PNG Law Reports 1993
[1993] PNGLR 230
N1153
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
STATE
V
PETER RAIMA
Mount Hagen
Brown J
17 February 1993
20 April 1993
EVIDENCE - Evidence - Admissibility - Affidavit of witness annexing statement to police taken at time of police investigation into robbery - Witness unwilling to give evidence in court through fear - Affidavit prepared in foreknowledge that witness unwilling to appear - Affidavit deposing to nature of threats against her life and those of her family - Association with the accused - Whether affidavit with its statement may be used in evidence - Relevance and admissibility - Use to which the affidavit may be put - Evidence Act Ch 48 s 34.
EVIDENCE - Hearsay.
CONSTITUTIONAL LAW - Interpreting the law - "Dispensation of justice" - Constitution s 158 (2).
Facts
In the course of a robbery trial, the State sought to tender the statement made to police by a principal witness in the trial. The statement had been annexed to an affidavit sworn to by the witness. The Court adjourned the trial to consider the matter. The woman was afraid and deposed to the nature of the threats emanating from the accused's line and her apprehensions. The facts appear from the ruling.
Held
1.       The witness' fear for her life was reasonably held.
2.       Although the statement annexed to the affidavit was taken by a police officer, it was not hearsay. The conversation with the accused recounted in the statement was relevant only to the state of mind of the accused, in relation to the possible defence of duress raised by the accused. It was not admissible as proof of the facts stated in the conversation.
3.       As the accuracy of the statement was deposed to in the affidavit of the witness, the statement was both relevant and admissible in form.
4.       The right to a fair trial does not require every fact to be proved by calling a witness. Facts can be proved through other means in various circumstances (refusing to follow State v Warum [1988-89] PNGLR 327).
5.       Acceptance of the affidavit and statement in the absence of the deponent and in the face of objection by the accused and in the light of possible prejudicial impact on the accused depends upon whether its use was fair to the accused having regard to the requirement of the "dispensation of justice" under s 158(2) of the Constitution.
6.       There was no unfairness to the accused in admitting the out of court statement of the witness in the circumstances of this case.
7.       The "dispensation of justice" enables a court to take account of reasons for non-attendance of a witness in considering exercise of a discretion to admit evidence from the witness though affidavit.
8.       The constitutional imperative to dispense justice to all persons required the court to take account of the need to develop means of dealing with the prevailing situation of threats to witnesses. Reception of the evidence subject to the safeguards considered by the court met the constitutional imperative and contributed to the development of the underlying law.
9.       In the circumstances the affidavit should be admitted in the exercise of the Court's discretion.
[Editor's note: The applicability of the right of an accused person under s 37(4)(a) of the Constitution to "examine ... witnesses called before the court by the prosecution" was not argued].
Cases Cited
Papua New Guinea cases cited
Biri v Ninkama [1982] PNGLR 342.
State v Warun [1988-89] PNGLR 327.
Other cases cited
R v Andrews [1987] AC 281.
R v Blastland [1986] AC 41.
R v Cole [1990] 2 All ER 108.
Ratten v R [1972] AC 378.
Scott v R (1989) 2 All ER 305.
Sugden v Lord St. Leonards (1876) 1 PD 154.
Counsel
J Kesan, for the State.
K Kot, for the defendant.
20 April 1993
BROWN J: The accused, Peter Raima, was indicted on two counts, the first a charge of robbery with violence and the second unlawful use of a motor vehicle. The robbery charge related to a Nissan Patrol utility, registration AFU921, which the State alleged was taken from Mrs Bevi Kerowa at the Steamships store, Mount Hagen, on 27 February 1992. It was alleged by the State that at the time of the robbery Peter Raima was armed with a pistol and in company of six or seven other persons. The unlawful use arises out of the circumstances in which the vehicle was used and recovered after a police chase, when officers say the accused was driving the Nissan.
With the consent of defence counsel, various statements were tendered in evidence and became exhibits. In those circumstances, the statements are evidence of the truth of the facts contained in them.
