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State v Kingsley (No 2) [2023] PGNC 510; N10904 (12 December 2023)

N10904

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 141 OF 2022

THE STATE

V

ALOIS KINGSLEY
(No 2)

Waigani: Berrigan J
2023: 12^th December

EVIDENCE – BEST EVIDENCE RULE – Copies of documents identified by a former officer as those copied from originals held by the IPA - Documents admissible.

On objection to the admission of photocopies of documents produced by a former officer of the Investment Promotion Authority on the basis that it would offend the best evidence rule,

Held:

(1) In general terms, where a party seeks to adduce secondary evidence of the contents of a document, it is a matter for the court to decide, in the light of all the circumstances of the case, what (if any) weight to attach to that evidence: Masquerade Music Ltd v Springsteen [2001] EWCA Civ 563 adopted.

(2) The documents objected to are public documents and the absence of the originals does not offend against the best evidence rule, which absence has been explained in any event, such that their production would cause serious inconvenience to the custodian of the records, namely the Registrar of Companies, and the public. The witness identified the documents as copies that he took of originals held by the IPA, whilst a lawyer employed in its Enforcement Division, upon instruction from the Deputy Registrar, in response to a search warrant. MFI 4, 5, 7, 8, 9 and 11 also contain business records in the form of stamps admissible to show that the original documents were received in the regular course of the IPA on the date stated in respective stamps, applying s 61, Evidence Act. Two of the documents are the subject of Counts 1 and 3 on the indictment. The other documents are relevant to the issues to be determined in the trial. The documents are relevant and admissible and it is in the interests of justice that they are admitted.

Objection overruled and documents admitted.

Cases Cited:

Papua New Guinean Cases
Loa v Kimis & Ors (2014) N5849
State v Hekavo [1991] PNGLR 394
S v John Bill White (No 1) [1996] PNGLR 262
S v Warun [1989] PNGLR 327
Fred Bukoya v The State (2007) SC887
Tom v State (2019) SC1833

Overseas Cases
Omychund v Barker [1744] EngR 927; (1744) 1 Atk 21
Garton v Hunter [1969] 2 QB 37; [1969] 1 All ER 451
Masquerade Music Ltd v Springsteen [2001] EWCA Civ 563

References Cited:
Sections 2, 55, 61, 70, 71, 72, 84, Evidence Act, 1975
Section 1, Companies Act, 1997
Evidence (Prescribed Officers) Regulation 1980

Counsel
Mr A. Kaipu, for the accused
Mr I. Molloy and G. Gileng, for the Accused

RULING ON ADMISSIBILITY OF DOCUMENTS

12^th December 2023

1. BERRIGAN J: The accused has been charged with three counts of forgery and three counts of uttering alleged to have occurred between 1997 and 1998. It is alleged that the accused created three false documents, namely a notice of change of directors for the company, Blue Chip No 15 Pty Ltd, a notice of change of shareholder for the same company Blue Chip No 15 Pty Ltd, and a notice of change of shareholder for another company, Mabela No 88 Pty Ltd, and further that he uttered those documents by lodging them with the Investment Promotion Authority (IPA). It is alleged that the accused acted together with Andy Kuek Kien Joo, and at times John Kivung, and that in each case the complainant, Andrew Anis, was removed as director and/or or shareholder of the companies without his knowledge.
   
2. The State seeks to have admitted several documents identified by its witness Russell Doa, formerly a lawyer with the Enforcement Section of the IPA, who identifies the documents as being copies of originals retrieved from the records of the IPA. The accused objects on the basis that the documents are not the best evidence in breach of the rule such that they are photocopies rather than the originals kept by the IPA.
   

Cases relied upon by the accused

3. The accused relies on the case of Loa v Kimis & Ors (2014) N5849 and a number of cases referred to therein.
   
4. It must be said that most of the cases referred to concern a particular aspect of the rule, that is whether and in what circumstances a court in a criminal trial may admit the written statement of a witness in place of oral evidence. The Supreme Court has since expounded on when a trial judge might rely on the written rather than oral testimony of witnesses and, whilst important, that aspect of the rule is not what concerns us here.
   
