State v Tomande [2019] PGNC 175; N7883 (7 June 2019)

N7883

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR FC (63) OF 2019

THE STATE

V

RUTH TOMANDE

Waigani: Berrigan, J
2019: 4, 6 and 7 June

CRIMINAL LAW – Admissibility of Bank Documents – Sections 61, 65, 66 and 92 of the Evidence Act, 1975 – Section 52 of the Banks and Financial Institutions Act, 2000 – Confidentiality – Privilege.

Cases Cited:

Ellis v Ombudsman Commission of PNG; Re Poreporena Freeway Commission of Inquiry [1992] PNGLR 644
The State v Krufher (2016) N6510
The State v Simon Nakuwe, unreported

References Cited

Sections 61, 65 and 92 of the Evidence Act,1975
Section 52 of the Bank and Financial Institutions Act, 2000

Counsel:

Ms H. Roalakona, with Ms. K. Kamatan, for the State
Mr E. Sasingian, with Ms. E. Ramatlap, for the Accused

DECISION ON APPLICATION
7^th June, 2019

1. BERRIGAN J: The accused is charged with fourteen (14) counts of false pretence, one count of money laundering and one count of misappropriation contrary to Section 404(1)(a), 508B(1) and 383A of the Criminal Code (Ch. 262) (the Criminal Code), respectively.

2. At the relevant time she was employed as a Home Loan Officer with the Bank of South Pacific (BSP), Boroko Banking Centre.

3. The accused objects to the admission of documents produced through the State’s first witness, a bank manager with BSP. The bundle of documents comprises a loan application together with supporting documentation printed from the bank’s computer system. Each document is automatically generated from the system and bears a cover page with a unique BSP barcode.

4. The witness gave evidence of the system in place at the bank with respect to the processing of loan applications, including that documents are loaded by the responsible bank officer into the system, which automatically scans them and assigns them a barcode, recording the unique identification details of both the loan applicant and the officer responsible.

5. It is not contended by the defence that the documents are not relevant to these proceedings. In the words of defence counsel, his client’s case “hinges” on the documents produced by the bank.

6. Whilst not fully articulated, it appears that the documents are being tendered for admission by the State for two purposes. The first to establish that the documents were those actually retrieved by the particular witness from the bank’s computer system in certain circumstances relevant to the facts in issue in this case. Secondly, to establish the truth of the contents of the documents as business records as an exception to the hearsay rule pursuant to s. 61 of the Evidence Act 1975.

7. With respect to the latter, it appears that the facts that the State wishes to establish are that a loan application in the name of Mate Kapi was submitted for processing by the accused using supporting material from or in the name of Allan Teina, including an application, letter of confirmation of employment, payslips and other documents.

8. Section 61 of the Evidence Act provides that a writing purporting to be a memorandum or a record of an act, matter or event is admissible in evidence in a court as proof of the facts stated in it if it appears to the court that the memorandum or record was made in the regular course of a business at or about the time of the doing or occurrence of the act, matter or event, and the source of information, and the method and time of the preparation of the memorandum or record were such as to indicate its trustworthiness.

9. In many cases the State produces such records through statements or affidavits by duly authorised officers, who attest to the systems in place as to the making and keeping of records by a business, to avoid unnecessary time and inconvenience associated with oral evidence for what are formal but essential matters to be established.

10. In this case, however, the documents were identified by the witness as documents he personally retrieved from the bank’s computer system. In addition, he gave oral and formal testimony for the purposes of s. 61(5) of the Evidence Act explaining the process upon which such “writings” or documents are created and kept as part of the bank’s loan application and approval process.

11. The defence does not contest any of this, nor suggest that there is anything to question the trustworthiness of the documents for the purposes of s. 61(2)(a) and (b) of the Evidence Act.