Constable Leo Shipua recounted that he was on duty at the communications room police station, Mount Hagen, on Thursday 27 February when he received a telephone call from Mrs Kerowa. She stated that her Nissan Patrol, registration AFU921, was stolen in front of Steamships store approximately ten minutes before the telephone call. She described the miscreant as wearing blue jean trousers with a yellow "T" shirt and a green army jacket. He was armed with a pistol. The constable advised police units by air, giving a full description of the stolen motor vehicle and of the suspect and warning them to be careful for the suspect was armed. Some three to four minutes later, a vehicle reported to communications centre that the stolen Nissan Patrol had been seen near the Kagamuga Community School. There is evidence in the other statements by the police of a chase following a radio message relating to the stolen motor vehicle in the Kagamuga area. The stolen motor vehicle was abandoned in the area of the Paklaka'mugalamp road. A number of police, with the assistance of local people, searched the area and the accused was apprehended. At that time, he was wearing blue jeans, a yellow "T" shirt, and a green army jacket. Two other persons in the vehicle were not located. The various statements also recounted that when the stolen motor vehicle was first seen near the Kagamuga Community School, some men jumped from it and ran off. The stolen vehicle was then driven off at high speed and the police vehicle followed. At some stage during the chase, Sergeant Jonathan Kundi fired shots from his service pistol.
Constable Samuel Gwasamun stated that he was with a number of police searching in the bush area after the stolen vehicle was abandoned. One of those men suspected of leaving the abandoned vehicle was found wearing blue jeans, a yellow "T" shirt, and a green army jacket. He was escorted from the bush to the police vehicle, where Senior Constable Makas Vanono cautioned him and asked him some questions. The person apprehended, according to Constable Gwasamun, admitted that he was with Dokta Kewa and said Mr Kewa forced him to steal the vehicle
Senior Constable Vanono was called for cross-examination on his deposition. He stated that when policemen escorted the man out of the bushes towards the police vehicle after the stolen car had been abandoned, he recognised that man as Peter Raima of Dei council area. He was wearing a green army jacket, a yellow "T" shirt, and blue jeans. The senior constable recognised him as the driver of the stolen motor vehicle. He then recounted the conversation. This conversation took place inside the police car and Constable Gwasamun was present. The Senior Constable said he cautioned Peter Raima and then: "I said, 'You do not have to say anything unless you wish to do so, but anything that you do say will be taken down and given as evidence. Do you understand?' He said, 'Yes.' I asked him, 'What is your name?' He said, 'Peter Raima'. I asked him again, 'You just got out of prison, why do you have to steal that vehicle?' He answered, 'I didn't want to do it; it was Dokta Kewa who forced me to do it'. I asked him again, 'Who was with you in the vehicle?' He answered, 'Dokta Kewa'. I asked him, 'I saw you driving that stolen car because you had a green army jacket on, is that true?' He replied, 'No I wasn't. Dokta Kewa.' I then asked him, 'When you all jumped out of that vehicle and ran into the bush, I saw one man with a green army jacket on and that same person was driving from the showground junction to here. Is that true?' He answered, 'No, Dokta Kewa was driving and I was sitting at the crew side'."
That completed the Constable's recollection of the conversation.
I think it proper to say at this juncture that I am satisfied Peter Raima volunteered the information at the scene of his apprehension. Defence counsel also suggested that some months prior to this incident two persons had been shot by police at the Banz-Baiyer River road junction. The constable agreed with that. Defence counsel asked whether those persons shot were of the accused's line, but the constable did not know.
That was the state of the evidence when Mr Kesan advised that the principal state witness, Bevi Kerowa, was unwilling to give evidence in court. A number of reasons were advanced in a sworn affidavit by the woman. Mr Kesan said that Mrs Kerowa had been threatened on a number of occasions by relatives, she believes, of the accused person. She has sworn to the circumstances of those threats in her affidavit. Annexed to that affidavit is her original statement that she made to the police at the time of the robbery. Mr Kesan asked the Court to allow the statement to be read.
He argued that the justice of the case warrants the exercise of the Court's discretion. He referred me to s 34(3) of the Evidence Act Ch 48 and argued that, while the subsection gives a discretion in the Court to refuse to admit evidence in this fashion, there must be a corresponding power in the Court to admit evidence where the witness has bona fide reasons for remaining away. Those reasons are detailed in her affidavit.
Mr Kesan argued that the state of the case against the accused person was such that the defence's requirement to call the woman for cross-examination was neither bona fide nor reasonable in the circumstances. In any event, her statement was hearsay and it would be inadmissible in her absence, on the hearing of these criminal charges.
Since the sittings afforded time for the woman to be called in accordance with the provisions of s 35 of the Evidence Act, but because there was a clear indication that she declined to give viva voce evidence because of these threats, the question of time limitations did not apply. The question, then, for the consideration of the Court is whether the statement may be admitted in any event. 