5. Nevertheless, I note the case cited of State v Hekavo [1991] PNGLR 394 on which the accused relies, in which Doherty J said (emphasis mine):
   

“It has been said (Hocking v Ahlquist Bros Ltd [1944] 1 KB 120) that in all cases it is necessary to produce the best evidence available to prove any particular fact. This became known as the best evidence rule and is referred to by J M E Garrow & J D Willis in the text The Principles of the Law of Evidence in New Zealand (at 17) as the best evidence must be given which the nature of the case admits. It must be brought to the court in the form which gives the best guarantee of its credibility and that the circumstances of the case admit.” The learned writers go on to say that nowadays it is not true that the best evidence must be given though failure to produce it may be a matter of comment which will affect the weight of the evidence that is produced.”

6. In that case Doherty J held to be hearsay in the absence of evidence from the accused himself the information contained in a doctor’s report as to the state of mind of the defendant told to him by the defendant.
   
7. In S v John Bill White (No 1) [1996] PNGLR 262 Doherty J also said:
   

“This is a trite and often repeated statement and in order to adduce proof of each element the maxim the best evidence must be given of which the nature of the court case permits is considered a fundamental principle of the law of evidence. (Phipson On Evidence 13th edition para 5-01 the best evidence rule). Phipson considers that it applies in three slightly different senses (Para 5.02) i.e. that the nature of the fact admitted, or that the circumstances would allow, or that the party could produce and if there was inability to obtain better evidence than there could be some justification to resort to inferior forms of evidence such as hearsay by interested witnesses or copies of documents.”

8. In that case the State and defence agreed between themselves that the statements of all but one witness would be tendered by consent on an armed robbery trial where identification was in issue. The witnesses were within the court precinct and Doherty J after reviewing the statements of the witnesses formed the view that the descriptions were vague and could fit any number of people. Defence counsel maintained that the Court could not go behind the agreement of the parties. Doherty J considered, however, that the witnesses should be called and directed that if neither the State nor the Defence were willing to call them they be brought before the Court so that their evidence could be presented and they be cross examined in the usual manner.
   
9. In State v Warun [1989] PNGLR 327 Bruton AJ refused to admit an unsworn record of interview containing admissions and a medical report handed up from the bar table without any oral evidence, accompanying affidavit or statutory basis.
   
10. In Fred Bukoya v The State (2007) SC887 the Supreme Court found that the principal had been breached when on a murder trial the trial judge allowed the State to tender the depositions in their entirety and not call any witnesses.
    
11. As the Supreme Court observed in Tom v State (2019) SC1833 the witness statements in Bukoya were admitted in a way that deprived the accused of the right to cross-examine evidence that went to the heart of the issues in the case and in circumstances where eyewitness accounts were critical. It is not the case that every witness must be called to give oral evidence in a criminal trial: see [51] to [58].
    
12. In Loa v Kimas, Kandakasi J applied the principles to the circumstances of the case before him in relation to the admissibility of documents. I have found his decision helpful and will return to it below.
    

General Principles

13. As above, the basic principle is that the best evidence must be given of which the nature of the court case permits: Omychund v Barker [1744] EngR 927; (1744) 1 Atk 21.
    
14. In general terms, the rule has been substantially superseded by the principle that all relevant evidence is admitted. ‘The goodness and badness of it goes only to weight, and not to admissibility’: Garton v Hunter [1969] 2 QB 37; [1969] 1 All ER 451, per Denning J.
    
15. Nevertheless, some aspects of the rule remained at common law such that as a general rule where the contents of a private document were to be proved the law of evidence required that the original be produced or its absence explained. As the authors of Phipson on Evidence, 16^th Edition, 2005 observe this is sometimes referred to as the secondary law of evidence. See also at Cross on Evidence Eighth Australian Edition at [1480].
    
