The State v James Yali (2005) N2931

• Jurisdiction: Papua New Guinea
• Judge: 15 November 2005
• Citation: (2005) N2931
• Docket Number: CR No 368 of 2005
• Court: National Court
• Year: 2005
• Judgement Number: N2931

Full Title: CR No 368 of 2005; The State v James Yali (2005) N2931

National Court: 15 November 2005

Judgment Delivered: Cannings J

N2931

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 368 0F 2005

THE STATE

V

JAMES YALI

MADANG : 14, 15 NOVEMBER 2005

CANNINGS J

RULING ON EVIDENCE

Evidence – criminal proceedings – Evidence Act, Section 13 – competence and compellability of the wife of an accused person – whether a witness was “the wife” of a person charged with an offence – whether the accused consented to his wife giving evidence.

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 13(2) 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 she is the wife of the accused and cannot in the circumstances of this case be called as a witness without the consent of the accused; and the accused did not consent.

Held:

(1) The term “wife” in Section 13 of the Evidence Act means a person to whom the accused is married in accordance with Part V of the Marriage Act or a person with whom the accused has entered into a customary marriage.

(2) The material before the court suggested that the accused and the witness were, on the date of the alleged offence, in a de facto relationship or that the witness was a mistress of the accused.

(3) The material suggested that, on the date that the witness was giving evidence, the witness had separated from the accused and that the relationship is now characterised as being an estrangement.

(4) The witness cannot be regarded as “the wife” of the accused for the purposes of Section 13 of the Evidence Act.

(5) Accordingly the application was refused; and there being no other objection to the witness she is a competent witness and may continue to give evidence.

Cases cited

The following cases are cited in the ruling:

Application of Thesia Maip [1991] PNGLR 80

Bulage v Ben [1990] PNGLR 473

Otto Benal Magiten v Bernadette Beggie and Benedict Wahiginim Magiten (2005) N2908

RG v MG [1984] PNGLR 413

Supreme Court Reservation No 3 of 1985; The State v Uniss Kamugaip [1985] PNGLR 278

The State v Tu’uo Ibru (1999) N1940

The State v Ure Hane (1983) N442

Wemp Mapa and Others v The State [1979] PNGLR 135

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 13(2) 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 she is the wife of the accused and cannot in the circumstances of this case be called as a witness without the consent of the accused; and the accused did not consent.

BACKGROUND

The accused, James Yali, is charged with four sexual offences. The charges were laid under the following provisions of the Criminal Code:

· count 1 – Section 350(1)(a), abduction;

· count 2 – Section 347, rape;

· count 3 – Section 229E, abuse of trust, authority or dependency;

· count 4 – Section 349, sexual assault.

On the fifth day of the trial, 14 November 2005, the defence counsel, Mr Sheppard, made the application under Section 13(2) of the Evidence Act during the course of examination-in-chief of the fifth State witness, Elizabeth Daniels.

Section 13 (spouse of accused as witness) states:

(1) The wife or husband of a person charged with an offence is a competent witness in any legal proceedings in connexion with the offence.

(2) Notwithstanding Subsection (1), the wife or husband of a person charged with an offence shall not be called as a witness in any legal proceedings in connexion with the offence without the consent of the person, except—

(a) where the wife or husband, as the case may be, is compellable to give evidence; or

(b) where the husband or the wife is charged with being a party to an offence against the other.

(3) Notwithstanding Subsections (1) and (2), the wife or husband of a person charged with bigamy may be called as witness for the prosecution or for the defence without the consent of the accused. [Emphasis added.]

Mr Sheppard contended that Elizabeth Daniels is the wife of the accused and he, the accused, does not consent to his wife giving evidence against him. Therefore she cannot be called as a witness. He produced an affidavit by Elizabeth Daniels sworn on 18 April 2005, in which she describes herself as “James Yali’s second wife”, to support the contention that she is his wife. This document was marked for identification.

