State v Fele (No. 1) [2013] PGNC 352; N5160 (19 March 2013)

N5160

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1280 OF 2010

BETWEEN

THE STATE

V

ROY FELE & NANSEN FELE
(No. 1)

Alotau: P. Toliken AJ
2013: 19th March

CRIMINAL LAW – Evidence – Practice and Procedure - Application to tender a statement made under s 96 of the District Courts Act Ch. 40 into evidence –Statement not recorded in prescribed Form – Statement merely recorded in magistrate's minutes of proceedings - Whether sufficient in law – Legal consequences of s 96 Statements considered - District Courts Act Ch. 40, ss 96, 100, 103; District Courts Regulation, s 2, schedule 1 & 2.

Facts:

In a trial for wilful murder against two accused persons, the State applied to tender a statement purportedly made by them pursuant to Section 96 of the District Courts Act Ch. 40 (the Act). The State argued that their application is supported both by Section 97 of the Act and case precedent.

The defence objected the application on the basis that there is no such statement in the District Court committal depositions and even if there was, it was not signed by the presiding magistrate (or by the accused persons for that matter) as required by Section 96 (2) of the Act. The defence argued further that the magistrate must sign on the statement itself and not anywhere else and that in this case there is no s 96 statement in the depositions. Hence the application should be denied.

Held:

(1) A statement by a defendant under Section 96 of the District Courts Act Ch. 40, has important legal consequences. It may contain an admission, a defence or denial or other matters that may affect the outcome at the trial or sentence as the case may be. It is therefore imperative that a defendant's statement is recorded accurately and in substantial compliance with s 96 (2) of the Act.

(2) Pursuant to s 96 (2) of the Act, the presiding magistrate shall record any statement made by the defendant in writing, in the English language and have it read back to the defendant. The magistrate shall then sign the statement. The defendant may also sign if he so wishes.

(3) The statement must be recorded in the prescribed Form (Form 30 – STATEMENT OF DEFENDANT – of the District Court Regulation) but where this is not possible, it may be recorded in a similar form or in such manner or means as the circumstances warrant and this will be deemed sufficient in law pursuant to Section 2 (2) of the Regulation, providing that s 96 (2) of the Act is substantially complied with.

(4) Where the presiding magistrate records a statement by means other than in the prescribed Form, such as in the minutes or record of proceedings, he shall authenticate the statement by signing immediately below the statement.

(5) To sign anywhere else on the record or minutes is deficient in law for the purpose of s 96 because of the consequences that may flow from the admission into evidence of such a statement at trial or sentence as the case may be.

(6) In the case of multiple defendants the presiding magistrate shall record each defendant's statement separately to prevent unfairness to such defendants. A failure to do this is a denial of natural justice.

(7) In the circumstances the procedure adapted by the presiding magistrate was deficient in law. The application is accordingly refused.

Cases Cited

The following cases are cited in the judgment:

Maladina v. Posain Poloh (2004) N2568
The State v Asi Taba (2011) N4083

Counsel

R. Auka, for the State
A. Kalandi, for the accused

INTERLOCUTORY RULING

19th March, 2013

1. TOLIKEN AJ. The accused persons are on trial for the wilful murder of one Billy Thomas on 12th March 2010 at Nalanalabosi Village on Suau Island, Milne Province.
   
2. Before closing the State's case Mr. Auka applied to have a statement purportedly made under Section 96 of the District Courts Act Ch. 40 (the Act) tendered into evidence.
   
3. Mr. Kalandi objected on the basis that the purported statement was not signed by the magistrate, let alone by the accused, pursuant to Section 96 (2) of the Act. Counsel further argued that there is not even such a statement in the depositions.
   
4. Mr. Auka referred the Court to the second page of the "NOTICE OF COMMITTAL" titled "ORDER" where, among other things, is to be found the following –
   

"Upon being satisfied that there is sufficient evidence for the defendants each and severally to stand trial in the National Court. I now commit the defendants each and severally to stand trial in the National.

That upon administering Section 96 of the DCA the defendants each and severally said "we were trying to defend ourselves for the victim attacking us" (sic.)

