N2689

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 392 OF 1997

PHILIP KUNNGA
Plaintiff

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

MT HAGEN : CANNINGS J
11, 12 OCTOBER 2004

RULING ON EVIDENCE

Evidence – application for orders that facts be proven by affidavit and that affidavits of witnesses be read – Evidence Act, Sections 34, 35, 36 – deponents of five affidavits not present – whether order should be granted – discretionary matter for Court – identification of relevant considerations re exercise of discretion – application of considerations – ruling in relation to each of the contentious affidavits.

Cases cited:
The State v Peter Raima [1993] PNGLR 230
Liwame and Others v Yansuan and Others [1996] PNGLR 43

Counsel:
Ms J Nandape for the plaintiff
Messrs K Sino and R Mai for the defendant

CANNINGS J: 

INTRODUCTION

This is a ruling on an evidentiary matter that has arisen during the course of a trial. It is a civil case. The plaintiff and about 20 other persons are suing the State for damages arising from an alleged Police raid of Nondugl village, Western Highlands Province, in 1996.

Yesterday nine witnesses gave oral evidence. All but one of them had sworn an affidavit. Eight affidavits were tendered; most of them by consent. The deponents were all subject to cross-examination. 

Ms Nandape, for the plaintiffs, then made applications under Section 34 of the Evidence Act in relation to five other affidavits. She was asking the Court to make an order in relation to each affidavit that it could be tendered into evidence, despite the deponent not being available for cross-examination.

Mr Sino, for the defendant, the State, objected.

I heard submissions from each counsel on whether the orders should be made.

PLAINTIFFS’ SUBMISSIONS

Ms Nandape identified the five affidavits, and then offered the grounds listed below for the Court making an order in relation to each affidavit.

No	Date	Deponent	Grounds 	
1	05.09.02	Philip Korokoi	He is physically incapacitated – one leg amputated above knee – difficult for him to walk from Nondugl to highway junction – 2-hours walk required – his affidavit is only relevant to the question of damages.	
2	05.09.02	Kal Tai	This lady gives evidence re assessment of damages – not present at time of raid – she now lives in Jimi – difficult to contact.	
3	05.09.02	Gispe Tai	As per Kal Tai.	
4	05.09.02	Wos Korokoi	Now in Port Moresby – not available – evidence re both liability and assessment of damages.	
5	05.09.02	Elis Bol	This lady died after swearing her affidavit – plaintiff’s counsel only became aware of this on 08.10.04 – her evidence only relates to assessment of damages – there may be an application for next of kin representation later.	

DEFENDANT’S SUBMISSIONS

Mr Sino, for the defendants, strongly objected to the applications. He said that the defendant had a right to put each of the plaintiffs to proof on each of their respective claims. A defence has been filed. Liability is still in issue. It is incumbent on each plaintiff to show their genuineness, come to court, and present their case. The trial date was set 2-3 months ago.

He took issue with the claim that Philip Korokoi could not come to court. There were a number of roads available for him. He could use a PMV. As to Elis Boi, the procedures available under Order 5 of the National Court Rules regarding deceased parties, should have been invoked.

Mr Sino said it would be unfair to the defendant to uphold the applications. The opportunity – or right – of the State to test the case for each plaintiff would be denied. 

FINDINGS OF FACT

Both counsel also made submissions as to what each side had done or not done, about giving notices to the other under the Evidence Act. As a result, it is necessary to record some findings, before addressing the law. The relevant facts are as follows:

•	On 26 February 2004 the plaintiff’s lawyers served 20 affidavits on the defendant’s lawyers, including the five contentious affidavits. They were covered by a letter dated 25 February 2004 that stated, amongst other things: 

Please be adviced [sic] that we intend to rely on the affidavits referred to above during the trial of this matter. If you intend to cross-examine our witnesses, please serve us with the appropriate notice. We would also appreciate it if you could advice [sic] us as to what aspect of the witnesses’ evidence you wish to cross-examine them on so that we can save time and cost for all parties concerned.

