N3068

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 669 OF 2004

application for judicial review pursuant to section 155(4) of the constitution

And

APPLICATION FOR JUDICIAL REVIEW PURSUANT TO ORDER 16(3) OF THE NATIONAL COURT RULES

AND

IN THE MATTER OF NATIONAL LAND REGISTRATION ACT (CHAPTER 357)

AND

IN THE MATTER OF NATIONAL LAND COMMISSION'S ORDER FOR SETTLEMENT PAYMENT OVER PORTION 35 PART MOUNT HAGEN TOWNSHIP, WESTERN HIGHLANDS PROVINCE

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Applicant

AND

NATANIAS MARUM sitting as the NATIONAL LANDS COMMISSION & OTHERS
Respondents

Waigani : Injia, DCJ
2006: 5 and 8 May

EVIDENCE - ADMISSIBILITY OF - Affidavit deposed to by Executive Officer of National Land Commission claiming the Commission did not follow procedure prescribed by National Land Commission in hearing and determining claim for settlement payment - Whether evidence prejudicial and not "in the interest of justice" to admit evidence - Evidence Act (Ch. No. 48), s.34(3)

STATUTE - Interpretation - Meaning of "in the interest of justice" in Section 34(3) of the Evidence Act (Ch. No.48) considered.

Cases Cited:
Julian Baida v Peter Kobua, N2634 (2004).
James Pari v The State [1993] PNGLR 173
Tobias v Allen (N10.2) [1957] V.R. 22

Counsel:
P. Mawa, for the Third Respondent/Applicant
D. Dusal, for the Plaintiff/Respondent
M. Simbala, for the First Respondent

8 May 2006

INTERLOCUTORY RULING NO. 2

1. INJIA, DCJ: At the hearing of the substantive application for judicial review, the Third Respondent objected to the admissibility of certain parts of the affidavit of Mr Luke Kwago sworn on 22 October 2004 and filed on 12 November 2004. Because Mr Kwago filed similar affidavits in respect of the remaining forty-seven (47) matters, parties in the other 47 matters joined the Third Respondent on the objection. Arguments for the respondents were made by Mr Murray and Mr Yandeken with brief submissions by Mr Mawa and Mr Kingal. The plaintiff's submissions were made by Mr Nalawaku with brief submissions by Mr Makap. The First and Second Respondents appear to be divided on the objection, some supporting the plaintiff and others supporting the respondents depending on which officer of the National Land Commission (the Commission) or the Attorney-General's office is instructing them. 

2. At the material time of deposing to the affidavit in 2004, Mr Kwago was an Assistant Deputy Commissioner of the Commission. He had worked for the Commission for some twenty- three (23) years as its Executive Officer and assisted the Commission when it dealt with the claims the subject of these proceedings. The parts objected to are par. 5 - 9 and 17 - 20. Mr Kwago has filed similar affidavit in respect  of all the claims with variations as to the calculation of compensation in each matter. There are various grounds of objection some of which either have no basis in the rules or are trivial and therefore lack merit. The main grounds of the objection which require my consideration are as follows:-

(1) 	They do not depose to facts. They state matters of submissions and law or opinion: s.34(1) of the Evidence Act (Ch. No. 48) and O.4 r.44 of the National Court Rules.
(2) 	The matters deposed to therein are scandalous: O.11 r.28 of the National Court Rules.
(3) 	It is not "in the interest of justice" to admit those parts because they are of no probative value and are prejudicial to the respondents: Evidence Act, s.34(3).
(4) 	Certain documents comprising of records of the Commission's proceedings on the matter have not been certified by the appropriate officer of the Commission charged with the duty of keeping its records, in this case the Registrar of the Land Titles Commission: s.181 and s.43(2) of the National Land Registration Act, s.70 of the Evidence Act; Julian Baida v Peter Kobua, N2634 (2004).

3. Detailed arguments were made covering some 1½ days in hearing-time. I deal with the arguments in the context of the issues raised.

4. The first issue is whether these paragraphs state matters of law and submissions. I accept the respondents' argument that as a general rule, an affidavit should depose to facts and I should add inferences to be drawn from those facts but not law or submissions. However, a deponent or witness who is qualified by reason of his personal knowledge, information and experience in the subject matter is permitted to give evidence of those matters. As Mr Nalawaku submitted, the witness can be cross-examined on those matters. It is then a matter of weight. Mr Kwago's position in the Commission and given his experience and knowledge in the procedures and application of the formula for compensation in Schedule 2 of the Act qualifies him to depose to the matters he has set out in these paragraphs and the views he has expressed and they are admissible. The only opinion I find he is not qualified to express is the legality of the amount of award because that is a matter which this Court will decide. The only paragraph I strike out is the last paragraph, par. 20 in this case, of his affidavit which says, in his belief, the award is "illegal". This paragraph is not objected to but it demonstrates the kind of opinion that is not admissible.