16. It is also the case, however, that whilst persuasive and not binding, the courts in England have more recently adopted the approach that it is for the court to decide the weight to be given to secondary evidence in the circumstances of any particular case. Per Jonathan Parker LJ in Masquerade Music Ltd v Springsteen [2001] EWCA Civ 563 (emphasis mine):
    

“In my judgment, the time has now come when it can be said with confidence that the best evidence rule, long on its deathbed, has finally expired. In every case where a party seeks to adduce secondary evidence of the contents of a document, it is a matter for the court to decide, in the light of all the circumstances of the case, what (if any) weight to attach to that evidence. Where the party seeking to adduce the secondary evidence could readily produce the document, it may be expected that (absent some special circumstances) the court will decline to admit the secondary evidence on the ground that it is worthless. At the other extreme, where the party seeking to adduce the secondary evidence genuinely cannot produce the document, it may be expected that (absent some special circumstances) the court will admit the secondary evidence and attach such weight to it as it considers appropriate in all the circumstances. In cases falling between those two extremes, it is for the court to make a judgement as to whether in all the circumstances any weight should be attached to the secondary evidence. Thus, the ‘admissibility’ of secondary evidence of the contents of documents is, in my judgment, entirely dependent upon whether or not any weight is to be attached to that evidence. And whether or not any weight is to be attached to such secondary evidence is a matter for the court to decide, taking into account all the circumstance of the particular case.”

(See also the useful discussion in Phipson 16^th Edition, 2005 at [7-44], and [7-45] regarding criminal cases.)

17. In my view those comments are also applicable to the circumstances of Papua New Guinea. That is particularly so given that in this jurisdiction judges in both civil and criminal trials are required to determine not only admissibility but the weight to be given to the evidence in all the circumstances of the case and give reasons for doing so.
    
18. It is also the case that numerous exceptions developed at the common law prior to 1975.
    
19. Of particular relevance for our purposes, it has long been recognised that the content of public documents could be proved by copies of various kind, for example certified or examined, on account of the serious inconvenience that would otherwise be caused to the public and the custodian by their removal.
    
20. Some of these common law principles found their way into our Evidence Act 1975 which provides for the admission of certain documents without the production of the original.
    
21. For instance, s 72 of the Evidence Act provides generally for the reproductions of business documents destroyed, lost or unavailable:
    

22. The following provisions have particular relevance to the production of public documents.
    
23. Section 55, Evidence Act expressly provides for a copy of a public document if reasonable notice in writing has been given to the other party.
    

24. Section 70, Evidence Act provides for the admissibility of certified reproduction of documents by a prescribed officer without further proof.
    

25. Section 71, Evidence Act provides that the production of a certified copy is sufficient compliance with court process requiring production of a public document referred to in s 70.
    

26. Section 84, Evidence Act provides guidance to a Court when considering the admissibility of a reproduction or copy of a document.
    

Consideration

27. Returning to the present case, the accused submits that the disputed documents are not public documents.
    
28. I do not agree. The documents are by their nature public documents. They are documents lodged with and kept by the Registrar of Companies, who is appointed under the Companies Act, 1997 by the Minister for that purpose, which is a matter in the public interest as reflected in s 1 of the Act.
    
29. Furthermore, the Evidence (Prescribed Officers) Regulation 1980 expressly provides that for the purposes of s 70 and 71 of the Evidence Act the Registrar of Companies is a prescribed officer.
    
30. It is the case that the disputed documents were not certified by the prescribed officer but the provisions do not require or mandate certification. Certification is one means by which they may be produced.
    
31. Section 2, Evidence Act provides that except to the extent of any inconsistency, the provisions of the Act are in addition to and not in derogation of any powers, rights or rules of evidence given or prescribed by any other law, including the common law in this jurisdiction.
    
32. Furthermore, it is apparent from a reading of the division in which the provisions sit that the intention is to allow not only the production of copies rather than the original but to permit that to be done in the absence of a witness being called to give oral evidence.
    
33. In this case the documents were identified as copies of those held by the IPA by a former officer of the IPA who was called to testify and gave oral evidence as to their provenance. The accused had the opportunity to and did cross-examine the witness producing them.
    
