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Kramer v Duban [2013] PGNC 49; N5214 (21 March 2013)

N5214

PAPUA NEW GUINEA
[In the National Court of Justice]

EP No. 60 of 2012

Between:

BRYAN KRAMER
Petitioner

And:

NIXON PHILIP DUBAN
First Respondent

And:

ANDREW TRAVEN, Electoral Commissioner of Papua New Guinea (No. 1)
Second Respondent

MADANG: Gavara-Nanu J
2013: 21 March

PRACTICE AND PROCEDURE – Election petition - Evidence Act, Chapter No. 48; ss. 34, 35 and 36 – Use of affidavits – Affidavits tendered in evidence by consent – Deponents of the affidavits giving evidence - Whether the party who has not given notice to cross-examine the deponents under s. 36 (a) of the Evidence Act, can be allowed to cross-examine – Use of affidavits – Discretion of the Court discussed.

Cases cited

Delba Biri v. Bill Gimbogl Ninkama and Others [1982] PNGLR 342
Masket Iangalio v. The Electoral Commission,Wauni WaSi Ranyeta and Miki Kaeok SC568

Counsel

Y. Wadau, for the petitioner
S. Jubi, for the 1st respondent
J. Umbu, for the 2nd respondent

1. Gavara-Nanu J: After the Court urged counsel to discuss ways to progress the trial speedily due to the limited time available; Mr. Wadau of counsel for the petitioner informed the Court that counsel have agreed for him to tender the affidavits sworn by the remaining witnesses for the petitioner by consent.
   
2. These witnesses will therefore simply be called to identify their affidavits and the affidavits will be tendered to Court, that will form their evidence in chief. They will then be available for cross-examination. Mr. Wadau has however raised a point of objection that Mr. Jubi of counsel for the first respondent should not be allowed to cross-examine the witnesses because he has not given the relevant notice under s. 36 (a) of the Evidence Act, Chapter No. 48. Mr. Wadau argued that only Mr. Umbu of counsel for the second respondent who has given notice to cross-examine should be allowed to cross-examine the witnesses. Both Mr. Jubi and Mr. Umbu in response submitted that the Court has wide discretion when deciding the issue and urged the Court to exercise its discretion in favour of granting leave to Mr. Jubi to cross-examine the witnesses because the allegations in the petition are serious and they are all against the first respondent who is also the principal respondent in this petition. It should be noted that Mr. Jubi has applied for leave to cross-examine the witnesses. In his application Mr. Jubi relied on s. 155 (4) of the Constitution and s. 217 of the Organic Law National and Local Level Government Elections (OLNLGE); the latter essentially provides that the Court should not be inhibited by the technical rules of evidence in deciding this issue.
   
3. I said in my brief ruling that s. 36 of the Evidence Act, has been misconceived by Mr. Wadau, let me elaborate here. Section 36 (a) provides that the party wishing to cross-examine the deponent of an affidavit is to serve a notice on the party wishing to use the affidavit to produce the deponent of the affidavit for cross-examination. If the party served with the notice failed to produce the deponent of the affidavit for cross-examination then that party is not entitled to use or rely on the affidavit as evidence without leave of the Court.
   
4. In this case, there is already a notice by the second respondent under s. 36 (a) to cross-examine the witnesses. The petitioner is therefore under an obligation to produce the deponents of the affidavits for cross-examination by the second respondent.
   
5. The question the Court has to determine is whether counsel for the first respondent who has not given notice to cross-examine should also be allowed or granted leave to cross-examine the witnesses. Whilst the Court has wide discretion when deciding this issue the discretion must be exercised properly and judicially. To me the principal issue to consider in this regard is whether the first respondent will be prejudiced in his defence if Mr. Jubi is not granted leave to cross-examine. A related issue to bear in mind is when Mr. Umbu cross-examines the witnesses, new and other related issues may come to light. In such a situation it is obvious that the first respondent will be prejudiced if leave is not granted to Mr. Jubi to cross-examine the witnesses.
   
6. It should be stressed here that the processes set out under ss. 34, 35 and 36 of the Evidence Act, regarding use of the affidavits are subject to the discretion of the Court. This is plain from the provisions of ss. 34 (2), 35 (3) and 36 (c), which expressly empower the Court to refuse a party from using an affidavit if requirements set out under these sections are not met. Under these provisions the Court can also issue orders and subpoenas for the production of the deponents of affidavits either for cross-examination by a party or for examination by the Court even where no notice to cross-examine has been served on the party to produce the deponents for cross-examination. The Court also has power under these provisions to reject an affidavit or evidence even after it has been received by the Court if, in the interest of justice, the Court thinks it proper to do so.
   

