The State v James Yali (2005) N2932

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 16 November 2005
• Citation: (2005) N2932
• Docket Number: CR No 368 of 2005
• Court: National Court
• Year: 2005
• Judgement Number: N2932

Full Title: CR No 368 of 2005; The State v James Yali (2005) N2932

National Court: Cannings J

Judgment Delivered: 16 November 2005

N2932

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 368 0F 2005

THE STATE

V

JAMES YALI

MADANG : 15, 16 NOVEMBER 2005

CANNINGS J

RULING ON EVIDENCE (NO 2)

Evidence – criminal proceedings – Evidence Act, Section 14 – a person charged with an offence shall not be called as a witness by the prosecution in any legal proceedings in connexion with the offence – whether a witness who is charged with an offence in another case is “a person charged with an offence” for the purposes of Section 14(1) – intention and purpose of Section 14.

The accused is charged with four sexual offences. During the course of examination-in-chief of a State witness, defence counsel made an application under Section 14(1) of the Evidence Act that the witness’s evidence should no longer be heard and that her evidence already given be struck out, on the ground that the witness has been charged with various offences and she is prohibited from giving evidence in any legal proceedings in connexion with those offences.

Held:

(1) The purpose of Section 14(1) is to ensure that a person charged with an offence is not forced to be a witness against himself or herself in any legal proceedings in connexion with that offence.

(2) Section 14(1) is not intended to operate as a prohibition against a person who has been charged, from giving evidence in proceedings concerning another person.

(3) The court is free to depart from the literal meaning of the words used in a legislative provision, if giving effect to the literal meaning would result in an absurdity or lead to a result unintended by the legislature or run counter to the dispensation of justice.

Cases cited

The following cases are cited in the ruling:

The State v Atu Kote [1978] PNGLR 212

The State v James Yali (2005) N2931

RULING

This was a ruling on an application made in relation to a matter of evidence in a criminal trial.

Counsel

N Miviri for the State

G J Sheppard and N Eliakim for the accused

CANNINGS J:

INTRODUCTION

This is a ruling on an application under Section 14(1) of the Evidence Act that a witness’s evidence should no longer be heard and that her evidence already given be struck out on the ground that the witness has been charged with various offences and she is prohibited from giving evidence in any legal proceedings in connexion with those offences.

BACKGROUND

The accused, James Yali, is charged with four sexual offences. On the fifth day of the trial, 14 November 2005, the defence counsel, Mr Sheppard, made an application under Section 13(2) of the Evidence Act during the course of examination-in-chief of the fifth State witness, Elizabeth Daniels:

· that the witness’s evidence should no longer be heard; and

· that her evidence already given, be struck out, on the ground that she is the wife of the accused; and

· she cannot in the circumstances of this case, be called as a witness without the consent of the accused; and

· the accused did not consent.

I gave an oral ruling on the day that that application was made, 14 November 2005. I refused the application. Then I reconsidered that ruling and delivered a written ruling the next day, confirming the oral ruling. I ruled that the witness was not the wife of the accused for the purposes of Section 13 of the Evidence Act and, there being no other objection to the witness, she is a competent witness and may continue to give evidence (The State v James Yali (2005) N2931).

I confirmed with both counsel that the ruling was clear. Both indicated that it was, but Mr Sheppard immediately rose to point out that, in fact, there was another objection to the competence of the witness, based on a different provision of the Evidence Act, Section 14. I heard submissions from counsel, then adjourned to consider a ruling.

THE EVIDENCE ACT, SECTION 14

Section 14 (accused as witness for prosecution) states:

(1) A person charged with an offence shall not be called as a witness by the prosecution in any legal proceedings in connexion with the offence.

(2) Notwithstanding Subsection (1), where a person charged with an offence is a witness he may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence. [Emphasis added.]

THE APPLICATION

Mr Sheppard submits that the witness, Elizabeth Daniels, is “a person charged with an offence”, as she is presently facing charges of perverting the course of justice and compounding crimes, in separate proceedings, CR No 65 of 2005. Section 14(1) prohibits her from being called as a witness by the prosecution in any legal proceedings in connexion with those offences. The present proceedings, CR No 368 of 2005, are legal proceedings in connexion with those offences. Therefore she cannot be called as a witness in the present proceedings.

Mr Sheppard invited me to consider the file, CR No 65 of 2005, to appreciate the close connexion between the offences with which the witness has been charged and the present proceedings. She has been charged with perverting the course of the present proceedings. And the crimes with which James Yali is charged, are the crimes she has been charged with compounding.

The application of the plain and ordinary words of Section 14(1) means that she cannot be called as a witness. There is a sound policy rationale for that as, if she were permitted to give evidence, this would give rise to the spectre of a person charged with criminal offences being forced to give evidence in another, related, case. It would open the possibility of an inducement to the witness (such as dropping the charges against her) in return for her giving evidence in the related case.

PROSECUTION’S RESPONSE

The prosecutor, Mr Miviri, opposed the application. He submitted that Elizabeth Daniels was a voluntary witness, giving evidence of her own free will. She is well aware that she is facing criminal charges in separate proceedings. She has, however, elected on her own volition to give evidence in the trial of James Yali. It would defeat the course of justice to prevent her from doing so.

Furthermore, Mr Miviri said the Public Prosecutor is in the process of considering a grant of immunity from prosecution to Elizabeth Daniels.

THE CIRCUMSTANCES OF THE APPLICATION

There are two circumstances surrounding this application that require comment. First, the suggestion that Elizabeth Daniels might be granted an immunity for prosecution. Secondly, the nature of the charges that she is facing.

As to the immunity issue, Mr Miviri was not clear whether immunity is being considered under Section 5 (grant of immunity from prosecution) of the Public Prosecutor (Office and Functions) Act or whether the Public Prosecutor might decline to lay a charge under Section 525 (procedure for indictment) of the Criminal Code. In any event, he was actually giving evidence from the bar table. He was giving notice that the witness’s legal status might change and that she might no longer be regarded as “a person charged with an offence”. This was all too speculative and I decided that I could give no weight to what he said.

As to the charges that Elizabeth Daniels is facing, I have perused the file in CR No 65 of 2005. I did this after consulting both counsel who agreed that it was appropriate to do so as I will not, by necessity, be involved in the trial of the matters covered by that file. My cursory examination of the file was focused on the one-page prosecution brief and the three-page record of the decision of the District Court at Madang (Mr C Bidar presiding) to commit Elizabeth Daniels and a co-accused, Papei Tano, for trial.

The background is that on 9 November 2004 Elizabeth Daniels was arrested and charged with committing two offences, under Sections 129(1)(b) and 136 of the Criminal Code, between 13 October and 9 November 2004 at Madang.

Section 129 (compounding crimes) states:

(1) A person who asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on any agreement or understanding that he will—

(a) compound or conceal a crime; or

(b) abstain from, discontinue or delay a prosecution for a crime; or

(c) withhold any evidence of a crime,

is guilty of an offence.

(2) If the crime the subject of an offence against Subsection (1) is such that a person convicted of it is liable to be sentenced to death or imprisonment for life—the offender is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

(3) In a case, other than that referred to in Subsection (2), the offender is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

(4) A person shall not be arrested without warrant for an offence against Subsection (1). [Emphasis added.]

Section 136 (attempting to pervert justice) states:

A person who attempts, in any way not specially defined in this Code, to obstruct, prevent, pervert or defeat the course of justice is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding two years.

The prosecution brief alleges that:

· on 23 October 2004 an official complaint was lodged by Oscar Daniels, a brother of Olivia Daniels, that Olivia Daniels [the complainant...