34. Mr Doa was an appropriate person to produce the documents. He was employed at the relevant time as a lawyer in the Enforcement Division of the IPA. He gave evidence of the process in place for the receipt and retention of documents with the IPA and the production of documents in relation to search warrants received through the office of the Registrar of Companies. He also gave evidence that it was he, in his capacity as a lawyer in the Enforcement Division of the IPA, who upon instruction from the Deputy Registrar produced the documents in this particular case. He did so upon direction from his superior who gave him, amongst possibly other documents, Exhibit P1, a court order dated 3 September 2019 made in S/W 533 of 2019 stating that an application for a search warrant was granted, and accompanying notice of motion setting out the documents sought, in particular copies of originals from the Grand Columbia Group of Company.
    
35. The fact that Mr Doa is no longer with the IPA is irrelevant to the identification of the documents as copies of those he retrieved from the IPA’s records. Whilst it could have been more detailed he provided sufficient evidence as to the reception, registration and keeping of documents lodged with the IPA. He explained the process that he undertook to retrieve the documents and the reason that the originals were not produced by him, that is it is the policy of the IPA to produce copies unless specifically required by a court order. It appears to be a policy recognised by the police as per the notice of motion although no evidence was given about this from any police officer.
    
36. The reason for the policy is obvious to my mind. It would create great inconvenience for the custodian of the records, namely the Registrar of Companies, and the public if original documents were to be produced in response to every search warrant.
    
37. Mr Doa provided copies of all documents that were held pertaining to the named Grand Colombia Group of companies, namely Jugami No 18, Mabela No 88 and Blue Chip No 15. He confirmed that he made copies of the original documents held by the IPA. He identified a list of the documents he produced in response to the search warrant. He identified the eight documents objected to as being amongst them.
    
38. In my view admission of his evidence would be consistent with the best evidence rule to the extent that it remains and with the decision of Kandakasi J in Loa v Kimis.
    
39. In that case customary landowners claimed that the State acquired their land under the Lands Act 1996 and granted them a State Lease but subsequently cancelled that lease and issued another lease in favour of a company. The State claimed that it had in fact acquired the land during the colonial administration and therefore issued the lease to the landowners in error and so was entitled to cancel it to reflect that fact.
    
40. Kandakasi J refused to admit a purchase agreement produced in the affidavit of one Mr Scott. This was for a number of reasons. There was no evidence as to where the original was and why it could not produced. There was no evidence from the custodian of the original document from whom the copy might have been obtained. There was no certification by the custodian or an authorised or appropriate officer as to the document being a genuine copy of its original: see [24]. It appears from the decision Mr Scott was not from the Department of Lands or the Registrar of Titles. In short, he was not in a position to produce the document: see [29]. That is to be compared with the copy documents attached to the affidavits of other persons who appear from the judgement to be officers from the Department of Lands and which were admitted.
    
41. Returning to the present case, the suggestion that Mr Doa fabricated the documents is without foundation. He was not moved by the suggestion that the investigating officer would say that the documents could not be produced from the IPA and there was no basis for the suggestion put to him about his departure from the IPA, which was not accepted.
    
42. There is no significant discrepancy between his evidence and that of the investigating officer, Chief Sergeant Max Makeso. Mr Doa said he provided the documents to Makeso between 1 September 2019 and November 2020. Makeso says he received the documents in or about September 2020.
    
43. I formed the view that it would assist me in reaching a decision to view the documents and the parties agreed.
    
44. The appearance of the documents does not call into question the evidence that they were produced from the IPA. On the contrary it lends weight to that evidence. It appears that the original documents were created at different times and further that they were lodged with the IPA at different times.
    
45. In addition, all but two of the documents, that is each of MFI 4, 5, 7, 8, 9, and 11 but not MFI 3 and 6, contain Registrar of Companies stamps bearing a date, together with in some cases handwritten notations. I am satisfied that these stamps and notations are business records for the purpose of s 61, Evidence Act.
    
