N9668

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 37, 38 AND 39 OF 2022

THE STATE

V

BOSTON KASIMAN, EDNA OAI & ANNIE SMEREWAI

Waigani: Berrigan J
2022: 6th and 14th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – APPLICATION FOR SUMMONS – Order 8, Rule 7, Criminal Practice Rules, 2022 – Summons to produce documents or other things in the possession or control of a person - Meaning of “might be necessary or desirable evidence at trial” – Relevant to issues at trial – Necessary or desirable evidence includes material that provides a legitimate basis for cross-examination or goes to the credibility of witnesses – An applicant must identify expressly and with precision the basis upon which the documents or things sought are relevant to the issues in the trial - The basis must be reasonable and not speculative - The Court will not entertain vexatious or oppressive applications, nor mere “fishing expeditions”. 

Cases Cited:
Papua New Guinean Cases

Birch v The State [1979] PNGLR 75

Overseas Cases

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

References Cited

Sections 37(1), (3), (4)(c), 4(f) of the Constitution
Order 1, Rules 4 and 5 Order, 8, Rule 7, Criminal Practice Rules, 2022
Order 4, Rule 9 of the Criminal Practice Rules, 1987 

Counsel

Ms H Roalakona and Ms S Mosoro, for the State 
Ms L Painap, for the Accused

RULING ON APPLICATION FOR SUMMONS 

14th June, 2022

1.	BERRIGAN J:  The accused were directors of a company called Ok Tedi Fly River Development Foundation Ltd (the company). The State alleges that the accused together with three others, Tabitha Malken, Gregory James Sheppard and Gloria Francesca Salika, misappropriated K286m belonging to the State, held in trust by the company, which was intended for the delivery of services to the people of Western Province affected by the Ok Tedi Mine. 

2.	The accused intend to raise the defence of honest claim of right at trial. They also contend that the investigating, charging and prosecution of them was not done in an impartial and objective way. 

3.	The accused filed a joint application seeking various orders, of which they now move paragraphs 1.1, and 1.3 to 1.7.  They submit that the purpose of the material sought in the application to prove that the police investigators in the matter received and/or made corrupt payments in connection with the investigation.

SUMMONS

Form 

4.	The application was filed on 14 April 2022 seeking, inter alia, orders pursuant to Order 1 Rule 10(g) of the Criminal Practice Rules, 1987, invoking Order 11 Division 1 of the National Court Rules, in particular Order 11 Rule 1 and Order 2A, Rules 3, Rule 8(s) of the related Criminal Practice Rules 2013 (which appears to be a reference to the Criminal Practice Rules - Fraud & Corruption Related Offences, 2013) and s 94 of the Evidence Act for the production of various bank records.  The latter provides that in any legal proceedings to which the bank is not a party, a banker or an officer of a bank is not compellable to produce a banker’s book or appear as a witness to prove the matters, transactions, or accounts recorded in such a book, unless otherwise ordered by the court or a Judge.

5.	The application was not moved until Monday, 6 June 2022. In the interim the Criminal Practice Rules, 1987 (CPR, 1987) were repealed and replaced by the Criminal Practice Rules, 2022 (CPR, 2022) which came into effect on the 1st May 2022.  The accused seek to have the orders made as if the Rules had not been repealed. 

6.	The application was served on the State on 19 April 2022.  The State opposes the application on the basis that it is not made under the new Rules.  

7.	I do not intend to make any order under the repealed Rules.  Nor is it necessary for the Court to have recourse to s 185 of the Constitution as suggested.

8.	Order 8, Rule 7(1) of the Criminal Practice Rules, 2022 (CPR, 2022), provides for the issuance of summons in certain circumstances.  Order 1, Rule 7(1)(b) relevantly provides that applications under the Rules may be made orally or by notice of motion. 