5. Mr. Auka said the State's application is supported by Section 97 of the Act and case law. He cited the case of The State v Asi Taba (2011) N4083 where Canning J. said at paragraph 12 that –
   

"s96 ... of the District Courts Act allows an accused ... make a statement to the District Court during his committal proceedings. He is not obliged to make any statement and s96 requires that the District court makes this very clear to him before recording any statements made. If a statement is made s97 ... allows it to be used in evidence at his trial."

6. Mr. Auka further argued that the accused need not sign the statement. Only the magistrate needs to sign and in this case she did sign.
   
7. Mr. Kalandi countered saying that while that was true s 96 did not allow the magistrate to sign anywhere but in the statement itself. And that is the basis of their objection to the tender of the purported statement.
   
8. Mr. Kalandi referred the Court to Maladina v. Posain Poloh (2004) N2568, which amongst other things, sets out the procedures to be followed in committal proceedings. It further held that a breach of s 96 of the Act is a denial of natural justice.
   
9. Now if I understand Mr. Kalandi correctly, his objection is not so much about a failure to administer s 96 but that the accused persons' purported statements were not recorded in the prescribed manner or form.
   
10. The requirement for the presiding magistrate to record any statement made by defendant under s 96 is provided in the following terms by Subsection (2) –
    

(2) Anything that the defendant says in answer to a statement made in accordance with Subsection (1) shall be —

(a) taken down in writing in the English language and read to him; and

(b) signed by the Magistrates constituting the Court and by the defendant if he so desires; and

(c) kept with the depositions of the witnesses and transmitted with them to the Public Prosecutor.

11. It is clear then that the presiding magistrate must record any statement made by the defendant in writing, in the English language and have it read back to the defendant. The magistrate must then sign the statement. The defendant may also sign if he so wishes.
    
12. A s 96 statement has important legal consequences. It may contain an admission, a defence or denial or other matters that may affect the outcome at the trial or sentence as the case may be. Of course the defendant may simply choose to remain silent.
    
13. What follows immediately after the administration of s 96 and the recording by the magistrate of any statement made by the defendant is his formal order for committal for trial (s 100) or sentence (s 103) as the case may be. Maladina v Posain Poloh (supra).
    
14. It is therefore imperative that a defendant's statement is recorded in substantial compliance with s 96(2).
    
15. But where must a s 96 statement be recorded? Must it be recorded in a prescribed Form or simply in the magistrate's minutes or record of proceedings? If there is a prescribed Form, what are the legal consequences of not recording the statement in such a form?
    
16. The answer to these questions lies in the District Court Regulation (the Regulation).
    
17. Section 2 of the Regulation provides –
    

2. Forms.

(1) Where a provision of the Act or this Regulation is specified in the first column of Schedule 1, the form in Schedule 2 that is specified in the third column of Schedule 1 in relation to the provision, is the form to be used for the purposes of the provision described in the second column of Schedule 1.

(2) The forms in Schedule 2, or similar forms, may be used for the purposes to which they are respectively applicable, and instruments in those forms, or in similar forms, shall be deemed sufficient in law, but those forms, or any of them, may be varied for the purpose of adapting them to circumstances.

18. Schedule 1 of the Regulation contains the list of forms to be used in relation to specific provisions in the Act and the Regulation. Schedule 2 provides for the specific forms themselves.
    
19. According to Schedule 1 the prescribed form for a s 96 statement is Form 30 of Schedule 2. Form 30 is titled "STATEMENT OF DEFENDANT". It contains the words that must be addressed to the defendant by the court and includes the caution that the defendant need not say anything if so wishes. These are the same words contained in s 96(1).
    
20. The presiding magistrate must therefore use Form 30 to record any statement made by the defendant regardless of whether or not the statement contains admissions, denials or is self-serving or exculpatory. The magistrate must read it back to the defendant and then authenticate the statement by signing it. He may invite the defendant to sign the statement if he so wishes.
    
21. The legal consequence of the requirement for the magistrate's signature is bought out by s 97 of the Act which provides that the statement may be given in evidence, without further proof, unless it can be shown that the statement was not in fact signed by the magistrate. Ultimately the presence or absence of a magistrate's signature on a s 96 statement will result in whether or not such a statement can be admitted into evidence.
    
