State v Nui [2006] PGNC 133; N3162 (21 September 2006)

N3162

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1024 – 1028 OF 2002

STATE

v

STANLEY NUI

Lae: Kirriwom, J
2006: 21 September
(No. 2)

PRACTICE & PROCEDURE - Evidence – Admissibility of Affidavit of Evidence of Witness – Relevance of Evidence – Relativity of Evidence to the Accused and the case generally – Evidence related to co-accused and the case generally and therefore relevant Affidavit admitted on conditions.

Counsel:

N. Miviri, for the State
D. Poka & Aisi, for the Defence

RULING ON OBJECTION TO ADMISSIBILITY OF
AFFIDAVIT EVIDENCE

21 September, 2006

1. KIRRIWOM, J: In the course of the State case in this trial of misappropriation of public monies amounting to K77,302.02 by the two accused where the State has now called its 8th witness out of a total of 39 witnesses after four (4) days of hearing, an issue of admissibility of affidavit of one Garry Juffa arose.

2. Garry Juffa deposed to an affidavit in connexion with this proceeding on 9 October 2001, which he identified to be his in examination in chief and verified its contents to be true and correct. Defence object to this affidavit being admitted into evidence for the following reasons:

1. This way new evidence that did not form part of the committal depositions in both Lorna Nui’s and Stanley Nui’s committal files and such as the defence was taken by surprise.

2. The defence counsel were not available of this affidavit in sufficient time to seek instructions from their clients.

3. The evidence in the affidavit was and is of no relevance to the two accused in this proceeding. The evidence in that affidavit was compiled for the prosecution of one John Shugoho on a charge of forging and uttering. And as John Shugoho is not jointly indicted with these two in this same trial that evidence cannot in all propriety be used against the accused in this trial.

3. Mr. Miviri for the State whilst sympathizing with the defence in relation to the apparent disadvantage that the accused and their counsel were placed in by the absence of the material affidavit now the subject of this controversy, he however submitted that it is quite incorrect to say that the affidavit had no relevance to any of the two accused. He said the affidavit was compiled in respect of the female accused Lorna Nui. It was; therefore a relevant evidence for the State in this case.

4. I have since perused the affidavit. It deposed the following:

1) That I am the deponent herein.

2) That I come from Kokoda, Oro Province.

3) That I am employed by the Internal Revenue Commission as an Investigator. I have been employed as an investigator for 4 years. I am responsible for the investigating of fraud and corruption with the Internal Revenue Commission. I am also responsible for the preliminary investigation of criminal offences committed against the Internal Revenue Commission and for assisting other law enforcement agencies in joint operations.

4) That I on the 19 July 2001 I receive a report from Customs investigator Jeffrey Tambutai. The report alleged that a container of goods imported by a company had been fraudulently removed from the Lae Main Wharf on the 29 June 2001 with out the payment of Customs duty by persons using falsified Customs Documents. The report alleged that officer John Sugoho had approached officer Lenny Jack on that same day and had requested that Lenny Jack pass the container without inspection. Also attached to the report were the falsified Customs Entry Form used, attached here and referred to as "Attachment A’, falsified Customs Receipt number 009268 of the 22nd June 2001 attached here and referred to as "Attachment B". The false Customs Entry Form 15 (Attachment B) indicated that the "importer" was Punui Trading of P.O. Box 206, Mount Hagen. The false Customs Entry Form 15 ("Attachment A) also indicated that the goods were imported from Unilever Australia and were 965 boxes of "Omo" detergent Laundry powder.

I conduct preliminary enquiries into the matter by extracting a "Cashier Day Book Summary" for the 22nd June 2001 from the ASYCUDA Computerized Customs entry and cargo processing system for the Lae Port. The "Cashier Day Book Summary Report" is a summary of all receipts that are processed by the Internal Revenue Commissions customs in any Port on any given day. It maintains a record of all Customs entries New Guinea. This particular extract I obtained was for the date, 22nd June 2001 and is attached here and referred to as "Attachment C". This was the date on the false Customs Receipt (Attachment B) forwarded to me with Jeffrey Tambutai’s report. I noted that according to the "Cashier Day Book Summary" for the 22nd June 2001 (Attachment C) there was no record of such a receipt number as "009268" having been issued by the Internal Revenue Commission Customs Office in Lae on that date. The Cashier Day Book Summary extract for the 22nd June 2001 indicated that there is no record at all of any payment having been made by Punui Trading. I was then satisfied that therefore the receipt, 009268, (Attachment B) was false. I was also satisfied that there was no payment made as described per invoice 009268.