9.	The application in this case was made by way of a written application. It was sufficiently compliant in form under the repealed Rules at the time it was filed.  It is substantially in accordance with the requirements of Order 1, Rule 7(1)(b) of the current Rules. In the circumstances and having regard to the intervening repeal of the Rules, it is my view that the application is sufficiently compliant with the requirements of Order 1, Rule 7(1), CPR 2022 as to form:  Order 1, Rule 5, CPR 2022 applied. 

Purpose 
10.	As for the application itself, the accused submit that the documents sought will be relevant to: a) demonstrate that the proceedings are an abuse of process; and/or b) make inadmissible the evidence of those Police Officers who received or made such payments, and who are proposed witnesses at the trial of this matter; and/or c) will demonstrate breaches of Constitutional duties by such Police Officers under ss. 196 and 197 of the Constitution. 

11.	Further, that access to the documents should be granted to give effect to their right to full protection of the law pursuant to s 37(1) of the Constitution, the right to be afforded a fair trial pursuant to s 37(3) of the Constitution, the right to facilities for the preparation of their defence, pursuant to s 37(4)(c) of the Constitution, and their ability to meaningfully exercise their right to examine witnesses called by the prosecution, pursuant to s 37(4)(f) of the Constitution.

12.	The application relies on an affidavit of Edna Oai, sworn on 14 April 2022, on which basis it is said that the Commissioner of Police established a special task force referred to as the Special Police Forensic Criminal Investigation Team (the special investigation team), the membership of which included Special Constable Andy Paperaija Pape, a deputized Forensic Accounting Specialist, who operates a private business account under the name Pape Accountants and Business Advisors.  Other members of the team include Beldon Robert, Philip Yonge and Derek Tangua.  

13.	The accused submit that bank statements produced in the affidavit show that monies were paid into Special Constable Pape’s business account from which payments were made by Special Constable Pape to Belden Robert – K6, 000, Philip Yonge – K15, 000; and Derek Tangua – K4, 000.  They submit that the payments give rise to a reasonable suspicion that they are corrupt payments, and that the investigation, charging and prosecution of the accused was not done in the impartial and objective manner required under s. 197 of the Constitution, and that such officers were subject to the direction and control of persons outside the Police Force. 

14.	The State indicated that it takes no position with respect to the substance of the application itself.  It says that it is not in a position to consent to the proposed orders as it concerns the bank accounts of private individuals.  Furthermore, that the accused are already in possession of the documents, and that there is nothing to stop them putting the documents to the State’s witnesses in cross-examination at the trial. 

15.	It is also clear, however, that the documents sought go beyond the bank statements the accused already have in their possession.

Orders Sought

16.	The following orders were sought:

1.3	Orders under Order 1 Rule 10(g) of Criminal Practice Rules 1987 invoking Order 11 Division 1 of the National Court Rules particularly Order 11 Rule 2 of the National Court Rules and Order 2A Rules 3, Rule 8 (s) of the Criminal Practice Rules 2013, and ss.94 of the Evidence Act, that within 7 days of the date of this order, the proper officer of the BSP Financial Group Limited (“BSPFGL”) produce to the Court, true and legible copies of the following banker’s books for the purpose of proving their contents, i.e:-

(a)	Banks statements of all accounts held by the BSPFGL in the name of, or operated by Andy Peperaija Pape (“Pape”), or in the name of Pape Accountants and Business Advisors (“PABA”), including (but not limited to) account number 7003509648.

(b)	Bank statements of all accounts held or operated by Philip Yonge, at BSPFGL, including account number 1001188812.

(c)	Bank statement of all accounts held or operated by Derick Tangua at BSPGCL, including account number 87284703.

(d)	Bank statements of all accounts held or operated by Belden Robert at BSPFGL, including account number 1001305296.

(e)	Bank statements of all accounts held or operated by Department of PM and NEC at the BSPFGL including an account styled as “the Drawing Account”.

(f)	Bank statements of all accounts held or operated by Fly River Provincial Government at the BSPFGL including an account styled as the “Fly River Provincial Development and Coordinating Committee Account.”

