N2932

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 368 0F 2005

THE STATE

V

JAMES YALI

MADANG: 15, 16 NOVEMBER 2005
CANNINGS J

RULING ON EVIDENCE (NO 2)

Evidence – criminal proceedings – Evidence Act, Section 14 – a person charged with an offence shall not be called as a witness by the prosecution in any legal proceedings in connexion with the offence – whether a witness who is charged with an offence in another case is "a person charged with an offence" for the purposes of Section 14(1) – intention and purpose of Section 14. 

The accused is charged with four sexual offences. During the course of examination-in-chief of a State witness, defence counsel made an application under Section 14(1) of the Evidence Act that the witness’s evidence should no longer be heard and that her evidence already given be struck out, on the ground that the witness has been charged with various offences and she is prohibited from giving evidence in any legal proceedings in connexion with those offences.

Held:

(1)	The purpose of Section 14(1) is to ensure that a person charged with an offence is not forced to be a witness against himself or herself in any legal proceedings in connexion with that offence.

(2)	Section 14(1) is not intended to operate as a prohibition against a person who has been charged, from giving evidence in proceedings concerning another person.

(3)	The court is free to depart from the literal meaning of the words used in a legislative provision, if giving effect to the literal meaning would result in an absurdity or lead to a result unintended by the legislature or run counter to the dispensation of justice. 

Cases cited:
The following cases are cited in the ruling:

The State v Atu Kote [1978] PNGLR 212
The State v James Yali (2005) N2931

RULING

This was a ruling on an application made in relation to a matter of evidence in a criminal trial.

Counsel:
N Miviri for the State
G J Sheppard and N Eliakim for the accused

CANNINGS J: 

INTRODUCTION

This is a ruling on an application under Section 14(1) of the Evidence Act that a witness’s evidence should no longer be heard and that her evidence already given be struck out on the ground that the witness has been charged with various offences and she is prohibited from giving evidence in any legal proceedings in connexion with those offences. 

BACKGROUND

The accused, James Yali, is charged with four sexual offences. On the fifth day of the trial, 14 November 2005, the defence counsel, Mr Sheppard, made an application under Section 13(2) of the Evidence Act during the course of examination-in-chief of the fifth State witness, Elizabeth Daniels:

•	that the witness’s evidence should no longer be heard; and

•	that her evidence already given, be struck out, on the ground that she is the wife of the accused; and

•	she cannot in the circumstances of this case, be called as a witness without the consent of the accused; and

•	the accused did not consent. 

I gave an oral ruling on the day that that application was made, 14 November 2005. I refused the application. Then I reconsidered that ruling and delivered a written ruling the next day, confirming the oral ruling. I ruled that the witness was not the wife of the accused for the purposes of Section 13 of the Evidence Act and, there being no other objection to the witness, she is a competent witness and may continue to give evidence (The State v James Yali (2005) N2931).

I confirmed with both counsel that the ruling was clear. Both indicated that it was, but Mr Sheppard immediately rose to point out that, in fact, there was another objection to the competence of the witness, based on a different provision of the Evidence Act, Section 14. I heard submissions from counsel, then adjourned to consider a ruling. 

THE EVIDENCE ACT, SECTION 14

Section 14 (accused as witness for prosecution) states:

(1)	A person charged with an offence shall not be called as a witness by the prosecution in any legal proceedings in connexion with the offence.

(2)	Notwithstanding Subsection (1), where a person charged with an offence is a witness he may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence. [Emphasis added.]

THE APPLICATION

Mr Sheppard submits that the witness, Elizabeth Daniels, is "a person charged with an offence", as she is presently facing charges of perverting the course of justice and compounding crimes, in separate proceedings, CR No 65 of 2005. Section 14(1) prohibits her from being called as a witness by the prosecution in any legal proceedings in connexion with those offences. The present proceedings, CR No 368 of 2005, are legal proceedings in connexion with those offences. Therefore she cannot be called as a witness in the present proceedings.

