N9129

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 311 & 314 OF 2021

THE STATE

V

PAUL WHAGI MERIMBA

Waigani: Berrigan, J
2021: 18th and 19th August

CRIMINAL LAW – PRACTICE AND PROCEDURE – Application to call evidence via video link – S 185 of the Constitution.   

Cases Cited:
Papua New Guinea Cases

Nil

Overseas Cases

Polanski v Conde Naste Publications [2005] UKHL 10
References Cited

Sections 37, 185 of the Constitution.
   
Counsel

Ms Jack, for the State 
Mr Haiara, for the Offender

RULING ON APPLICATION TO CALL EVIDENCE VIA VIDEO LINK
19th August, 2021 
1.	BERRIGAN J: The State has applied to lead evidence of two of its witnesses in this trial via video link.  The witnesses are in Brisbane, Australia.

2.	The application is made under ss 5 and 12 of the Mutual Assistance in Criminal Matters Act 2005 and s 185 of the Constitution.
	
3.	Section 12 of the Mutual Assistance in Criminal Matters Act is not applicable in my view.  It provides that:
(1) For the purposes of a proceeding or investigation in a criminal matter in Papua New Guinea, the Minister may request the appropriate authority of a foreign country:
(a) to arrange for:
(i) evidence to be taken in the foreign country under the law of that country; or
(ii) a document or other article in the foreign country to be produced under the law of that country; and
(b) to arrange for the evidence, document or other article to be sent to Papua New Guinea.
(2) When making a request under Subsection (1), the Minister may also request that an opportunity be given for the person giving the evidence, or producing the document or other article, to be examined or cross-examined, through a video link with Papua New Guinea by:
(a) a party to the proceeding or the party’s legal representative; or
(b) a person being investigated or the person’s legal representative.
4.	I do not intend to order evidence to be taken in Australia under the law of that country.  Moreover, the State has not sought and the Minister has not requested as such.  

5.	I note here that this is not a case where the witnesses in another country must be compelled by legal means to appear.  They have indicated to the State that they are willing to appear in this trial.  

6.	Section 5 provides that the Act does not limit the provision or obtaining of international assistance in criminal matters other than assistance of a kind that may be provided or obtained under the Act.  This simply means what it says.  It is not a basis for making an application, as such, to have a witness appear before the court or give evidence before the court by way of video link.  To the extent that there is some other assistance provided in another country, then s 5 makes it clear that the Act does not limit that assistance, for example the logistical assistance provided by the Commonwealth Director of Public Prosecutions of Australia, which I will come to in a moment. 

7.	Section 185 of the Constitution provides:

Lack of procedural provision

If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy.

8.	To my mind the appearance of a witness and the taking of evidence from a witness is a matter of practice and procedure. As discussed below there are no provisions specifically governing the taking of evidence from a witness via video link.

9.	The questions arising are:  a) is it permissible for witnesses to appear and give evidence before the National Court in a criminal trial video link; and b) if so, is it appropriate in this case?

10.	The application to have the witnesses give evidence by way of video link is supported by an affidavit from the State Prosecutor having carriage of the matter.  Whilst it could have been more detailed, I accept on that affidavit, and it is not in dispute, that the witnesses are in Australia and are not available in Papua New Guinea and as such cannot be compelled to appear through summons in the normal manner.  

11.	Defence counsel indicated last week that he does not object to the proposal subject to the right to cross-examine.  As such the trial was, in part, adjourned to make arrangements for the taking of such evidence. Yesterday he indicated again that he has no objection but is concerned that the procedure comply with the Oaths, Affirmations and Statutory Declarations Act (Chapter 317).  He does not specify any particular concern.
 
12.	To my understanding, following the severe restrictions that have accompanied Covid 19, the National and Supreme Courts of Papua New Guinea have been hearing both evidence and submissions via video link.  It is for this purpose that Court 9 is now a dedicated video link court.  Neither party have assisted the court as to whether that practice or procedure has ever been questioned or ruled upon in the National Court Civil or Supreme Court jurisdictions.  

13.	Defence counsel has raised an unspecified concern about the Oaths, Affirmations and Statutory Declarations Act (Chapter 317).

14.	Having reviewed the Act I see nothing in it that precludes the appearance of a witness and the giving of evidence in these proceedings via video link.

15.	Sections 1 and 2 of the Act provide that: 

1.	GENERAL PROVISION

Nothing in this Part
invalidates an oath taken in a sufficient and lawful form.

2.	WITNESS’S  OATH

Witnesses may be sworn–
(a) in civil proceedings in Form 1; and
(b) in criminal trials in Form 2.

16.	Form 2 referred to in s 2(b) is the standard oath to be administered, which in the event the application is granted, would be the oath administered by my associate, albeit that the witness would be swearing the oath, whilst holding a bible, via video link.  To my mind that is consistent with ss 1 and 2 of the Act.

17.	Furthermore, I see no impediment in the Evidence Act.  Whilst s.37B(2)(h) of the Evidence Act provides for, amongst other things, “evidence to be given from a place other than the courtroom by means of closed-circuit television or other facilities that enable communication between that place and the courtroom”  in certain prescribed circumstances, the provision does not exclude the taking of evidence via similar means in other circumstances.  Rather, s 37B(1) is a facilitative provision, such that it requires the court as a protective measure to make one or more of the orders under subsection (2) if in the opinion of the court the quality of the witness’ evidence would likely be diminished by reason of fear or distress in connection with testifying in the proceedings.  It does not follow that the use of video link may not be used in any other circumstances.  Moreover, the provision recognises the possibility that evidence may be taken in such a manner.

18.	I also make it clear that no jurisdictional issue arises in my view.  I am not taking evidence in another jurisdiction.  The National Court is taking evidence here in Papua New Guinea.  The Court, the parties and their counsel all appear before me in the National Court. The intended witnesses will also appear and give their evidence before this Court albeit that they will do so via video link.  

19.	I am also of the view that in the year 2021 the court is permitted to take judicial notice of the fact that technology exists known as video link, which according to the Oxford Online Dictionary is an “an electronic facility that enables audio-visual communication between people in different locations”.  In fact it is so common place in the context of judicial proceedings that the example it gives for this facility is ‘she testified at the trial via a video link’.  

20.	In a criminal trial the court is particularly concerned with fairness to the accused. Section 37(1) of the Constitution provides that every person has the right to full protection of the law. Section 37(3) and (5) are also relevant here:

37. Protection of the law.
 
(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences…
(3) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court..
(4) A person charged with an offence—…

(f) shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution.

(5) Except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence,…
21.	Subject to s.37(5) of the Constitution, a trial must not take place in the absence of the accused.  It has also been accepted at common law as a general rule that an accused person has a right to face his accusers, to cross-examine them, challenge them and to do so in a manner which enables the parties and the court to assess their evidence and observe demeanour.

22.	In my view video link is a facility for the purpose of s.37(4)(f) which allows an accused to examine witnesses called by the prosecution, and indeed, to call witnesses to testify before the court on his behalf.  The court should not close its mind to the availability of technology to facilitate access to, and the administration of, justice in appropriate cases. 

23.	Whilst time overnight has not permitted an extensive review of authorities, it appears that the use of video link has become largely accepted in similar jurisdictions as “simply another tool for securing effective active to justice”: Polanski v Conde Naste Publications [2005] UKHL 10.

24.	This is particularly so in an increasingly international world where people travel, transactions are conducted across country borders, and in the context of this country, which plays a leading role in the Pacific and enjoys close ties to Asia and Australia.  

25.	At the same time State resources to fund the travel and accommodation of witnesses is increasingly strained.  This is even more so in current circumstances where Covid 19 has placed severe restrictions on travelling both to and from Papua New Guinea for almost 18 months. 

26.	But the key point is that there is nothing intrinsically impermissible about the calling of witnesses to give evidence via video link.