12. The witness also gave detailed evidence as to the source from which the writing has been produced, namely BSP’s computer system, and the circumstances in which such documents are saved in the system for the purposes of ss. 61(4)(a) and (b) of the Evidence Act, including that every time a loan application is processed, documents are automatically scanned into the bank’s system and saved. The receipt and assessment of loan applications are made in the regular course of the business of the bank.

13. In my view the statements contained in the documents may also be admissible pursuant to s. 65 of the Evidence Act, which provides that a statement contained in a document produced by a computer is admissible as evidence of any fact, stated in the document, if certain matters are shown pursuant to s. 65(1)(a) to (d).

14. The evidence of the witness established that the computer was regularly used during the relevant period for the purpose of storing or processing information for the purpose of activities regularly carried out during the period, in this case the processing of loan applications. Similarly, information was regularly supplied to the computer for that purpose, when the computer was operating properly, and the statement reproduces or is derived from information supplied in the ordinary course of those banking activities. Again, none of these matters are contested by the defence. The documents may also be admissible pursuant to s. 92. It would depend on the meaning of an “entry in a banker’s book”.

15. In my view the preferable provision is s. 61 of the Evidence Act.

16. In any event the defence does not contend that the records are not genuine. Rather, the defence objects to the admission of the documents on the basis that they were not obtained under search warrant from the bank and are produced in contravention of s. 52(2) of the Banks and Financial Institutions Act, 2000 and/or in breach of the loan applicant’s confidentiality with the bank.

17. The State submits that the records are not confidential.

18. I don’t agree and to my mind that is not the point. In general terms, information both that a person has made a loan application to a bank, and the material submitted in support of that loan application, may be regarded as confidential.

19. I also agree with the defence that it is the usual practice for the bank to require search warrants or other court orders to produce such material. Banks often do so in recognition of the obligations of confidentiality they have to their customers. They may also do so pursuant to other agreements, policies and even statutory obligations in some cases. They may also regard the material as confidential from their own perspective for various reasons.

20. The fact that banks often require such orders, but have not required them in this case, however, does not mean that the records are inadmissible for that reason. A search warrant or court order is simply a means to compel the bank, or any other witness for that matter, to produce material which they might otherwise refuse to do so voluntarily.

21. The defence relies upon the case of The State v Krufher (2016) N6510. With respect, that case is not authority for the proposition that a search warrant or court order is required in every case. It is somewhat unclear but it appears that a State witness, a bank officer, refused to produce certain documents without a court order, which was accordingly granted. An order is not necessary in this case because there has been no objection by the bank or the witness to produce the records. Nor has the loan applicant, who is to be called as a witness in this case, objected.

22. The defence also relies on The State v Simon Nakuwe. The case does not appear to be reported and a copy is not available. In that case it was alleged that the accused impersonated government officials from the Department of National Planning and printed fake government cheques. A printer, blank paper and stamps were obtained by police from his residence. The accused was acquitted, however, because the items were seized from his home without a search warrant.

23. Again, with respect, that concerns an entirely separate issue. Police are not entitled to enter a person’s house and seize any thing, without the person’s consent, unless they have a warrant. Without consent or a warrant, the material in the above case was obtained illegally and was thus inadmissible.

24. That is not the case here. The records have not been obtained illegally by the State. They have been provided to it willingly by BSP.

25. In addition to the general argument that the material is confidential, the defence argues that it is inadmissible because it has been provided by the bank in breach of s. 52 of the Banks and Financial Institutions Act 2000.

26. The first issue which has not been fully addressed by defence counsel is whether the documents are “protected documents” as defined under s. 52(1) of the Act, which provides that a “protected document” means “a document given or produced (whether before or after the commencement of this Act) under, or for the purposes of, this Act, and containing information relating to the affairs of any person other than a document that has already been lawfully made available to the public”.

27. The purposes of the Act are set out in s. 2 and in broad terms are to promote the general stability of the financial system in Papua New Guinea and provide the Central Bank with certain powers for that purpose, in particular to ensure that only authorised persons carry on the business of banking, and that they do so properly and in accordance with the interests of depositors.