1.4	An order that the proper officer of BSPFGL appear as a witness on a date to be fixed by the Court, (or alternatively file an affidavit herein within 7 days of the date of the making of this order) to give evidence of the following matters and transactions in the following accounts:-

(a)	The true identity of the person or entity identified only as “2499/icp” appearing as a payer into Pape’s Account, and 

(b)	The true identity of the person or entity identified only as “Principal” to whom Pape made payments totalling approximately K99, 500.00

(c)	The true identity of the person or entity identified only as “Consultancy” to whom Pape made payments totalling approximately K89, 033.78.

(d)	The true identity of the person or entity identified only as “Overseas Supply” to whom Pape made payments totalling approximately K179, 736.55.

(e)	The true identity of the person or entity identified only as “tt to Australia” to whom Pape made payments totalling approximately K143, 637.60.

(f)	The identity of the purchaser of a BSPFGL bank cheque in the sum of K100, 000.00 on 24th May 2021 which was paid into to Pape’s account.

1.5	An Order that within 7 days of the date of this order, the proper officer of Kina Bank Limited produce to this Court:-

(a)	a true copy of the banker’s books for held by Kina Bank Limited in the name of, or operated by Pape, or in the name of PABA, for the purpose of proving their contents, or

(b)	a sworn statement that they hold no such books.

1.6	An Order that within 7 days of the date of this order, the proper officer of Westpac Bank – PNG – Limited produce:

(a)	a true copy of the banker’s books for held by Westpac Bank – PNG – Limited in the name of, or operated by Pape, or in the name of PABA, for the purpose of proving their contents, or

(b)	a sworn statement that they hold no such books.

Order 8, Rule 7(1), Criminal Practice Rules, 2022 

17.	The accused were unable to explain why it was necessary to compel an officer from the bank to appear and give evidence and withdrew those parts of their application. 

18.	Summons for the production of documents in criminal matters have to date been issued under the National Court Rules, 1983. It is appropriate, however, that the issue of summons in criminal matters should now be governed by Order 8, Rule 7(1) of the CPR, 2022 which specifically provides for summons to be issued in respect of documents or things at any time before or during a trial. It provides that (emphasis mine):

“The Court may at any time before or during a trial issues a summons in Form 39 commanding any person whom the Court shall name to attend and give evidence as a witness at the trial and/or to produce such documents or other things in the possession or control of that person that might be necessary or desirable evidence at trial”. 

19.	On an application for a summons to produce documents or things pursuant to Order 8, Rule 7(1) of the CPR, 2022 the applicant must establish that their production might be necessary or desirable evidence at trial.  

20.	I have not been referred to or found any authority in which the meaning of that phrase has been considered.  Order 4, Rule 9 of the CPR, 1987 reflected the position at common law that the court itself may call a witness not called by either party if he/she considers in his/her discretion that the course is necessary to the ascertainment of truth or in the interests of justice:  see Birch v The State [1979] PNGLR 75.

21.	In my view, for the purposes of Order 8, Rule 7(1), the applicant must demonstrate that the material sought is relevant to the issues in the trial.  

22.	In determining whether or not the material might be necessary or desirable at trial, on an application by an accused person, consideration must be given to ensuring the fair trial and related rights of an accused guaranteed under the Constitution, including the right to full protection of the law pursuant to s37(1) of the Constitution, the right to be afforded a fair trial pursuant to s 37(3) of the Constitution, the right to facilities for the preparation of their defence, pursuant to s 37(4)(c) of the Constitution, and the meaningful exercise of the right to examine witnesses called by the prosecution, pursuant to s 37(4)(f) of the Constitution.

23.	Having said that, generalised invocations of those rights will do little to advance an applicant’s cause.  Furthermore, the Court will not entertain vexatious or oppressive applications, nor mere “fishing expeditions”.  Mere accusations of impropriety will not establish a basis for a summons. 

24.	Accordingly, an applicant must identify expressly and with precision the basis upon which the documents or things sought are relevant to the issues in the trial.  The basis must be reasonable and not speculative. 

