State v White [1996] PGNC 73; N1441 (23 January 1996)

N1441

PAPUA NEW GUINEA
[National court of Justice]

CR 1809 of 1995

THE STATE

v.

JOHN BILL WHITE
(No. 1)

Waigani: Doherty, J.
1996: January 23

RULING ON AN INTERIM MATTER OF PROCEDURE

Procedure - witness should be called - power Court direct that witnesses give evidence even if Counsel decide only to tender written statements - duty impartiality.

The Counsel agreed to call only one witness to a criminal offence and to tender statements of other witnesses, and then make submissions on any differences in those statements. The witnesses were available and willing to give evidence. On whether the Court could go behind this agreement and direct the witnesses be called:-

Held:

(1) There is statutory provision for tender of written statements by consent of Counsel but it is subject to consent of the Court;

(2) The duty of the Court is to ensure (a) the best evidence available is brought before it (b) that it hears and assesses that evidence before making a decision.

(3) Statements may be tendered where there is no doubt or challenge to their facts.

(4) Whilst the Court must maintain impartiality and not take upon itself the role of prosecutor or defender it has an inherent power and a duty to ensure evidence is brought and presented before making any decision of facts.

Cases Cited:
Epeli Davinga v. The State, SC 491
The State v. Warun [1988/89] PNGLR 327
The State v. Raima [1973] PNGLR 230
Awoda v. The State [1984] PNGLR 165
Lewis v. R. [1991] 55 CR App R 386
R. v. Lee Kun Vie Ah [1915] 11 CR App R 293

Mr Pambel, for the State
Mr Pitpit, for the Accused

I outlined my decision and reasons in this interlocutory procedural matter and undertook to publish my detailed reasons. I do so now.

To fully understand the decision it is necessary to outline events that led up to it.

The accused John Bill White was indicted on a count of robbery with actual violence. He pleaded not guilty and the State opened by indicating that some witness statements would be tendered by consent. The first of these was a statement by the vehicle owner explaining his ownership and second was by a person who saw the stolen vehicle being driven, recognised the vehicle and gave a description of the driver as "a mixed race person".

At this point I indicated to the Counsel that I may require to hear evidence of this witness in view of his vague description. Counsel for the defence then submitted that the Court might be able to require him under the Criminal Practice Rules but the defence had a right to have statements tendered by consent which the court could not interfere with.

Both Counsel then indicated that several other statements would be tendered by consent and one witness, John Mote, would be called to give sworn evidence. The Counsels indicated that several of the witnesses were available and were within the Court area to give evidence if required. The statements were than tendered one by one and the Court noted that they also described direct eye witness evidence of the events and gave descriptions of the person involved, some gave a name and several referred to knowing the perpetrator on previous occasions.

This led to exchange between the Court and counsel, with the court pointing out that such an uncontested statement was of little probative value, the statement in itself gave a description that could fit many people, not only the accused, and the need for Court to hear evidence before making a proper decision. The Counsel for the defence, whilst conceding the court had power to call witnesses, suggested that the Court could not go behind an agreement by consent of both Counsel that the statements be tendered.

I was particularly conscious of the need for a court to maintain impartiality and not be seen to taking on the role of either the prosecutor or the defender. Such allegations have been made in the past concerning the conduct of judges, and must be weighed with the need to have a court hear evidence. After further discussion with counsel I ruled that there would need to be a proper submission on the courts powers under the Criminal Practice Rules etc. to enable a formal ruling on whether the Court could direct that witnesses give evidence. Those submissions were made in due course. I made an interim ruling and undertook to give reasons in full.

I have noted, as has Brunton, J and the Supreme Court, on the increasing tendency to tender evidence by way of written statement by consent and then argue on those written statements without actually calling the witnesses.

The witness in this trial has raised an alibi. An alibi automatically carries with it an implication that the accused person was not present at the time that the offence was committed and a further implication that anyone saying he saw the accused must have been mistaken or deliberately telling a lie. In either event a question of the identification of the actual perpetrator arises and for this reason the evidence of the witnesses who allege they saw the defendant is important.

Statutory provisions for the tendering of the evidence by way of written statement are contained in the District Court Act, S.102. This provides that certain evidence can be tendered with consent of the National Court without further proof and limits those statements to persons who are medically qualified where the witnesses dead or out of the jurisdiction and cannot be brought back etc or under S.102(b) if they formed part of the Committal Court evidence and were served on the defendant or his lawyer.

