Police v Francis [2021] PGDC 88; DC5047 (20 April 2021)

DC5047

Papua New Guinea

In the District Court

Held at Waigani

Sitting in its Committal Jurisdiction

Comm. No. 55 of 2020

BETWEEN:
THE POLICE
Informant

AND:
MAX FRANCIS
Defendant

Port Moresby: T. Ganaii

2021:05^th March; 20^th April,

COMMITTAL PROCEEDINGS – Practice and Procedure - One count of Persistent Sexual Abuse contrary to Section 229D of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2003 - Before a Committal Ruling on sufficiency of Evidence Pursuant to Section 95 of the DCA - Phase One of the Committal process requires the court to conduct an Enquiry on how witness statements were obtained and to decide on the admissibility of a child witness’ statement

COMMITTAL PROCEEDINGS – Practice and Procedure – Enquiry conducted – Investigating Officer called by the Court to give evidence – Court satisfied that the child told her story and the Investigating Officer typed it down in pidgin and translated it into English – There is sufficient explanations offered for the unsigned statements of the child witness – The child witness statement is admissible
Cases cited
Beraro v. State [1988-89] PNGLR 562
The State v. Kai Wabu [1994] PNGLR 94 (Injia, J)

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

Counsel
Police Prosecutor: Koniu Polon For the Informant
Mr. David Kayok, Public Solicitors For the Defendant

RULING on an ENQUIRY on the ADMISSIBILITY
of a CHILD WITNESS’ STATEMENTS

2021: 05^th March; 20^th April,

Introduction
Ganaii, SM . The defendant is charged under section 229D (1) of the Criminal Code^[1]. After written submissions by both parties on sufficiency of evidence were filed, the court adjourned to consider a ruling. During consideration of the submissions and in reading through the PHUB, the court noted that the defence made submissions on the admissibility of the child victim’s statements. They also submitted that the statements were unsigned and did not contain a translation certificate.

2. The court also noted that the statement of the Police Investigating Officer did not contain sufficient information in explaining how the child’s statements were obtained and why they were unsigned.

3. Before deciding on a ruling and in applying the principle in The State v. Kai Wabu^[2] this Court conducted an enquiry on its own volition. It enquired on whether the child victim had full knowledge of the contents, correctness and truthfulness of her written statements and why they were unsigned.

4. The committal court summoned the Investigating Officer Police Woman Martha Maraga of the Sexual Offences Squad, Boroko Police Station to appear in court and explain why there was no translation certificate and why the statements of the child victim were unsigned.

5. This enquiry was necessary to assist the court decide on the admissibility of the child witness statements in order for the court to perform its mandated administrative function to rule on sufficiency of evidence under section 95 of the DCA.

Issue

6. The issue for the enquiry was whether the statement of the child witness (victim) complies with requirements under section 94C of the DCA so that they can be admitted into evidence and relied on by the court in its ruling on sufficiency of evidence under section 95 of the DCA?
   

The Enquiry
7. On the 20^th of February 2021, the court issued a summons for the Investigating Officer, Police Woman (PW) Martha Maraga (referred to as PW Maraga) to appear in Court and explain the circumstances in which she had obtained the child witness’ (victim) statement. The enquiry by the court was aimed at assisting the court decide on the reliance and admissibility of the child victim’s statement in order for the court to perform and conclude its function under sections 95-100 of the DCA.

8. On the 05^th of March 2021, PW Maraga gave sworn oral testimony in court. She was subjected to cross-examination by the defence counsel. The relevant parts of her evidence are re-stated as follows:

In examination in chief:

Prosecutor: Do you recall investigating a case relating to this defendant?

PW Maraga: Yes, I arrested and charged him for a complaint on a charge of persistent sexual abuse of a child

Court: The court called you to ask you whether in obtaining witness statements, that you know the requirements in section 94C of the DCA?

PW Maraga: Yes, I do

Prosecutor: Explain your understanding of this requirement.

