PNG Law Reports 1996
[1996] PNGLR 43
N1416
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
ANDERSON LIWAME, EPOLEN LIAMBU, JEOFREY BEN, JARK ALLANA, KORONU PERAPE, AND MARTIN LIWAIPA FOR THEMSELVES AND FOR AND ON BEHALF OF OTHERS OF KAWI, KIYO, WAPAKO, YAMI, KUNGURIN AND PAYAM TEPONE CLANS RESPECTIVELY FROM PAIAM VILLAGE, PORGERA, ENGA PROVINCE
V
INSPECTOR JACOB YANSUAN AS THE POLICE STATION COMMANDER, PORGERA
CHIEF SUPERINTENDENT FRED SHEEKIOT AS THE PROVINCIAL POLICE COMMANDER
THE POLICE COMMISSIONER
AND THE STATE
Mount Hagen
Injia J
14 May 1996
EVIDENCE - Affidavit evidence - Notice to produce deponent for cross-examination under Evidence Act Ch 48, Section 36 - When notice should be given - Evidence Act Ch 48, ss 35(1), (2) and 36; Interpretation Act Ch. 2, s 12 - Interlocutory ruling.
Facts
Some 207 plaintiffs filed several affidavits on the defendants’ lawyers in their action for damages arising out of a police raid in 1993. After trial date was allocated, plaintiffs’ lawyer wrote to the defendants’ lawyers on four occassions stating that he would rely on the affidavits and if they were desirous of cross-examining any of the deponents, he be notified so that the deponents would be produced at the hearing. Two days before the hearing, the defendants’ lawyers faxed the plaintiffs’ lawyers requiring all the 207 deponents to be produced for cross-examination as provided under s 36 of the Evidence Act Ch 48.
Held
1.       In the absence of any time prescribed by s 36 of the Evidence Act Ch 48 within which a notice should be given, the notice shall be given with all convenient speed and as often as the occasion arises as provided by s 12 of the Interpretation Act Ch.2.
2.       A notice given by the defendants’ lawyer to the plaintiffs’ lawyer two days before the trial in relation to 207 affidavits filed and served on the defendants lawyer by the plaintiff more than a year ago, is not notice given with all convenient speed and therefore invalid.
Counsel
G Yapao, for the plaintiffs.
Mr Pokia, for the defendants.
14 May 1996
INJIA J: This trial involves some 207 plaintiffs who have all filed and served affidavits on the defendants’ lawyers. It involves claims arising out of a police raid in 1993. This trial is on assessment of damages only, default judgment having been earlier entered. The trial which was scheduled to commence today was fixed at the civil call-over held on 3rd March 1995. The trial date was confirmed at the civil call-over held on 1st April 1996 and 6th May 1996. The trial date was fixed after various pre-trial reviews as a result of which all the plaintiffs filed and served affidavits on the defendants’ lawyers, the Solicitor General, more than a year ago.
After the trial date was allocated, the plaintiffs’ lawyer wrote 4 letters to the Solicitor General on 7th March 1996, 26th April 1996, 8th May 1996 and 9th May 1996 respectively in which he repeatedly notified them that he would be seeking to rely on the affidavits and further asked them to indicate if they were desirous of cross-examining any of the deponents so that they would be produced at the hearing. None of these letters were responded to by the Solicitor General. On Friday 10th May 1996, at 2.52 p.m., the Solicitor General faxed a letter to the plaintiffs’ lawyer giving them notice that they should produce all the 207 deponents for cross-examination today. The plaintiffs’ lawyer says he did not receive this notice. Even if he did, he would not have had sufficient time to notify his clients who come from Porgera, Enga Province.
The notice given by the Solicitor General is a notice under s 36 of the Evidence Act. Whilst the defendants and the plaintiffs do not take issue with the use of the affidavits under s 35(2) of the Evidence Act, the plaintiffs’ counsel says the notice is unreasonable as being short notice in view of the 207 plaintiffs involved, the remote area where the plaintiffs come from, the affidavits served on the defendants’ lawyers more than a year ago and the repeated requests made by letter as early as 7th March 1996. He submits he is not in a position to indicate which deponents are available for cross-examination. He submits s 36 confers a discretion on the Court to disallow the notice and allow the plaintiffs to use the affidavit in evidence without requiring the attendance of the deponents for cross-examination.
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.”
Unlike s 35(1) and (2) which specify a time frame for parties to notify each other of their intention to use affidavits or object to their use in the proceedings, s 36 does not stipulate a time frame. In such situation, s 12 of the Interpretation Act Ch 2 is applicable. This section provides:
“12.    Provision where no Time Prescribed
Where no time prescribed or allowed within which is required or permitted by a statutory provision to be done, the act shall or may be done, as the case may be, with all convenient speed and as often as the occasion arises.” (my emphasis)
A notice under s 36 of the Evidence Act on the part of an interested party is optional as implied by the use of the word “may” in s 36(a). But once an interested party chooses to give such notice, then he must do it “with all convenient speed and as often as the occasion arises”. In the instant case, the notice given is clearly not done with “all convenient speed” and “as often as the occasion (arose)” as necessitated by the four letters referred to.
For these reasons, I would allow the plaintiffs to use the affidavits without requiring the production of all the deponents for cross-examination. If the plaintiffs opt to produce any of the deponents to give further evidence, whether or not they may be cross-examined by the defendants’ lawyer is another issue which issue is not necessary for me to decide now.
This brings me to the application of s 35(2) of the Evidence Act. Mr Pokia for the defendants concedes that the notice given on 10th May 1996 is not a notice under s 35(2). The effect of the absence of a notice under s 35(2) is that the defendants “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.” This Court is given the ultimate discretion under s 35(2) to allow or disallow the use of an affidavit or any part of an affidavit or to attach such weight as it sees fit on the matters deposed to in the affidavit. Both lawyers including the defence lawyer can make submission on the admissibility or otherwise of the matters deposed to in the affidavits and the weight I should give to them.
Lawyer for the plaintiff: Yapao Lawyers.
Lawyer for the defendant: Solicitor General.