State v Iewago [2012] PGNC 336; N5188 (24 October 2012)

N5188

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 438 OF 2009

THE STATE

V

RODNEY IEWAGO

Popondetta: Toliken, AJ
2012: 24th October

PRACTICE AND PROCEDURE – Evidence - Tendered written Statement - Calling of witness – Whether prosecutor can call witness whose statement had been tendered by consent – Whether court has the power to direct such a witness to be called – Best evidence rule – Duty of court to remain impartial.

Facts:

On a trial for a charge of false pretence certain statements of witnesses for the State were tendered by consent pursuant to section 589 of the Criminal Code ACT Ch.262. Before closing its case the State sought to call one of these witnesses to give evidence. The defence objected to the application.

Held:

(1) The prosecution can call a witness whose statement had been tendered into evidence by consent for the purpose of clarifying facts which may only be vaguely described in the statement.

(2) The court has an inherent and statutory power to direct that a witness be called providing that it maintains impartiality and not usurp the prosecutor's duty to call witnesses to ensure that the accused is not prejudiced in his trial.

The State –v- White (No.1) [1996] PNGLR 262 followed.

Cases Cited

Birch –v- The State [1979] PNGLR 75
Davinga –v- The State [1995] PNGLR 263
The State –v- Raima [1993] PNGLR 230
The State –v- Raphael Kinba Aki (2001) N2039
The State –v- Warun [1989-89) PNGLR 327
The State –v- White (No.1) [1996] PNGLR 262

Counsel

D. Kuvi, for the State
L. Mamu, for the Accused

INTERLOCUTORY RULING

1. TOLIKEN, AJ: The accused is on trial on a charge of false pretence contrary to Section 404 of the Criminal Code Act Ch. 262. The State's case consisted of the oral testimonies of x and witnesses' statements which were tendered and accepted into evidence by consent pursuant to Section 589 of the Code . One of these statements was by one Davidson Jeune.
   
2. Prior to closing its case the state applied to call Davidson Jeune to give oral evidence. The defence objected to the application.
   
3. The issues for me to determine, as I understand them are –
   
   1. Whether the State or prosecution can call a witness whose statement had been tendered into evidence by consent and by intention.
      
   2. Whether the Court can direct that such a witness to be called.
      
4. Mr. Kuvi briefly submits that they have no case authority upon which to base this application. He, however, seeks to make some comparisons to what he says are common scenarios. He argues that while that the statement tendered yesterday was unsworn, there is nonetheless nothing to prevent the witness from giving further sworn evidence.
   
5. Counsel says that this not too different from a Record of Interview where the police officer conducting the interview is often called to give further oral evidence, or, a Medical Report where a medical doctor is also often called to clarify some matters or points in the Report.
   
6. If this not possible, then Counsel submits the witness can be nonetheless recalled. He relies on Birch –v- The State [1979] PNGLR 75 where the Supreme Court held, inter alia, that in criminal proceedings, the Trial Judge has the power to intervene (but not unduly) by asking questions and calling or re-calling witnesses if he considers in his discretion that the cause is necessary to the ascertainment of truth or in the interest of justice.
7. Counsel says that it is in the interest of justice that Davidson Juene be recalled.
   
8. When pressed by the Court what it is that needs to be clarified by the witness, Counsel said that the first witness had testified to certain requirements that rubber buyers and exporters had to meet, which, Counsel says Davidson Juene also mentioned in his statement. These need to be clarified as they go to the root of the question whether the accused was a legitimate rubber buyer.
   
9. Mr Manu for the defence on the hand objects to the application on 3 grounds:-
   
   1. In order to prevent undue delay in this matter, the State and the Defence had agreed to certain statements being tendered by consent. This witness' statement was one of them. So having placed itself in that situation, the State cannot now apply to have the witness called.
      
   2. Section 34 of the Evidence Act provides an avenue for a witness who had deposed to an affidavit to be called up for cross-examination. Counsel says that this provision cannot be used to allow the State to take the position it has taken in this case. This application is therefore an abuse of the provision.
      
   3. On the Court's inherent discretion to allow the application Counsel submits that this discretion, grounded in Section 155(4) of the Constitution may only be exercised on established principles.
      