PW Maraga: Initially, I asked the child to tell her story. Based on what happened to her, she told me her own story. I took (type down) the child’s statement in pidgin. I then explained to her the statement. I then obtained other witness statements.

Prosecutor: How did you obtain the other witness statements?

PW Maraga: The parents told me their story in pidgin and I translated that into English.

For the child, I don’t think I translated it from pidgin into English.

Do you recall the child’s name?

PW Maraga: Michaelyne Michael

Prosecutor: Can you recall how you obtained her statement? What did you do or not do?

PW Maraga: I don’t think I attached a translation certificate.

Prosecutor: You said you didn’t do a translation certificate?

PW Maraga: No, from Pidgin to English

Prosecutor: Explain?

PW Maraga: It must have been an honest mistake. I would have been busy with other files and didn’t have the time to go through this file to see if I missed out on anything.

In cross examination by Counsel for the Defendant:

Mr. Kayok: You compiled all the evidence?

PW Maraga: Yes

Mr. Kayok: Were you aware that the child did not sign her statements?

PW Maraga: Like I said, it was difficult reaching the child complainant who lived in the settlement. They also didn’t have bus fare to come. But I think the complainant must have signed.

No further Questions.

No re-examinations

Court’s Questions:

Court: Witness was shown both versions of the child victim’s statement and her parents’ statements (both pidgin and English versions).

Can you explain why they are not signed?

PW Maraga: The parents both signed their pidgin statements and not the English statements. But for the child, no, both versions were not signed.

Court to prosecutor and defence counsel, any questions arising?

Prosecutor: The witnesses, sometimes they don’t turn up. Did you make any attempt to go get her to sign?

PW Maraga: At that time, the vehicle was in the workshop. It was difficult to move around.

Prosecutor no further Questions

Mr. Kayok: Why didn’t the child victim sign both versions?

PW Maraga: It was difficult finding her. They didn’t come due to bus fare issues.

Mr. Kayok: You obtained a statement from the victim, translated it into English, was it read back to her?

PW Maraga: She can speak good English. I obtained the statement in pidgin and typed it in English. I read it back to her. She understood. When the files were ready, I couldn’t get her to sign. Only the parents did sign their pidgin statements.

No further Questions by Mr. Kayok

End of evidence

Submissions

9. After giving her evidence, the court invited the parties to make submissions on the admissibility of the child witness’ (victim) statements.
   

Defence Submissions

10. Defence submitted that both versions of the child witness’ statements were unsigned which means that it is not clear whether these statements were made by the victim. It signifies that the victim is incapable of knowing and understanding the consequences of such statements under oath. It is unsafe to rely on these statements as they do not meet the requirements under s 94 1A and 94 1B of the DCA.
    

Other submissions

11. Mr. Kayok, of learned Counsel for the defendant also addressed the court on other matters in his submissions as follows:
    
1. The different evidences on the age of the child victim was not consistent with each other;
   
2. There is no time period in the child victim’s statement on acts relied on to make out the charge of PSA; and that the Police made up the dates;
   
3. Avisa Michael’s pidgin statement is signed but the name on the statement is spelt differently to that in in the English statement. The English version is unsigned and raises questions on whether this is the same person;
   
4. Evidences of the child’s victim’s mother are inconsistent. The name of the person said to be the child victim’s biological mother is Avisa Michel. In the Medical Report however, it was stated as Aloisa Peter;
   
5. Both statements of witness Mone Maso were not signed and the Investigating Officer does not explain why so; and
   
6. Evidences of the Date of Birth of the child victim in inconsistent with each other. That is, evidence from statement of Avisa Michael, biological mother, says she gave birth to the child victim on the 5/3/2011 but the Medical Report says the DOB was on the 23^rd April 2011.
   
12. Due to the above, defence say the witness statements are inadmissible and there is insufficient evidence on the elements of the charge.
    