The manner in which the defence counsel conducted cross-examination of the police witnesses actually called indicates that there is no issue with the accused's involvement in the fracas and his presence in the vehicle when it was abandoned, but rather that his presence was by duress of one Dokta Kewa.
Defence counsel objects to the tender of the principal witness's statement, obtained by the police after this event. He indicates that, as she is a key witness and the complainant, her statement is prejudicial to the defence case (presumably because it may connect the accused to the fact of the robbery) and her evidence should be tested on cross-examination. Further, while the threats made subsequently may be true, the statement given by the principal witness should be the subject of inquiry and not taken at face value.
There is no issue with the fact that the statement has been served in sufficient time for the defence to seek to have the witness called for cross-examination.
Counsel referred me to ss 33 to 36 of the Evidence Act, which deal with the use of affidavits in trials. Counsel asserts that whilst the reasons for her refusal to give viva voce evidence may be real, those refusals are not covered by the Evidence Act and, consequently, her statement should not be admitted. 
Reference was made to an article in the Criminal Law Review July 1992 at 478, where particular laws applicable in England and Israel dealing with the question of threats to a witness and the availability of statements prepared for court proceedings were discussed, but defence counsel reiterated that the Evidence Act is the appropriate legislation and the Court is bound by those provisions. With that I do not agree. The Evidence Act is not a code and not exclusive in so far as the law is concerned. Defence counsel's argument ignores developments in the common law and the law in Papua New Guinea since Independence, having particular regard to decisions of this Court and, of course, the Supreme Court.
THREATS TO WITNESSES
I allowed the affidavit of Bevi Kerowa, made 16 February 1993, to be read on the question of threats directed to her, which threats she says effectively preclude her from giving viva voce evidence in court through fear. As part of that affidavit, she annexed a true copy of her statement to the police given on 28 February 1992 following the robbery on 22 February 1992. She confirmed under oath that the material in that statement was true and correct.
She details four incidents where she was personally threatened that if she gave evidence in court concerning the robbery she would be killed or her husband or relatives killed. Those particular threats are recounted in some detail in her affidavit. She says the threats were serious and real. She based this on the fact that, in the Mount Hagen community, when a person issues a threat, there is intent to carry it out. She further states that, because she is a female, she is subject to greater risk from notorious criminals. She is not willing to give evidence in court and take this risk. She further states that Rebecca, another witness present at the time of the robbery, is aware of the threats made to her. Rebecca has gone to Wabag and the police have been unable to locate her. That other witness has not left any forwarding address nor contacted Mrs Kerowa. The statement given to police on 28 February 1992 formed part of the affidavit on which the State seeks to rely to show that Mrs Kerowa has a reasonable apprehension for her safety and her life. In that statement, she says that at the time of robbery Peter Raima said, "I was in jail and just came out yesterday. Why I am coming for, you know it. Tit and Wat Pena were shot by police because of your people. I was sent to jail and my brothers were shot and I wander outside, never sleep properly, eat properly and never have a good rest. The cause of it is because of you people." He later said, "I am going to kill you and your husband if you report the incident to police".
I am satisfied on the material deposed to by Mrs Kerowa in her affidavit of 16 February 1993 that she has a reasonable apprehension or fear for her safety and her life. She says in para 6, "I am so scared to stand up in court against these people. My life will be risky after this trial and I do not want to take that risk by all means". The state of criminal trials in Papua New Guinea at this time, more especially in the Highland provinces, requires this Court to look very closely at the administration of justice where witnesses are frightened and, consequently, refuse to come to court to give evidence, or so conduct their affairs that the police are unable to locate them. There are increasing cases of trials miscarrying through non-availability of witnesses at crucial times, and there has been an increased practice by the State Prosecutor to file nolle prosequi in very serious matters involving killings, rapes, and robberies. State counsel has often attributed the necessity to file a nolle prosequi in circumstances clearly associated with the unavailability of witnesses through fear.
In this case, then, I must consider whether the witness's statement ought to be admitted in the interest of justice. I am satisfied that the woman has a reasonable apprehension that she or her family will be harmed or killed and, consequently, improper means has been used to dissuade and prevent that woman from coming to court to give evidence in this trial.