28. Without the opportunity to review the Act in detail, it does not appear to me that the documents tendered for admission in this case - either the document showing that the accused processed a loan application, or the documents provided to the bank by a private individual for the purposes of obtaining a loan from BSP - fall within the definition of “protected document”. They have not been given under the Act or for the purposes of the Central Bank’s regulatory role.

29. For the reasons set out below, however, that is not the determinative issue.

30. The provision relied upon by the defence is s. 52(2) which provides that “subject to this section, a person shall not, except for the purposes of the act, directly or indirectly disclose to any person, any protected information or document acquired by that first mentioned person”.

31. In my view s. 52(2) does not affect the relevance nor the admissibility of a document. The provision creates an obligation. On the basis of which, its breach would constitute an offence.

32. In those circumstances, a person would reasonably be entitled to refuse to produce, or perhaps object to the production of, a document in fear of committing an offence. Arguably, if s. 52 did apply, either the bank or the loan applicant might object to the production of the documents in general terms. Neither do in this case.

33. Moreover, it is also clear that the obligation, and any limited privilege, if it might be called that, do not lie with the accused. I say “limited” because it is of course subject to the usual exception, such that there is no offence where the disclosure is required under compulsion or obligation of law, which is specifically recognised under s. 52(6) of the Act.

34. Nor are the documents subject to any special privilege. As stated by Sheehan J in Ellis v Ombudsman Commission of PNG; Re Poreporena Freeway Commission of Inquiry [1992] PNGLR 644 (emphasis added):

“In the normal course of trials, judicial proceedings, or inquiries, all persons or parties having an interest in, or possession of, information or documentation relevant to the inquiry are amenable to summonses or orders to attend and produce that evidence.

But while the law recognises that, in the normal course, documents relating to matters touching on an inquiry should be disclosed, there are exceptions. In special circumstances, the law also recognise that documents may be privileged from production and inspection.

This privilege extends to three main classes. The first is evidence or documentation which would, or might, tend to incriminate the person supplying the documentation...The second class is documents protected by legal professional privilege...Thirdly, there are documents which may be privileged on the grounds of public policy. These include documents relating such matters as national defence and international policy. Also included are the proceedings of statutory bodies specifically protected by their empowering acts.

...But it is fundamental that this privilege is not some special exemption from compliance with the laws of the country. The privilege is not self executing in the hands of the party that may be accorded the privilege. All parties, whether the State, a statutory body, or an individual, are subject to the law and the jurisdiction of the courts. It is the courts that uphold the privilege.
35. In this case I am not required to determine whether I should compel production of the documents. No summons was required by the bank to produce them. It did so of its own volition for the purposes of criminal proceedings before this Court.

36. Furthermore, the documents have already been produced under compulsion of law in my view. The witness was called by the State. He was sworn in the usual course to tell the truth. Pursuant to his oath he was asked a series of questions including whether he retrieved certain documents from the bank’s system and was able to identify them. All of those questions he answered as he was obliged to according to his oath.

37. Moreover, it is clear, and the defence does not dispute, that it would be entirely permissible for the court to issue a summons for the purpose of requiring production of the records by the bank for the purpose of these proceedings.

38. No person has come forward to claim confidentiality or any protection under s 52 of the Bank and Financial Institutions Act. If it did, I would both make the order requiring production and grant any adjournment that would be required for that purpose.

39. For completeness, I note that the defence have submitted that the loan applicants should be called to give evidence about their own applications. That may well be the case depending on what the State wishes to establish. But that is a separate issue as to the question of admissibility of the records for the purposes described above.

40. In summary, the documents are not subject to any special privilege. The confidentiality of the documents, or their protection, if the latter exists, lies not in the hand of the accused, and has not been claimed by either their owner, the bank, or by the loan applicant.

41. The bank documents are relevant and admissible as documents the witness himself retrieved from the bank’s computer system, and admissible as business records pursuant to s. 61 of the Evidence Act.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner