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State v Wabu [1994] PGNC 146; [1994] PNGLR 498; N1227 (25 May 1994)

N1227

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

KAI WABU

Alotau
Injia AJ

25 May 1994

PRACTICE AND PROCEDURE - Statement and record of interview done in English - Illiterate accused - No evidence that statements read over to the victim or the accused and understood by them before they signed their respective statements - Whether record of interview admissible in committal proceedings - Whether National Court should proceed to rely on such statement or record of interview in deciding whether or not to accept plea - District Courts Act Ch 40 ss 94(1A) and 94C(2).

Facts

The accused is an illiterate villager. He pleaded guilty to one count of attempted rape. Without reading the statement of the State witnesses, the presiding judge decided to scan the court depositions for evidence whether the accused understood the statements before signing them.

Held

1. The combined effect of ss 94(1A) and 94C(2) of the District Courts Act is that the committal Court must conduct an enquiry to ensure that the makers of statements had full knowledge of the contents, correctness, and truth of written statements they are responsible for signing.

2. The requirement is mandatory and requires strict compliance. This enquiry is an independent one, which the Court must conduct in the exercise of its judicial function.

3. After having conducted the enquiry, the Court has a discretion to admit or reject the written statement. The Court must then record the nature and extent of the enquiry conducted and record its findings.

4. Failure to conduct such enquiry and record its finding may result in voiding the committal.

Counsel

C Sambua, for the State.
D Sakumai, for the accused.

25 May 1994

INJIA AJ: The prisoner is an illiterate villager from Bagilina village, Misima Island, Milne Bay Province. At the commencement of the trial, he spoke through an interpreter in his own Misima dialect.

The victim is a young girl. She also comes from Bagilina village and no doubt is illiterate and speaks only the Misima dialect. She is said to be a blind girl, who was born that way.

The prisoner pleaded guilty to one count of attempted rape contrary to s 348 of the Criminal Code Ch 262 (the Code). The State tendered the committal court depositions pertaining to the matter. Without reading the statements of State witnesses and the accused’s record of interview in detail, in particular the statement of the victim and the accused’s record of interview, I decided to scan the court depositions for evidence of the contents of the documents being read or understood by the maker of the statements before signing them. I also decided to peruse the notes made by the committing magistrate for evidence of satisfying himself that the person who made the statement "had read and understood it, or if unable to read, had had it read to him in a language that he (or she) understood" before admitting the statements. I decided to take this step because, in the past, I have come across, on many instances, cases where statements in English from illiterate witnesses appear to have been tendered in committal proceedings and which are tendered in that form by the State in the National Court after the person pleads guilty.

Upon perusing the Court depositions, I noted that the statement of the victim was in English. There was no endorsement or certificate of interpretation endorsed on the document. I then noted that the record of interview, which contained clear admissions, was also in English. There was no record of an interpreter been involved in the interview. I also learnt that there was no record from the committing magistrate in regard to satisfying himself that the statements were read to the victim or the accused in a language that they understood before they signed their respective statements.

My initial reaction to counsel was that I did not approve of the documents being tendered by the informant in that form in the committal court and the committal court accepting them as they were. I pointed out my reasons briefly and indicated that I would give detailed reasons at a later date.

The District Court has jurisdiction to deal with indictable offences by way of committal proceedings under Part VI of the District Courts Act Ch 40. The procedures and powers and functions of a committal court are prescribed in Part VI. It appears that these provisions have been overlooked by police informants and committing magistrates. I will set out those provisions which are relevant.

Section 94(1) provides:

"Subject to Subsection (6), where a person is charged with:

(a) an indictable offence that shall not be tried summarily... the informant shall serve or cause to be served, in accordance with Subsection (3), on the defendant or his legal representative...

(d) a copy of each statement in the form of an affidavit that the informant intends to tender at the committal hearing". (emphasis mine)

Section 94(1A) provides:

"A statement referred to in Subsection (1)(d) shall contain the following warning to the maker of the statement and shall be signed by the maker of the statement:

‘I... certify that this statement is true to the best of my knowledge and belief. I make it knowing that if it is tendered in evidence I will be liable to prosecution if I have knowingly stated anything that is false or misleading in any particular’." (emphasis mine)

Section 94(1B) provides:

"A statement referred to in Subsection (1)(d) shall, for the purposes of Division III.2 of the Evidence Act (Chapter 48), be treated as an affidavit". (emphasis mine)

Section 94A provides:

"A person who, in relation to a statement or document referred to in s 94(1), knowingly makes a statement that is false or misleading in any particular is guilty of an offence. Penalty: Imprisonment for a term not exceeding three years."

