N5361

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 460 of 2011

BETWEEN:

ANDY ANDALE
Applicant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Mt. Hagen: David, J
2013: 24 & 25 September

CRIMINAL LAW – evidence – child – child allegedly sexually penetrated by the accused by inserting his penis into the child's vagina - objection to calling of child as witness – objection raised mid-trial – objection based on right to give accused adequate time to prepare his defence - no written statement of child obtained for purposes of prosecution during police investigations, committal hearing and prior to trial – requirement to serve written statements – requirement may be waived at committal hearing and oral evidence called – objection refused – Constitution, Section 37 (4), Criminal Code, Sections 30 (1), 229H and 557, Criminal Practice Rules, Order 1 Rules 11 and 12, District Courts Act, Part VI (Sections 93-103), Evidence Act, Section 9. 

Cases cited:
Papua New Guinea Cases

Rolf Schubert v The State [1979] PNGLR 66
Java Johnson Beraro v The State [1988-89] PNGLR 562
Tommy Morikawa v The State (2000) SC656

Overseas Cases

Browne v Dunn (1894) 6 R 67

Counsel:

P. L.Kapi, for the Applicant
V. Mauta, for the Respondent

RULING ON OBJECTION TO CALLING OF WITNESS

25th September, 2013

1.	DAVID, J: This is a ruling (amplified version) on an objection made orally by the defence to the calling of the State's second witness, the alleged victim, a female child (name withheld) on the basis that the witness did not make a written witness' statement which has denied him an opportunity and time to properly prepare his defence, contrary to the right accorded to him under Section 37 (4)(c) of the Constitution. 

2.	No affidavit was relied on by the parties.

3.	The State contested the objection.

4.	The accused, an adult male is charged with one count of engaging in an act of sexual penetration with a child under the age of 16 years by inserting his penis into the child's vagina contrary to Section 229A (1) of the Criminal Code which was committed in circumstances of aggravation under Section 229A (2) and (3) of the Code. It is alleged that the child was less than 12 years old (aged 7 years at the material time) and there was an existing relationship of trust, authority and dependency between the child and the accused when the accused committed the offence. The accused denied the charge so a trial is being conducted. Following the tendering of a number of documents by the State by consent of the defence, the completion of the oral evidence of the State's first witness and the granting of a special measures order under Section 37B (2)(a)(b) and (f) of the Evidence Act by consent of the defence, this objection was raised. 

5.	It is not disputed that the witness did not give a written statement for purposes of police investigations and committal hearing.

6.	The accused was committed to stand trial in the National Court on 20th May 2011.

7.	It is the contention of the defence that the production of a written statement for purposes of police investigations, committal hearing and for trial is a fundamental one as it impacts adversely on the right accorded to the accused by Section 37 (4)(c) of the Constitution. That provision states:

"A person charged with an offence—
...............................................
(c)	shall be given adequate time and facilities for the preparation of his defence."

8.	Mr. Kapi of counsel for the defence submitted that even if the written statement were not available for purposes of police investigations and committal hearing, he would not have made this objection (and he forewarned Ms. Mauta orally yesterday of his intention to raise the objection) had the witness made a written statement and had it served on him or the accused at least a week or so before the trial. This would have given the accused an opportunity to assess the witness' evidence and prepare his defence accordingly. Counsel said some matters affected by the lack of a written witness statement were a denial of an opportunity to compare matters raised in a written statement with oral evidence made in court for purposes of addressing the question of consistency or otherwise of evidence and cross-examination of the witness in accordance with the rule in Browne v Dunn (1894) 6 R 67. 

9.	Ms. Mauta of counsel for the State contended that the objection should be refused on the basis that the accused is bound by his conduct in not raising much earlier than now his intention to raise the objection through his counsel, but he allowed the matter to be pre-trialled and trial was fixed some time ago. 

10.	An application to the Court for applications permitted to be made under the Criminal Code, Probation Act and the Criminal Practice Rules is made by originating summons: Criminal Practice Rules, Order 1 Rule 11. Compliance with Rule 11 may be dispensed with in the interests of justice: Criminal Practice Rules, Order 1 Rule 12. So a notice of motion or even an oral application could have been made much earlier than mid-trial in the interests of justice with leave. An application for directions is allowed under Criminal Practice Rules, Order 2, but it must be made within a reasonable time prior to trial: rules 1 and 3.

11.	Section 185 of the Constitution is also relevant to address situations where there is a lack of procedural provision. That provision states:

"If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy."

12.	The accused did not file an application for directions on the issue of lack of written statement by the witness. I accept the State's submission that the accused is bound by his conduct and I would refuse this application for that reason alone. 
 
13.	I will make some further observations however. Provisions relating to the conduct of committal proceedings under Part VI of the District Courts Act (Sections 93-103) are relevant and need to be considered in determining whether or not a written statement of the child should have been obtained for purposes of prosecuting this case. 

14.	The requirement to serve a copy of a written statement for purposes of a committal hearing is set out under Section 94 of the District Courts Act more particularly under sub-section (1)(d). Section 94 states:

"(1)	Subject to Subsection (6), where a person is charged with— 

(a)	an indictable offence that shall not be tried summarily; or
(b)	an offence against Section 420 of the Criminal Code where the offence is not to be tried summarily,
the informant shall serve or caused to be served, in accordance with Subsection (3), on the defendant or his legal representative—
(c)	a copy of the information; and
(d)	a copy of each statement that the informant intends to tender at the committal hearing; and
(e)	a list of documents and exhibits referred to in a statement referred to in Paragraph (d) that the informant intends to tender at the committal hearing; and
(f)	a copy of each document referred to in Paragraph (e).