Mr Sheppard invited me to consider the file, CR No 65 of 2005, to appreciate the close connexion between the offences with which the witness has been charged and the present proceedings. She has been charged with perverting the course of the present proceedings. And the crimes with which James Yali is charged, are the crimes she has been charged with compounding.

The application of the plain and ordinary words of Section 14(1) means that she cannot be called as a witness. There is a sound policy rationale for that as, if she were permitted to give evidence, this would give rise to the spectre of a person charged with criminal offences being forced to give evidence in another, related, case. It would open the possibility of an inducement to the witness (such as dropping the charges against her) in return for her giving evidence in the related case.

PROSECUTION’S RESPONSE 

The prosecutor, Mr Miviri, opposed the application. He submitted that Elizabeth Daniels was a voluntary witness, giving evidence of her own free will. She is well aware that she is facing criminal charges in separate proceedings. She has, however, elected on her own volition to give evidence in the trial of James Yali. It would defeat the course of justice to prevent her from doing so.

Furthermore, Mr Miviri said the Public Prosecutor is in the process of considering a grant of immunity from prosecution to Elizabeth Daniels. 

THE CIRCUMSTANCES OF THE APPLICATION

There are two circumstances surrounding this application that require comment. First, the suggestion that Elizabeth Daniels might be granted an immunity for prosecution. Secondly, the nature of the charges that she is facing.

As to the immunity issue, Mr Miviri was not clear whether immunity is being considered under Section 5 (grant of immunity from prosecution) of the Public Prosecutor (Office and Functions) Act or whether the Public Prosecutor might decline to lay a charge under Section 525 (procedure for indictment) of the Criminal Code. In any event, he was actually giving evidence from the bar table. He was giving notice that the witness’s legal status might change and that she might no longer be regarded as "a person charged with an offence". This was all too speculative and I decided that I could give no weight to what he said.

As to the charges that Elizabeth Daniels is facing, I have perused the file in CR No 65 of 2005. I did this after consulting both counsel who agreed that it was appropriate to do so as I will not, by necessity, be involved in the trial of the matters covered by that file. My cursory examination of the file was focused on the one-page prosecution brief and the three-page record of the decision of the District Court at Madang (Mr C Bidar presiding) to commit Elizabeth Daniels and a co-accused, Papei Tano, for trial. 

The background is that on 9 November 2004 Elizabeth Daniels was arrested and charged with committing two offences, under Sections 129(1)(b) and 136 of the Criminal Code, between 13 October and 9 November 2004 at Madang.

Section 129 (compounding crimes) states:

(1)	A person who asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on any agreement or understanding that he will—

(a)	compound or conceal a crime; or
(b)	abstain from, discontinue or delay a prosecution for a crime; or
(c)	withhold any evidence of a crime,

is guilty of an offence.

(2)	If the crime the subject of an offence against Subsection (1) is such that a person convicted of it is liable to be sentenced to death or imprisonment for life—the offender is guilty of a crime.

Penalty:	Imprisonment for a term not exceeding seven years.

(3)	In a case, other than that referred to in Subsection (2), the offender is guilty of a misdemeanour.

Penalty:	Imprisonment for a term not exceeding three years.

(4)	A person shall not be arrested without warrant for an offence against Subsection (1). [Emphasis added.]

Section 136 (attempting to pervert justice) states:

A person who attempts, in any way not specially defined in this Code, to obstruct, prevent, pervert or defeat the course of justice is guilty of a misdemeanour.

Penalty:	Imprisonment for a term not exceeding two years.