10. Counsel, therefore, asked the Court not to allow the application.
    
11. Let me now briefly address the issues which I shall address together.
    

ISSUES: Can the prosecution call a witness whose statement had been tendered by consent and can the Court direct that such a witness be called?

12. At the outset, I think that it is generally accepted that the prosecution may not split its case by calling "rebuttal evidence" in an attempt to correct an issue raised by the defence where the prosecution ought to have foreseen that this issue will be raised. The prosecution may not also call "further evidence" to patch an error it made when presenting its case.
    
13. This is to ensure a fair trial for the accused as constitutionally guaranteed to him so that he is not prejudiced in his defence.
    
14. So can the prosecution call a witness under the circumstances under enquiry and call the Court direct that such a witness be called?
    
15. There is no doubt in my mind that the Court has the power to call a witness, both under the Criminal Practice Rules (Order 4 Rules 1,2) and Sections 34 and 37 of the Evidence Act. However, when it does, the Court has to be mindful that it does not unduly take over or usurp the role of the prosecutor so as to prejudice the accused. (Birch –v- The State [1979] PNGLR 75)
    
16. Neither Counsel was able to cite any authority to me on the point but I have within the limit resources available to me on circuit, found an authority that may support the prosecutor's application. This is the case of The State –v- White (No.1) [1996] PNGLR 262.
    
17. This is a case in point where written statements were tendered by consent. There, the accused pleaded not guilty to a charge of armed robbery.
    
18. The first of those statements was that of the owner of the stolen vehicle used in the robbery. The second was by a witness who saw the stolen vehicle being driven and described the driver as "a mixed race person".
    
19. Her Honour, Doherty J. though that this description was too vague and asked Counsel if the witness could be recalled to clarify his evidence.
    
20. Defence Counsel agreed that the Court can direct that the witness be called under the Criminal Practice Rules Act but argued that the accused had the right to have the statement tendered by consent and the Court should not interfere with that.
    
21. Her Honour, called for and heard detail arguments from both counsel and held the following:-
    
    1. There is statutory provision for tender of written statements but that is subject to the consent of the Court.
       
    2. The duty of the Court is to ensure:-
       
       • (a) the best evidence is brought before it and;
         
       • (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 them.
       
    4. While the Court must maintain impartiality and not taking upon itself the role of the prosecutor or defender, it has an inherent power and a duty to ensure that evidence is brought and presented before making any decision of facts.
       
22. Her Honour was of the view that the best way to prove the case against an accused that accords well with the right to a 'fair hearing' under Section 37(3) of the Constitution is for witnesses to give evidence under Oath and be subjected to cross-examination by the accused person. Merely admitting statements and affidavits by consent may leave questions or points in the evidence unanswered or unclarified. This, she said, eliminates the risk of the statement or affidavit not containing what the deponent or another is really saying and which may not stand up to cross-examination. This also accords well with the fundamental principle that "the best evidence must be given which the nature of the case permits."
    
23. She, therefore, ordered that the witness be called.
    
24. In The State –v- Raphael Kimba Aki (2001) N2039, His Honour, Kandakasi, J. gave an useful and concise summary of the discussions by the National and the Supreme Court on the relevant principle on this point. (The State –v- Warun [1989-89) PNGLR 327; The State –v- Raima [1993] PNGLR 230; Davinga –v- The State [1995] PNGLR 263; The State –v- White (No.1) (Supra)).
    
25. So having considered the above, I do not think that the accused will be prejudiced in his defence of State witness Davidson Jeune is called.
    
26. If anything he is to be called to merely elucidate or clarify the licensing process for trade in rubber which is not sufficiently detailed in his own written statement. And of course, he will be subject to cross-examination by defence counsel.
    
27. I, rule therefore that the prosecution can call a witness whose statement had been tendered into evidence by consent for the purpose of clarifying facts which may only be vaguely described in the statement.
    
28. And it follows that the court has an inherent and statutory power to direct that a witness be called providing that it maintains impartiality and not usurp the prosecutor's duty to call witnesses to ensure that the accused is not prejudiced in his trial.
    
29. I therefore, grant the application for the prosecution and direct that witness Davidson Jeune be called to give evidence.
    

Orders accordingly.

_____________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyers for the Accused