5. The second issue is whether the documents he attached to his affidavit are in admissible form. I reaffirm what I said in Julian Baida's case, that this Court requires a certified copy of the full record of proceedings on the matter kept by a tribunal, the certification having been done by the appropriate officer charged by statute with the duty of maintaining those records. The new Judicial Review (Amendment) Rules 2005 also provide the procedure for obtaining a certified copy of the Records of the decision-making tribunal. The appropriate time to raise this issue is at the pre-trial stage as provided for in the new Rules, so that the Court would issue directions for the production of the certified records. This was not done. All parties proceeded to set this matter for trial on the basis that the only parts of the record which were relevant were those annexed to the affidavits filed by the applicants, in particular Mr Kwago. The respondents have filed their own sets of documents extracted from the Commission's file or copies of documents such as Reasons for decision, the award, etc furnished to them by the Commission. The main document relied upon by the applicant is the decision or award. That is a public document which is issued to parties and therefore requires no verification by way of certification. As it has been done in this case, the decision document can be produced in evidence in Court by a party to the proceedings before the Commission. As for any other documents extracted from the records kept by the Commission on the matter, if parties agree on the veracity of the document, in which case the document is admitted by consent, it may be unnecessary to certify those records. The Act does not clearly say if the Registrar of Land Titles Commission is the custodian of those records but reading ss.14 - 18 and ss.43 of the Act, by inference, says the Registrar of Land Titles Commission is the appropriate officer. Mr Nalawaku's submission that in the absence of an express provision, Mr Kwago is the appropriate officer to produce those records is without merit because if there is anyone better placed to provide those certified records in the absence of the Registrar, it is the Commissioner himself if there is only one Commissioner and if there is a number of Commissioners, then the Chief Commissioner. There is no evidence before me that Mr Kwago is the Commissioner or the Chief Commissioner.

6. The remaining two grounds of objection can be dealt with under the "interest of justice" argument. Section 34(3) of the Evidence Act states:

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

7. The respondents submit there is evidence that Mr Kwago was fully aware of the claims dealt with by Commissioner Marum (Second Respondent) and in two cases, there is evidence to show that he heard the claims: see Mr Raphael Dingi's affidavit in OS 731/04 and John Yamai's affidavit in OS 620/04. He was fully aware of the Commission hearings and how Commissioner Marum calculated the awards and the reasons for departing from Schedule 2 of the Act. Mr Kwago did not contest or object to the Commission's handling of the claims and solicit support from the Attorney-General to appeal this decision under s.46 of the Act. He has now broken ranks with the Commission to challenge the decision of which he played a part in processing these claims. He has contradicted the Commission's decision, in particular the determination of his superior. His affidavit contains statements of aforejudgment, bias and pre-conceived opinion favouring the State. Mr Kwago's affidavit contains heaps of prejudice and is scandalous. He is not an expert witness and should not be allowed to express strong prejudicial opinions or views which are of no probative value except prejudice. In these circumstances, the interest of justice is best served by excluding these scandalous and prejudicial statements of law and opinion. Only Mr Marum can depose to the procedure followed by the NLC in handling the claims and the reasons why he made the award. In any case, Mr Marum has given good reasons why he departed from the formula in Schedule 2 of the Act and that decision should not be allowed to be challenged by his subordinate Mr Kwago. In support, a number of texts and PNG and Australian cases were cited.

8. Counsel for the applicants submit Mr Kwago has the necessary experience and is qualified to express the matters set oust in these paragraphs and express the opinions he has expressed regarding the procedure followed and decision arrived at in dealing with the claims. Mr Kwago was a subordinate and he could not tell his boss, Commissioner Marum how he would or should perform his statutory functions. He played no part in the decision-making process controlled by Commissioner Marum. It is submitted there is no evidence from the respondents to show how they stand to suffer prejudice if the affidavit was admitted into evidence. They must produce evidence showing actual prejudice and not speculative or suspected prejudice.

9. It is submitted the paramount consideration in determining the admissibility of Mr Kwago's affidavit is "the interest of justice". Mr Kwago's affidavit is relevant to the main issues before the Court whether the Commission exceeded his powers under the Act in computing the amount of compensation payable under the Act. In the interest of justice, relevant evidence must be placed before the Court so that the Court can properly exercise its discretion on the review to enable the Court to make an informed, fair and just decision. The discretion must be exercised in accordance with proper principles and taking into account all relevant circumstances. Mr Kwago's affidavit provides the necessary information for this purpose. He is an experienced officer with the Commission and is familiar with the provisions of the Act governing procedure for hearing claims and making awards. He is stating or re-stating what the law says and how the law is and was applied to the claims before it. That is not scandalous.

