State v Pati [2025] PGNC 264; N11367 (9 July 2025)

N11367

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) 380 OF 2024

THE STATE

V

ROBERT PATI

WAIGANI: BERRIGAN J
7, 9 JULY 2025

CRIMINAL LAW – PRACTICE AND PROCEDURE – Application to take evidence via video link in a criminal trial – Principles applied - Granted.

Cases cited
Paraka v The State (2024) SC2648
State v Paraka (2022) N9970
State v Merimba (2021) N9129

Counsel
C Langtry for the State
M Miningi for the accused

RULING

1. BERRIGAN J: The State applies to lead the evidence of the complainant via video-link in the upcoming trial which is fixed to commence on Tuesday, 12 August 2025.
   

Background

2. According to a Notice of Intention to Prosecute signed by the then Acting Public Prosecutor, Raphael Luman, and filed on 1 October 2024 his Worship Albert Daniels refused on 6 December 2023 to commit the accused for trial on charges of obtaining goods by false pretence and uttering contrary to ss 404 and 463(2), Criminal Code, respectively. Furthermore, that having considered the evidence contained in the depositions taken before the Court and other relevant evidence the Acting Public Prosecutor gave notice of his intention to prosecute the matter pursuant to s 526, Criminal Code by reducing into writing in an indictment charges of one count of misappropriating K389,714 and two counts of uttering IPA records, contrary to ss 383A and 463(2), Criminal Code, respectively that the evidence to him appeared to warrant.
   
3. The matter came before me for the first time in November 2024. The pre-trial process followed and the matter was fixed for trial commencing 1 July 2025. That date was vacated by the Court on 16 June 2025 as a number of matters fixed for trial in May were not reached whilst I was on circuit. In addition, the defence indicated that it did not have the depositions and directions were made accordingly.
   
4. It appears, however, that according to a letter from the Office of the Public Prosecutor to the Registry on 16 October 2024 seeking to have the matter listed for mention and attaching a proof of service signed by the investigating officer, Dickson Lakaio, that the accused was served with a copy of the indictment and two court files in the presence of Senior Inspector Muka and three detectives from the NFACD on 11 October 2024.
   
5. The State presented the indictment signed by the Acting Public Prosecutor on 1 October 2024 in Court on 7 July 2025. Noting the above matters, the prerequisites under s 526, Criminal Code have been complied with.
   
6. It is alleged that the accused and the complainant entered into an agreement with Kupiane Gold Resource Limited (KGRL) whereby the complainant would provide funding to KGRL for a court case through Robert Pati and his company, Wuagima Yagari Investment Ltd (WYIL). The complainant was made a director in the company. On the charge of misappropriation it is alleged that the accused failed to repay the monies agreed upon the successful outcome of the court proceedings. On Counts 2 and 3 it is alleged that the accused uttered false company records for the purpose of obtaining full control over the monies to the exclusion of the complainant.

Submissions

7. The State relies on an affidavit sworn by the Acting Public Prosecutor, Helen Roalakona, on 30 June 2025, which attaches an affidavit sworn by the complainant in Australia before a Justice of the Peace.
   
8. The State submits that the complainant is willing to come to Papua New Guinea to give evidence but is afraid to do so because a warrant was issued for his arrest by the District Court whilst the matter was going through the National Court listing process. The complainant says that the warrant poses a risk to his personal safety in PNG and is an attempt to interfere with his testimony in the proceedings. In addition, there is insufficient time before the date fixed for trial for him to secure leave from his employer, obtain a visa from the PNG Immigration and Citizenship Authority, arrange travel and accommodation in Port Moresby, and arrange legal representation in the District Court to set aside or stay the warrant.
   
9. The Commonwealth Director of Public Prosecutions has declined to assist the Office of the Public Prosecutor with the use of its video link facilities as it did in the Merimba and Paraka matters, referred to below. The State submits that the complainant is willing and able to give evidence from his home in Perth, Australia. The State was asked to confirm the arrangements at the complainant’s home and whether alternatives could be made.
   
10. The accused objects to the evidence being led via video link. The police are not subject to control. The complainant is at liberty to have lawyers apply to have the warrant revoked or stayed. It is not appropriate for the complainant to give evidence from a room in his house. The matter concerns an ongoing dispute between the parties which have been the subject of numerous civil proceedings before the National and Supreme Courts and there are numerous documents that will need to be shown to the complainant during cross-examination.
    

