N754

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

MISARI WARUN

Wabag
Brunton AJ
4 August 1989
21 August 1989

CRIMINAL LAW - Evidence - Admissibility - Unsworn record of interview - Medical reports - Handing up of documents with consent of counsel - Not evidence before court - Admissions - How made - Whether fair trial - Requirements for "proof of guilt" - Criminal Code (Ch No 262), s 589 - District Courts Act (Ch No 40), ss 94(1a), 102 - Constitution, s 37(3), (4)(a).

CRIMINAL LAW - Practice and procedure - "Proof of guilt" - "According to law" - Evidence relevant to - Admission of - Constitution, s 37(3), (4)(a).

CONSTITUTIONAL LAW - Basic rights - Protection of the law - Fair trial - Innocent until "proved guilty according to law" - Evidence relevant to - Admission of before court - Constitution, s 37(3), (4)(a).

Held

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 as evidence, or an affidavit must be presented, or there must be statutory authority for presenting evidence to the court in some other form as, for example, under s 102 of the District Courts Act (Ch No 40). As a matter of procedure an accused (or his counsel) may formally admit any fact alleged and such an admission is sufficient proof of the fact, without other evidence, under s 589 of the Criminal Code (Ch No 262).

Accordingly, documents such as unsworn records of interview and medical reports cannot be accepted into evidence in a criminal trial merely by the State Prosecutor tendering them to the court from the Bar Table with the consent of counsel for the accused.
Discussion of what constitutes "proof" of guilt "according to law" for the purposes of s 37(4)(a) of the Constitution.

Discussion of the tendering of medical statements "with the consent of the National Court" under s 102 of the District Courts Act (Ch No 40).

Cases Cited

Lewis v R (1971) 55 Cr App R 386.
Nai’u Limagwe and Ors v The State [1976] PNGLR 382.
R v Bateman (1845) 1 Cox CC 186.
R v Lee Kun (1915) 11 Cr App R 293.
SCR No 1a of 1981; Re Motor Traffic Act [1982] PNGLR 122.
SCR No 2 of 1980; Re s 14(2) of the Summary Offences Act [1981] PNGLR 50.

Ruling on Evidence

At the commencement of a defended criminal trial on a charge of murder, the State Prosecutor tendered to the Court an unsworn record of interview and a medical report on the body of the accused. The trial judge then made the following ruling on the admission of these documents.

Counsel

P Everingham, for the State.
B Takin, for the accused.
Cur adv vult

21 August 1989

BRUNTON AJ: The accused is charged with murder. She has pleaded "not guilty".

Immediately after arraignment the State Prosecutor told me that there was but one issue in this case, and he asked me to accept into evidence, by consent, the medical report upon the body of the deceased, and a record of interview said to have been given by the accused, by handing them up from the Bar Table. These documents were to have been used as primary evidence in the State’s case. I have not read the documents and I do not know what they contain, although I surmise they contain evidence that to some degree or other implicates the accused, or strengthens the State’s case.

My initial response to this request was to say that, as the accused had entered a plea of "not guilty" to the indictment, all the facts alleged in the indictment were in issue, and had to be proved by the State beyond reasonable doubt. If the accused, through her lawyer, wanted to admit facts, then there was provision in the Criminal Code (Ch No 262), s 589, and under the Criminal Practice Rules, O 4, r 1, for her to do so. I added that, because the nature of the charge in the indictment was serious, I would require defence counsel to put the admissions his client wished to make into writing, as I did not wish there to be any opportunity for dispute, as to what was, or was not, admitted, at a later date. Although the law does allow counsel to make oral admissions under the Criminal Code and the Criminal Practice Rules, as a matter of prudence, in serious cases, they should be reduced to writing.

Later that day both counsel came to my chambers and asked me to reconsider my position. They said that what had been proposed was a practice before other judges, and that it was a practice necessary in order for cases to be dealt with effectively. It was suggested that I might care to consult with other judges.

In the Supreme Court, Frost CJ in Nai’u Limagwe v The State [1976] PNGLR 382 at 391 (a dissenting judgment, but on this point apposite) said:

"... the effect of a plea of not guilty has under the Code the same breadth of meaning as at common law, which is to render it ‘incumbent upon the prosecution to prove every fact and circumstance constituting the offence charged in the indictment’. Archbold, 38th ed., para. 369. This rule is enshrined in its full force in the Constitution which preserves as a fundamental right that a person shall be presumed innocent until proved guilty, s 37(4)(a)."

