Philip Kunnga v The Independent State of Papua New Guinea (2004) N2689

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 12 October 2004
• Citation: (2004) N2689
• Court: National Court
• Year: 2004
• Judgement Number: N2689

Full Title: Philip Kunnga v The Independent State of Papua New Guinea (2004) N2689

National Court: Cannings J

Judgment Delivered: 12 October 2004

1 Evidence—application for orders that facts be proven by affidavit and that affidavits of witnesses be read—Evidence Act, s34, s35, s36—deponents of five affidavits not present—whether order should be granted—discretionary matter for Court—identification of relevant considerations re exercise of discretion—application of considerations—ruling in relation to each of the contentious affidavits.

2 The State v Peter Raima [1993] PNGLR 230, Liwame and Others v Yansuan and Others [1996] PNGLR 43 referred to

Ruling on Evidence

___________________________

N2689

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 392 OF 1997

PHILIP KUNNGA

Plaintiff

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Defendant

MT HAGEN : CANNINGS J

11, 12 OCTOBER 2004

RULING ON EVIDENCE

Evidence – application for orders that facts be proven by affidavit and that affidavits of witnesses be read – Evidence Act, Sections 34, 35, 36 – deponents of five affidavits not present – whether order should be granted – discretionary matter for Court – identification of relevant considerations re exercise of discretion – application of considerations – ruling in relation to each of the contentious affidavits.

Cases cited

The State v Peter Raima [1993] PNGLR 230

Liwame and Others v Yansuan and Others [1996] PNGLR 43

Ms J Nandape for the plaintiff

Messrs K Sino and R Mai for the defendant

CANNINGS J:

INTRODUCTION

This is a ruling on an evidentiary matter that has arisen during the course of a trial. It is a civil case. The plaintiff and about 20 other persons are suing the State for damages arising from an alleged Police raid of Nondugl village, Western Highlands Province, in 1996.

Yesterday nine witnesses gave oral evidence. All but one of them had sworn an affidavit. Eight affidavits were tendered; most of them by consent. The deponents were all subject to cross-examination.

Ms Nandape, for the plaintiffs, then made applications under Section 34 of the Evidence Act in relation to five other affidavits. She was asking the Court to make an order in relation to each affidavit that it could be tendered into evidence, despite the deponent not being available for cross-examination.

Mr Sino, for the defendant, the State, objected.

I heard submissions from each counsel on whether the orders should be made.

PLAINTIFFS’ SUBMISSIONS

Ms Nandape identified the five affidavits, and then offered the grounds listed below for the Court making an order in relation to each affidavit.

No Date Deponent Grounds

1 05.09.02 Philip Korokoi He is physically incapacitated – one leg
amputated above knee – difficult for him to walk
from Nondugl to highway junction – 2-hours
walk required – his affidavit is only relevant to
the question of damages.

2 05.09.02 Kal Tai This lady gives evidence re assessment of
damages – not present at time of raid – she now
lives in Jimi – difficult to contact.

3 05.09.02 Gispe Tai As per Kal Tai.

4 05.09.02 Wos Korokoi Now in Port Moresby – not available – evidence
re both liability and assessment of damages.

5 05.09.02 Elis Bol This lady died after swearing her affidavit –
plaintiff’s counsel only became aware of this on
08.10.04 – her evidence only relates to
assessment of damages – there may be an
application for next of kin representation later.

DEFENDANT’S SUBMISSIONS

Mr Sino, for the defendants, strongly objected to the applications. He said that the defendant had a right to put each of the plaintiffs to proof on each of their respective claims. A defence has been filed. Liability is still in issue. It is incumbent on each plaintiff to show their genuineness, come to court, and present their case. The trial date was set 2-3 months ago.

He took issue with the claim that Philip Korokoi could not come to court. There were a number of roads available for him. He could use a PMV. As to Elis Boi, the procedures available under Order 5 of the National Court Rules regarding deceased parties, should have been invoked.

Mr Sino said it would be unfair to the defendant to uphold the applications. The opportunity – or right – of the State to test the case for each plaintiff would be denied.

FINDINGS OF FACT

Both counsel also made submissions as to what each side had done or not done, about giving notices to the other under the Evidence Act. As a result, it is necessary to record some findings, before addressing the law. The relevant facts are as follows:

·On 26 February 2004 the plaintiff’s lawyers served 20 affidavits on the defendant’s lawyers, including the five contentious affidavits. They were covered by a letter dated 25 February 2004 that stated, amongst other things:

Please be adviced [sic] that we intend to rely on the affidavits referred to above during the trial of this matter. If you intend to cross-examine our witnesses, please serve us with the appropriate notice. We would also appreciate it if you could advice [sic] us as to what aspect of the witnesses’ evidence you wish to cross-examine them on so that we can save time and cost for all parties concerned.

·On 8 March 2004 the defendant’s lawyers filed a notice, stating:

The Defendant gives notice of its intention to cross-examine all the plaintiff’s witnesses on the date of the trial of this matter.

·The defendant did not, before yesterday, give notice that it objected to the use of any of the affidavits.

RELEVANT LAW

Ms Nandape has based her applications on Section 34 of the Evidence Act. That provision must be read in the context of Sections 35 and 36. All these provisions touch on the question of how the Court should deal with affidavits, when the deponents are not present and available for cross-examination and the admission into evidence of their affidavits is objected to.

Sections 34, 35 and 36 state:

34. Evidence by affidavit.

(1) Subject to this section, in any legal proceedings before a tribunal to which this Division applies the tribunal may at any time order that—

(a) a particular fact or facts may be proved by affidavit; or

(b) the affidavit of a witness may be read in the proceedings on such conditions as the tribunal thinks reasonable; or

(c) a witness whose attendance ought to be dispensed with be examined by interrogatories or before an examiner named by the tribunal.

(2) Where it appears to the tribunal that a party to, or a person interested in, the proceedings bona fide and reasonably requires the production of a witness for cross-examination and that the witness can be produced, an order shall not be made under Subsection (1) authorizing his evidence to be given by affidavit.

(3) Nothing in an order under Subsection (1) affects the power of the tribunal to refuse to admit evidence tendered in accordance with any such order if, in the interests of justice, the tribunal thinks it proper to do so.

35. Affidavit evidence on notice.

(1) Where a party to or a person interested in any legal proceedings before a tribunal to which this Division applies desires to use in the proceedings an affidavit by a witness concerning particular facts as to which no order under Section 34 has been made he may, not less than five clear days before the hearing, give notice, accompanied by a copy of the affidavit, to the party or person (if any) against whom it is to be used that he desires to do so.

(2) Unless a party to or a person interested in the proceedings gives notice, not less than two clear days before the hearing, to the party or the person who gave notice under Subsection (1) that he objects to the use of the affidavit, he shall be taken to have consented to the use of the affidavit, and the affidavit may be used in the proceedings unless the tribunal otherwise orders.

(3) On application of a party or person interested, or of its own motion, the tribunal may order that a subpoena be issued requiring a person who has made or intends to make an affidavit to attend before the tribunal to give evidence on oath or for cross-examination, or both.

36. Cross-examination of deponents.

When a party to or a person interested in any legal proceedings before a tribunal to which this Division applies desires to cross-examine a person who has made an affidavit used or intended to be used in the proceedings—

(a) he may serve on the party or person using or intending to use the affidavit a notice requiring the production of the deponent for cross-examination at the hearing; and

(b) if the party or person served with the notice does not produce the deponent at the hearing, he is not entitled to use or to rely on the affidavit as evidence without leave of the...