N10105
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 125, 126 AND 128 OF 2022

THE STATE

V

GREGORY JAMES SHEPPARD

Waigani: Berrigan J
2022: 3rd and 8th November

CRIMINAL LAW – PRACTICE AND PROCEDURE – APPLICATION TO SET ASIDE SUMMONS – Order 8, Rule 7, Criminal Practice Rules, 2022 – Application granted in part

Cases Cited:
State v Kasiman, Edna Oai & Annie Smerewai (2022) N9668

References Cited
Order 8, Rule 7 Criminal Practice Rules, 2022

Counsel
Ms T Aihi and Mr E Thomas, for the State 
Mr R Webb SC and Ms L Painap, for the Accused

RULING ON APPLICATION TO SET ASIDE SUMMONS

8th November, 2022

1.	BERRIGAN J:  The accused is the principal of the law firm Young & Williams Lawyers.  He has been indicted with five others, two employees of his law firm and three directors of a company called Ok Tedi Fly River Development Foundation Ltd (the company), with misappropriating K53m belonging to the State, which was intended for the delivery of services to the people of Western Province affected by the Ok Tedi Mine. 

2.	The accused intends to rely on the defence of honest claim of right. 

3.	The accused’s lawyers obtained a summons on 25 October 2022 addressed to Andy Peperaija Pape in the following terms: 

The Court orders pursuant to Order 8 Rule 7 of the Criminal Practice Rules THAT you shall attend before the National Court at Waigani on 1 November 2022 at 9:30am and until you are excused from further attending to give evidence regarding the subject matter of these proceedings, and in particular evidence of payments made to PABC by the Western Provincial Government, the Department of the Prime Minister and FCI Consultants (Sydney) to Pape Accounts.
AND YOU SHALL produce to the Court the following documents and things that are in your possession or control, namely:-
1.	True copies of the ledgers maintained by Andy Peperaija Papa or Pape Accountants & Business Advisors (together “PABA”) recording receipt of payments made to Account No. 7003509648 held by PABA at Bank of South Pacific Limited (“the Account”) under narratives including the code “2499/icp” (“the narratives”) over the period 1 September 2020 to 17 June 2021.

2.	True copies of documents of PABC, including documents in electronic form, which identify the payers of the payments to the Account under the narratives including, without limitation, agreements, invoices, receipts, correspondence, emails and written records of oral conversations.

3.	True copies of the ledgers maintained by PABA recording receipt of payments made from the Account under the narrative “Consultant” (“the payment narrative”) over the period 1 September 2020 to 17 June 2021.

4.	True copies of documents of PABC, including documents in electronic form, which identify the payees of the payments from the Account under the payment narrative including, without limitation, agreements, invoices, receipts, correspondence, emails and written records of oral conversations.

5.	 True copies of documents, including in electronic form, being or referring to the appointment of Andy Peperaija Pape as a special constable.

6.	True copies of documents, including documents in electronic form, recording or referring to the functions and role of Andy Peeraija Pape within the Special Police Forensic & Criminal Investigation Team established in or about August 2020.

7.	True copies of documents, including documents in electronic form, recording or identifying the members of the Special Police Forensic & Criminal Investigation Team established in or about August 2020.

4.	It appears that Mr Pape was appointed as a Special Constable to the Special Police Forensic Criminal Investigation Team which investigated the allegations now before the Court. He operates a private business account under the name Pape Accountants and Business Advisors at BSP. 

5.	It appears that neither counsel were aware of my decision in State v Kasiman, Edna Oai & Annie Smerewai (2022) N9668, delivered on 14 June this year.  A copy was made available to counsel prior to hearing argument.

State submissions

6.	The State makes an oral application to have the summons set aside on a number of grounds. It is submitted that it is an abuse of process to summons a State witness. Further, that the summons was obtained in breach of the Criminal Practice Rules, 2022.  It is not compliant with Order 8, Rule 7 as it has not been issued by a judge in accordance with Form 39.  The State relies on Manase v Polye (2008) N3328 as anologous. 

7.	In that case Lay J held that in an ordinary civil matter a witness is summoned to give evidence pursuant to the authority given by Order 11 of the National Court Rules which specifically authorises the Registrar (O 11 r5(1) to issue the summons. An election petition is not an ordinary civil matter and the National Court Rules have no application, such that any application for a summons must be made to a judge. 

8.	Mr Pape will be called to give evidence on the financial analysis of the bank statements in the case which is relevant to show how the funds from the trust account were applied. There is no prejudice to the accused. He is at liberty to cross-examine him about the payments. 

9.	According to the pre-trial review statement and correspondence with the State the defence will be honest claim of right to apply the monies in accordance with a court order. It is not clear how certain business transactions with third parties are relevant to Mr Pape’s evidence for the State or the defence intended to be raised.  The information sought is relevant to the allegations of forgery, uttering and perverting the course of justice on which the accused has been separately committed pursuant to CR(FC) 247 of 2022 but which are not the subject of this trial.  