Prosecutor Submissions

13. The Prosecutions submitted that:
    
1. Since the child witness’ (victim) statement is not signed, the court can look at both parents’ statements where their original pidgin versions were signed. They are the main complainants who laid the complaint;
   
2. The names and date of birth in the medical report may have been an error. The trial court can hear explanations in trial proper on the contents of the medical report;
   
3. If there was no complaint and no identification of the defendant, the defendant could not have been brought in to the police station. There were formal complaints laid against him. He was identified; and
   
4. The statements of police witnesses are admissible and there is sufficient evidence on all the elements of the charge.
   

Courts consideration of submissions and analysis of the evidence

14. In summary, the evidence of Police Woman Maraga is as follows:
    
    1. She holds the rank of Detective First Constable of Police and is now attached to the Cyber Crime Unit at PHQ, RPNGC. Prior to that she was attached to CID Sexual Offences Squad at the Boroko Police Station. She had been in the Police Force for a period of up to nine years to date;
       
    2. She recalled this case and remembers being the case investigator in the matter. She understands the requirements under section 94C of the DCA and the Kai Wabu’s case principle. When asked how she obtained the witness statements, she stated that she obtained the child witness statement when the child told her own story. The child told her story in pidgin and the witness typed it in pidgin and translated it into English. The Statements from the child victim’s parents were also obtained in the same manner;
       
    3. The witness also later translated the parents’ statements into English. She recalled the name of the child is Michaleyne Michael. When she did the translation, she didn’t do the translation certificate;
       
    4. When the prosecutor asked the witness to explain why she didn’t attach a translation certificate the witness said it was an honest mistake on her part. She said she was busy with other cases and didn’t have the time to go through the file and make corrections or check on anything she may have missed out;
       
    5. In cross examination, Mr. Kayok of counsel for the defence asked the witness if it was her who compiled the witness statements and she confirmed that it was her;
       
    6. When asked if she was aware that the child witness did not sign both versions of her statement, the witness said the child witness (victim) lived in the settlement and may have had issues with bus fare. But witness said she believed the child victim may have signed the statements;
       
    7. The court showed the witness copies of the child witness’ (victim) statements and her parents’ statements. The court asked the witness to explain how and why the parents signed and the child did not;
       
    8. The witness stated that it was difficult to find the child. They (her parents) didn’t bring her to sign her statements. They may not have had any bus fare.
       
15. When the court also specifically asked if the witness PW Maraga obtained the statement of the child victim in pidgin and later translated it into English, the witness said yes that was what she did.
    
16. The court further asked if the witness read back the child victim’s statements to the child victim and the witness said that the child spoke good English and she read back the child witness (victim) statements to her. She went on to say that because she could not locate the child witness (victim) afterwards when the statements were ready to be signed, the child witness (victim) didn’t sign them.
    
17. The court has to now decide on whether to accept the witness PW Maraga’s explanation of how she had obtained the child witness’ statements and whether they are admissible.
    

The Law:

18. The law governing how the court should decide on the issue of admissibility of a witness statement is contained in s94 of the DCA^[3]. The requirements in section 94C and section 94 (1A) are summarised as follows: firstly; the evidence must be contained in a written statement; secondly; copies of statements must be served on the defendant under Section 94(1) or made available for inspection under Section 94(2); thirdly, before admitting a written statement, the Court shall be satisfied that the person who made the statement had read and understood it, or fourthly if unable to read, had had it read to him in a language that he understood; fifthly, the statement shall contain a clause by the maker of the statement that they certify that the statement is true to the best of their knowledge and belief and that they made it knowing that if it is tendered in evidence, they will be liable to prosecution if they knowingly stated anything that is false or misleading in any particular; and finally, the statement is signed.
    
19. The case precedent on this principle of law in relation to written statements is in the case of The State v. Kai Wabu^[5]. In this case the court held that the combined effect of ss 94 (1A) and 94C (2) of the DCA 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 the discretion to admit or reject the written statement.
    
20. 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.
    

Application of Law to Facts:

21. At the outset, the other submissions by Mr. Kayok of learned counsel for the defendant will not be addressed here as they will be covered in the main ruling on submissions on sufficiency of evidence. Here, the court will only address the issue at hand on the admissibility of the child witness’ statements.
    