The prosecution brief alleges that:

•	on 23 October 2004 an official complaint was lodged by Oscar Daniels, a brother of Olivia Daniels, that Olivia Daniels [the complainant in the trial of James Yali] had been raped by James Yali on 13 October 2004; 

•	between 13 October and 9 November 2004 Elizabeth Daniels and her co-accused and their families, including the complainant, communicated and agreed that the case be settled by way of compensation;

•	the complainant was due to accompany the police to ‘crime scenes’ on 9 November 2004;

•	Elizabeth Daniels and her co-accused went to Yomba Police Station on 9 November 2004 and told the police that the complainant and her mother had boarded a flight to Rabaul that morning;

•	however, that was a lie as neither the complainant nor her mother boarded the flight and Elizabeth Daniels and her co-accused knew that and knew the real whereabouts of the complainant.

On 29 December 2004 Mr Bidar refused a no-case submission and committed Elizabeth Daniels and her co-accused to stand trial. Elizabeth Daniels has made a number of court appearances since then in relation to those charges. She was granted bail but then had her bail revoked and was remanded in custody after breaching bail conditions. She was later re-granted bail. Her most recent court appearance was at Waigani on 10 October 2005 for a pre-trial hearing before Mogish J. She indicated that she would be pleading not guilty. Mogish J extended her bail and transferred the file back to Madang. A trial date has yet to be set.
 
OTHER RELEVANT LAWS

Before applying the law that is the centrepiece of this application – Section 14(1) of the Evidence Act – to the facts of this case, there are three other laws that need to be considered.

•	First, the constitutional provisions that protect accused persons from being compelled to give evidence against themselves.

•	Secondly, the provision of the Criminal Code that supports the constitutional right to remain silent.

•	Thirdly, another provision of the Evidence Act that addresses the same or a similar subject matter to Section 14(1).

All these provisions have a common theme in that they appear calculated to protect accused persons – giving them the full protection of the law – by ensuring that they do not have to give evidence against themselves in their own case. They have a right to remain silent.

Constitution

Every person in Papua New Guinea has the right to the full protection of the law under Section 37 (protection of the law) of the Constitution, which states:

Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

There are other specific rights – to life, liberty, freedom, privacy and so on – that are conferred by the Constitution. But the protection of the law is the right that provides how all the other rights can and must be enforced. The right to the protection of the law is intended to be fully available to persons who are charged with criminal offences or in custody. For example, a person charged with an offence is entitled to be presumed innocent and must be given a fair trial. Sections 37(2) to 37(10) of the Constitution are the main provisions that give effect to those rights. 

Of particular importance to the present application is Section 37(10), which states:

No person shall be compelled in the trial of an offence to be a witness against himself.

Criminal Code

Section 572 (evidence in defence) of the Criminal Code states:

(1)	At the close of the evidence for the prosecution, the proper officer of the court shall ask the accused person or his counsel whether the accused intends to adduce evidence in his defence or whether he desires to make a statement to the court before he or his counsel addresses the court.

(2)	Whether or not the accused intends to adduce evidence in his defence he is entitled to make a statement to the court.

(3)	When the accused makes a statement to the court he shall make the statement at the close of the evidence for the prosecution and before adducing any evidence in his defence.

Evidence Act

Section 12 (accused as witness) of the Evidence Act states:

A person charged with an offence is a competent but not a compellable witness for himself in any legal proceedings in connexion with the offence with which he is charged.

THE AMBIT OF SECTION 14

When viewed in the context of the other laws referred to above, it can safely be inferred that Section 14(1) of the Evidence Act is another law intended to provide protection to the person charged with an offence at his or her trial or any other legal proceedings in connexion with the offence. It is not intended to prohibit a person from giving evidence in a case, simply because he or she has been charged with an offence that has a connexion to the case (the interpretation being advanced by Mr Sheppard). Section 14(1) is not intended to create a new category of incompetent witnesses. The general rule is that all adult persons are both competent and compellable witnesses. Only if a person falls within one or more special categories prescribed by law do they shed their status of competence and/or compellability.