PREVIOUS WITNESS STATEMENT ANNEXED TO AND FORMING PART OF THAT WITNESS AFFIDAVIT ADMISSIBLE IN FORM
The statement of Bevi Kerowa on 28 February 1992 was made to the police as part of their investigation into this robbery. It is hearsay. That does not necessarily make her statement inadmissible if it is relevant, can be categorised as an exception to the hearsay rule, or is part of the res gestae. As Justice Ferguson said in "Hearsay Evidence" in (1927) 1 ALJ 195 at 196: "The hearsay rule does not forbid proof of what somebody said out of Court. What it does forbid is the proof of a fact by telling what somebody said about that fact out of Court, a very different matter."
I am satisfied that the statement by Mrs Kerowa is relevant to the issues of whether the accused was a party to this robbery. It is important, however, to make a distinction between what the witness recounted as having happened outside Steamships and what she recounted as having been said by Peter Raima. The manner in which this vehicle was stolen outside Steamships was described by Mrs Kerowa to the policeman who took her statement. She has sworn to the truthfulness of those circumstances by way of annexing that statement to her affidavit. She is not willing to speak in court and, consequently is not available for cross-examination. She cannot be tested as to the exactness of her recollection.
So far as her recollection of conversation by Peter Raima is concerned, the Court must take particular care to consider the possibility of concoction or fabrication. If the conversation is accepted on its face, it is evidence of the truth that these words were said to prove the accused's knowledge or state of mind in this case where that state of mind, for instance, is a fact in issue or provable as against this accused, as a fact relevant to a fact in issue. A fact in issue is the existence or otherwise of an intent to rob. The accused's state of mind may become relevant to a fact in issue if the plea of duress arises on the evidence. This statement by the woman who was robbed, recounting the conversation she had with this accused on the relevant day, is evidence from which an inference could be drawn to prove the truth of the facts asserted by the prosecution, for the conversation recounted goes to show the accused's state of mind and his expressed reasons for pursuing his intentions to rob. But first, in relation to the whole of the statement given to the police, I must ask whether the recollection of the conversation as recounted to the policemen by way of statement, even though purporting to be confirmed in her sworn affidavit, should be disallowed if it is hearsay.
It is quite clear that if the woman gave viva voce evidence in the trial, she could describe what she did and saw and quite properly recount that conversation with the accused. It would not be hearsay. The policeman would not be seeking to tell the Court what she told him. Here, however, she has deposed in her affidavit to the truthfulness of her statement made to the police shortly after the robbery. In my view, that affidavit swearing to the truthfulness of her previous statement makes the statement admissible in form, but there remains the question whether to allow her testimony in this fashion, if its acceptance in these proceedings would so materially prejudice the defence case as to justify refusal.
THE QUESTION OF FAIRNESS TO THE ACCUSED
The question of admissibility must be considered having regard to the state of the prosecution case, in particular the uncontradicted evidence given so far by those police witnesses. I have already detailed the material points advanced by the defence in its cross-examination. The accused apparently denies the account of the conversation given by the constable but does concede a conversation took place, for he puts forward, through his lawyer in cross-examination, an assertion that he was following the direction of one Dokta.
It would seem that the defence counsel is preparing the ground for a defence of duress. It is important to keep in mind then that the corroboration afforded by the various police witnesses as to the involvement of the accused in the acts leading up to the abandonment of the vehicle is not contested. Nor, importantly, is the evidence of police surrounding the telephone message to the various patrol cars and the description of one of the offenders. I am satisfied that the description radioed of one of the perpetrators of the crime corresponds with the accused, for he was dressed in blue jeans, a yellow "T" shirt and an army jacket when he was apprehended. None of this is in issue.
As I said earlier, the evidence by this woman in her statement of the conversation she had with the accused outside Steamships at the time of the robbery would be admissible in any event, since it relates to the accused's state of mind when he spoke to the lady. His state of mind may become a fact in issue or a fact relevant to a fact in issue. The fact in issue or a fact relevant to a fact in issue may well be related to the accused's apparent reliance on a defence of duress, if the Court was to accept the statements recounted by the woman outside Steamships as an expression of the accused's state of mind. Thus, it can be seen that the conversation is prima facie admissible evidence of the accused's state of mind at that time. See R v Blastland [1986] AC 41. See also Sugden v Lord St. Leonards (1876) 1 PD 154 at 251, where Mellish LJ said -
"...wherever it is material to prove the state of a person's mind, or what was passing in it, and what were his intentions, there you may prove what he said ...".
With that I agree.