This section was considered by Brunton, J. in The State v. Warun [1988/89] PNGLR 327 and by Brown, J. in The State v. Raima [1993] PNGLR 230. The State v. Raima criticises the ruling in The State v. Warun remarking at p. 239 "his statements take no account of the uncontested fact of their existence (i.e. these statements of witnesses) as documents capable of being tendered. They are relevant and admissible in form."

The Supreme Court in Epeli Davinga v. State, Unreported SC 491 also considered the practice of tendering statements stated "there is no doubt that it is open to both prosecution and defence to agree on the admission of certain facts and this is often done where there is no doubt or no challenge to the facts. And with the costs of justice and the pressure to make courts and trials more efficient such agreements on the admission of uncontroverted facts should be part of any efficient court system." The Supreme Court then went on to give examples of an uncontested record of interview medical reports or a statement concerning documents dealing with the movement or the use of money in fraud or misappropriation cases. As the Supreme Court pointed out "there usually cannot be any dispute about what they show on their face, and it is then a matter of the interpretation of the actions of the relevant persons that become critical in their use of such monies or otherwise".

However this case does not squarely come within any of those particular categories. The witnesses give descriptions of a person which might fit the accused and might equally fit a hundred other people.

Counsel for the defence in a detailed and well researched submission referred to overseas cases where a procedure of handing up statements was adopted. He referred to the case of Lewis v. R [1971] 55 CR. App. 386 at p. 389. The English appeal court considered "the trial took a somewhat unusual course in that no oral evidence was called by the prosecution, Counsel for the defendant formally admitting under the provisions of S.10 of the Criminal Justice Act [1967], every fact which was alleged by the prosecution in the opening speech of counsel for the prosecution". The higher Court criticised this procedure remarking "it is perhaps necessary to say that it is a procedure which should be adopted rarely and with extreme caution": "although every effort should be made to take advantage ... with the saving of time and expense for all concerned, there are other ways that make the admissions of fact which would avoid adopting this procedure."

Counsel also referred to the State v. Warun (supra) which I have already alluded to. In that case Brunton, J. refused to accept any evidence other than evidence that was properly before the Court under S.589 Criminal Code Act. I particularly stress this point as the Supreme Court in Epeli Davinga v. The State (supra) ruled that statements that are tendered by consent are tendered under the provisions of S.589 and are considered as admissions by an accused person. The Supreme Court stated "This tendering of evidence by consent is provided for in the Criminal Code S.589" Admission. An accused person may admit on the trial any fact alleged against him, and the admission is sufficient proof of the fact without other evidence" but "A trial judge should always consider carefully whether there can be no prejudice to a fair trial by the admission of such evidence."

As I have pointed out to both Counsel in the course of the various discussions in this case it is this particular legal status of the tendered statement that causes me concern. I do not go as far as his Honour Judge Brunton to say this statement should be rejected on form alone but it is the effect of tendering this evidence that is my concern. Once the evidence is tendered the provisions of S.589 of the Code apply as the Supreme Court has made very clear, they amount to admissions by the accused and it is my clear understanding of his plea and the remarks by his counsel and by his notice of alibi that he most definitely does not admit that the facts alleged by these witnesses are admissions against him.

The duty of the State is to prove every element against a accused. This is a trite and often repeated statement and in order to adduce proof of each element the maxim "the best evidence must be given of which the nature of the court case permits" is considered a fundamental principle of the law of evidence. (Phipson On Evidence 13th edition para 5-01 "the best evidence rule"). Phipson considers that it applies in three slightly different senses (Para 5.02) i.e. that the nature of the fact admitted, or that the circumstances would allow, or that the party could produce and if there was inability to obtain better evidence than there could be some justification to resort to inferior forms of evidence such as hearsay by interested witnesses or copies of documents.

Applying these principles to the case before me I consider that the best evidence of the case is the evidence of the witnesses present who saw and heard what happened. Whilst Counsel can agree on some procedures they cannot over ride the duty of the trial judge to ensure a fair trial nor the need for the consent of the Court in S.102 District Court Act Ch. 40.