25.	Pursuant to Order 8, Rule 7(1) the summons must be sought for obtaining necessary or desirable evidence at trial. In my view this includes material which provides a legitimate basis for cross-examination or goes to the credibility of witnesses.  This is necessary to give effect to s 37(4)(f) of the Constitution, and to recognise that the cross-examination of witnesses may be necessary or desirable for the ascertainment of truth or in the interests of justice:  Birch v The State [1979] PNGLR 75.  See also Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at: [61]-[62] per Bell J. 

26.	I note briefly that in Australia the test for the issue of summons in criminal cases is one of “legitimate forensic purpose” requiring the accused to demonstrate that the material would “materially assist his defence”.  I don’t think it is necessary to adopt the language of that test into this jurisdiction.  As explained in the above case the development of that test has its own particular history in the context of public interest immunity claims.  Order 8, Rule 7(1) should be considered on its own terms.  

27.	It should go without saying that in a case like this one where the accused rely on voluminous affidavit material in support, it should be clearly and relevantly referenced.  

28.	Finally, the court will not order a person to create documents.  The documents must exist in the possession or control of the person summoned to produce them.  It follows that those aspects of the accused’s application seeking the production of affidavits are refused. 
Consideration

29.	The application sought bank statements for all accounts held in the name of the Special Constable, his business and the three regular members of the taskforce.  The orders were not limited to any particular period, and the accused were unable to demonstrate why the orders sought on their face were not impermissibly wide.  In submission the accused asked the Court to consider issuing the summons for the period January 2020 to December 2021.

30.	The accused say that the officers involved in their investigation have been paid corrupt payments, that is payments in addition to their normal salary and allowances, from the business account of Pape Accountants & Business Advisors.  

31.	It appears that the taskforce was established in or about 2020.  Andy Paperaija Pape was appointed to the taskforce as a Special Constable.  Andy Paperaija Pape operates a business, Pape Accountants & Business Advisors, and has done so since at least April 2015. Regular members of the Constabulary were also appointed to the taskforce including Philip Yonge, Derick Tangua and Belden Robert. It appears that Andrew Paperaija Pape, Derick Tangua and Belden Robert will be called as State witnesses in the case against the six accused. 

32.	It also appears from bank statements produced by the accused that a number of payments were made from a bank account, in the name of Pape Accountants and Business Advisors, between 15 October 2020 and 26 January 2021, variously described as allowances, fees or pay, in the amounts of K1000 or K2000, and in one case K10,000, to the three members of the taskforce, to a total value of K25,000.   

33.	On the face of it, those payments were made outside the normal payroll system.  Whether or not the payments were irregular or improper is a matter that the accused may legitimately cross-examine the officers about at trial as going to their credibility.  

34.	The provenance of the documents produced by the accused is not clear.  They appear to be bank records. The State makes no real objection to the production of the bank statements. Whilst they do appear to be the bank statements of individual persons, those persons are also State witnesses. It is preferable that authoritative versions of the statements be available at the trial. 

35.	The accused did not make clear its revised submission about the time frame to which the orders should relate.  I will make orders for the production of the statements of the accounts concerned during the period 1 July 2020 to 30 June 2021 for the purpose of context.   

36.	Pursuant to my powers under Order 1, Rule 4, I intend to adapt Form 39 to reflect that the summons requires the production of documents by a bank, and that because it is not a party to the proceeding it may produce the documents to the clerk of the Court.  The effect will be a summons similar to Form 44, Summons for Production, issued under Order 11, Rule 2 of the National Court Rules.  

37.	The accused have not demonstrated the basis upon which the statements are required within 7 days.  The bank shall have at least two weeks to produce the documents. 

38.	The applicants have not demonstrated the basis upon which statements of other accounts, if any, held by Pape Accountants and Business Advisors and/or the officers might be relevant to the issues at trial. 

