N421(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

ALLAN HONIEM

Rabaul: Pratt J
3 May 1983; 6 May 1983; 9 May 1983

HAND-UP BRIEFS - STATEMENTS MUST BE IN ENGLISH - NECESSITY TO DISTINGUISH ACCUSED’S RECORD OF INTERVIEW AND WITNESSES STATEMENTS - ACCUSED NOT TO BE APPROACHED FOR SECOND STATEMENT.

PRATT J: In this matter it was necessary for me to adjourn the matter last Friday afternoon in order to allow the investigating officer to submit written translations of certain statements of witnesses which had been included as part of the hand-up brief presented to the committing Magistrate. This is not the first time I have come across this feature during the present sittings and it has caused considerable delay and inconvenience on occasions when one would expect some expeditious disposal because the accused has pleaded guilty to the charge.

It seems to me that a certain amount of confusion has arisen over the manner in which hand-up brief should be prepared especially in two particular areas. Both, I think, stem from a misunderstanding of a most important requirement namely, that whenever a record of interview is taken from a suspect-person it should be recorded wherever possible in the language spoken by the accused and this record, together with an English translation prepared by the interviewing officer, should be tendered to the court. This long standing tradition has not only been the subject of an instruction by the Commissioner of Police to his officers, but has been recognized by the Supreme Court in the decision in Fande Balo v. The Queen [1975] PNGLR 378. Under the Criminal Procedure Act 1889 both in Papua and in New Guinea prior to Independence, the official language of the court was stated to be English. That legislation was repealed with the introduction of the new Criminal Code 1974 just prior to Independence but since then the practice of using English in the courts has continued unaltered in the superior courts. In the lower courts, of course, use is often made of one of the two "lingua franca" unless counsel are appearing. For a number of reasons, unnecessary to canvass in this judgment, English still continues to be the language of record and submission in the National Court and increasingly, the language of witnesses. Any alteration to this practice shall be made as a result of a decision by the Parliament or by the Judges and not the unilateral decision by some members of the Criminal Investigation Branch.

Whilst it is essential to have, for example, the Pidgin or Hiri-Motu version of an accused’s record of interview together with the English translation, it is not necessary to record the original speech of the various witnesses whose affidavits comprise the hand-up brief. Their statements are not records of interview. It could certainly be helpful to have both, but the courts appreciate the pressure of time under which the police work. It is only necessary to record the witnesses’ statements in English although the version actually spoken will have to be used by the person reading back the affidavit to the witness before he signs it in front of the Justice of the Peace or Commissioner for affidavits. Where for some reasons the investigating officer records the witnesses’ statements in the language which he actually uses, than he must also prepare an English version so that both versions may be tendered to the committing Magistrate. When this is not done Magistrates should refuse to accept the documents or should return the papers until the police prosecutor has brought them into proper order.

The second matter which concerns me because it is arising with considerable frequency, is the practice of taking a further statement from an accused person together with the other witnesses despite the fact that the accused may have already completed a lengthy record of interview. Whether his original interview be long or short, however, he should not be approached again for a second statement. He has already given his record of interview. He has, or certainly should have been, remanded by a court either on bail or in custody, and if in custody, would, or should, be under the control of the Corrective Institution Service. The matter should be more or less at a finish so far as the police investigation is concerned. The only remaining part is to get the statements in order, hand them up to the committing Magistrate and then arrange the necessary attendances before the National Court. Whilst preparing the witnesses’ affidavit at no stage should the police again approach the accused and obtain an affidavit from him. I cannot emphasise too strongly that this practice which is emerging since the introduction of the hand-up brief is one that should stop.

I trust that these directions will lead to a more efficient disposal of business before the Court.

Lawyer for the State: Public Prosecutor - L. Gavara-Nanu
Counsel: S.B. Passingan
Lawyer for the Defence: Public Solicitor - A. Amet
Counsel: M.K. Konido & J.D. Yamboli