The State v Peter Raima

• Jurisdiction: Papua New Guinea
• Judge: Considerations on the phrase "dispensation of justice" as used in s158(2) of the Constitution
• Judgment Date: 20 April 1993
• Citation: [1993] PNGLR 230
• Court: National Court
• Year: 1993
• Judgement Number: N1153

National Court: Brown J

Judgment Delivered: 20 April 1993

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

STATE

V

PETER RAIMA

Mount Hagen

Brown J

17 February 1993

20 April 1993

EVIDENCE — Evidence — Admissibility — Affidavit of witness annexing statement to police taken at time of police investigation into robbery — Witness unwilling to give evidence in court through fear — Affidavit prepared in foreknowledge that witness unwilling to appear — Affidavit deposing to nature of threats against her life and those of her family — Association with the accused — Whether affidavit with its statement may be used in evidence — Relevance and admissibility — Use to which the affidavit may be put — Evidence Act Ch 48 s 34.

EVIDENCE — Hearsay.

CONSTITUTIONAL LAW — Interpreting the law — "Dispensation of justice" — Constitution s 158 (2).

Facts

In the course of a robbery trial, the State sought to tender the statement made to police by a principal witness in the trial. The statement had been annexed to an affidavit sworn to by the witness. The Court adjourned the trial to consider the matter. The woman was afraid and deposed to the nature of the threats emanating from the accused's line and her apprehensions. The facts appear from the ruling.

Held

1. The witness' fear for her life was reasonably held.

2. Although the statement annexed to the affidavit was taken by a police officer, it was not hearsay. The conversation with the accused recounted in the statement was relevant only to the state of mind of the accused, in relation to the possible defence of duress raised by the accused. It was not admissible as proof of the facts stated in the conversation.

3. As the accuracy of the statement was deposed to in the affidavit of the witness, the statement was both relevant and admissible in form.

4. The right to a fair trial does not require every fact to be proved by calling a witness. Facts can be proved through other means in various circumstances (refusing to follow State v Warum [1988-89] PNGLR 327).

5. Acceptance of the affidavit and statement in the absence of the deponent and in the face of objection by the accused and in the light of possible prejudicial impact on the accused depends upon whether its use was fair to the accused having regard to the requirement of the "dispensation of justice" under s 158 (2) of the Constitution.

6. There was no unfairness to the accused in admitting the out of court statement of the witness in the circumstances of this case.

7. The "dispensation of justice" enables a court to take account of reasons for non-attendance of a witness in considering exercise of a discretion to admit evidence from the witness though affidavit.

8. The constitutional imperative to dispense justice to all persons required the court to take account of the need to develop means of dealing with the prevailing situation of threats to witnesses. Reception of the evidence subject to the safeguards considered by the court met the constitutional imperative and contributed to the development of the underlying law.

9. In the circumstances the affidavit should be admitted in the exercise of the Court's discretion.

[Editor's note: The applicability of the right of an accused person under s 37 (4) (a) of the Constitution to "examine ... witnesses called before the court by the prosecution" was not argued].

Cases Cited

Papua New Guinea cases cited

Biri v Ninkama [1982] PNGLR 342.

State v Warun [1988-89] PNGLR 327.

Other cases cited

R v Andrews [1987] AC 281.

R v Blastland [1986] AC 41.

R v Cole [1990] 2 All ER 108.

Ratten v R [1972] AC 378.

Scott v R (1989) 2 All ER 305.

Sugden v Lord St. Leonards (1876) 1 PD 154.

Counsel

J Kesan, for the State.

K Kot, for the defendant.

20 April 1993

BROWN J: The accused, Peter Raima, was indicted on two counts, the first a charge of robbery with violence and the second unlawful use of a motor vehicle. The robbery charge related to a Nissan Patrol utility, registration AFU921, which the State alleged was taken from Mrs Bevi Kerowa at the Steamships store, Mount Hagen, on 27 February 1992. It was alleged by the State that at the time of the robbery Peter Raima was armed with a pistol and in company of six or seven other persons. The unlawful use arises out of the circumstances in which the vehicle was used and recovered after a police chase, when officers say the accused was driving the Nissan.