10.	The summons is being used to obtain documents for the purpose of a Supreme Court proceedings which was brought by the Honourable Belden Namah, MP, in SCC (OS) No 3 of 2021, represented by Young & Williams, which has since been stayed on Mr Namah’s own application.  Mr Pape is being accused of breaching s 197 of the Constitution and may be entitled to claim privilege against self-incrimination. 

Defence Submissions 

11.	Mr Webb concedes that there has been an irregularity in the manner in which the summons was sought. He submits, however, that Order 8, Rule 7 of the CPR, 2022 says that “the Court” may at any time issue a summons. The Court is defined to mean the National Court of Justice. The National Court Act, s 7(1) provides for persons to be appointed to offices to assist with the proper administration of justice by the Court, including expressly a Deputy Registrar. The summons was issued by a Deputy Registrar. In the circumstances his instructing solicitor thought the manner of the application with the Registry was appropriate.  

12.	As to the content of the summons, to clarify any misapprehension by the introductory words of the summons, the summons does not seek Mr Pape to attend to give evidence but only to produce documents. 

13.	Furthermore, the documents sought are relevant to the credit of Mr Pape. They seek further evidence of the items referred to in the bank statement of Mr Pape produced under summons by BSP pursuant to the earlier orders.  Whether or not the documents are also relevant to CR(FC) 127 of 2022 is beside the point.  The documents sought will show the source of payments made to Mr Pape which were then paid to other officers outside normal remuneration channels. It is also goes to whether he is an expert witness and the credibility of other witnesses to be called by the prosecution in this case. The connection to the issues in the case is that the documents will show whether the payments made to Mr Pape were outside the normal channels.
  
14.	In the circumstances, he seeks the non-compliance to be waived. 

Consideration 

15.	The summons is not compliant with the Rules. It was not sought pursuant to the requirements of Order 8, Rule 7(1) of the CPR, 2022, a matter which should have been apparent to Mr Webb’s instructing counsel following my ruling in State v Kasiman & 2 Ors, supra, in which she appeared for the applicants.  

16.	In that case I held that on an application to produce documents or things pursuant to Order 8, Rule 7(1), the applicant must establish that their production might be necessary or desirable evidence at trial, that is, the material sought is relevant to the issues in the trial.  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. This includes material which provides a legitimate basis for cross-examination:  [18] to [25]. 

17.	The summons was granted in the above case on the basis that the records appeared to show payments from a business account in the name of Pape Accountants and Business Advisors to three regular members of the Constabulary, who were also part of the taskforce. I took the view that on the face of it, those payments were made outside the normal payroll system, and that whether or not the payments were irregular or improper is a matter that the applicants might legitimately cross-examine the officers about at trial as going to their credibility.  Other orders sought under the application were refused.

18.	In my view, it is not of itself an abuse of process for an accused to seek a prosecution witness to produce documents.  Such applications in respect of law enforcement officers may be refused in particular circumstances on the grounds of public interest immunity. For other witnesses an accused person should be careful to avoid any suggestion that they are seeking to interfere with a State witness but otherwise the issue is whether the material sought is relevant to the issues at trial. In any case, having regard to the requirements outlined above the application should be to a judge.  This is consistent with the terms of Form 39. The application should normally be made to the judge conducting the pre-trial process.  

19.	Paragraphs 1 to 4 of the summons effectively seek all invoices, agreements, correspondence and records of dealings with respect to all payments into the personal bank account of Mr Pape and his business account.  It appears the paragraphs also seek details, agreements, correspondence, invoices and so forth relating to payments out of the account to a “Consultant”.  

20.	The accused’s defence is one of honest claim of right.  I am not persuaded that there is a reasonable basis for the documents sought.  The accused has not established a reasonable basis for seeking the personal bank account of Mr Pape, a matter I previously ruled on.  It is also not clear to me on what basis the business dealings of a person appointed as a Special Constable to assist the police in the conduct of their investigations with financial analysis is relevant to the issues for determination in this trial, namely whether the accused dishonestly applied monies belonging to the State. That is particularly so given that the accused’s defence is one of honest claim of right, that is, he does not dispute the application of the funds but rather maintains that there was no dishonesty on his part.  I am also not satisfied that the documents are relevant to the question of Mr Pape’s qualifications as an expert.  

21.	Very little was said by either party about paragraphs 5, 6 and 7. The State says that it is able to produce the documents referred to in those paragraphs.  The documentation sought in those paragraphs is potentially very broad depending on how they are interpreted.  On any fair reading, however, those paragraphs require the production of the instrument appointing Mr Pape to the taskforce and his terms of reference. I see no reason why those should not be provided, together with a list of taskforce members if one exists. To that extent the application is refused.  

22.	Accordingly, I make the following orders:

Orders

(1)	Subject to Order (2), the summons is set aside.

(2)	The application to set aside paragraphs 5 to 7 is refused to the extent that the summons requires the production of documents recording the appointment of Mr Pape to the Special Police Forensic & Criminal Investigation Team established in or about August 2020, his terms of reference and any existing list of team members of the taskforce, which documents shall be produced to the Court on Thursday, 9 November 2022. 
________________________________________________________________
Public Prosecutor: 	Lawyer for the State
Young & Williams: 		Lawyers for the Accused