46. In particular, it appears to me that the stamps and notations are records made in the regular course of the business of the IPA at or about the time of the doing or occurrence of an act, matter or event, namely the reception of the document at the IPA upon filing or lodgement. It also appears to me that the source of the information and the method and time of the preparation of the stamps are such as to indicate their trustworthiness. Mr Doa’s evidence as to the process for receiving and keeping documents at the IPA was sufficient for this purpose. I have had regard to the source from which the writings have been produced, namely the IPA, and the circumstances of their receipt and custody by the person producing them. In short, I am satisfied that the stamps in each case are evidence that the original documents were filed with the IPA on the date indicated in the stamp.
    
47. It is also my view that the s 61, Evidence Act would enable me to admit the documents even if not bearing a stamp if I was satisfied that each was a record of the filing of the document in the normal course of the business of the IPA at or about the time of the doing or occurrence of that filing. It is apparent from some of the other documents, however, that there is a significant discrepancy between the purported date of the making of the document and the date of filing as shown in the stamps. In the circumstances without a stamp it is not possible for me to find that the documents are a record of their filing at or about the time stated in the document or by reference to any other means. For the reasons outlined above that is of no consequence.
    
48. Having viewed the documents both in isolation and taken together I am of the view that each are relevant and admissible:
    
    • MFI 2 is a list of the documents which Mr Doa says that he retrieved and copied from the IPA’s records. It is admissible and relevant to show the number and nature of documents held in relation to the named Grand Columbia Group of Companies.
    • MFI 5 is a Notice of Change of Shareholder, Form 13, for Mabela No 88 Ltd. It states that 75 shares were transferred on 18 September 1996 from the complainant to the accused for cash consideration. It is purportedly signed by Kuek Kien Joo as director of the company and dated 30 June 1997. It was apparently filed by Deloitte Touche Tohmatsu (Deloittes) on 21 September 1999 accompanied by a filing fee of K125. It is the subject of Count 3 on the indictment and relevant to the matters to be determined in the case.
    • MFI 11 is a Notice of Change of Directors and Particulars of Directors, Form 16, for Blue Chip No 15 Limited. It states that the complainant ceased being a director on 17 July 1997 and was replaced by the accused and John Kivung on that date. It is purportedly signed by the accused on 30 June 1998. It appears to have been filed by Deloittes. It bears two Registrar of Companies stamps, one 5 July 1999 and one 6 August 1999. It is the subject of Count 1 and relevant to the matters to be determined in this case.
    • MFI 11 was amongst the list of documents identified by Mr Doa as being amongst those he produced copies of. The State Prosecutor omitted to have him identify the document itself with the others pressed for tender in what appears to have been an oversight. Chief Sgt Makeso identified MFI 11 as being amongst the documents produced in response to Exhibit P4, which I am satisfied upon a comparison of the documents is the search warrant issued on 3 September 2019 by the Grade Five Magistrate in response to the notion of motion in Exhibit P1. C/Sgt Makeso is mistaken about the number of the search warrant being 532 of 2019 and not 533 of 2019. I am satisfied that MFI 11 was amongst the documents produced by Mr Doa from the IPA’s files.
    • MFI 4 is a Notice of Change of Registered Office, Form 17, for Blue Chip No 15 Limited. The new registered office is recorded as Deloittes and the change is stated to have occurred on 30 June 1997. The form is purportedly signed by the accused as director on 30 June 1998. The stamp is not entirely clear but it appears to have been filed on a date in 1999. It is relevant to the issues to be determined on the trial including whether the accused forged the change of directors form the subject of Count 1 of the indictment.
    • MFI 6 is a form beginning “List of persons holding shares in” Mabela No 88 Pty Limited on 30 June 1994. It shows the complainant and Andy Kuek holding shares in the ratio 75:25 respectively. It is purportedly signed by Andy Kuek. It is relevant to show who held shares prior to the alleged forgery of MFI 5. It does not contain a stamp showing when it was received by the IPA. That will be a matter going to its weight when taken together with the other evidence.
    • MFI 7 is a form beginning “List of persons holding shares in” Blue Chip No 15 Pty Limited on 16 June 1995. It shows the complainant and Mildred Ng Suat Ling to hold shares in the ratio of 55:45 respectively. It is purportedly signed by the complainant as director. It was filed with the Registrar of Companies on 28 July 2011. It is relevant to show who held shares prior to the alleged forgery of the notice of change of shareholders in Count 2 of the indictment, including whether the accused replaced the complainant as shareholder and director without his knowledge, and whether the complainant was ever a shareholder of Blue Chip No 15 Pty Limited.
    • MFI 8 is a form beginning “Particulars of the Directors, Managers, Secretaries and Auditors of” Blue Chip No 15 Pty Limited at the “date of Annual Return” which is not stated. It shows the directors to be Mildred Ng Suat Ling and the complainant. The document was filed with the Registrar of Companies on 28 July 2011. It is relevant for the same reasons stated above in relation to MFI 7.
    • MFI 9 is a Return of Allotment of Shares, Form 11, for Blue Chip No 15 Pty Limited on 16 March 1994 stating that one Kina was paid for 98 shares allotted. It is not stated to whom the shares were allotted. It was filed on 28 April 1994. The second page of the document is missing. The document appears to have been lodged by Kidsons DFK. It is relevant to establish the history of the company and whether or not the complainant was a shareholder of Blue Chip No 15 Pty Limited.
    • MFI 3 is a document styled “Statement by Directors of the Financial Year ended 31 December 1999”, purportedly signed by John Kivung and the accused on 4 October 2001. It does not state on its face what company it relates to. I intend to admit it. There are inferences that might be drawn from it that the two named persons were directors of the same company at about 2001, which is relevant to the allegations contained in the indictment, in particular in relation to Counts 1 and 2.
      