Section 14(1) is a law that supplements and regulates the constitutional right to remain silent or, put another way, the right not to be compelled to incriminate oneself. That this is the proper construction is apparent from Section 14(2), which qualifies Section 14(1) significantly. It contemplates that a person charged with an offence can be a witness in the sort of proceedings referred to in Section 14(1), in which case he or she may be asked any question in cross-examination, notwithstanding that it would tend to incriminate them as to the offence. This ties in with Section 12 of the Evidence Act: an accused person is a competent but not a compellable witness.

There appears to have been only one reported case in which a person being tried for an offence applied to have a prospective State witness prohibited from giving evidence under Section 14(1), on the ground that the prospective witness had been charged with an offence in connected proceedings. In The State v Atu Kote [1978] PNGLR 212 Andrew J was conducting the joint trial of two co-accused, Kote and Toto, on a charge of attempted unlawful killing. Kote pleaded not guilty and Toto pleaded guilty. The State tried to call Toto as a witness in the case against Kote. Kote’s defence counsel objected, relying on the then equivalent of Section 14(1) (Section 72(1) of the Evidence Act 1975). 

Andrew J summarised the argument as follows:

He [defence counsel] argues that the trial against Toto is continuing. A plea of guilty does not of its own force constitute a conviction. … Therefore, in his submission, as the trial against Toto has not been determined he cannot, pursuant to Section 72 of the Evidence Act be called as a witness "in any proceedings in connexion with that offence".

His Honour dealt with the argument as follows:

However, in my view such an interpretation would be giving too wide a construction to the section which is clearly intended to apply only to the accused person who is on trial. In this case, Kote.

I take the same approach to the provision relied on as did Andrew J in Kote. I will elaborate on his Honour’s reasoning by acknowledging that, on the face of the strict literal meaning of Section 14(1), there is merit in the application.

Thus:

•	Elizabeth Daniels is "a person charged with an offence" (two offences, actually); 

•	she has been "called as a witness by the prosecution" (in that she has been presented as a witness by the State and she has already given some evidence-in-chief);

•	in "legal proceedings" (the trial of James Yali);

•	"in connexion with the offence" (the trial of James Yali has a connexion to the offences with which she has been charged, as she is charged with compounding James Yali’s alleged crimes and perverting the course of justice in relation to the investigation and prosecution of those alleged crimes).

However, giving the provision that interpretation would lead to an absurd result and run counter to the dispensation of justice. It would result in a person being denied the right to give evidence in a case. It would tend to deny the court, as the tribunal of fact, the opportunity to hear and assess relevant evidence simply because the prospective witness is charged with a related offence. The court is free to depart from the literal meaning of the words used in a legislative provision, if giving effect to the literal meaning would result in an absurdity, or lead to a result unintended by the legislature, or run counter to the dispensation of justice. 

The literal meaning of the phrase "called as a witness by the prosecution" should be departed from for those reasons. The phrase should be read as meaning ‘compelled to be a witness by the prosecution’.

As I indicated in yesterday’s ruling on the application to prevent the same witness giving evidence, as this is a criminal case, the accused should be given the benefit of the doubt on matters of interpretation. That does not, however, mean that whenever there is some uncertainty arising from an immediate reading of a statutory provision, the uncertainty should, as a matter of course, be resolved in favour of the accused. The court’s duty is to give a legislative provision its proper meaning, after carefully considering its purpose and context, and, in accordance with Section 158 of the Constitution, to give paramount consideration to the dispensation of justice.

I have taken account of all those considerations in concluding that Section 14(1) must be interpreted as to apply to and protect only the person charged with an offence, at his or her trial, of that offence or any other legal proceedings in connexion with the offence and only where the person – the prospective witness – has been compelled to give evidence. Section 14(1) does not apply to Elizabeth Daniels, as she has not been compelled to give evidence.

CONCLUSION

The application under Section 14(1) of the Evidence Act is refused. There being no other objection to the witness, she is a competent witness and may continue to give evidence.

Ruling accordingly. 
____________________________

Lawyer for the State		:	Public Prosecutor
Lawyers for the accused	:	Young & Williams