The woman's statement setting out how the motor vehicle was stolen, describing the involvement of the accused in the robbery, is relevant evidence and the best evidence. In this case, however, the statement was made to a police officer. It is not direct evidence to the Court, and counsel for the defendant says that, in spite of the affidavit by the woman swearing to the truth of the contents of such statement, it should not be admitted because of the prejudicial effect it would have on the accused's case.
There is in her statement recollection of a direct conversation with the accused, whom she knew. I have set out reasons why evidence of that conversation is, in my view, relevant and would be admissible in the normal course were the woman to appear and recount both the circumstances of the robbery and her recollection of the conversation. That recollection of the conversation can only go to the relevant issue of the accused's state of mind. It cannot be relied upon by the prosecution as establishing the facts narrated by the words. The conversation is not, for instance, proof of the allegations that Tit and Wat Pena were shot by the police or that Bevi Kerowa and her family caused it.
In Ratten v R [1972] AC 378, Lord Wilberforce, giving judgment for the Privy Council, expressed it thus at p 387:
"The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called, is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on 'testimonially', i.e., as establishing some fact narrated by the words. Authority is hardly needed for this proposition, but their Lordships will restate what was said in the judgment of the Board in Subramaniam v Public Prosecutor [1956] 1 WLR 965, 970:
'Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.'
A fuller statement of the same principle is provided by Dean Wigmore in his work on Evidence para 1766. He emphasises, as their Lordships would emphasise, that the test of admissibility, in the case last mentioned, is relevance to an issue".
I am satisfied that the whole of the statement is relevant and admissible when I have regard to her affidavit attesting to its truthfulness. This is not a case where one needs to be wary of the risks associated with a statement made not contemporaneously, or proximate, to the event. Here the statements by the accused to the witness were made during the course of the robbery. See R v Andrews [1987] AC 281. The only question remaining is one of weight or value to be placed on the statement, for Mrs Kerowa made her statement to the police some little time after the events of the robbery. That question does not affect the admissibility of the statement, however.
RULING OF THE NATIONAL COURT IN WARUN'S CASE
Before proceeding, I wish to deal with a ruling on evidence which was given in the course of a criminal trial at Wabag. In the State v Warun [1988-89] PNGLR 327, Brunton AJ acknowledges at 329 that to "prove" to be guilty means "to establish or demonstrate the actuality of his guilt... either upon the person's own plea of guilty or upon evidence from which his guilt may be inferred to the requisite degree of persuasion", quoting Greville Smith J in SCR No 1A of 1981; Re Motor Traffic Act [1982] PNGLR 122 at 136.
Justice Brunton later refers to cases on the requisite degree of persuasion and where the evidential and legal burden lies.
Neither of these concepts really affected the admissibility of documents sought to be tendered in that case, however, which documents would contain material on which the State and or the defence would ask the Court to find facts in support, or in contradiction, of the State's case.
The documents in question were a medical report upon the body of the deceased and the accused's record of interview, both on their short description (the trial Judge studiously ignored the form, compilation of the report and record, the maker of the documents or any other aspects which touch on the question of admissibility, once relevance is established) and subject matter, on a charge of murder, seemingly relevant.
The documents were to be admitted by consent of both the prosecution and defence, but the judge refused the tender by the State.
The trial judge, in my view, misapprehended the inability in the accused to admit facts on his trial with the undoubted right to admit evidential material on which facts may be found by the court. The trial judge spoke of admission of fact as if that phrase encompassed evidential material, but it is the absence of evidential material which is relevant on a plea of guilty. There, a statement of facts may be given on which a plea may be taken. In this jurisdiction, where committal proceedings result in a plea before the National Court of an offence charged, there is an additional safeguard. The National Court shall, notwithstanding that the facts read out to the Court and admitted on the plea support the charge, read the deposition itself and be satisfied, on the evidence therein disclosed (if presented on his trial), that the accused may properly plead to the offence as charged.
While Justice Brunton has cogently summarised the law as it affects documentary evidence, he has failed to explain why the documents which he rejected were inadmissible when tendered by consent and on their face relevant. If it were a question of weight, when determining facts on the material in the document, then the trial judge may find that they are of little value. Nevertheless, the evidentiary value of the documents is a different question to that of their relevance and admissibility.
I decline to accept Justice Brunton's argument on admissibility for, in the absence of any cogent reason why documents comprising such disparate material as a medical report on the deceased and a record of interview with the accused should be rejected on form alone, I can only feel that he has confused the issue of weight with admissibility. In State v Warun, he said at 335:
"For evidence to be before the court, in a criminal trial, either a witness must testify as to the facts asserted, or the identity of the document or things offered, or an affidavit must be presented, or there must be a statutory basis to get evidence before the court as in the case of s 102 of the District Courts Act.
