiry was conducted is below:
   

“ 94. Copy of information, etc., to be served.
(1) Subject to Subsection (6), where a person is charged with—

(a) an indictable offence that shall not be tried summarily...the informant shall serve or caused to be served, in accordance with Subsection (3), on the defendant or his legal representative...

(d) a copy of each statement that the informant intends to tender at the committal hearing.

(1A) 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 I will be liable to prosecution if I have knowingly stated anything that is false or misleading in any particular.

(1B) A statement referred to in Subsection (1)(d) shall, for the purposes of Division III.2 of the Evidence Act (Chapter 48), be treated as an affidavit.

94A. Penalty for false declaration.

A person who, in relation to a statement or document referred to in Section 94(1), knowingly makes a statement that is false or misleading in any particular is guilty of an offence. Penalty: Imprisonment for a term not exceeding three years.

94C. Regard to evidence, etc.

(1) When conducting a committal hearing under this Part, the Court may, subject to S subsection (2), have regard to:

(a) the evidence contained in a written statement; and

(b) documents and exhibits of which a copy has been served on the defendant under Section 94(1) or made available for inspection under Section 94(2).

(2) Before admitting a written statement, the Court shall be satisfied that the person who made the statement had read and understood it, or if unable to read, had had it read to him in a language that he understood.”

5. The case law of State v. Kai Wabu^[2] provides the foundation upon which a witness declaration may be queried by the court on its own if the court is of the attitude that there are disputes regarding its matters, perfection and its effectiveness. In doing so the court affirms the manner and style under the Law of admitting and refusing evidence. The court established the following:
   

“.......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.

.....The 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.

..... After having conducted the enquiry, the Court has a 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.

.....Failure to conduct such enquiry and record its finding may result in voiding the committal....”

6. The collective influence of section 94(1A) and section 94C (2) is where the committal court need to carry out an examination into the Police file after it has been tendered in court and certify the declaration was a true account of words spoken and written by the producer of the declaration by having his/her sign on the end of each statement. The maker of the statement must not only confirm and certify but must understand everything that was written. The power of the court to conduct such enquiry is an autonomous one, not subject to any intervention from the outside, which is carried out in the application of its official occupation as a committal court. The court after having conducted such enquiry will come to a conclusion on either to admit or refuse the statement under enquiry.
   
7. Moreover, the other purpose for conducting such an enquiry is to make sure any allegation that is brought before the court by Police has merit with steadfast demonstrated evidence guided by the rule of law. In doing so the process and traditions of collecting witness statements under the law is not abused. Unsubstantiated and tainted statements are filtered by the enquiry so there is accuracy and distinction in the outcome.
   
8. The court called on the arresting officer, Detective Constable Roman Anton-CID of Gerehu Police Station to come to court and explain why the victim statement was not signed by the victim who was the maker of her statement.
   
9. The enquiry is imperative in the administration of criminal justice in the committal court because it will help the court to elect on the admissibility of victim statements that is obtained through “watsap” message and put into statement by the arresting officer and type the victim’s initials in the end.
   

THE COURT’S ENQUIRY

10. Police file was served on the court on 9th September 2021. The court after evaluating the file observed that the victim’s statement to Police dated 16^th August 2020, was not signed by the maker of the statement and thus queried as on how the statement was obtained.
    
11. On 15^th July 2021, the Police informant Roman Anton stood in the witness box and explained the circumstance that compelled him to acquire witness statement which was not signed by the maker. The arresting officer told the court that at the time when the police file containing the allegation against the Defendant was arranged, the victim was not in Port Moresby and therefore her statement was obtained through “watsap” message and was then reduced into a statement form and was signed off by the arresting officer by typing the victim’s initials. When asked by Prosecutor Joseph Sagam about the statements, the arresting officer told the court that it has been a practice where police personnel’s type initials for the makers of statements if they are unable to be found. The court was also told that the arresting officer typed the victim’s initials at the end of the statement.
    
12. The Principles in The State v. Kai Wabu^[3] is to make sure the witness statement comes from the person who is giving evidence. It is therefore to make sure the maker of the statement must know and understand what he/she put in the statement. The signature at the bottom of the statement is a sign to signify that the statement was read and understood by the maker. It is unlawful for some other person to read and understand the statement on behalf of the maker. In the current case, the victim was not in Port Moresby and therefore she did not read and understand her own statement and consequently it is prohibited to present and admit evidence that controverts the requirements under Section 94 (1A).^[4]
    

RULING

13. The Law provides for the maker of the statement to have full knowledge of his/her own statement by understanding its correctness and truth before signing it. Upon the court’s enquiry it is satisfied that the maker of the statement was not present at the place where the statement was taken and therefore she did not understand the correctness and contents of her statement. The Police informant’s actions in taking the statement and having it signed by putting the victim’s initials contradicts the requirement under Section 94C(2)^[5] where it says, “before declaring a written statement, the court shall be satisfied that the person made the statement had read and understood it, or if unable to read, had had it read to him/her they he/she understood.”
    
14. Police statement indicates the victim was 15 years old at the time when the alleged crime was committed. To me, a person of that age unless not educated can read and write English language which is the common and official language to conduct business and other activities in PNG. There is no time limitation to arrest offenders which are in the Defendant’s category and so why rush? The victim should have been given some time to come and see through what was written and in the end be satisfied that she had read and understood her own statement by signing it off.
    
15. Funded on this, the victim’s statement dated 16^th August 2020, is inadmissible, I therefore refuse to accept the victim’s statement since it conflicts with the requirements of collecting and arranging statements under the laws. If the Defendant is committed, the State witness (victim) will not be called to give evidence at trial since her statement is incompetent and does not meet the legal requirements under the law to qualify.
    

CONCLUSION

16. Pursuant to the Principles under the case of Kai Wabu^[6] and Section 94^[7], upon the court’s enquiry, it is established that the victim’s statement which was obtained through “watsap” message by the arresting officer and subsequently had it reduced to written statement and signed off by the arresting officer by typing the victim’s initials is inadmissible and therefore is refused.
    

ORDERS

1. The statement of the victim dated 16^th August 2020, is inadmissible and therefore is refused. Nonetheless, all the other statements provided in the Police file are in order and therefore it will be deliberated and a ruling on committal will be made after hearing.
   
2. I will now take submissions from the Defendant and Police Prosecutor on insufficiency of evidence and will make a ruling on committal, that is to decide whether the Police file is sufficient to commit the Defendant or not.
   

.

.

.

Public Solicitor: For the Defendant
Police Prosecutor For the State

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^[1] The foundation upon which the enquiry was conducted
^[2] [1994] PGNC 146; [1994] PNGLR 498; N1227
^[3] Supra (see page 3)
^[4] District Court Act
^[5] Supra (Section 94 and other sub provisions of the District Court Act including Section 94C(2) gives guidelines on how legal statements shall be produced and admitted as evidence)
^[6] Supra(pages 3-4)
^[7] Supra (basis of the enquiry)