The prosecutor, Mr Miviri, opposed the application. He submitted that it was not correct that Elizabeth Daniels was James Yali’s wife. They were not married under the Marriage Act. He also drew the Court’s attention to amended provisions of the Criminal Code, Sections 229I and 352, which address this issue.

I adjourned for about an hour, considered the issues, then delivered an oral ruling, rejecting the application for two reasons:

· No 1 – I was not satisfied that Elizabeth Daniels is “the wife” of the accused, within the meaning of that term in Section 13(2). “Wife” means a statutory wife or a wife pursuant to a customary marriage. I have seen certain material that suggests that she is regarded in some respects as a second wife – a de facto – and maybe a mistress of the accused. She may be regarded in some circles as a “wife” but I think the word has to be given a restricted meaning. I noted that there has been a Supreme Court case that has touched on this issue: Supreme Court Reservation No 3 of 1985; The State v Uniss Kamugaip [1985] PNGLR 278, Supreme Court, Kidu CJ, Pratt J, Woods J. The dicta in that case support the narrow interpretation that I put on the term “wife”.

· No 2 – I said that if I were wrong on the first point and, in fact, Elizabeth Daniels falls within the definition of “wife”, Sections 229I and 352 of the Criminal Code apply and she would, in any event, be a competent witness.

I confirmed with both counsel that the ruling was clear. Both indicated that it was, but Mr Sheppard immediately rose to ask me to reconsider the ruling, in light of further material he considered should be brought to the attention of the court. This included:

· Excerpts from L K Kalinoe and E L Kwa’s Law of Evidence Lecture Notes and Reading Guides, UPNG Faculty of Law, which contains an extensive discussion of Section 13 of the Evidence Act;

· Section 18(2) (communications during marriage) of the Evidence Act, which provides that a wife is not compellable in any legal proceedings to disclose a communication made to her by her husband during the marriage;

· Section 37(1) (protection of the law) of the Constitution, which provides that a person charged with an offence must be given the full protection of the law – and this means that the accused must be given the benefit of the doubt when interpreting and applying provisions of the law pertaining to a trial;

· Section 10 of the Constitution, which states that all provisions of written laws must be read and construed subject to the Constitution.

Mr Miviri objected to my giving any further consideration to the matter. He submitted that the court had made its ruling and that if the accused were aggrieved by it he should seek review by the Supreme Court.

I overruled Mr Miviri’s objection. I indicated that in view of the importance of the issue and the need to ensure that the accused be given the full protection of the law, I would reconsider the application and give another ruling after an overnight adjournment. This I do now.

RECONSIDERATION OF SECTION 13, EVIDENCE ACT

I endorse the sentiments of Dr Kalinoe and Mr Kwa at page 98 of their treatise when they point to the difficulties that arise in interpreting and applying Section 13. There is only a handful of reported cases in which Section 13 has been applied, eg Wemp Mapa and Others v The State [1979] PNGLR 135, Supreme Court, Raine DCJ, Pritchard J, Andrew J; Supreme Court Reservation No 3 of 1985; The State v Uniss Kamugaip [1985] PNGLR 278, Supreme Court, Kidu CJ, Pratt J, Woods J; The State v Tu’uo Ibru (1999) N1940, National Court, Kirriwom J. However, the difficulties are not insurmountable. The key provision is Section 13(2). Putting to one side cases where a person is charged with bigamy (dealt with in Section 13(3) and not relevant here), Section 13(2) says in plain language, for present purposes:

· the wife of a person charged with an offence shall not be called as a witness in any legal proceedings in connexion with the offence, unless one of three provisos applies:

Ø the person charged with the offence, ie the accused, her husband, gives his consent;

Ø the wife is a compellable witness;

Ø the wife is charged with being a party to the offence with which her husband is charged.

The argument was, and remains, that Elizabeth Daniels is the wife of James Yali. She cannot be called as a witness in his trial, as none of the three provisos applies. He does not give consent. She is not a compellable witness (a proposition supported by Section 18 of the Evidence Act). She is not charged with being a party to any of the...