An affidavit by a medical practitioner describing a medical examination of a person or body should conform with the Evidence Act, s 37(1). These affidavits need to be carefully prepared because under s 37(2) of that Act the court has a discretion to require the presence of the medical practitioner where the justice of the case warrants it. I note in passing that the standard of medical reports coming before the courts has been uneven, and the quality of reports sometimes leaves much to be desired".
His statements take no account of the uncontested fact of their existence as documents capable of tender. They are relevant and admissible in form. Whilst evidence of the truth of the matters in them, it is for the trial judge to place what weight as he sees fit before finding facts based on the material. So far as the record of interview is concerned, he says at 335:
"In a criminal trial on a plea of 'not guilty' a record of interview should be offered through the testimony of the police officer who conducted the record of interview. When the record of interview is not in dispute, and the defence indicates that it does not need to cross-examine the corroborating officer, it may not be necessary to call that person as a witness. The sworn, uncontraverted testimony of the officer who conducted the record of interview may be sufficient to get the record of interview into evidence. But a record of interview cannot just be handed up, by consent, from the Bar Table, unsworn."
I cannot agree. If it is a truthful record of the interview and the defence has the opportunity to enquire, and is satisfied that it has been taken in accordance with constitutional safeguards, there is no reason why it may not be tendered by consent.
Were the defence to rely on particular statements in the record as self serving evidence supporting a defence of provocation, for instance, evidence which is corroborated in a material particular, would the trial judge allow the admission of the record on some supposed discretionary basis if the State was unable to produce the investigating officer to "prove", as it were, the record? On his hypothesis, the record is inadmissible in any event so that the question of discretion does not arise. That clearly illustrates, to my mind, why the record, if tendered by consent, is admissible.
The Court must still find facts on the material before it. Justice Brunton's use of the phrase "according to law" in s 37(4)(a) of the Constitution to justify the rejection of the tender misapprehends, in my view, the law as it pertains to admissibility of evidence and the right of the accused to a fair trial. A fair trial does not mean that every fact must be proved by actually calling a witness. Justice Brunton recognises this, yet, notwithstanding the consent of the accused through his counsel, declines to admit two relevant documents. They were not "facts" which counsel could not possibly admit but, rather, documents containing evidentiary material on which the trial judge, no doubt, would be asked to find facts relevant to the facts in issue. Surely, a fair trial must afford the accused a right to put material into evidence in the State's case where the State is willing and able, without having to go into evidence in his own case to do so.
I do not follow the ruling on evidence by Justice Brunton for these reasons.
CONSIDERATIONS ON THE PHRASE "DISPENSATION OF JUSTICE" AS USED IN S 158(2) OF THE CONSTITUTION
The remaining question is whether I should allow the affidavit attesting to the truthfulness of the statement annexed into evidence in the trial, in the absence of the deponent, Bevi Kerowa, through fear.
In England, s 23(3) of the Criminal Justice Act 1988 has to a large extent resolved the problem which would arise here if the statement of Mrs Kerowa was the document sought to be tendered. But it must be remembered that she has sworn to the truthfulness of that statement and, thus, it is prima facie admissible in form. If I am wrong, I wish to deal with the whole document (the affidavit annexing the statement) as if it were purely a "documentary statement", an expression used in the English legislation. I believe that enlightened recourse to s 158(2) of the Constitution does permit its use. The English section establishes an exception to the hearsay rule for documentary statements. A similar provision in the Israeli Evidence Ordinance has existed since 1979. The very problems which I have alluded to earlier in connection with the intimidation of witnesses by threats of violence have been addressed in the English legislation and in an interesting article in the [1992] Criminal Law Review at 478 by Nina Zaltzman, Associate Professor of Law, Tel-Aviv University. Professor Zaltzman has compared the Israeli experience with the English legislation. The professor is at pains to explain that, where intimidation of witnesses has had its effect and the giving of evidence is thereby prevented, the process of proof is prejudiced, and the court is presented with only a partial and sometimes distorted, picture of the facts. The system of criminal justice is, thereby, undermined.