27.	In summary, it appears to me that the National Court has power to take evidence via video link in criminal proceedings.  There are, however, no legislative provisions or rules governing the circumstances in which the court might determine whether or not to allow evidence to be so taken in any particular case.  In the absence of such provisions s 185 of the Constitution is applicable. This provision enables a judge of the National Court in a particular case to give ad hoc directions to remedy the lack of practice and procedure. 

28.	In determining whether or not to grant leave to call evidence via video link the question is whether it is in the interests of justice to do so.  The question is one of discretion to be determined by the trial judge in the circumstances of the particular case having regard to the importance of having all available and relevant evidence before the court whilst ensuring the accused’s right to a fair hearing under the Constitution.  The location of witnesses, together with costs involved, and questions of efficient judicial administration will be relevant considerations.  

29.	In determining the issue of fairness, consideration should be given to the following factors:

a.	The availability and quality of equipment and video-link facilities at the relevant locations;
b.	Whether the witness will give evidence in a controlled environment, such that they are subject to neither influence nor inhibition; 
c.	The ability of all parties, counsel and the court to see and hear each other and the witness in the remote location; and
d.	The extent of documentation which might need to be viewed by the witness, the court and parties.
30.	Returning to the present case.  With respect to the availability of equipment and facilities, I am satisfied that the facilities are available and are of sufficient quality.  Here I note that the technology to be used is that used by the National and Supreme Court in a dedicated court room for such purposes.
   
31.	In addition, I am satisfied on the affidavit material before the Court that the evidence will be taken using compatible technology in a purpose built video link room in the Office of the Commonwealth Director of Public Prosecutions in Brisbane. I also make clear that whilst logistical assistance may be provided by the CDPP, the technology is administered by the officers and information technology staff of this court. 

32.	I am also satisfied that the witness will give evidence in a controlled environment, with the logistical assistance of the CDPP, Australia’s Federal Prosecution Service.  I see no basis for any objection to that course, and none has been taken.  The witnesses will be in a place where they are able to give evidence without influence or inhibition. The court and the parties will be able to hear and observe the witness whilst giving evidence and form a view as to demeanour.  Defence counsel will be able to cross-examine the witness in a manner that allows observation by parties, counsel and the court.  It will be possible for documentation to be shown to the witness through the use of the technology.

33.	In addition, the evidence will be recorded for the purposes of the transcript in the usual manner by this Court’s Court Reporting Service.

34.	Accordingly, I am satisfied that there are appropriate facilities for the taking of such evidence.  

35.	All of these matters can be verified and any issues raised before evidence is taken. 

36.	In the circumstances, I am unable to see any unfairness to the accused in the taking of the evidence via video link.  Nor has it been suggested that the accused will suffer any prejudice to his defence in this trial as a result of the evidence being taken by video link.

37.	Furthermore, I am satisfied that there are good grounds for proceeding in this fashion.  Given logistical, administrative and financial constraints, it is my tentative view that it may not be necessary in every case for the State to establish that a witness is strictly unavailable or cannot be brought to Papua New Guinea before making an application for evidence to be taken via video link.

38.	In this case, however, as outlined above, I am satisfied that the witnesses are not currently available in Papua New Guinea.  Furthermore, their ability to travel to this country is seriously curtailed by Covid border restrictions in both Australia and Papua New Guinea. 

39.	Whilst not necessary to my determination, it is also relevant that the witnesses will be subject to prosecution in this country for perjury pursuant to s.121 of the Criminal Code having regard to its terms, together with the fact they appear to have strong ties to the jurisdiction.	

40.	The accused is charged with a serious offence. The taking of the evidence via video link will permit the admission of relevant evidence.  It does not prejudice him in his defence and will facilitate the completion of the trial in a timely manner in the interests of efficient judicial administration. 
 
41.	Accordingly, having regard to all of the above circumstances, it is my view that it is the interests of justice to allow the witnesses to appear and give evidence via video link.  I direct that the evidence be so taken, in accordance with the procedures outlined above.
_______________________________________________________________
Public Prosecutor: Lawyer for the State
Haiara Lawyers: Lawyer for the Accused