Consideration

11. It appears settled that the National Court has the power to take the evidence of a witness via video-link in a criminal case: Paraka v The State (2024) SC2648 at [159] affirming State v Paraka (2022) N9970; see also State v Merimba (2021) N9129.
    
12. The following principles are taken from State v Paraka (2022) N9970 at [47] and [48]. In determining whether or not to grant leave to call evidence via video link the essential question is whether it is in the interests of justice to do so. The question is one of discretion to be determined by the trial judge in the circumstances of the particular case having regard to the importance of having all available and relevant evidence before the court whilst ensuring the accused’s right to a fair hearing under the Constitution. The ability of a witness to appear in person, the costs involved, and questions of efficient judicial administration will be relevant considerations.
    
13. In determining the issue of fairness, furthermore, consideration might also be given to the following factors, which are not intended to be exhaustive: the availability and quality of equipment and video-link facilities at the relevant locations; whether the witness will give evidence in a controlled environment, such that they are subject to neither influence nor inhibition; the ability of all parties, counsel and the court to see and hear each other and the witness in the remote location; and the extent of documentation which might need to be viewed by the witness, the court and parties.
    
14. I was proceeding on the basis of the statements in the State’s affidavit that the warrant for the complainant’s arrest was obtained by the accused very recently and whilst the matter was going through the National Court listing process. That would be indicative of an intention on the part of the accused to interfere with State witnesses.
    
15. That is not correct, however. The warrant for arrest was issued on 26 July 2024, that is following the refusal of the magistrate to commit on 6 December 2023 and well before the notice of intention to prosecute of 1 October 2024, which was served on the accused on 11 October 2024. There were no proceedings before the National Court at that time.
    
16. The warrant for arrest was issued in front of the same magistrate who declined to commit on the following information of Detective First Constable Benny Agu of the Internal Affairs Unit with respect to a charge of conspiring to bring a false accusation, contrary to 127(2), Criminal Code, for which the maximum is 14 years of imprisonment (verbatim, emphasis mine):
    

He is an Australian Government Employee and works at the train station as a transit officer in Perth, Western Australian and Stallon KIWALE is a self-employed individual of Mungulep Village, Porgera District in the Enga Prince, Papua New Guinea on allegation of “Conspiracy to Bring False Accusation against ROBERT PATI” with an intent to defraud the Company Wuagima Yakari Investment Limited solely owned by Robert PATI 100% shareholder and owner of Wuagima Yakari Investment Limited. In an attempt to fraudulently own the Company Wuagima Yakari Investment Limited, Mr Kelvin Lloyd Bennett conspired with Stallon KIWALE and altered IPA records and install their names as owners and director of the Company Wuagima Yakari Investment Limited. Suspects, Kelvin Lloyd Bennett had no respects for the Supreme Court and National Court orders in place, where the higher courts protects the rights of the owner Robert PATI. Kelvin Lloyd BENNETT falsely accused Robert PATI on numerous occasions and Police kept on arrested and charged him only to found out the Robert PATI was an innocent person as all the cases initiated by Kelvin Lloyd BENNETT against him were dismissed and struck out by the competent courts for lack of evidence.

17. There is some suggestion that Officer Agu is no longer an employed police officer, having been convicted. It is not clear to me why the Internal Affairs Directorate as it is properly known, is bringing such charges. Putting those matters aside, whilst the present charges against the accused were struck out by the District Court the accused has not been acquitted by either the National or the Supreme Court and the statement upon which the warrant is issued is at least misleading if not false.
    
18. I would not normally be minded to excuse a witness from attending to give evidence in PNG merely because they might face arrest upon entering the jurisdiction. I appreciate that a person is entitled to make a complaint but the timing, nature and form of the allegation underpinning the warrant are concerning for the reasons outlined. The complainant should not be required to submit himself to arrest to give evidence with respect to a longstanding complaint lodged by him several years ago and considered by the Acting Public Prosecutor in control and exercise of the prosecution function of the State to warrant prosecution, particularly where the basis for the arrest warrant, which has been obtained by the subject of the complainant’s complaint, is at best misleading.
    
19. Moreover, the important question is whether, regardless of that and focusing on the fact that the witness is based in Australia, it is in the interests of justice for the prosecution to call his evidence via video link.
    