(1A)	A statement referred to in Subsection (1)(d) shall contain the following warning to the maker of the statement and shall be signed by the maker of the statement:—

'I...certify that this statement is true to the best of my knowledge and belief. I make it knowing that if it is tendered in evidence I will be liable to prosecution if I have knowingly stated anything that is false or misleading in any particular.
Signed'.

(1B)	A statement referred to in Subsection (1)(d) shall, for the purposes of Division III.2 of the Evidence Act (Chapter 48), be treated as an affidavit.

(2)	Where an exhibit referred to in Subsection (1)(e) cannot be copied or adequately described, the defendant shall be notified of the place nominated by the informant where the exhibit may be inspected.

(3)	Service of the documents and photographs (if any) under Subsection (1) shall be effected—

(a)	in the case of a natural person—on the person to whom they are directed by delivering them to him personally; or

(b)	in the case of a company incorporated under the Companies Act—on the company in accordance with that Act; and

(c)	in the case of any other corporation—

(i)	on the secretary or public officer or other chief officer of the corporation in the country; or

(ii)	by sending them by post to the secretary, public officer or chief officer at the last known address of the corporation in the country,

or in any other manner provided by law, at least 14 days before the date fixed for the hearing.

(4)	A person who carries out the service under Subsection (3) shall—

(a)	within seven days after service—make an affidavit stating the day and place of service; and

(b)	at least 72 hours before the date fixed for hearing—transmit the affidavit to the Clerk for production at the time and place and before the Court before which the hearing is to take place.

(5)	A document purporting to be an affidavit of service under Subsection (4) is prima facie evidence of service under this section.

(6)	Where a Court considers it expedient to do so, it may—

(a)	waive the requirements for service of documents or exhibits under this section; and

(b)	allow the informant or defendant to call oral evidence and tender exhibits at a committal hearing."

15.	However, the committal court may waive the requirement for service of documents more particularly written statements under Section 94 (1)(d) and allow the informant to call oral evidence in the exercise of its discretionary power under Section 94 (6) of the District Courts Act where it considers that it is expedient to do so. 

16.	So it appears that service of written statements is not mandatory because oral evidence may be called at a committal hearing. The expression "shall" used under subsection (1) of Section 94 of the District Courts Act in my respectful view is directory and not mandatory because that sub-section is made subject to sub-section (6) of that provision. It was therefore not mandatory for the witness' written statement to have been obtained and served upon the accused or his lawyer in accordance with Section 94 (6) of the District Courts Act for purposes of prosecuting this case either in the committal court or here, although desirable and good investigatory and prosecutorial practice. 

17.	The statutory basis for an alleged victim to be called to give evidence is Section 9 of the Evidence Act. The provision states:

"A person shall not be excused from giving evidence in any legal proceedings on the ground that—

(a)	he has or may have an interest in the matter in question; or
(b)	he has or may have an interest in the result of the proceedings; or
(c)	he has previously been convicted of any offence."

18.	It is settled law that a child can give evidence: Rolf Schubert v The State [1979] PNGLR 66, Java Johnson Beraro v The State [1988-89] PNGLR 562, Morikawa v The State (2000) SC656. It will be in the interests of justice for the child who is the alleged victim to be called to give oral evidence: see Evidence Act, Section 9 (a) and (b). 

19.	The law recognises that young children are fragile, very vulnerable and incapacitated in many aspects of life in the society and for this reason, special laws for their protection have been promulgated by the legislature. A couple of examples are:

1.	the question of criminal responsibility of children of immature age (Criminal Code, Section 30 (1)); and

2.	corroboration is not required for offences brought about by the latest amendments of the Criminal Code regarding children, namely Criminal Code (Sexual Offences and Crimes Against Children) Act, No.27 of 2002, Section 229H. 

I bear this in mind when questioning myself why the witness' statement was not obtained right at the outset. There is no material before me to assist me answer the question.

20.	A trial is deemed to have begun when an indictment is presented and the accused person is called upon to plead to the indictment: Criminal Code, Section 557. The accused in the present case pleaded not guilty and the State has been called upon to substantiate its case to the required criminal standard of proof by calling its witnesses to give oral evidence and has tendered documents it intended relying upon by consent of the defence. The State says that the child witness is available and willing to give evidence.

21.	For all these additional reasons, I would reaffirm my rejection of the objection and allow the State to call the child witness to give oral evidence.

22.	Moreover, notwithstanding my earlier remarks about the objection being rejected on the basis that the accused was bound by his conduct, I think it will be in the interests of justice and generally in accordance with Section 37 (4)(c) of the Constitution for the accused to be given some time after the conclusion of the child witness' evidence in chief to conduct his cross-examination of the witness. 

23.	The formal orders of the Court are:

1.	the objection is rejected;
2.	the State is allowed to call the child witness to give evidence;
3.	at the conclusion of the witness' evidence in chief, the Court will fix a time when the accused through his counsel will conduct his cross-examination of the witness.
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Public Solicitor: Lawyers for the Applicant
Public Prosecutor: Lawyer for the Respondent