•	On 8 March 2004 the defendant’s lawyers filed a notice, stating: 

The Defendant gives notice of its intention to cross-examine all the plaintiff’s witnesses on the date of the trial of this matter.

•	The defendant did not, before yesterday, give notice that it objected to the use of any of the affidavits.

RELEVANT LAW

Ms Nandape has based her applications on Section 34 of the Evidence Act. That provision must be read in the context of Sections 35 and 36. All these provisions touch on the question of how the Court should deal with affidavits, when the deponents are not present and available for cross-examination and the admission into evidence of their affidavits is objected to. 

Sections 34, 35 and 36 state:

34.	Evidence by affidavit.

(1)	Subject to this section, in any legal proceedings before a tribunal to which this Division applies the tribunal may at any time order that—

(a)	a particular fact or facts may be proved by affidavit; or
(b)	the affidavit of a witness may be read in the proceedings on such conditions as the tribunal thinks reasonable; or
(c)	a witness whose attendance ought to be dispensed with be examined by interrogatories or before an examiner named by the tribunal.

(2)	Where it appears to the tribunal that a party to, or a person interested in, the proceedings bona fide and reasonably requires the production of a witness for cross-examination and that the witness can be produced, an order shall not be made under Subsection (1) authorizing his evidence to be given by affidavit.

(3)	Nothing in an order under Subsection (1) affects the power of the tribunal to refuse to admit evidence tendered in accordance with any such order if, in the interests of justice, the tribunal thinks it proper to do so.

35.	Affidavit evidence on notice.

(1)	Where a party to or a person interested in any legal proceedings before a tribunal to which this Division applies desires to use in the proceedings an affidavit by a witness concerning particular facts as to which no order under Section 34 has been made he may, not less than five clear days before the hearing, give notice, accompanied by a copy of the affidavit, to the party or person (if any) against whom it is to be used that he desires to do so.

(2)	Unless a party to or a person interested in the proceedings gives notice, not less than two clear days before the hearing, to the party or the person who gave notice under Subsection (1) that he objects to the use of the affidavit, he shall be taken to have consented to the use of the affidavit, and the affidavit may be used in the proceedings unless the tribunal otherwise orders.

(3)	On application of a party or person interested, or of its own motion, the tribunal may order that a subpoena be issued requiring a person who has made or intends to make an affidavit to attend before the tribunal to give evidence on oath or for cross-examination, or both.

36.	Cross-examination of deponents.

When a party to or a person interested in any legal proceedings before a tribunal to which this Division applies desires to cross-examine a person who has made an affidavit used or intended to be used in the proceedings—

(a)	he may serve on the party or person using or intending to use the affidavit a notice requiring the production of the deponent for cross-examination at the hearing; and

(b)	if the party or person served with the notice does not produce the deponent at the hearing, he is not entitled to use or to rely on the affidavit as evidence without leave of the tribunal; and

(c)	a subpoena may be issued on the application of the party or person served with the notice for the purpose of summoning the deponent to attend for cross-examination. 

RELEVANT CONSIDERATIONS RE EXERCISE OF DISCRETION

The combined effect of these provisions is to give the Court a discretion, when it is required to determine an application to admit affidavit evidence. The three provisions also provide a guide to the considerations the Court should weigh in the balance in deciding how to exercise its discretion. There are also two decisions of the National Court that are relevant.

I identify the relevant considerations as follows:

1	Does the other party bona fide and reasonably require the production of the witness for cross-examination? 

This consideration is important because of Section 34(2). If it appears that the objecting party’s reasons are bona fide and reasonable, that is something that militates against the use of the affidavit. 

2	Can the deponent be produced? 

This consideration is also relevant by virtue of Section 34(2). I interpret this to mean ‘is it reasonably practicable to produce the deponent?’, ie to get the deponent to come to Court. If yes, that is something that militates against the use of the affidavit.

3	Has the party desiring to use the affidavit, given notice under Section 35(1)? 

If yes, that is something that favours the exercise of the discretion.