It is for Counsel to call those witnesses and to have them examined and cross examined. There are good practical reasons for this procedure which all of us had seen from experience over the years. A witness that sounds clear and inequivocal when his statement is read on a piece of paper may be hesitant, short sighted and unsure when cross examined. One extreme example that has been seen in this court is where a person made a clear categorical statement that he saw and did certain things at certain times but when the witness was called it transpired that he was a local leader only recounting what other people had told him. It is for this type of reason and to assess credibility that witnesses are called and cross examined and it is unwise for the court to be left to speculate from a piece of paper as to how sure and certain the witness is about the facts he has averred to.

Further the duty on a court is to acquit a person if he is not guilty and convict him if he is guilty beyond reasonable doubt after the court has heard the evidence. This is a duty that the Constitution imposes upon the judiciary. As Counsel for the defence himself stated: "it is the duty on all parties, the duty of the prosecution to bring all evidence it needs to bring and to prove the facts" but he went on to say "the concern of the defence is raised at the likelihood that the evidence conceded to by the defence might be improved on or extended on by witnesses if they were called to give oral evidence and that that would be detrimental to the defence." And "it was an understanding between the defence and the State with regard to those statements that the evidence as they existed on the face of the statement was the extent of the prosecution might elicit and no more."

Counsel referred to the case of R v. Lee Kun Vie Ah [1915] 11 CR App R 293 as authority for his submission that once counsel have made that agreement then the statements should be tendered, and both the defendant and the Court are bound by that decision and cannot go behind it. In that precedent the English Court of Appeal quashed an appeal against conviction of a person who complained that he did not understand the proceedings as he was "ignorant of the English language". He did not understand the evidence and it was not translated for him. The Court considered that he was defended by counsel who made no application for an interpreter and, although a person cannot dispense with the rule that he must understand the proceedings and it must be translated for him if he does not speak the language, the Court held that there was no irregularity which would allow them to uphold this appeal and confirmed his conviction. His Counsel’s decision bound him.

I would be very wary of adopting such a rule in view of the provisions of the Constitution S.37 and I have reservations if it really constitutes a ruling that both the defendant and the Court are bound by a decision of his counsel. Brunton, J. in the State v. Warun (supra) at page 331 adopted a citation from Lee Kun Vie Ah (supra)" ... the trial of a person for a criminal offence is not a contest of private interest in which the rights of the parties can be waived at pleasure. The prosecution of criminals and the administration of the Criminal Law are matters which concern the State. Every citizen has an interest in seeing that persons are not convicted of crimes and do not forfeit life or liberty except when tried under the safeguards so carefully provided for by law."

What I am being asked to do in this case is having heard one witness, whose evidence was quite emphatic, I must read the statements of untested and untried witnesses and make a comparison and speculate on any differences. I do not consider that that is a proper way to conduct a trial particularly when the witnesses are within the court precincts and willing and able to give evidence.

As I have pointed out both to the counsel here in Court and in my opening remarks in this judgment, my concern is whether the Court can direct other witnesses be called. Provisions of the Criminal Practice Rules empower a court to call witnesses. Does that power extend to the situation where the counsel have decided not to call them but to invite the Court to read admissions and then make a ruling on the discrepancies in those statements as compared to the sworn evidence before the court?

As I have been at pains to point out the court must not enter the arena and take upon itself the role of the prosecutor or of the defender. Counsel for the defence has submitted if there is any objection it should be raised at the time and he has raised no objection. Hence there is no obligation on the judge to raise objections.

I consider that the duty that is incumbent in this court, as was stated in Awoda v. The State [1984] PNGLR 165 is to ensure justice under proper procedures, that the best evidence that is available to the court concerning the identity of the perpetrators of the crime be brought before the court and the witnesses tried and tested, that the matter such outlined by the Supreme Court in John Beng v. The State be properly assessed. If the evidence is available a Court should not readily consent to admission, be it under S.587 Criminal Code, S.102 District Court Act or Evidence Act but may exercise its inherent jurisdiction and the jurisdiction conferred by the Rules and direct the witnesses be called.

I consider that the witnesses should be called and if neither the State nor the Defence are willing to call them I direct they be brought before the court so that their evidence can be presented and that they be cross examined in the manner long accepted by our courts.

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Lawyers for the State: PUBLIC PROSECUTOR
Lawyers for the Accused: PUBLIC SOLICITOR