With the consent of defence counsel, various statements were tendered in evidence and became exhibits. In those circumstances, the statements are evidence of the truth of the facts contained in them.

Constable Leo Shipua recounted that he was on duty at the communications room police station, Mount Hagen, on Thursday 27 February when he received a telephone call from Mrs Kerowa. She stated that her Nissan Patrol, registration AFU921, was stolen in front of Steamships store approximately ten minutes before the telephone call. She described the miscreant as wearing blue jean trousers with a yellow "T" shirt and a green army jacket. He was armed with a pistol. The constable advised police units by air, giving a full description of the stolen motor vehicle and of the suspect and warning them to be careful for the suspect was armed. Some three to four minutes later, a vehicle reported to communications centre that the stolen Nissan Patrol had been seen near the Kagamuga Community School. There is evidence in the other statements by the police of a chase following a radio message relating to the stolen motor vehicle in the Kagamuga area. The stolen motor vehicle was abandoned in the area of the Paklaka'mugalamproad. A number of police, with the assistance of local people, searched the area and the accused was apprehended. At that time, he was wearing blue jeans, a yellow "T" shirt, and a green army jacket. Two other persons in the vehicle were not located. The various statements also recounted that when the stolen motor vehicle was first seen near the Kagamuga Community School, some men jumped from it and ran off. The stolen vehicle was then driven off at high speed and the police vehicle followed. At some stage during the chase, Sergeant Jonathan Kundi fired shots from his service pistol.

Constable Samuel Gwasamun stated that he was with a number of police searching in the bush area after the stolen vehicle was abandoned. One of those men suspected of leaving the abandoned vehicle was found wearing blue jeans, a yellow "T" shirt, and a green army jacket. He was escorted from the bush to the police vehicle, where Senior Constable Makas Vanono cautioned him and asked him some questions. The person apprehended, according to Constable Gwasamun, admitted that he was with Dokta Kewa and said Mr Kewa forced him to steal the vehicle

Senior Constable Vanono was called for cross-examination on his deposition. He stated that when policemen escorted the man out of the bushes towards the police vehicle after the stolen car had been abandoned, he recognised that man as Peter Raima of Dei council area. He was wearing a green army jacket, a yellow "T" shirt, and blue jeans. The senior constable recognised him as the driver of the stolen motor vehicle. He then recounted the conversation. This conversation took place inside the police car and Constable Gwasamun was present. The Senior Constable said he cautioned Peter Raima and then: "I said, 'You do not have to say anything unless you wish to do so, but anything that you do say will be taken down and given as evidence. Do you understand?' He said, 'Yes.' I asked him, 'What is your name?' He said, 'Peter Raima'. I asked him again, 'You just got out of prison, why do you have to steal that vehicle?' He answered, 'I didn't want to do it; it was Dokta Kewa who forced me to do it'. I asked him again, Who was with you in the vehicle?' He answered, 'Dokta Kewa'. I asked him, 'I saw you driving that stolen car because you had a green army jacket on, is that true?' He replied, 'No I wasn't. Dokta Kewa.' I then asked him, 'When you all jumped out of that vehicle and ran into the bush, I saw one man with a green army jacket on and that same person was driving from the showground junction to here. Is that true?' He answered, 'No, Dokta Kewa was driving and I was sitting at the crew side'."

That completed the Constable's recollection of the conversation.

I think it proper to say at this juncture that I am satisfied Peter Raima volunteered the information at the scene of his apprehension. Defence counsel also suggested that some months prior to this incident two persons had been shot by police at the Banz-Baiyer River road junction. The constable agreed with that. Defence counsel asked whether those persons shot were of the accused's line, but the constable did not know.

That was the state of the evidence when Mr Kesan advised that the principal state witness, Bevi Kerowa, was unwilling to give evidence in court. A number of reasons were advanced in a sworn affidavit by the woman. Mr Kesan said that Mrs Kerowa had been threatened on a number of occasions by relatives, she believes, of the accused person. She has sworn to the circumstances of those threats in her affidavit. Annexed to that...