To produce this statement of Mrs Kerowa as evidence against the accused without giving the accused the right of cross-examination may create the risk of erroneous conviction. The various Israeli and English acts have provided a solution to this difficulty by laying down conditions for the admissibility of such out-of-court statements as an exception to the hearsay rule. The professor makes the point that there is a most material difference between jury and non-jury trials and the application of the section allowing statements of intimidated witnesses. I quote from the professor's article at 479:
"By contrast, in non-jury trials the risk of erroneous finding of fact is considerably reduced, although not entirely eliminated. The general tendancy is to rely on the skill, competence and experience of a professional judge when determining the appropriate probative value of an out-of-Court statement, as distinguished from testimony given in court and tested by cross-examination. Here, a more liberal approach to admissibility may be adopted in drafting the exception, both in determining the range of varying situations to be covered by this exception and in setting up the conditions for admissibility that deal with the credibility of the statement itself. In non-jury trials the main emphasis would thus be placed on valuating the weight of the evidence and determining its function along with the rest of the evidence brought before the professional judge. The latter would have to give reasons for his decision which could subsequently be scrutinised by the appellate court."
The English act s 23(3) confines the scope of the exception to the hearsay rule to a particular class of documents (made by a person whose direct testimony with regard to the facts and circumstances of the case would be admissible if she, for instance, were to give direct oral evidence in court) which was made in particular circumstances (to a police officer, as in this case). Such a document would be admissible only where its maker does not give oral evidence in court through fear or through coersion. Again, ss 25 and 26 of the English act provide that a statement admissible by virtue of s 23(3) undergoes a further test of admissibility, which is a matter for the discretion for the trial judge and largely based upon the interests of justice.
In R v Cole [1990] 2 All ER 108, the Court of Appeal pronounced on the exception to the hearsay rule introduced by the Criminal Justice Act 1988. In that case, the accused had been charged with assault occasioning actual bodily harm. His defence was that the victim approached him in a threatening way and that he struggled with the victim in order to defend himself. The prosecution alleged that the accused hit the victim because the victim, who was a security officer, had tried to restrain the accused's children from misbehaving. The victim and other persons present testified, but the prosecution sought to also adduce the statement of another security officer, Luff, who was present and who had since died. His statement was contained in a formal witness statement incorporating the declaration that the maker was aware it might be tendered in evidence and that he would be liable for prosecution should he make a wilfully false statement. Luff stated that the accused first made a threat to hit him, but when he was told by his daughter that he was not the right man, the accused then set upon the victim. The statement was capable of admission by virtue of ss 23 or 24 of the act. It was tendered under s 26, which provides that such a statement shall not be given in evidence unless the Court "is of the opinion that the statement ought to be admitted in the interests of justice". Matters which the Court must consider in determining admissibility include "any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused".
In Cole's case, the trial Judge decided to admit the statement because, amongst others, the accused was in a position to controvert it by his own evidence and by that of other eye witnesses which he called at the trial. Counsel for the accused contended that the judge should not have taken into account the accused's opportunity to contradict the statement by his own testimony or that of his witnesses. The judge, so it was contended, should only have considered the possibility open to the accused to controvert the statement by cross-examination of witnesses by the prosecution. The Court of Appeal rejected this argument. The trial judge, it held, may take into account any facility that the accused may have to controvert the hearsay statement, whether by challenging prosecution witnesses, calling witnesses that appeared to be available to him, or testifying himself. See [1990] All ER Annual Review at 125.
The review quoted Ralph Gibson LJ, giving judgment in the Court of Appeal:
"The Court is not required ... to assess the possibility of controverting the statement upon the basis that the accused will not give evidence or call witnesses known to be available to him. The decision by the accused whether or not to give evidence or call witnesses is made by him by reference to the admissible evidence put before the Court - and the accused has no right... for the purposes of this provision, to be treated as having no possibility of controverting the statement because of his right not to give evidence or to call witnesses."
In Scott v R [1989] 2 All ER 305, the Privy Council had occasion to consider whether a trial judge in a criminal case had a discretion to refuse to admit the sworn deposition of a witness who had died before trial and, if so, in what circumstances the discretions should be exercised and what direction the judge should give on the issue of identification.
