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Kuman v Dekena [2024] PGNC 416; N11075 (11 November 2024)

N11075

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 80 OF 2022

BETWEEN
NICK KOPIA KUMAN
Petitioner

AND
DAWA LUCAS DEKENA
First Respondent

AND
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Goroka: Makail, J
2024: 8^th & 11^th November

ELECTION PETITION – PRACTICE & PROCEDURE – Summons to give evidence – Summons for production – Difference between summons to give evidence and summons for production discussed – Production of CCTV footage – Organic Law on National and Local-level Government Elections – Section 212(1)(b) – National Court Election Petition Rules – rules 13(3)(e) & 14(3)(i) – National Court Rules – Order 11, rules 1 & 2

Cases cited:

Nil

Counsel:

Mr T Sirae, for Petitioner
Mr N Tame, for First Respondent
Ms S Kapi, for Second Respondent

RULING ON SUMMONS TO GIVE EVIDENCE AND PRODUCTION OF DOCUMENT

11^th November 2024

1. MAKAIL J: Pursuant to term 7(d) of a directional order filed on 25^th October 2022, the Electoral Commission (“EC”) was directed to produce to the petitioner a Close Circuit Television footage (“CCTV footage”) of what the petitioner alleged is the counting of the ballot papers of the Gumine Open electorate at the counting centre in Kundiawa town by 2^nd November 2022.

2. The EC asserted that the storage facility where the ballot-boxes including the CCTV footage for the Gumine Open electorate were, was vandalised and the CCTV footage is missing. For this reason, it was unable to produce the CCTV footage to the petitioner and first respondent at the pre-trial stage.

3. On day number four of the trial and after the defence team completed cross-examination of the tenth witness of the petitioner, the petitioner sought to call a witness who is answering to a summons to give an oral account of the counting and to produce a CCTV footage which, according to the counsel for the petitioner, contained the coverage of the entire scrutiny of votes for the subject electorate. According to the counsel for the petitioner, this witness has the CCTV footage in his possession and will produce it to the Court and the defence to view.

4. The respondents strenuously objected to the use of the CCTV footage on the ground that they were not given a copy of it to view and prepare to respond to it which will include its authenticity and relevance. In addition, the EC submitted that it is the owner of the CCTV footage and is the only authorised authority to produce it. In the circumstances, to allow the petitioner to use it will deny them a fair trial.

5. The counsel for the petitioner countered the objection by submitting that the EC was summonsed to produce the CCTV footage at the pre-trial stage, but it failed. It cannot now complain that it was unaware of the CCTV footage. Apart from that, the counsel emphasised that the witness has been compelled by a summons to give evidence and it was open to the witness to give an oral account of what transpired at counting including producing the CCTV footage.

6. The parties’ submissions overlooked the difference between summons to give evidence and summons for production. But first, what is the source of power of the Court to issue summons to give evidence and summons for production?

7. The source of power is derived from the inherent powers of the Court and articulated in Section 212(1)(b) of the Organic Law on National and Local-level Government Elections (“Organic Law on Elections”).

8. Section 212((1)(b) of the Organic Law on Elections states:

“In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things –

(a) .......
(b) compel the attendance of witnesses and the production of documents; and.”

9. Secondly, Rule 13 and Rule 14 of the National Court Election Petition Rules (“EP Rules”) complements Section 212(1)(b) of the Organic Law on Elections by giving the Judge Administrator of the Election Petition Track the opportunity at directions hearings to enquire from the parties if it is necessary for summonses to be issued.

10. Rule 13(3) states:

“At the directions hearing, the Judge Administrator shall consider amongst other things the following:

(a) .........;
(b) .........;
(c) .........;
(d) .........;
(e) filing, serving and production of any other relevant documents including electoral records, summonses and notices to produce, agreed statement of facts.”