39.	The orders sought under the balance of paragraphs 1.3(a) to (d), 1.5 and 1.6 of the application are refused.  

40.	Four payments appear to have been made by the Department of PM & NEC to the account of Pape Accountants & Business Advisors, between 15 September and 4 December 2020.  

41.	The accused have failed to demonstrate, however, the basis upon which the bank statements of all or any accounts held or operated by the Department of PM and NEC will provide evidence which might be necessary or desirable at trial. 

42.	The application under paragraph 1.3(e) of the application is refused.  

43.	It is unclear whether there was a payment into the account by the Fly River Provincial Development and Coordinating Committee Government.  Even assuming there was the accused have not demonstrated why its bank statements would be relevant to the issues at trial. 

44.	The application under paragraph 1.3(f) is refused.

45.	The accused withdrew their application to have a bank officer appear to give evidence as to the true identity of the person or entities referred to in 1.4(a) to (f) of the application.  In response to my query as to what was meant by this, it was submitted that this should be read as a reference to the name of the account holder from whom or to whom payments were made. 

46.	The accused failed to articulate, however, the basis upon which the material would be relevant to the issues at trial. It may be the accused’s contention that Special Constable Pape should not have been operating any business whilst holding the office of Special Constable.  Whether or not that proposition is correct is a matter that can be pursued by the accused at trial.  Otherwise, it is unclear whether they are speculating about what they might find, or simply seeking the orders to see if something relevant might be found.  Neither is permissible. It may be that some basis for production of the documents will emerge in light of the evidence at trial.  For present purposes, however, the accused have failed to demonstrate the basis upon which the material sought might be necessary or desirable evidence for that purpose.  

47.	The application under paragraph 1.4(a) to (f) is refused.

PARTICULARS

48.	The accused seek particulars pursuant to s 536 of the Criminal Code by reference to the Hand Up Brief, of each and every overt act, or fact, matter or circumstances relied on by the Prosecution to prove the element of dishonesty in the preferred charge”.

49.	The accused have not identified why they need further particulars. At least some of the circumstances on which the State relies to establish dishonesty have been provided in the pre-trial review statements. 

50.	The State says, however, that the requested particulars can be provided.  

51.	Furthermore, the case concerns the alleged misappropriation of a very large amount of money. It will assist both the Court and the accused to know the circumstances upon which the State rely to prove dishonesty against the accused.  

52.	In the circumstances I direct that the State provide the said particulars on or before the next return of the matter.

Orders

(1)	The application is sufficiently compliant with the requirements of Order 1, Rule 7(1), CPR 2022 as to form:  Order 1, Rule 5, CPR 2022 applied. 

(2)	Pursuant to Order 8 Rule 7 of the CPR, 2022, a summons will issue in Form 39 of the CPR, 2022, adapted for the purposes of Order 1, Rule 4, having regard to Form 44 of the National Court Rules, directing that the proper officer of the BSP Financial Group Limited (BSP) shall produce to the Court on or before 1 July 2022, true and legible copies of the following documents that are in BSP’s  possession or control: 

a.	Bank statements for account number 7003509648 held or operated in the name of Pape Accountants and Business Advisors for the period 1 September 2020 to 17 June 2021;
b.	Bank statements for account number 1001188812 held or operated by Philip Yonge, for the period 1 September 2020 to 17 June 2021;
c.	Bank statements for account number 87284703 held or operated by Derick Tangua for the period 1 September 2020 to 17 June 2021;
d.	Bank statements for account number 1001305296 held or operated by Belden Robert at BSP for the period 1 September 2020 to 17 June 2021.

(3)	The accused will meet the reasonable expenses of the bank.

(4)	The balance of the orders sought in paragraph 1.3 are refused.

(5)	The orders sought in paragraphs 1.4, 1.5 and 1.6 are refused.
 
(6)	The State shall provide further and better particulars of the facts and circumstances upon which it intends to rely to prove dishonesty on or before 1 July 2022.

Orders accordingly.

___________________________________________________________
Public Prosecutor:  Lawyers for the State
Young & Williams: Lawyers for the Accused