N3605

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 829 OF 2008

THE STATE

V

ANDREW EPEI

AND

CR NO 1007 OF 2008

THE STATE

V

FRANCIS IPUKE

(No 1)

Mendi: Makail, J
2009: 19th March

CRIMINAL LAW - Practice & Procedure - Two accused charged with misappropriation - Application to recall State witness - Reason to recall witness unsatisfactory - Criminal Code - Section 383A (1)(a)&2(b)&(d).

Cases Cited:
The State -v- Mana Turi [1986] PNGLR 221

Counsel:
Mr P Kaluwin, for the State
Mr P Kumo, for the two Accused

RULING

19 March, 2009

1. MAKAIL J: The two accused are jointly charged with one count of misappropriation of K242,700.00, the property of the Ialibu Urban Local Level Government during the period of 1 March 2003 and 31 March 2004 contrary to section 383A(1)(a)&(2)(b)&(d) of the Criminal Code. The two accused deny the charge, thus putting the State to task to prove the charge against them.

2. The State called its first State witness, Detective First Constable Luke Upa. He gave evidence in addition to his written Statement which was admitted into evidence with the consent of the defence. He was subjected to a lengthy cross examination by defence counsel on Tuesday 17 March 2009 and Wednesday 18 March 2009 and thereafter, retired. On the morning of the third day, being Thursday 19 March 2009, as the State was about to call its second witness, the defence counsel intervened and made an application to the Court to recall the first State witness to be further cross examined with a view of having two documents marked for identification purposes through this witness. These two documents are; a letter from the then Minister for Inter Governmental Affairs to Brian Pebo dated 20th September 2003 and an Audit Report prepared by a Max Kupo. 

APPLICANT’S SUBMISSIONS
 
3. Mr. Kumo, counsel for the defence submits that it had slipped his mind yesterday to seek to have these two documents marked for identification when he was cross examining this witness. He says that the State witness had sufficiently identified these two documents. For that reason, he submits that leave be granted to recall this witness to continue the cross examination so that he maybe able to have these two documents marked for identification, adding that it would be a very short cross examination.

STATE’S SUBMISSIONS

4. Of course, this application prompted counsel for the State, Mr. Kaluwin to oppose it. First, he submits that this witness has been called once to give oral evidence specifically in relation to the Audit Report prepared by Max Kupo even though his written Statement was admitted into evidence by consent of the defence and the State was not obliged to call him to give further oral evidence. Thus, to recall this witness would be the second time in many days for him to come to Court. This is an abuse of the Court’s process.

5. Secondly, if the defence intends to rely on these two documents to form part of its evidence, then it must call the authors of these two documents to come to Court and give evidence and have these two documents admitted through them. The authors are Sir Peter Barter and Max Kupo respectively. It is not proper for the defence to have these two documents marked for identification through the State’s witness and later on not call the authors to verify them.

REASONS FOR RULING

6. The Court may recall witnesses to give further evidence after the completion of their evidence. One example is where during the course of the evidence of the State, the defence indicates that the record of interview of an accused may have been obtained involuntary but trial goes ahead with the State given leave to recall any witnesses who might be necessary at the anticipated voir dire hearing if the record of interview was to be tendered later through the investigating officer. See The State -v- Mana Turi [1986] PNGLR 221.

7. In this case, it is not the State’s application seeking leave to recall its witness but, the defence. It is also not a case where the State is making the application to recall its witness in anticipation of a voir dire hearing relating to the record of interviews of the two accused that may have been obtained involuntary.

8. It is a case where the defence is seeking to recall the State witness after the State witness had completed giving his oral evidence. I am not satisfied with the reason offered by the defence to have the State witness recalled. The opportunity to have these documents marked for identification through this witness was right there or available for the defence counsel but he simply forgot. That was yesterday. To my mind, that is neither a ground nor a satisfactory reason for the Court to recall the witness to be subjected to cross examination once more.

9. Secondly, I accept the submission of Mr. Kaluwin that if the defence intends to rely on these two documents to form part of its evidence, then it must call the authors of these two documents to come to Court to give evidence and have these two documents admitted through them. The authors are Sir Peter Barter and Max Kupo respectively. Whilst it maybe true that this witness is able to sufficiently identify these two documents during cross examination, and that these two documents may exist, it also appears to me that there is dispute as to their contents. Where there is dispute as to the contents of a document like in this case, these two documents, the law is clear. The author of the document, in this case, these two documents must attend Court and give evidence to verify its authenticity.

10. Therefore, I agree with Mr. Kaluwin’s submission that it is not proper for the defence to have these two documents marked for identification through the State’s witness and later on not call the authors to verify them. 

11. In that respect, I have not been informed by Mr. Kumo if the defence will be calling the authors of these two documents for the defence case, hence to give leave to recall this witness to simply have these two documents marked for identification may be a futile exercise after all.

CONCLUSION

For these brief reasons, I refuse the application and order that trial must proceed with the second State witnesses’ evidence.

Orders accordingly.

Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the two Accused