11. Rule 14(3) states:

“At the pre-trial conference the Judge Administrator shall consider and as far as is practicable determine, amongst other things, the following:

(a) ........;
(b) ........;
(c) ........;
(d) ........;
(e) ........;
(f) .........;
(g) .........;
(h) .........;
(i) necessity to issue summonses to compel witnesses to attend and/or produce documents;”

12. In my view, Section 212(1)(b) of the Organic Law on Elections, Rule 13(3)(e) and Rule 14(3)(i) of the EP Rules confer power on a judge of the National Court presiding in an election petition case to issue summonses to compel a witness to attend and give evidence and/or produce documents including electoral records.

13. Thirdly, the EP Rules make no provision for the form of the summonses. The form may be adopted from Order 11, rule 2 of the National Court Rules (“NCR”). Order 11, rule 2 states:

“Power to issue. (31/2)

The Court may, in any proceedings, issue a summons to give evidence or a summons for production as a summons both to give evidence and for production, in Form 42, 43, 44, 45 or 46, or in such other form as the Court may direct for the attendance on any trial or other occasion of the person named before the Court, officer, examiner or other person having authority to take evidence.”

14. Fourthly, as to what a summons to give evidence and a summons for production of documents are, Order 11, rule 1 states:

““summons for production” means an order in writing requiring the person named to attend as directed by the order and produce a document or thing for the purpose of evidence.

“summons to give evidence” means an order in writing requiring the person to attend as directed by the order for the purpose of giving evidence.”

15. There lies the difference between a summons to give evidence and summons for production.

16. Surprisingly, the petitioner claims that he has a witness who will produce the CCTV footage at trial when he is called to give evidence. However, as was pointed out above, unless a witness is summonsed to give evidence and produce documents, there is a difference between a witness being summonsed to give evidence and summonsed to produce a document or thing.

17. In the present case, pursuant to the directional order filed 25^th October 2022, the EC was directed to produce the CCTV footage to the petitioner by 22^nd November 2022, but it did not. Its reason was that vandals had vandalised the storage facility in Kundiawa and the CCTV footage is missing. That being the case, the opportunity to have the CCTV footage to use at the trial is beyond the EC’s control and the petitioner will go to trial without it.

18. If the petitioner is to rely on the CCTV footage through the witness to be called, it is not a case where the witness was summonsed to produce it at trial, but that he has had it in his possession and will produce it at trial. In such a case, regardless of whether the witness to be called was summonsed to give evidence, he must provide a copy of the CCTV footage to the respondents before the trial to give them the opportunity to view and respond to it.

19. If the petitioner did not obtain the CCTV footage from the witness and provide copies to the respondents, the petitioner should not be allowed to call the witness to produce it at trial. If the petitioner is allowed to do that, it will be prejudicial to the respondents because they will not have had the opportunity to view and respond to it.

20. Moreover, if the CCTV footage is for the duration of the entire scrutiny of votes for the subject electorate, it will be a waste of the Court’s time and prejudicial to the respondents because they are not being asked to respond to allegations of illegal practice from the primary count to final elimination, but from elimination no. 32 to the final elimination as per the allegations at paragraph 13 of the petition.

21. In the midst of the debate as to whether the witness should be called to produce the CCTV footage, it is worthy to note that the adversarial system of justice that Papua New Guinea has adopted is one of fairness. The onus of proof is on the party who alleges. In seeking to prove the allegation, the party must ensure that the right of the opposing party is not violated.

22. In this case, the existence of the CCTV footage was known to all the parties. However, it is accessing it that only the petitioner was able to do. Applying the basic rule of fairness which I alluded to in the preceding paragraph, the petitioner is obliged to share the CCTV footage with the respondents to give them the opportunity to view and respond to it. He did not. This is where the petitioner has violated the respondents’ right to a fair trial.

23. For these reasons, I order that unless the witness to be called will give an oral account of the scrutiny of votes from elimination no. 32 onwards, he is not allowed to produce the CCTV footage.

Ruling and orders accordingly.

________________________________________________________________
McGregor & Associates Lawyers: Lawyers for Petitioner
Nicholas Tame Lawyers: Lawyers for First Respondent
Niugini Legal Practice: Lawyers for Second Respondent