20. There was some suggestion that the complainant’s affidavit did not comply with evidentiary requirements. The Acting Public Prosecutor swore an affidavit in accordance with Oaths, Affirmations and Statutory Declarations Act, 1962 which attached the complainant’s affidavit. The complainant’s affidavit was apparently sworn in front of a Justice of a Peace in accordance with the requirements in his jurisdiction. The material is in sufficient form for the purposes of this application.
    
21. In making this decision I have taken into account that the accused has been charged with serious criminal offences. The complainant is a material witness. He is an Australian citizen normally resident in Perth, Western Australia. His complaint was lodged some time ago with the National Fraud and Anti-Corruption Directorate.
    
22. The matter was set down for trial in July and so I would have expected the complainant to have made some arrangements for leave, at least on a tentative basis, before now. There can be no doubt, however, that the cost to the State of bringing and accommodating the complainant in Port Moresby would be significant and that depending on the nature of the visa require it may take some time for a visa to be obtained.
    
23. I am satisfied that the taking of evidence via video link will not prejudice the accused’s right to a fair trial. The complainant will give evidence under oath, in this Court, in a manner which will enable the Court and the parties to hear and observe the witness whilst giving evidence. The accused will have the opportunity to confront the witness and challenge him under cross-examination. The evidence will be given under oath and the witness will be subject to prosecution in this country for perjury. See Paraka at [54].
    
24. I am satisfied that the facilities are available and are of sufficient quality. The technology is that used by the National and Supreme Court in a dedicated court room for such purposes. Whilst the documentation might be voluminous, it will be possible for documentation to be shown to the witness through the use of the technology. The evidence will be recorded for the purposes of the transcript in the usual manner by this Court’s Court Reporting Service.
    
25. The accused’s key concerns appear to be the place from which the complainant will give evidence and the volume of documentation to be put before the witness although he now indicates he has no real objection.
    
26. On the first issue, whilst I was initially concerned about the lack of logistical support in Australia, the video link will be administered by the officers and information technology staff of this Court. According to the Registry the Court’s facilities permits the taking of evidence on Microsoft Teams.
    
27. Furthermore, whilst I was initially concerned about the proposal that the witness give evidence from a room in his house, the State have made alternative arrangements both of which are more than adequate, ie either at the Magistrate’s Court or a lawyer’s office and I reject the suggestion by defence counsel that the State was obliged to provide photographs of those venues.
    
28. Even at his own home the witness would be in a sufficiently controlled environment as long as the Court could satisfy itself he was alone and able to give evidence without influence or inhibition. The witness is after all a mature adult who has brought the complaint and there is no reason to believe that he would be subject to any such influence or inhibition when giving evidence in the circumstances of this case.
    
29. On the second issue, the volume of documents is not large, especially when compared with the Paraka matter. The State’s pre-trial statement refers to 24 documents and the depositions are not more than 80 or so pages. It may be that the accused has many more documents he wishes to put to the witness in cross-examination but the methodology for doing so is the same albeit may take a little longer for the witness to read from the screen whilst giving evidence.
    
30. Having regard to all of the above matters, I am of the view that the taking of evidence via video link will permit the admission of relevant evidence in the trial in the interests of justice, that is in the interests of both the State and the accused. It will not prejudice the accused in his defence and will facilitate the conduct of the trial in a timely manner in the interests of efficient judicial administration.
    
31. I give the following directions pursuant to s 185 of the Constitution:
    
    • (1) The evidence of Mr Kelvin Lloyd Bennett will be taken in this matter via video-link, preferably on 12 August 2025, subject to the availability of Court Room 9, to be confirmed by the Court’s IT section on or before 14 July 2025.
    • (2) The State will make the necessary arrangements with the Court’s IT section and advise the Court’s associate and defence counsel.
    • (3) The State is to provide all documents contained in the hand up brief and any other documents upon which it intends to rely to the Court’s IT section on or before 23 July 2025 for scanning purposes.
    • (4) The defence is to provide any additional documents it intends to put to the witness on or before 30 July 2025.
    • (5) Both parties shall ensure in consultation with the NJSS IT section that documents and clearly identifiable such that they may be readily retrieved to be put before the witness as required.
      

_______________________________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the accused : FTM Legal Group