4	Has the objecting party given notice under Section 35(2) that it objects to the use of the affidavit? 

If yes, that is something that militates against the use of the affidavit. If no, that is something that favours the exercise of the discretion, as under Section 35(2) the party served with such a notice shall be taken to have consented to the use of the affidavit. 

5	Has the objecting party given notice under Section 36(a) that it requires the production of the deponent for cross-examination? 

If yes, that is something that militates against the use of the affidavit, as under Section 36(b) the party served with such a notice who does not produce the deponent is not entitled to rely on the affidavit without the leave of the Court. If no, that is something that favours the exercise of the discretion.

6	 If notice has been given under Section 36(a), was it given within a reasonable time before the court proceedings commenced? 

This is a relevant factor arising from the judgment of Injia J in Liwame and Others v Yansuan and Others [1996] PNGLR 43. In that case, which was also a Police raid case, the State gave notice that it required 203 plaintiffs for cross-examination, just two days before a trial on assessment of damages. Default judgment had already been entered in favour of the plaintiffs. His Honour held that notice was not properly given. If notice is reasonably given, that will militate against the exercise of the discretion in Section 34(1). If the notice is unreasonably short, that will favour the exercise of the discretion. Likewise if no notice is given. 

7	Would justice be dispensed if an order were made? 

This is a relevant factor arising from the judgment of Brown J in The State v Peter Raima [1993] PNGLR 230. This consideration allows the Court to take account of its duty to give paramount consideration to the dispensation of justice, under Section 158(2) of the Constitution. His Honour indicated that there is no hard and fast rule that the deponent of an affidavit must be presented to the Court and subject to cross-examination. The Court must consider each case on its merits. It must not confuse the issues of admissibility and relevance and weight of evidence. An affidavit, if tendered into evidence, can still have its relevance and probative value tested through submissions of counsel.

APPLICATION OF RELEVANT CONSIDERATIONS 

I apply the above considerations to the present case.

1	On the face of it, the reasons identified by Mr Sino for the State wanting the deponents available are reasonable. The plaintiffs need to be put to proof. On the other hand if the statements in the contentious affidavits are generally consistent with what has already been put in evidence, the State’s position can be regarded as unreasonable. I therefore regard this as a neutral factor.

2	Elis Bol is deceased and cannot be produced before the Court. I accept that it is not reasonable to require Philip Korokoi to be produced. As to the two deponents who are in Jimi and the one in Port Moresby, it can profitably be argued that they can be produced. The plaintiff’s lawyer has had ample time to contact them. 

3	The plaintiffs’ lawyer has given notice under Section 35(1). So this favours the exercise of the discretion.

4	The State has not given notice under Section 35(2). So this also favours the exercise of the discretion. 

5	The State has, in a loose fashion, given notice under Section 36(a). It has filed a notice. But the wording of the notice does not conform to Section 36(a). It has not stated that it requires the production of the deponents for cross-examination. This is therefore a neutral factor. 

6	The notice about cross-examination of the deponents was given shortly after service of the affidavits. The period of notice was reasonable. This works against the granting of an order. 

7	As to dispensation of justice, I have to balance the legitimate interests of the State in putting each plaintiff to proof against the interests of the deponents in not being deprived of the opportunity to advance their claim simply because they are not available to give evidence.

RULINGS

•	In relation to the affidavits of Elis Bol and Philip Korokoi, the considerations that favour the exercise of discretion are: 2, 3 and 4. The consideration militating against the exercise of discretion is: 6. Nos 1, 5 and 7 are neutral. I accordingly exercise my discretion by making an order under Section 34(1)(a) and (b) of the Evidence Act in relation to those affidavits.

•	In relation to the affidavits of Kal Tai, Gispe Kal and Wos Korokoi, the considerations that favour the exercise of discretion are: 3 and 4. The considerations militating against the exercise of discretion are: 2 and 6. Nos 1, 5 and 7 are neutral. I accordingly decline to make an order under Section 34(1)(a) and (b) of the Evidence Act in relation to those affidavits.

Ruling accordingly.
________________________________________________________
Lawyers for the plaintiff		:	Tamutai Lawyers
Lawyers for the defendant		:	Paul Paraka Lawyers