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Topoma, The State v [1980] PNGLR 18 (14 March 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 18 - The State v Nagiri Topoma 

[1980] PNGLR 18

N223

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V.

NAGIRI TOPOMA

Lae

Kapi J

14 March 1980

CRIMINAL LAW - Practice and procedure - Cross-examination - Accused giving sworn statement at committal proceedings - Accused subjected to cross-examination - Whether cross-examination permissible - Whether evidence on cross-examination admissible on trial - Need to explain to accused legal meaning of District Courts Act 1963, s. 103[xxx]¹.

INFERIOR COURTS - District courts - Practice and procedure - Committal proceedings - Cross-examination - Accused giving sworn statement - Accused may be subjected to cross-examination - Need to explain to accused legal meaning of District Courts Act 1963 s. 103[xxxi]².

Where an accused chooses pursuant to s. 103 of the District Courts Act 1963, to give sworn evidence at committal proceedings, he may be subjected to cross-examination by the prosecutor and the magistrate:

R. v. P. M. [1971-72] P. & N.G.L.R. 222 at p. 223, and

R. v. Joseph Haiai Sarufa [1974] P.N.G.L.R. 173 referred to;

and such statement, including the answers given in response to cross-examination, is admissible as evidence against the accused upon his trial.

Semble,

if the accused is not advised of the legal consequences of the options open to him under s. 103 of the District Courts Act 1963, the National Court may, in its discretionary power, reject such statements if it feels that, in all the circumstances, it was unfair to admit answers in response to cross-examination.

The King v. Lee [1950] HCA 25; (1951) 82 C.L.R. 133 referred to.

Interlocutory Ruling.

This was a ruling on admissibility of evidence delivered in the course of a trial of dangerous driving causing death. A statement under s. 103 of the District Courts Act 1963, which included cross-examination by the prosecutor and the magistrate was tendered and objection taken to admission of the cross-examination evidence.

Counsel:

B. J Cassells and L. P. Henao, for the State.

S. Lupalrea, for the accused.

14 March 1980

KAPI J: The accused is charged on indictment that on 27th December, 1979 he drove a motor vehicle dangerously and thereby caused the death of Tete Amasu and Taisa Agi. The State, as part of its case against the accused, sought to tender a sworn statement that was made by the accused at his committal in the District Court, pursuant to s. 103 of the District Courts Act 1963. Statements made by an accused at the committal hearing pursuant to s. 103 of the District Courts Act 1963, can be admitted as evidence against the accused upon his trial under s. 104 of the District Courts Act 1963. When this sworn statement was tendered, I noticed that the accused was subjected to cross-examination by both the police prosecutor and the District Court magistrate. Statements made by the accused in answer to this cross-examination, if admitted, would be used against him. An issue arose as to whether or not I should accept the statement with the cross-examination.

Frost SPJ (as he then was) has indicated that cross-examination of a defendant after he has given a statement on oath is improper and should not be admitted as evidence. See Reg. v. P.M.[xxxii]³. In Reg. v. Joseph Haiai Sarufa[xxxiii]⁴; Williams J admitted a s. 103 statement given on oath as evidence including answers given in response to cross-examination by the police prosecutor and the magistrate. However it appears from the report that this issue was not raised before his Honour. The issue has not been finally settled in this jurisdiction.

In Victoria there appears to be no choice given to the accused as to whether he should make a statement or give sworn evidence. It appears that he is only given a choice as to whether he should give sworn evidence or not; see s. 50 of the Justices Act (Vic.). However, the Victorian statute specifically warns that any evidence given will be given as evidence at the trial and that the accused will be liable to be cross-examined.

Under the English procedure, an accused is asked first of all whether he wishes to make a statement or not. After he has made his statement, or not, if he decides not to, he is asked whether he wishes to give sworn evidence. It has been held that where a magistrate interrogates a defendant who does not give evidence, that is, sworn evidence, the answers are inadmissible as evidence against him; see Reg. v. Berriman[xxxiv]⁵; Reg. v. Benjamin Pettit[xxxv]⁶. The New South Wales procedure seems to be similar to the English practice. See Justices Act 1902 (N.S.W.). Section 36 of the New South Wales legislation makes general provision that all witnesses may be cross-examined when they give evidence on oath.

In this jurisdiction, Pt. VI of the District Courts Act 1963 governs the conduct of cases in relation to indictable offences. Under s. 101(1) of the Act, statements of those who know all the facts are taken in the presence of the accused person. Such statements should be taken down in writing, (s. 101(2)). It is significant to note that here the section does not specifically say they should give sworn evidence as opposed to making statements. However s. 102 speaks of these statements as “evidence” when the court considers the sufficiency of evidence. Similarly, s. 107 also speaks of these statements as “evidence” including any statement or sworn evidence of the accused or any of his witnesses. Section 69 of the District Courts Act 1963 provides that a person appearing to give evidence in the District Court shall be examined on oath. Section 67 of the Act provides that parties may examine or cross-examine those who give evidence for or against him. That is to say, any witnesses who appear at the committal proceedings against the accused may be sworn and are subject to cross-examination. It also appears that anybody who gives evidence as a witness for the accused may be subjected to the same provisions. See s. 106(2).