Section 94C provides in regards to evidence, etc:

"(1) When conducting a committal hearing under this Part, the Court may, subject to Subsection (2), have regard to:

(a) the evidence contained in a written statement; and

(b) documents and exhibits, of which a copy has been served on the defendant under Section 94(1) or made available for inspection under Section 94(2).

(2) Before admitting a written statement, the Court shall be satisfied that the person who made the statement had read and understood it, or if unable to read, had had it read to him in a language that he understood." (emphasis mine)

The combined effect of s 94(1A) and s 94C(2) is that the committal court must conduct an enquiry to ensure that the statement was made by the maker of the statement whose signature appears on the statement. He must ensure that the maker of the statement had full knowledge of not only the contents of the written statement but also the correctness and truth of the written statement. The requirement under s 94C(2) is mandatory and requires strict compliance. This enquiry is an independent one, which the court must conduct in the exercise of its judicial function. After having conducted the enquiry, the Court then has a discretion to admit or reject the written statement, depending on the Court’s conclusion. The Court must then record the nature and extent of the enquiry conducted and record its findings. Failure to conduct such enquiry and record its finding may result in voiding the committal.

The combined effect of s 94(1A) and s 94C(2) also places a duty on the police informant, or any other person who obtains the statement and records it in writing, to ensure that the maker of the statement reads the statement before he signs the statement. If he cannot read, then the statement must be read back to him. If the statement is recorded in a language different to the one used by the maker of the statement, then it must be read and translated to him in the same language that he gave his statement. In many situations, the assistance of an interpreter may be required. Where the written statement is not in a language understood by the maker of the statement and it is read back to him in a language that he understands, with or without the use of an interpreter, as the case may be, evidence of this must be produced at the committal hearing. There are various methods by which such evidence may be produced at the committal hearing. The person obtaining the written statement and/or interpreting the statement makes an endorsement on the written statement, certifying that he has read or interpreted the document to the maker of the statement before he signed it. Alternatively, he may file a separate certificate to that effect. If he does not produce his certificate in writing, he must be called to give oral evidence. As to the form which the certificate should take, I would suggest the following:

"I....,(full name) of ....(address)....(occupation), hereby certify that I can read and understand and am fluent in the ....language (language used in the written statement) and the ....language (language understood by the person making the statement) and I have read/interpreted the contents of this statement to .... (name of person making statement) in the .... language (language understood by the person making the statement) and the said .... (person making the statement) seemed to fully understand the contents of this document before he/she signed it."

....

(signature of Interpreter/Person reading document)

Date:....

It seems to me that committing magistrates and the police in general are not complying with the strict requirements of s 94C(2). In almost all the plea matters I have dealt with so far. I have not yet come across a case where a statement from a supposedly illiterate witness bears an endorsement or some other evidence of compliance with s 94C(2). In the trial matters I have dealt with, written statements of witnesses in English tendered by consent also lack evidence of compliance with s 94C(2). In all these matters, I have not yet come across any record by the committing magistrate as to his satisfying himself as to the admissibility of the document under s 94C(2).

In the case before me, I am satisfied on the face of the record that s 94C(2) has not been complied with by the committing magistrate or the police informant. This may be a relevant factor in deciding whether or not to accept the accused’s plea, because the evidence supporting the charge to which the accused has pleaded to is not in admissible form. In the exercise of my discretion, I could reject the plea now, enter a plea of not guilty, abstain from further dealing with the matter, and allow the matter to proceed to trial. I could also proceed to read the court depositions in detail and accept or reject the plea in accordance with the substantive evidence. I will adopt the latter course, because it appears that counsel for the accused and the accused have not seized of the opportunity I have presented at their disposal - by inviting me to reject the plea and go for a trial and possibly secure an acquittal.

(Note: After reading the court depositions, I accepted the plea and entered a provisional conviction, subject to the accused’s statement, if any, on allocutus, which might contradict his plea. On allocutus, the accused did not make any statement contradicting his earlier plea. Consequently, I confirmed his conviction and sentenced him.)

___________________

Lawyer for the State: Public Prosecutor.
Law for the accused: Public Solicitor.