Before turning to the constitutional context, the historical perspective of the common law should be addressed. It was not until 1898 that an accused person could give evidence on his own behalf (Cross on Evidence, 2nd Australian ed (1979), par 1.2 at 2). The common law saw the accused as an interested party. The common law also sought to protect accused persons from incriminating themselves during a period when all felonies were capital offences.

Under the Constitution, every person has the right to the full protection of the law, and that right is particularly available to persons charged with offences: Constitution, s 37(1). A person charged with an offence shall be presumed innocent until proved guilty, according to law: s 37(4)(a). A person charged with an offence is also guaranteed a fair hearing within a reasonable time by an independent and impartial court: s 37(3).

In the Supreme Court decision SCR No 1a of 1981; Re Motor Traffic Act [1982] PNGLR 122 at 136, Greville Smith J, referring to s 37(4)(a), said:

"... To ‘prove’ a person to be guilty means to establish or demonstrate the actuality of his guilt of the offence charged. This may be done 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." (My emphasis.)

The constitutional significance of s 37(4)(a) was addressed by the Chief Justice (Kidu CJ) in the same case, in the following terms (at 127-128):

"Section 37(4)(a) has been considered by the Supreme Court several times, and more recently in two cases to which I now make reference. The first of these is SCR No 1 of 1980: Re s 22a of the Police Offences Act [1981] PNGLR 28. In this case Greville Smith J said, at pp 38-39:

‘In my opinion, as a result of s 37(4)(a) the law in Papua New Guinea relating to proof of guilt in criminal cases is that the onus is on the prosecution to prove each element of the offence charged beyond reasonable doubt, subject to the following exceptions; namely:

"(a) In the case of a defence of insanity, where there is a presumption of sound mind until the contrary is proved.

(b) Where an enactment prohibits the doing of an act save in specified circumstances, or by persons of specified classes, or with special qualification or with the licence or persuasion of specified authorities, then once the prosecutor has proved beyond reasonable doubt the doing of the act the burden is on the person charged to bring himself within the exception or proviso, that is, to prove that he was entitled to do the prohibited act, independently of whether the facts he must prove to do so are, or would with the exercise of reasonable care be, peculiarly within his knowledge.

(c) In the case of an enactment which places upon the person charged the burden of proving particular facts which are, or would with the exercise of reasonable care be, peculiarly within his knowledge."

In the case of each exception the burden that rests on the accused is the legal, or as it is sometimes called the persuasive burden, not an evidentiary burden, and it is a burden of satisfying the court on a balance of probabilities, of persuading the court, on the probabilities, of the matter alleged by way of defence’. (My emphasis.)

Miles J, with whom Andrew J agreed, said at p 43:

‘The presumption of innocence is established in the laws of Papua New Guinea by virtue of the Constitution, s 37(4)(a), but even without the constitutional provision it would have formed part of the underlying law. And apart from the constitutional requirement that the prosecution carry the burden of proof, it is part of the underlying law that the prosecution may discharge that burden only if it proves the guilt of the accused beyond a reasonable doubt. The common law as to standard of proof is in symbiosis to the law of burden of proof. It has not been seen as inapplicable or inappropriate to the circumstances of the country, or inconsistent with custom: The State v John Koe [1976] PNGLR 562. The phrase "according to law" in s 37(4)(a) encompasses, inter alia, the underlying law as to standard of proof. (My emphasis.)

The presumption of innocence in the common law is generally believed to have received its classic statement in the judgment of Lord Sankey in Woolmington v The Director of Public Prosecutions [1935] AC 462 at p 481. What Lord Sankey said was:

"Throughout the web of English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception." (My emphasis.)

In commenting on Woolmington v The Director of Public Prosecutions (supra) Viscount Simon said with the concurrence of the other Law Lords in Mancini v The Director of Public Prosecutions [1942] AC 1 at p 11: "The only exceptions arise... in the defence of insanity and in offences where onus of proof is specially dealt with by statute."’