I now turn to the consideration of s. 103(1) of the Act as set out hereunder:

“Where a court proceeds with the examination of a defendant in accordance with this Division the court or the chairman of the court shall read the charge to the accused and explain its nature in ordinary language and shall say to him these words or words to the same effect—

‘Having heard the evidence for the prosecution do you wish to be sworn and give evidence on your own behalf, or do you desire to say anything in answer to the charge? You are not obliged to be sworn and give evidence, nor are you required to say anything, unless you desire to do so; but whatever evidence you may give upon oath, or anything you may say, will be taken down in writing, and may be given in evidence upon your trial. You are clearly to understand that you have nothing to hope from any promise of favour, and nothing to fear from any threat, which may have been held out to you to induce you to make any admission or confession of your guilt; but whatever you now say may be given in evidence upon your trial, notwithstanding any such promise or threat.’ ”

It is significant to note that under s. 103 the provision distinguishes between sworn evidence and a statement.

Where the accused chooses to give evidence, that is, sworn evidence, as in this case, I am of the opinion that his evidence is subject to the other provisions of the District Courts Act 1963, namely ss. 67 and 69. This means that an accused who gives sworn evidence is subject to cross-examination by the police prosecutor and any questions that the magistrate wishes to put to the accused. In my view there is no particular significance in the fact that s. 103 does not make specific mention of the accused being subjected to cross-examination if he gives sworn evidence as in the Victorian legislation.

I consider that ss. 67 and 69 of the District Courts Act 1963 adequately cover sworn evidence given by the accused. I think this is in line with the general practice in the National Court in relation to evidence or statements made by the accused at his trial on indictment. Section 103 would appear to be similar in terms to the provisions of s. 584 of the Criminal Code where the accused, at his trial, is given an option as to whether he should make a statement or whether he should adduce evidence. The practice in the National Court has always been that where an accused makes a statement from the dock, that is, an unsworn statement, he is never subjected to cross-examination either by the State or the judge, however he subjects himself to cross-examination when he chooses to give sworn evidence from the witness box.

I have therefore come to the conclusion that where an accused chooses to give sworn evidence at the committal proceedings under s. 103, he is rightly subjected to cross-examination by the police prosecutor and the magistrate. I would admit the s. 103 statement with the answers given in response to cross-examination by the police prosecutor and the magistrate.

Before leaving this matter, I would like to make certain observations in relation to s. 103 of the District Courts Act 1963. It appears from the point of view of the defendant that when he is making his election under s. 103 he is making an election on matters which have important legal consequences. That is, questions as to whether he should make a statement at all, give sworn evidence or call witnesses at that stage. If the magistrate advises the defendant at this point in the words of the section, the defendant will not be in a position to appreciate the legal consequences of whether he should give sworn evidence or make a statement, or to say anything at all. That is to say, he will not be in a position, without legal advice, to know of the effect of what he might say, or whether he should give a sworn statement or an unsworn one, insofar as the question of cross-examination is concerned. This is important in this country where most defendants who appear in court are uneducated and are not aware of the legal consequences of these options. Section 103 of the District Courts Act 1963 provides that the magistrate may cite the wording of the section, or give advice to similar effect when informing the defendant of his choice under s. 103 of the Act. In my opinion it will only do justice to defendants who are either uneducated or who are not represented by legal counsel, for the presiding magistrate to explain to the defendant the legal consequences of each choice before making his options. That is, the legal effect of whether he should say anything at all at this point or, if he chooses to say anything, whether he should make a sworn statement or an unsworn statement, and make specific mention of the right of the police prosecutor to cross-examine him if he chooses to give sworn evidence. If the defendant is not advised of the legal consequences of his options, the National Court may, in its discretionary power, reject such statements if it feels that, in all the circumstances, it was unfair to admit answers in response to cross-examination. See The King v. Lee[xxxvi]⁷.

Ruled that s. 103 statement be admitted in evidence.

Solicitor for the State: C. Maino-Aoae, Public Prosecutor.

Solicitor for the accused: D. J McDermott, Acting Public Solicitor.

[xxx]Infra p. 20.

[xxxi]Infra p. 20.

[xxxii][1971-72] P. & N.G.L.R. 222 at p. 223.

[xxxiii][1974] P.N.G.L.R. 173.

[xxxiv](1854) 6 Cox C.C. 388.

[xxxv](1850) 4 Cox C.C. 164.

[xxxvi][1950] HCA 25; (1951) 82 C.L.R. 133.