49. The accused has not suggested nor established that the probative value of the documents is outweighed by their prejudicial value.
    
50. In summary, the documents are public documents and the absence of the originals does not offend against the best evidence rule, which absence has been explained in any event. Whilst certified copies were not produced, Mr Doa was an appropriate person to produce the documents as being copies that he took of originals held by the IPA. The accused had the opportunity to and did cross-examine him. I am further satisfied that the documents MFI 4, 5, 7, 8, 9 and 11 contain business records in the form of stamps which are admissible to show that the original documents were received in the regular course of the IPA on the date stated in the respective stamps. Two of the documents are the subject of Counts 1 and 3 on the indictment. The other documents are also relevant to the issues to be determined in the trial. The documents are relevant and admissible and it is in the interests of justice that they are admitted.
    
51. In making this ruling I have taken into account that this is a criminal matter and in particular a forgery case. I have also taken into account that only 26 documents were retrieved and copied by Mr Doa and that not all of them have been tendered. It also appears that at least one of the documents does not contain all of its pages. In several cases the documents were not lodged with the IPA until well after the date on which they were purportedly made. In the case of two the date of filing is not clear. This does not alter my view that the documents are admissible to establish that they are copies of documents held by the IPA. The weight to be attached to those documents when taken together with the other evidence in the case remains to be determined.
    
52. In conclusion, the objection is refused and MFI 3, 4, 5, 6, 7, 8, 9 and 11 are admitted.
    
53. Before closing I note that there is an opportunity for the police and the State to make better use of the provisions in the Evidence Act for the production of copies of public documents and business records, for instance by working with the agencies concerned to develop standard form affidavits outlining the systems and processes in place for the filing, registration, and retention of records together with their production in response to search warrants, which can be adapted in any particular case as required. This would facilitate the orderly production of documents and in many cases avoid the need to call a witness. It would not preclude the calling of the witness if required, including by the defence for cross-examination.
    
54. Finally, the State is reminded that it retains at all times the burden of establishing its case beyond reasonable doubt. The fact that copy documents may be admissible does not relieve it of this burden, which may require the production of the originals in the circumstances of the particular case as a matter going to their weight.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Gileng & Co: Lawyer for the Accused