N1245

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR. 53/92
CR. 54/92

STATE

V

MISKUS MARALEU

STATE

V

SEBULON WAT

Kavieng: Doherty, J
13 January 1994

Evidence Act - Evidence by affidavit - Discretion.

The State sought to admit evidence by affidavit as its witness was not available. On an objection by Defence.

HELD: Evidence Act Ch. 48 provides in what circumstances evidence may be adduced on affidavit.

If any of those provisions is not met the courts is unable to admit affidavit evidence.

Mr. Madana for the State
Mr. E. Jubilee for the Accused

RULING

DOHERTY, J.: The State seeks to tender the affidavit of Frederick Michael Allardyce sworn in New Ireland at the committal stage of these proceedings in 1991. The defence requires the deponent for cross-examination and objects to the affidavit being admitted without cross-examination.

The events leading up to this case evolved around a civil hearing in the District Court involving Poliamba Pty Ltd. Mr. Allardyce was the Company Secretary and deposes to facts about payments and correspondence.

The State has called evidence that the deponent Allardyce is overseas having left Papua New Guinea permanently and is employed, as far as they are aware, (and I point out here that they are relying on indirect information) in Tanzania in Central Africa.

Attempts to contact the deponent by telephone, fax, telex and through Interpol have been unsuccessful. Oddly enough, as Mr. Jubilee has pointed out on submission, they had not tried the simple letter. I cannot comment on the reliability of the postal service in Tanzania or why that particular avenue was not pursued.

The Public Prosecutor has made available money to bring the witness and I accept that they are sincere and persistent in their attempts and intentions to have him here at the court. In his absence the State applies to tender his affidavit by virtue of Section 34 of the Evidence Act. This provides at Section 34(1) that the court may accept evidence on affidavit. The Section provides:-

"(1) 	Subject to the Section, in any legal proceeding before a tribunal to which this division applies the tribunal may at any time order that:-

(a) 	the particular fact or facts be proved by affidavit, or

(b) 	the affidavit or witness may be read in the proceedings on conditions either the tribunal thinks reasonable, or a witness whose attendance ought to be dispensed will be examined by interrogatives or before an examiner named by the tribunal."

This is a discretionary power vested in the court. It is not a discretion which becomes mandatory and obliges the court to admit affidavit evidence on the fulfilment of certain conditions.

However, Section 34(2) is mandatory, once certain findings of facts are made by the tribunal, i.e. that the party interested is "bona fide" and "reasonably" requiring the witness and the witness can be produced. The section fetters the courts discretion. There are actually three pre-conditions:-

"(1) 	That the witness is bona fide required;
(2) 	That the witness is reasonably required; and
(3) 	That the witness can be produced. "

I consider the "and" in this section is conjunctive hence both the reasonable and bona fide requirement must be present and he must be capable of production. Both legs must be fulfilled. The Act does not specify what it means by "bona fide" or "reasonable".

I consider "bona fide" means genuine and not a spurious request where the facts cannot be validly challenged. For example, a person verifying official records that the other party cannot realistically challenge and which do not require clarification. "Reasonable" has not been defined either. I am not referred to any case law on this point.

The third leg is that the witness can be produced. There are no guidelines or definitions of the meaning of this phrase. I consider the legislature meant that the witness could be physically produced. Hence if the witness is dead, insane, kept out of reach by either one of the parties or for some other cause for example being in jail in another country then he is not able to be produced. I consider that the legislature may also have had in mind being overseas as part of this leg, but the court must assess the remoteness etc of the location of the witness.

Precedents stress the right to cross-examination has always been on the side of the defendant in a criminal trial to enable him to question the allegations against him. The right of a fair hearing and natural justice involves the ability to question and challenge allegations against the accused.

I consider that on the facts of this case, the witness has not been produced because he is far overseas, that he can physically be produced and he is reasonably and bona fide required.

I therefore consider that part of Section 34(2) have been made out by the defendants and the court is therefore mandatorily required to preclude the evidence being produced by affidavit.

However, although I am not prepared to admit the affidavit of Allardyce, it is somewhat of a non sequitur. The evidence already before the court is prima facie evidence of a case to answer. Allardyce was not present during the hearings in the District Court and from all the evidence to date, it shows that the witness Sumat did not give instructions to settle the matter. An account has been rendered which is now before the court showing a statement that the case was dismissed which, on the record of the court, also in evidence, was not true. The fee was based on work that was not done and I therefore consider that this shows prima facie evidence of intent to defraud. I therefore find that the accused, Miskus Maraleu has a case to answer on the first count.

I consider that the record prima facie shows that both accused agreed to withdraw the summons without application for costs and without the accused Sebulon Wat having instructions to do so on an agreement that a payment of K700.00 was made

Both letters from the respective accused say the other instigated the settlement but the facts do not prove or disprove this.

I therefore find that they both have a case to answer on the second count.

Lawyer for the State: Public Prosecutor
Lawyer for the Accused: Ephraim Jubilee Lawyers