The State v James Yali (2005) N2931

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

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

National Court: 15 November 2005

Judgment Delivered: Cannings J

1 Evidence—criminal proceedings—Evidence Act, s13—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.

2 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 referred to

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 s13(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 s13 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 s13 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.

RULING

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

RULING ON EVIDENCE

___________________________

Cannings J:

INTRODUCTION

This is a ruling on an application under s13(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—s350(1)(a), abduction;

count 2—s347, rape;

count 3—s229E, abuse of trust, authority or dependency;

count 4—s349, sexual assault.

On the fifth day of the trial, 14 November 2005, the defence counsel, Mr Sheppard, made the application under s13(2) of the Evidence Act during the course of examination–in–chief of the fifth State witness, Elizabeth Daniels.

S13 (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...