22. In her evidence, the Police Investigating Officer PW Maraga appeared credible. She spoke with clarity and maintained her story and demeanor during cross examination. She appeared to me as a truthful witness. She did not try to make up her story to look good. But when shown the statements of the child, she confirmed the statements were not signed and provided logical explanations why they were unsigned.
    
23. PW Maraga stated that she had obtained the child witness’ (victim) story where she had typed it down in pidgin. She also translated it by typing it into English as she was obtaining the story. She stated that she may have done a mistake by not writing a translation certificate as she was busy with other files and had no time to go through the file again before serving it.
    
24. In cross examination, she explained that the statements were not signed because there was no police vehicle to take the statements to the child victim to sign or that the child victim’s parents may not have had bus fare and were not able to bring her to the Police Station to sign her statement.
    
25. When asked further during cross examination and also by the court if the witness had read back to the child victim her statement, the PW Maraga said she did read back the child witness’ (victim) statements to her however, the child did not sign the statements. She also gave her explanations of why the statements were unsigned.
    
26. The court therefore accepts that the witness PW Maraga did clearly explain that the victim gave her own story where PW Maraga obtained it by typing the pidgin version and then translating it into English. She said she had prepared the statement but the victim did not sign.
    
27. I accept that the requirements in law have been complied with and the statements are admissible for being obtained from the victim and read back to her where she had heard and understood. The reasons why they were not signed have also been sufficiently explained which is that there was no police vehicle available to take the statement to the child or the child’s parents may not have had any bus fare to bring the child to the police station to sign her statements.
    
28. For the above reasons, the child witness statement is admissible and child witness (victim) can be called to give evidence at trial.
    
29. Further, on the issue of the child’s capability of giving sworn oral testimony as a witness as raised by the defence, the Court’s response is that this can be ascertained at trial when the child witness (victim) can be called by the Public Prosecutor to give sworn oral testimony in the witness box. The requirement is that before giving evidence as a child witness, the child can be led by the Public Prosecutor to demonstrate her capability of knowing and understanding the consequences of making such statements under oath. The principles in Beraro v. State^[6] on child witness evidence are applicable.

Conclusion

30. Upon a requirement under Section 94C of the DCA and Kai Wabu’s case, to make a determination on whether the child victim’s statement is admissible, the court finds from this enquiry that the Investigating Officer PW Maraga had obtained the statement from the child in pidgin, had typed it down and had also translated it into English. The statements are unsigned due to there being no vehicle to take it to the child witness (victim) for signing or there being no bus fare for the parents to bring the child to the Police Station to sign. The child witness (victim) can be called to give evidence at trial.
Ruling
31. The court makes the following final orders:

1. The Arresting Officer, Police Woman Maraga had obtained the child

witness’ statement;

2. The Arresting Officer Police Woman Maraga had read the statement back to

the child where she heard and understood;

3. The Arresting Officer PW Maraga had typed the statements in both English

and Pidgin languages;

4. There is sufficient explanation as to why the statements were unsigned; and
   
5. Both versions of the child witness’ statements dated 13^th of September 2019

are admissible for reliance by the court for its determination on a ruling on sufficiently of evidence under section 95of the DCA.

Police Prosecution For the Informant
Mr. Kayok, Public Solicitors For the Defendant

---

^[1] (Sexual Offences and Crimes Against Children ) Act of 2003
^[2] [1994] PNGLR 94 (Injia, J.)
^[3] 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; or
(b) an offence against Section 420 of the Criminal Code where the offence is not to be tried summarily,
the informant shall serve ⁴or caused to be served, in accordance with Subsection (3), on the defendant or his legal representative—
(c) a copy of the information; and

(d) a copy of each statement that the informant intends to tender at the committal hearing; and
(e) a list of documents and exhibits referred to in a statement referred to in Paragraph (d) that the informant intends to tender at the committal hearing; and
(f) a copy of each document referred to in Paragraph (e).

(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.

Signed'.

^[5] Supra [at 1]
^[6] [1988-89] PNGLR 562