7. It is convenient to set out ss. 34, 35 and 36 of the Evidence Act, for ease of reference.

8. Section 34 provides:

34 Evidence by affidavit

(1) Subject to this section, in any legal proceedings before a

tribunal to which this Division applies the tribunal may at any time order that –

(a) a particular fact or facts may be proved by affidavit; or
(b) the affidavit of a witness may be read in the proceedings on such conditions as the tribunal thinks reasonable; or
(c) a witness whose attendance ought to be dispensed with be examined by interrogatories or before an examiner named by the tribunal.

(2) Where it appears to the tribunal that a party to, or a person interested in, the proceedings bona fide and reasonably requires the production of a witness for cross-examination and that the witness can be produced, an order shall not be made under Subsection (1) authorizing his evidence to be given by affidavit.

(3) Nothing in an order under Subsection (1) affects the power of the tribunal to refuse to admit evidence tendered in accordance with any such order if, in the interest of justice, the tribunal thinks it proper to do so.

9. Section 35 provides:

35. Affidavit evidence on notice
    

(1) Where a party to or a person interested in any legal proceedings before a tribunal to which this Division applies desires to use in the proceedings an affidavit by a witness concerning particular facts as to which no order under Section 34 has been made he may, not less than five clear days before the hearing, give notice, accompanied by a copy of the affidavit, to the party or person (if any) against whom it is to be used that he desires to do so.

(2) Unless a party to or a person interested in the proceedings gives notice, not less than two clear days before the hearing, to the party or the person who gave notice under Subsection (1) that he objects to the use of the affidavit, he shall be taken to have consented to the use of the affidavit, and the affidavit may be used in the proceedings unless the tribunal otherwise orders.

(3) On application of a party or person interested, or of its own motion, the tribunal may order that a subpoena be issued requiring a person who has made or intends to make an affidavit to attend before the tribunal to give evidence on oath or for cross-examination, or both.

10. Section 36 provides:
    

36 Cross-examination of deponents

When a party to or a person interested in any legal proceedings before a tribunal to which this Division applies desires to cross-examine a person who has made an affidavit used or intended to be used in the proceedings –

(a) he may serve on the party or person using or intending to use the affidavit a notice requiring the production of the deponent for cross-examination at the hearing; and

(b) if the party or person served with the notice does not produce the deponent at the hearing, he is not entitled to use or to rely on the affidavit as evidence without leave of the tribunal; and

(c) a subpoena may be issued on the application of the party or person served with the notice for the purpose of summoning the deponent to attend for cross-examination.

11. It is clear that the intention of the legislature in these sections is to give the Court wide powers regarding use of affidavits as evidence at the hearing.

12. The question of whether Mr. Jubi should be granted leave to cross-examine the witnesses has to be considered objectively, in which case serious regard must also be had to the fact that the petitioner relies on the affidavits to prove the allegations made in the petition which are all against the first respondent. In this sense the gravity of these allegations in my view weigh more heavily on the first respondent than the second respondent because if the allegations are proved it would result in the first respondent losing his seat in the Parliament as Member for Madang Open electorate. This is another strong compelling reason why the Court should grant leave to Mr. Jubi to cross-examine the witnesses despite not giving notice to cross-examine.

13. I consider that ss. 34, 35 and 36 of the Evidence Act, should be read together with s. 217 of the OLNLGE. It has been held by the Courts that s. 217 applies to matters relating to procedure: Masket Iangalio v. The Electoral Commission, Wauni Wasi Ranyeta and Miki Kaeok SC568 and Delba Biri v. Bill Gimbogl Ninkama and Others [1982] PNGLR 342. In this regard, I am of the firm view that in the circumstances, this as an appropriate case for the Court to give effect to s. 217 of OLNLGE, in that, technical rules of evidence should not inhibit the Court in exercising its discretion in favour of granting leave to Mr. Jubi to cross-examine the witnesses. I consider that if I do not grant leave to Mr. Jubi to cross-examine the witnesses, I would not be exercising my discretion properly because such decision would deny the first respondent from defending the allegations made against him and thereby seriously prejudice his case. I am also of the view that this is a case in which the Court should exercise its inherent power under s. 155 (4) of the Constitution to allow Mr. Jubi to cross-examine the witnesses. This approach in my view also accords with the scheme of ss. 34, 35 and 36 of the Evidence Act.

14. The objection by Mr. Wadau is therefore overruled, the effect of which is that Mr. Jubi will cross-examine the witnesses.

15. Costs be costs in the cause.

_____________________________
Young Wadau Lawyers : Lawyers for the petitioner
Twivey Lawyers : Lawyers for the first respondent
Harvey Nii Lawyers : Lawyers for the second respondent