10. It is submitted if Mr Kwago's affidavit is not admitted, the Court will not be able to do justice to the applicants. Therefore, it is not in the interest to exclude his affidavit. A number of PNG cases were cited in support of these arguments.

11. In order to deal with these submissions, it is necessary to understand what the term "interest of justice" means. I have not received any assistance from counsel in interpreting this phrase. In my brief research, I am able to locate only one case in which a similar phrase was considered in the context of an application to admit fresh evidence on appeal under s.6(1) of the Supreme Court Act which says the Supreme Court may allow fresh evidence where it is satisfied that "the justice of the case warrants it". In James Pari v The State [1993] PNGLR 173 the Supreme Court adopted the meaning given by Canadian Courts to the phrase "in the interest of justice" in Section 610(1)(d) of the Canadian Criminal Code, which principles reflect the English principles. Section 610(1)(d) states:-

"For the purposes of an appeal under this part the Court of Appeal may, where it considers it in the interest of justice … receive the evidence, if tendered, of any witnesses..".

12. Three of four principles summarized in that judgment are relevant for this case and they are:-

1.	The evidence must be relevant in that it bears upon a decisive or potentially decisive issue.

2.	The evidence must be credible.

3.	It must be such that if believed it could, when taken with other evidence adduced at trial, be expected to have affected the result.

13. I rephrase these principles for purpose of the present case. In order for an affidavit to be admitted into evidence for a party under s.34(3) of the Evidence Act, the affidavit sought to be admitted must be relevant to the issue(s) to be decided, it must be credible and it must, amongst other evidence, play a determinate role in affecting the result of the case.

14. Several Australian States have provisions similar to our s.34(3). For instance, s.3(5) of Evidence Act of Victoria says the Court may  reject an admissible statement if for any reason it appears inexpedient in the interest of justice that it should be admitted. I am unable to find any case on the interpretation of the phrase "in the interest of justice" under this section. The only case I have found is Tobias v Allen (N10.2)[1957] V.R. 22 but that case was largely decided on application of s.3(3) which renders inadmissible a statement made by a person who has interest in the proceedings, whose statements is swayed by "personal interest and not detached, judicial, impartial and independent".

15. I consider the principles in Pari's case to be relevant to the present case and apply them. From the arguments made before me as set out above, there is no dispute that the affidavit is relevant to the issue(s) before the Court and it will play a pivotal role in the determination of the issues before the Court and that the affidavit will also affect the outcome of the case. The arguments made before me really relate to credibility - Mr Kwago's own credibility and the credibility of his evidence. 

16. In the circumstances of the present case, much depends on Mr Kwago's credibility as a competent witness of the truth. Credibility largely attaches to his evidence on facts and inferences drawn there from and expression of opinion. In my view there is little or no evidence in the form of affidavit evidence from which I can safely conclude that Mr Kwago is not a credible witness or the evidence in the affidavit is not credible. Much of what he has deposed to are matters of procedure and computation of compensation under the formula fixed by the Act and they alone do not raise any issue of credibility. If the respondents want to test Mr Kwago's credibility by cross-examination on his affidavit, that option is available upon admission of the affidavit(s).

17. The prejudicial effect of his evidence can also be addressed under the broad heading of "credibility". In my view, there is no rule of evidence or procedure or any provision in the Land Registration Act which precludes an officer from giving evidence in a Court of law which is reviewing a decision of a tribunal on matters before the tribunal, in this case the Commission. If there is any, it has not been brought to my attention. If a statutory tribunal is not performing its duties in compliance with the law, an officer of the tribunal should not be precluded or restricted in giving evidence before a Court of law as to the conduct of the proceedings in contravention of the Act. Indeed it is in the true sense of "in the interest of justice" for such officer to give such evidence. To one party the evidence may be damaging to its case whereas to another party it is supportive. The paramount consideration is, as Mr Makap submits, the dispensation of justice. In order for the Court to do this, parties are entrusted with the duty of providing relevant and credible evidence, even if that evidence is damaging to one party. In the absence of any evidence showing that the person making the statement is personally interested in the outcome of the proceedings which would taint his credibility, such evidence should not be ruled inadmissible simply because that person was involved in the decision-making process in one capacity or another. In the present case, there is no evidence to show Mr Kwago stands to personally gain from his giving evidence for the Plaintiff.

18. For these reasons, I dismiss the objection and admit Mr Kwago's affidavit(s). The only part of his affidavit I strike out is the last paragraph where he concludes the Commission's award was "illegal".
_________________________________________________________________
Paul Paraka Lawyers: Lawyer for the Applicants
Murray & Associates, Lawyers and many other law firms: Lawyer for the Respondents