Lord Griffiths, giving the judgment of the Board said at 311:
"The phrase 'prejudicial effect' (dealing with Lord Diplock's statement that 'a trial judge in a criminal trial has always a discretion to refuse to admit evidence if, in his opinion, its prejudicial effect outweighs its probative value) is a reference to the fact that although evidence has been admitted to prove certain collateral matters there is a danger that a jury may attach undue weight to such evidence and regard it as probative of the crime with which the accused is charged. An example is the admission of the bad character of the accused if he has attacked the character of a prosecution witness. ... The evidence in the deposition was highly probative of the offence, it was the evidence of an eye witness well placed to see the events he described. It was only 'prejudicial' in the sense that it was on the face of it strong prosecution evidence that might well result in the conviction of the accused.... Whilst agreeing with the Court of Appeal that the admission in evidence of the deposition did not fall within the rule that evidence may be excluded on the ground that its prejudicial weight excludes its probative value, their Lordships do not accept that because the deposition is relevant and admissible a judge has no discretion to exclude it".
I agree with these statement of principle relating to fairness.
In this case, then, I must look to fairness in determining to exercise what I consider to be a discretion in the circumstances.
The uncontroverted facts are that Bevi Kerowa's telephone call to the police with details of a complaint relating to the fact of the robbery and particularising the clothing of a perpetrator was given within a few minutes of the robbery taking place. There is evidence from the police, again uncontroverted, that the accused was apprehended wearing the clothes described in the radio communication to the apprehending police vehicle. Further, there is evidence that the accused was the driver of the apprehended vehicle.
On the basis of the accused counsel's cross-examination, the accused appears to take no issue with his actual involvement in the use of the vehicle at the time of his apprehension, his presence at the robbery, or the fact that the vehicle was the object of the robbery. The cross-examination was to elicit, if possible, from the police, some evidence of Dokta Kewa's presence. The police statements were all admitted by consent and, consequently, there is evidence of the fact of the complaint by Mrs Kerowa, its nature (a telephone call to the police dispatching officer), the description of a perpetrator, and the fact that a person captured after fleeing from the stolen vehicle corresponded with the description, and is the accused before the Court. 
In relation to the application of the fairness test in deciding whether or not to allow an out-of-court statement, Ralph Gibson LJ said at 115 in Cole's case that:
"In judging how to achieve the fairness of the trial a balance must on occasions be struck between the interest of the public in enabling the prosecution case to be properly presented and the interest of a particular defendant in not being put in a disadvantageous position, for example by the death or illness of a witness. The public of course also has a direct interest in the proper protection of the individual accused."
It is clear that s 26 of the English Criminal Justice Act 1988 uses that phrase corresponding to s 158(2) of the Constitution, which states:
"In interpreting the law the courts shall give paramount consideration to the dispensation of justice".
That phrase has been construed to mean dispensation of justice according to law. See SCR No 4 of 1982; Re Biri v Ninkama [1982] PNGLR 342.
Going back to the witness's out-of-court statement as the trial now stands, the accused appears to take no issue with his involvement in the robbery. His counsel in cross-examination seems to be laying the ground for a defence of duress based on one Dokta Kewa. The issue of intent is raised in the out-of-court statement. Since the accused must necessarily give evidence or call evidence in support of his assertion raised already in cross-examination of the police witnesses, an assertion which has been denied by the police, about Dokta Kewa, it would seem that the out-of-court statement may be admitted into evidence without unduly prejudicing the rights of the accused.
This Court is still required to deal with the quality of the out-of-court statement after hearing all the evidence; but in the exercise of my discretion, I am satisfied that it may be admitted in the interest of justice, for the accused person has the opportunity to controvert the statement of Bevi Kerowa. The "dispensation of justice" enables me to take account of the reasons for the witness's non-attendance when determining whether to allow the evidence in this form, before considering the exercise of a discretion to admit.
Where the autochthonous system of social relations recognises and applies threats of "pay back" as an instrument of control, and where those threats conflict with a right of protection under the law from threats of harassment or worse, as in the case here, I am of the view the Constitution may be looked at for the purpose of meeting changing conditions in Papua New Guinea. There was, some 15 years ago, for instance, less overt threats to witnesses than now. Public policy considerations at this time of increasing calls for solutions to "law and order" problems highlight, in my mind, the constitutional imperative to dispense justice to all manner of men, including those suffering from such threats. If their fears are well founded, surely public policy considerations justify reception of their evidence in this fashion, subject to those safeguards that I have considered. By so doing, I consider the courts can be seen to be making a meaningful effort at developing the underlying law without being fettered, some might say, by adopted reticence.
For these reasons, I admit the affidavit of Bevi Kerowa sworn on 16 February 1993 in the State's case.
Lawyer for the State: State Prosecutor.
Lawyer for the defendant: Public Solicitor.