In SCR No 2 of 1980; Re s 14 of the Summary Offences Act [1981] PNGLR 50, Kearney DCJ said at p 53:

‘The main thrust of the Constitution, s 37(4)(a), is to place upon a prosecutor the burden of proving the guilt of a person charged with an offence. In my opinion the phrase "according to law" refers to the whole body of law in the country, as exhaustively defined in the Constitution, s 9; it includes both the statute law and the underlying law.

By the underlying law that burden on the prosecutor is discharged only when he proves beyond a reasonable doubt that the defendant is guilty; that is, that the defendant is criminally responsible for the offence charged.’" (My emphasis.)

Attention should be drawn in this judgment to the frequent use of the words "proof", "prove", and "proved".

The right of an accused to the protection of the law under s 37(1) means that a criminal trial must conform to the statutory provisions and underlying law of criminal procedure. It also means that the facts which the State seeks to rely on to prove the allegations in the indictment must be put before the court in accordance with the law of evidence.

As a matter of procedure, an accused may admit on the trial any fact alleged, and such an admission is sufficient proof of the fact without other evidence: Criminal Code, s 589. An admission under s 589 of the Criminal Code may be made by either an accused or by counsel. If it is made outside the court hearing it must be in writing and signed by the accused. The law allows for both the accused and counsel to admit any fact alleged against the accused, orally, in court: Criminal Practice Rules 1987, O 4, r 1.

In the United Kingdom, the Criminal Justice Act 1967, s 10(1), provides for proof by formal admission in criminal trials:

"... any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecutor or defendant, and the admission by any party of any such fact under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted." (My emphasis.)

Phipson notes:

"An admission under this section should condescend to particularity. Thus where such admissions are intended to be made on behalf of the accused, they should not take the form of a general admission of the facts contained in the opening speech for the Crown": Phipson on Evidence, 12th ed, Sweet & Maxwell (1976), par 45 at 21.

The second Australian edition of Cross on Evidence sets out the Australian common law position:

"7.23 Formal admissions of particular facts, as opposed to a plea of guilty, are disallowed at a criminal trial because the rules of evidence cannot be waived once it has started": Cross on Evidence, 2nd Australian ed at 157.

This statement in the Australian edition of Cross is a reflection of the common law in the United Kingdom before statutory modification. The basic principle appears in the case of R v Bateman (1845) 1 Cox CC 186 at 186 in an exchange between defence counsel and Erle J:

"Clarkson, for the prosecution, opened the case as clearly one of forgery. That where a party had authority to fill up cheques under certain circumstances, and with certain limitations, and he chose to do so for purposes of his own, and quite beside such authority (which he was in a condition to prove was the case in the present instance), the offence was undoubtedly committed.

Before the evidence was gone into, Ballantine and Wilkins, for the prisoner, suggested that as there would be no question made as to the facts, it might be convenient at once to discuss the law of the case.

ERLE, J: We cannot in a criminal case take any thing as admitted, and therefore the evidence must be gone into." (My emphasis.)

Cross on Evidence (par 7.23 at 157) cites the case R v Lee Kun (1915) 11 Cr App R 293, as a rationalisation for this proposition. In that case Lord Reading CJ said, at 300:

"... the trial of a person for a criminal offence is not a contest of private interests in which the rights of parties can be waived at pleasure. The prosecution of criminals and the administration of the criminal law are matters which concern the state. Every citizen has an interest in seeing that persons are not convicted of crimes and do not forfeit life or liberty except when tried under the safeguards so carefully provided by the law."

Although this passage arose in the context of an accused’s right to have the assistance of an interpreter, in my view it accurately describes the distinction between civil trials, which are private matters on which the parties can make admissions, and criminal trials on which the common law allowed no admissions by the accused, other than a plea of "not guilty", which had the effect of putting all facts into dispute.

These basic principles have now been altered by statute in Papua New Guinea to the extent that admissions of fact may be made under the Criminal Code and the Criminal Practice Rules, and certain statements may become evidence by virtue of the District Courts Act (Ch No 40), s 102.

That there are limitations to the practice of an accused making admissions of fact can be seen in the judgment of Cantley J, of the United Kingdom Court of Appeal (Criminal Division), in the case Lewis v R (1971) 55 Cr App R 386 at 388-389:

"CANTLEY J.: This applicant was convicted at the Central Criminal Court on June 16, 1970, of robbery on his own admission and of murder on the verdict of the jury after trial. He appeals against his conviction for murder. The trial took a somewhat unusual course in that no oral evidence was called by the prosecution, counsel for the defendant formally admitting under the provisions of section 10 of the Criminal Justice Act 1967, every fact which was alleged by the prosecution in the opening speech of counsel for the prosecution.

