DC324

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 87 OF 2000

Police
Complainant

V

Mark J. Falon
Defendant

Mount. Hagen: M. M. Pupaka, PM.
2001: 8th & 17th May 01

Criminal Proceedings – Arson – Committal proceedings – District Courts Act Chapter No. 40 – Accused may not cross-examine witness – Functions of committal court – Identification of a prima facie case – assessing credibility of witnesses – function of the trial court

Counsel
Sergeant Sam Gai for the Prosecution
Mr. Paulus Dowa for the Accused

17th May 01

M. M. Pupaka: This is the ruling on the committal proceedings upon a charge of Arson preferred against the accused. The police had charged the accused that he on the 27th of April 1989 "…wilfully and unlawfully set fire to Pangia Pty Ltd office building at Warakum, Mt. Hagen, property of Pangia Construction Pty Ltd", which is contrary to section 436 of the Papua New Guinea Criminal Code Act, Chapter No. 262, (the Code). The police files are ready. The accused has been served with his copy of it and another set has been tendered to Court for the purposes of these proceedings. The matter has been ready for committal ruling for some time since the police files were served on the accused last year.

The matter came before this Court on the 08th of May 2001. Mr. Dowa of council for the accused promptly informed the Court that the defence intended to cross-examine the State witnesses upon the contents of their statements, which are in the police file. I ruled then that it was not necessary for the defence to cross-examine any witnesses and that it was not open for the accused or his council to cross-examine anyone at that stage as a matter of law. Upon my so ruling council for the accused sought to present oral submissions for the purpose of committal ruling. However I directed that written submissions be presented setting out fully all the contentions of the accused, both as to the facts and the law, so that the ruling of the Court on all matters of contention would be properly put in perspective, for the record. The defendant’s submission has been filed as directed. I now formally set out first of all, the reasons for not allowing cross-examination of witnesses and secondly, the ruling upon these whole committal proceedings.

Cross-examination of Witnesses:

Section 96 (3) of the District Courts Act, Chapter No. 40, (the Act), speaks for itself and it provides:

"(3) In an examination of a defendant in accordance with this Division neither the defendant nor his legal representative shall be permitted to subject any witness to cross-examination"

The words "In an examination of a defendant in accordance with this Division…" in the above provision is an obvious reference to the whole committal hearing/process in a matter. That provision of the Act [s. 96 (3)] was added by District Courts (Amendment) Act 2000, [s. 10]. Parliament seems to have removed what apparently had been, up until then; the inherent right of an accused to cross-examine witnesses during the committal hearings. 

My considered view is that this amendment (supra) seems to have been effected for sound reasons. Previous to the amendment, committal proceedings took a relatively long time to complete, particularly with accused persons pointlessly cross-examining witnesses who they would again examine later at their trial. In most respects committal proceedings were exceeding their purpose, which purpose was to weed out untenable cases at the committal stage. Cross-examining State witnesses just for the sake of it serves no valid purpose other than prolonging and complicating what is essentially a simple process of identifying a prima facie case for the National Court, [s. 95 of the Act]. Identifying a prima facie case is essentially consideration of the evidence offered by the prosecution as to whether those are sufficient to put the accused on trial, [s. 95 (1) of the Act].

In the instant case council submitted that the accused should to be allowed to ‘test’ the credibility of the main State witness at this stage. He even suggested that the witness might not turn up in court in any event. I can only assume this cross-examination of the witness (testing as it were) is to be done so that ultimately this Court would be asked to discharge the accused here and at this state due to lack of credibility in that witness’s evidence.

First of all this line of argument tends to ignore the totality of all potential evidence, albeit circumstantial, found in the statements of the police witnesses. Secondly the defence contention and view, with due respects, obviously reflects a misconception. By such a submission this Court is being asked to assume the role of the National Court which is by law the trial court of first instance. It is not for this Court to decide on the weight of the evidence (including credibility of witnesses), or decide if the accused has a case to answer (as against a no case to answer). The committal court’s function is restricted to identifying and deciding if there exists for the accused to stand trial or be sentenced upon, a prima facie charge known to the law, no more and no less, [s. 95 of the Act]. That just about sums up the committal court’s function, and only so much need to be said in respect of it, for as to what are lawful functions of the committal court and what are proper matters for the trial court are trite. 

However if the accused could cross-examine witnesses that should not by default permit the committal court to usurp lawful functions of the trial court. It is the function of the trial (National) court to weigh evidence, assess credibility of witnesses, decide whether an accused ought to be called upon to adduce evidence in his own defence, and further be satisfied as to whether the accused would be reasonably convicted. As I understand, the accused has asked this Court to perform all the foregoing by insisting on cross-examining the State witnesses at this stage. Further, even if it was still open for this Court to allow the accused to cross-examine any witness he would be restricted to do so only regarding those matters of facts and law wherein examination of witnesses are permissible. The accused may not be allowed to cross-examine witnesses relative to the weight of their evidence. It bears repeating that cross-examination of witnesses in this instance, given the peculiar nature of evidence against which such cross-examination is intended to be mounted, would be tantamount to the committal court usurping and performing what are exclusive functions of the trial court.

For these reasons the request for cross-examination was refused.

Ruling on the Committal Proceedings:

I have considered all the evidence offered by the prosecution. I have also carefully considered the defence submission filed for these purposes. Having done so I am again compelled to say that perhaps there is a further confusion as to what amounts to finding a prima facie case by the committal court, sufficient to put the accused on trial; and what amounts to there being no case for an accused to answer to. I have already adequately explained the committal court’s role above. In a trial proper every accused reserves the right to ask the trial court to discharge him or her upon the close of the State case, by way of a no case submission /application. Such an application would be prompted when the State case as it stood up to that point, did not for instance cover all elements of the charge, or that identification of the accused is inadequate, or some such other defect exist which would not be cured and it is unfair upon the accused for the trial to be continued. 

The essence of the defence submission herein seems to be of the type that ought to be reserved for and asserted in aid of a no case submission, after the State has had a chance to adduce all evidence it may have against the accused. Needless to say the committal process is not the trial of this accused.

Apart from the investigating officer and the police corroborator at the record of interview, some 11 other witness’ statements are on the police file. Disregarding any hearsay contained in them and the issue of credibility aside, the contents of these statements disclose a prima facie case of Arson contrary to section 436 of the Code against the accused Mark J. Fallon, as principal offender pursuant to section 7 of the Code. I am satisfied that these statements are otherwise in the standard admissible format – prepared in accordance with section 94-(1)(d) & (1A) of the Act. The evidence offered by the prosecution is sufficient for the purposes at hand, which is to put the accused on trial. The accused has yet not lost any opportunity to assert his rights to cross-examine witnesses and take any other lawful steps to defend himself, all of which such rights would no doubt be afforded to him at his trial. 

In the circumstances the accused Mark J. Fallon is hereby committed to stand trial on the charge of Arson, which is contrary to section 436 of the Code, before the National Court at Mt. Hagen at its next sittings. The dates and times of those next sittings of the said National Court are to be as advised by the Assistant Registrar. In the meanwhile bail is extended to the accused

Sergeant Sam Gai: Complainant
Mr. P. M. Dowa: Defendant