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State v Wailo (No 2) [1991] PGNC 83; [1991] PNGLR 150; N1010 (22 May 1991)

N1010

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

SAMSON WAILO (NO 2)

Lae
Doherty J

13-17 May 1991
22 May 1991

CRIMINAL LAW - Evidence - Admissibility - Murder trial - Committal by coroner’s court - Statements taken before coroner’s court - Statement of registered medical practitioner - Application of District Courts Act - Discretion to admit without further proof - Circumstances against admission - Evidence crucial - Coroners Act (Ch No 32), ss 22, 23(3) - District Courts Act (Ch No 40), s 102.

The Coroners Act (Ch No 32), s 22, provides that a coroner has the powers conferred on a magistrate by the District Courts Act in respect of committal proceedings and the provisions of that Act apply to such proceedings. Section 23(3) provides that depositions and statements taken in such proceedings are admissible in evidence in the same manner as depositions or statements taken in committal proceedings.

The District Courts Act (Ch No 40), s 102, provides that statements tendered in committal proceedings may, with the consent of the National Court, be taken without further proof if there is proof that the person who made the statement is registered under the Medical Services Act, now the Medical Registration Act (Ch No 398).

Held

(1) The Coroners Act (Ch No 32), s 22 and s 23(3), permit the National Court to adopt s 102 of the District Courts Act (Ch No 40) in deciding whether to admit evidence and statements tendered in the coroner’s court.

(2) Accordingly, where a letter and report of a person registered under the Medical Registration Act (Ch No 398) were part of the evidence in the coroner’s court in proceedings in which there was a committal to trial before the National Court, the court had a discretion to accept the tender of the letter and report.

(3) In the circumstances, particularly the crucial nature of the evidence and failure to call the witness, though available, the evidence should be rejected.

Ruling on Admission of evidence

This was a ruling on the admissibility on a trial on a charge of murder, of medical records tendered as evidence before the coroner’s court.

Counsel

C Mannek, for the State.
F Tera, for the accused.
Cur adv vult

22 May 1991

DOHERTY J: The State seeks to admit a medical report in the form of a letter which forms part of the evidence presented to the coroner who committed the defendant before this Court, Samson Wailo, to stand trial for the murder of Bob Nime.

The document purports to be a report written by Dr Jadav and is referred to in the post mortem report signed by Doctors Jadav, Liko and Ngathan. It is referred to by hand written insertion (on the post mortem report saying) "see annexed report".

The post mortem report was tendered by consent in this trial and is exhibit 2.

The State seeks to have the document admitted and explains that it is unable to call Doctor Jadav who had left the country when his contract expired. They stressed that they could willingly have brought him before the court if he was available and his non-availability is not to be attributed to any conduct on the part of either the State or defence parties.

I accept that Dr Jadav’s absence is purely because he lives in a foreign country and it would be extremely expensive to bring him here to give evidence. It is common ground that the documents was part of the evidence before the coroner.

Mr Tera objects to the application and the tendering of the report compiled by Dr Jadav and says that he was given no notice of the intention to tender this document under the Evidence Act (Ch No 48), Dr Liko’s affidavit (to which Dr Jadav’s report is annexed) is sworn on 6 June 1990, whereas Dr Jadav’s report is dated 29 June 1989, and he wishes to cross-examine Dr Jadav.

The powers of a coroner and the provisions for taking of evidence before a coroner are contained in the Coroners Act (Ch No 32). This contains, inter alia, at s 22 that:

"Subject to this Act, a Coroner has with a purpose of an Inquest, all the powers conferred on a Magistrate by the District Courts Act in respect of the preliminary hearing of an indictable offence, and the provisions of that Act relating or applicable to such proceedings, with the necessary modifications, apply to inquest."

Section 23(3) of the Coroners Act also provides that the depositions and any statement of a person charged, taken in accordance with s 19 of the Coroners Act, are admissible in evidence in the same manner and to the same extent as the depositions or a statement of the accused taken on the preliminary hearing of an indictable offence.

The provisions relating to the taking of the depositions and the statement of an accused at the preliminary hearing of an indictable offence are provided for in Pt VI of the District Courts Act (Ch No 40). This provides, inter alia, at s 102 that, at the trial or sentence for an offence, statements tendered in evidence to the magistrate on committal may, with the consent of the National Court, be taken without further proof as evidence on the trial if there is proof that the witness who made the statement is a person registered under the Medical Services Act (s 102(A)(IV)). There are other provisions under s 102 but I consider this one is the most relevant before me.

I consider that the provisions of s 22 and s 23(3) of the Coroners Act permit this Court to adopt s 102 of the District Court Act in deciding whether to admit evidence and statements tendered in the Coroners court.

I am satisfied on the evidence before me that the letter and report of Dr Jadav were part of the evidence in the Coroners court and that Dr Jadav as a person registered under the Medical Registration Act (Ch No 398) (the Medical Services Act having been repealed).

This therefore vests in the court a discretion to permit the tendering, without further proof, of the report that was taken by the coroner.

I note, as Mr Mannek says, that the report by Dr Jadav appears to form part of the affidavit and was annexed to the affidavit of Dr Liko. This is not disputed by either party. I accept that the defendant was committed by the coroner to this Court on the basis, inter alia, of the report of Dr Jadav.

The medical evidence is crucial in this case before me. The defendant contends that the deceased was not hit by him and this is not a clear cut situation where there was a blow or injury and death followed very soon after.

In the circumstances of this case, I consider that, whilst the court may have powers to admit evidence under the provisions I have referred to, it is a case where the court should exercise its discretion in favour of the defence and this being a case where the defence would have properly called and cross-examined the witness I refuse to admit the report.

Report ruled inadmissible

_________________

Lawyer for the State: Public Prosecutor.
Lawyer for the defendant: Public Solicitor.