In the present case that unusual procedure caused no difficulty whatsoever and it is not intended to say anything in criticism of the learned counsel who decided to adopt it and who carried it out to the convenience of the court and as a fair trial of the case, but it is perhaps necessary to say that it is a procedure which should be adopted rarely and with extreme caution. Although every effort should be made to take full advantage of the provisions of section 10 of the Criminal Justice Act 1967, with the saving of time and expense for all concerned, there are other ways of making admissions of fact which would avoid adopting this procedure. In this particular case the admission was of what was said as fact by prosecuting counsel in his opening speech, and although lawyers would have no difficulty in distinguishing between what was said in that speech as fact and what was said as law and what was mixed law and fact and what was comment, others might be put in a difficulty in making the necessary distinctions. The Court thinks it necessary to make these observations lest this should become a general practice."

The accused’s right to protection of the law means that the State must prove its case in conformity with the rules of the law of evidence. As Cross on Evidence says (at 4):

"1.3 Judicial evidence consists of testimony, hearsay, documents, things and facts which a court will accept as evidence of the facts in issue in a given case."

And at 146:

"7.1 The general rule is that all the facts in issue or relevant to the issue in a given case must be proved by evidence — testimony, admissible hearsay, documents, things and relevant facts."

When it is said that the State must prove its case, the State must bring witnesses who give testimony, generally on oath. The witnesses may identify and prove a document which may be used because of its contents in a testimonial manner, or as either circumstantial or real evidence: Cross, par 1.26 at 14-15. The witnesses may give testimony to identify things put in evidence, like an axe, or a knife, as real evidence. In all these cases a witness is required to get the evidence properly before the court. The witness must be sworn or affirmed in accordance with the Oaths, Affirmations and Statutory Declarations Act (Ch No 317). The purpose of the formal swearing or affirmation is to make the testimony or other evidence binding because any person who knowingly gives false testimony on a proceeding is guilty of the crime of perjury: Criminal Code, s 121. It is this sanction that creates the character of judicial evidence — authentic assertions or things before the court under threat of sanction.

It is possible to get testimony in documentary form before the court by way of affidavit, but the party seeking to adduce affidavit evidence must comply with the Evidence Act (Ch No 48), ss 34, 35 and 36. The evidence of medical practitioners may be reduced to affidavit form and must comply with s 37 of the Evidence Act.

There are special provisions in the District Courts Act which allow a limited class of statements taken in evidence upon a committal hearing to be put in evidence before the National Court:

"s102. Statements of Witness Dead, etc

Where a person has been committed for trial or sentence for an offence all statements tendered in evidence to the Magistrate constituting the Court may, with the consent of the National Court, be taken without further proof as evidence on the trial, whether for that offence or for any other offence arising out of the transaction or set of circumstances as that offence on proof:

(a) that the witness who made a statement is:

(i) dead or insane; or

(ii) so ill as not to be able to travel; or

(iii) kept out of the way by means of the procurement of the accused or on his behalf; or

(iv) a person registered under the Medical Services Act; or

(b) either by a certificate purporting to be signed by the Court or by one of the Magistrates to whom the statement was tendered, or by the oath of a credible witness — that the statement was served on the accused or his legal representative." (My emphasis.)

A statement referred to in s 102 of the District Courts Act, is a statement described in s 94(1)(d) of that Act. Section 94(1a) of the District Courts Act regulates the form of such a statement:

"(1a) A statement referred to in Subsection (1)(d) shall contain the following warning to the maker of the statement and shall be signed by the maker of the statement:

‘I
certify that this

statement is true to the best of my knowledge and belief. I make it knowing that if it is tendered in evidence, I will be liable to prosecution if I have knowingly stated anything that is false or misleading in any particular. Signed’."

A statement that does not contain the certification referred to in s 94(1a) cannot be tendered under s 102.

A further comment is necessary in relation to s 102 of the District Courts Act. The tendering of any statement under that provision is possible only "with the consent of the National Court".