I then inquired with Steamships Shipping in Lae and confirmed that Steamships Shipping Agency employee Bethsheba Piddik had issued a Shipping Delivery Order, number 56183960 to a Lorna Nui when Lorna Nui had presented Customs Entry Form 15 and false Customs Receipt 009268 on the 25th June 2001 to her. A copy of the Delivery Order is attached here and referred to as "Attachment D". As the Shipping Delivery Order 56183960 issued by Bethsheba Piddik to Lorna Nui on the 25th June 2001 was false, I concluded that Lorna Nui had obtained the Delivery Order by means of a false pretence. I believed that this is a criminal offence as described on the Criminal Code Act Section 404(1)(a) chapter 262.

As I believed that fraud had been committed by the persons who had unlawfully removed goods from Customs control on the 29th June 2001 from the Lae Main wharf, I then referred the matter to the Criminal Investigation Division at the Police Headquarters, Port Moresby.

5) That on the 29th July 2001, I did accompany Detective Sergeant Boas Kalos of the Criminal Investigation Division to Lae to conduct further investigations into the unlawful removal of container TRIU 374 6608 containing 965 boxes of imported on Chengtu Voyage 61 and the involvement of customs officer John Sugoho if any. Whilst in Lae conducting inquiries into the matter, I did obtain a statement from Customs Officer Lenny Jack who did state that on the 29th June 2001, Customs Officer John Sugoho had approached him at the wharf and presented a Customs Entry form 15 and asked him to release the container of goods described on that Customs Entry. Lenny Jack did state that according to his recollection, the Entry was for goods consigned to Punui Trading and arriving on Chengtu voyage 61 sometime in June 2001. Lenny Jack also stated that John Sugoho had insisted that he (Lenny Jack) approached Lae Port Services and released the container. Lenny Jack also stated that as a result of John Sugoho showing him the Entry he had noted the line number on the entry and had checked the manifest of the Ship manifest of the vessel Chengtu Voyage 61 and noted that it had been set for Customs inspection.

6) That on the 10th August 2001, I was present during the interview of John Sugoho at the Criminal Investigation Division office at Lae Police Station Headquarters. I do confirm that during the interview, John Sugoho was cautioned and availed of his constitutional rights. I do state that during the interview also present was Constable Matthew Apio and Boas Kalos. During the record of interview, questions were put to John Sugoho and she answered and the questions and answers were recorded by means of typing. I did record the interview on a computer and after the interview, John Sugoho was asked if he wished to sign the record of interview. He agreed and the interview transcript was presented to him and did sign.

I state that at no time during the record of interview was John Sugoho ever threatened or induced by either Boas Kalos, Matthew Apio or myself into giving the answers that he did when questions were put to him.

5. I note in several paragraphs substantial references to the female accused Lorna Nui and I cannot agree with the Defence that it is irrelevant evidence, not as far as the female accused is concerned. This evidence is therefore relevant in her case. But ought that evidence be admitted against her when she was not made aware of the existence of that affidavit in order for her to instruct her lawyer? I am asking myself this question based on what the defence lawyers are raising. But I also remind myself that the Committal depositions in this case consist of volumes of files numbering no less than three (3) and no more than five (5) in respect of both accused and the handling of those files by various lawyers acting for the accused one time or other since committal in 2002 and 2003 must not be overlooked. It is easy for documents to be misplaced during that period and it may not be a question of not being served the relevant document at the committal stage. In any event, lack of opportunity to seek or to give instructions can be remedied without the need of rejecting the evidence outright.

6. There are a number of ways to deal with this admissibility issue. First, the witness is the deponent of the affidavit that is now sought to be tendered into evidence. According to strict rules of evidence, it is his document and through him it must be tendered if it is of any material worth and relevance of the current proceedings. Secondly, any irrelevant passages or offending paragraphs in the affidavit that do not relate to either of the accused or the entire case can be removed or omitted by obliteration. Thirdly, the document can be admitted subject to the defence having ample opportunity to study it for purpose of cross-examination of the witness.

7. There are two issues raised in this objection, fairness to the accused and relevance of the evidence sought to be tendered. Both issues are easily resolved as already discussed. The affidavit speaks for itself and I am satisfied that the evidence is relevant to the case against the female accused and is therefore admissible.

8. As such I over-rule the objection and admit into evidence the affidavit of Garry Juffa sworn on 9 October 2001 which shall be marked as Exhibit 9 subject to the following:

1) That the defence is given adequate time to seek proper instructions from the two accused as for them to instruct their lawyers.

2) That counsel shall discuss and agree on those parts or passages or paragraphs in the affidavit that are of no relevance to this proceeding and for them to be obliterated from the document.

3) If there is no agreement reached, to seek directions from the Court.

_____________________________________________

Public Prosecutor: Lawyer for the State
Steeles Lawyers & Pryke & Jansen Lawyers: Lawyer for the Defence