22. However, s 2(2) of the Regulation does not insist on strict or rigid compliance or use of the prescribed form. As we have seen it provides that the prescribed forms under Schedule 2 or similar forms may be used and this may be deemed sufficient in law and that the forms may be used to adapt them to circumstances.
    
23. So going back to the matter at hand, it is clear that the accused persons' purported statements were not recorded in the prescribed from i.e. in Form 30. Rather they were merely recorded in what clearly were the presiding magistrate's minutes or the record of proceedings. It is also clear that these are not forms in the strict sense of the word.
    
24. So given the importance and the legal consequences of a s 96 statement, it should go without saying that such a statement should be properly recorded. Since the Regulation provides for a prescribed form (Form 30), this form must be used unless circumstances do not allow otherwise. In that case the presiding magistrate may use a similar form or record the statement in some means or manner and that will be a substantial compliance with the requirements of s 96 of the Act.
    
25. For instance, if the presiding magistrate is prevented by circumstances from recording the statement in the prescribed form, he may record it in the minutes or record of proceedings in English, read it back to the defendant and sign at the end of the statement.
    
26. It is important that the magistrate signs at the end of the statement. To sign anywhere else on the record or minutes is deficient in law for the purpose of s 96 because of the consequences that may flow from the admission into evidence of such a statement at trial or sentence as the case may be.
    
27. But whilst that can be done, the preferred way is to use Form 30 to record s 96 statements and, committal Magistrates must use this form unless the circumstances prevent them from doing so.
    
28. In the case at hand the magistrate chose not to use the prescribed Form. Instead she merely recorded the accused person's purported statement(s) in the minute of proceedings. She did sign the minutes though, and whilst this may be prima facie deemed sufficient in law, she was dealing with co-defendants. The statement recorded simply was "we were trying to defend ourselves for the victim attacking us."
    
29. It is not apparent from the record who actually said this. And even though the record indicates that they "each and severally" made that statement I think that the magistrate erred in not recording separately what each of the defendants said. She was bound by law to that.
    
30. In cases of co-defendants, it is imperative that any statements made by the defendants are recorded separately in the prescribed Form or such other means allowed by the circumstances and authenticated by the magistrate in the manner prescribed by s 96 (2).
    
31. So by way of summary and for the sake of clarity and procedural fairness to defendants, the following must be observed by committal magistrates when recording s 96 statements.
    
32. Pursuant to s 96 (2) of the Act, the presiding magistrate shall record any statement made by the defendant in writing, in the English language and have it read back to the defendant. The magistrate shall then sign the statement. The defendant may also sign if he so wishes. It is imperative that a defendant's statement is recorded in substantial compliance with s 96 (2).
    
33. A s 96 statement must be recorded in the prescribed Form (Form 30 – STATEMENT OF DEFENDANT – of the Regulation) but where this is not possible, the statement may be recorded in a similar Form or in such manner or means as the circumstances warrant and this will be deemed sufficient in law pursuant to Section 2 (2) of the Regulation, providing that s 96 (2) of the Act is substantially complied with.
    
34. Where the presiding magistrate records a statement by other means other than in the prescribed Form, such as in the minutes or record of proceedings, he shall authenticate the statement by signing immediately below the statement.
    
35. To sign anywhere else on the record or minutes is deficient in law for the purpose of s 96 because of the consequences that may flow from the admission into evidence of such a statement at trial or sentence as the case may be.
    
36. In the case of multiple defendants the presiding magistrate shall record each defendant's statement separately to prevent unfairness to such defendants. A failure to do this is a denial of natural justice.
    
37. In the circumstances I find that the procedure adapted by the presiding magistrate was deficient in law. Therefore I do not think that it will be fair on the accused persons for the statement in question to be admitted into evidence, notwithstanding that it may seem exculpatory.
    
38. The State's application is therefore refused and I rule accordingly.
    

The Public Prosecutor: Lawyers for the State
The Public Solicitor: Lawyers for the Accused persons