Under the Constitution, s 37(4)(a), a person charged with an offence shall be presumed innocent until proved guilty according to law. The words "according to law" have been interpreted in the past to include constitutional, statutory and judge-made law: see SCR No 2 of 1980; Re s 14(2) of the Summary Offences Act [1981] PNGLR 50 at 53, per Kearney Dep CJ. All provisions, and all words, expressions and propositions in the Constitution have to be given their fair and liberal meaning: Constitution, Sch 1.52(2).

On its face, it would appear that phrase "until proved guilty" could be qualified in any way whatsoever, because of its relationship with the phrase "according to law". If that was so, then a statute could totally define the method by which guilt could be established.

There are two problems with this view. First, the word "proved" may be emptied of its content, because it would take the content of whatever rule of statutory or underlying law was enacted or enunciated.

Secondly, as a consequence, the word "proved" could lose its fair and liberal meaning.

The Shorter Oxford English Dictionary on Entomological Principles, Vol 2 (1985) at 1695, shows that the root of the word "prove" is in the Latin "probare", meaning to test, approve, or demonstrate.

There are two broad modern meanings to the word "prove" — the first is to make trial of, or to try the genuineness or qualities of things or concepts, as when materials are tested in some scientific process.

More pertinent to our inquiry is the second broad meaning of "prove" which is to make good, or to establish. These concepts equate "prove" with "showing the existence or reality" of a thing or concept, and "establishing its genuineness or validity". Accordingly, the essence of the word "prove" is in its link with objectivity and empirical demonstration.

The consequence of this would be that if a statutory rule, or a rule of underlying law allowed the establishment of guilt, its "proof", by a method that was not founded scientifically in objectivity or empiricism, might give rise to a contradiction between the fair and liberal meaning of the word "prove" in s 37(4)(a) of the Constitution and the statutory or underlying rule. That would be unconstitutional because what the Constitution means, by the word "prove", is to be found in the fair and liberal meaning of that word. In the context of a trial, that must mean guilt is to be established rationally, using objective and empirical techniques.

To apply these principles back to the phrase in s 102 of the District Courts Act, and the phrase "with the consent of the National Court", at least a judge may not accept statements that are tainted with unconstitutionality.

Also a judge may not accept statements that run against the requirement in s 37(4)(a) to "prove" a person’s guilt according to law, noting the limitations which in my view the word "prove" places on the phrase "according to law".

Before I leave this, it is worthwhile reminding ourselves that because, on its form, a statement is admitted into evidence under s 102 of the District Courts Act, it does not follow that the assertions in the statement amount to proof beyond reasonable doubt of the facts asserted. It is not unusual these days to have statements prepared by medical practitioners that raise real doubts as to the facts asserted, or at best demonstrate the facts only on the balance of probabilities.

In conclusion, in the absence of a statutory exception, it is improper for the court on a criminal trial in which the accused has pleaded not guilty to accept documents handed up from the Bar Table, by consent. As such, documents are merely pieces of paper and do not constitute evidence upon which a conviction can be founded.

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.

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.

Alternatively, defence counsel may use s 589 of the Criminal Code and O 4, r 1, of the Criminal Practice Rules to make particular admissions of fact. My preference, as I have indicated, is that these be reduced to writing. On circuit, away from counsel’s office, they may be handwritten, but they should be precise and clear. The remarks of Cantley J in Lewis v R (at 388-389) should be borne in mind.

Finally it is said that the practice of handing up documents, by consent, on a criminal trial where there has been a plea of "not guilty" is needed to save time and to make the court more efficient. If this is indeed the practice now, then to the extent that it is not provided for in s 102 of the District Courts Act, as a matter of law, it is a bad practice. But it is also bad as a matter of principle. First, it runs against the tradition of the common law. Secondly, in a society where two-thirds of the total population are illiterate, trial by "exchange of paper" deprives the accused and the public of the opportunity of seeing justice done. Only the lawyers and the judge may get to see the evidence. Thirdly, it seems to me that it is part of a progression away from the public trial in open court which is envisaged in the Constitution. One can only reiterate the words of Lord Reading CJ, in R v Lee Kun (at 300):

"Every citizen has an interest in seeing that persons are not convicted of crimes and do not forfeit life or liberty except when tried under the safeguards so carefully provided by the law."

Documents rejected

__________________

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.