SC2190

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCC(OS) 3 of 2021 (IECMS)

APPLICATION PURSUANT TO CONSTITUTION
SECTION 18(1)

APPLICATION BY THE HONOURABLE
BELDEN NAMAH, MP

Waigani: Hartshorn J,
2021: 12th & 18th October

EVIDENCE - Whether affidavit may be relied on or used in an interlocutory application when the deponent of the affidavit has not been produced for cross examination – s36 (b) Evidence Act

Cases Cited:
Papua New Guinea Cases

State v. Raima [1993] PNGLR 230 
Kunnuga v. State (2004) N2689 

Overseas Cases

Shane McCarthy v. Seamus Murphy (2016) IEHC 391 

Counsel:

Mr. G. Sheppard and Ms. L. Painap, for the Applicant
Mr. T. Tanuvasa, for the First Intervener
Mr. M. Nale and Mr. M. Ninkama, for the Third Intervener
Ms. I. Guba, for the Fourth Intervener
Ms. P. Tamutai, for the Sixth Intervener
Mr. N. Kopunye, for the Seventh Intervener

18th October, 2021

1. HARTSHORN J: This is a decision on whether an affidavit may be used or relied on in an interlocutory application when the deponent of the affidavit has not been produced for cross examination.

Background

2. The substantive proceeding is an Application made pursuant to s.18(1) Constitution. In the Application, amongst others, declarations are sought that s. 197 Constitution, which concerns the functions of the Police Force, has been breached in regard to certain alleged payments made.

3. The interlocutory application before this court seeks amongst others, that Mr. Gregory Sheppard and the firm of Young &Williams be restrained or cease acting for the Applicant in this proceeding.

Whether affidavit may be used or relied on by seventh intervener

4. During the hearing of the interlocutory application, counsel for the seventh intervener informed the court that the seventh intervener relied upon the affidavit of Mr. Philip Yonge. Counsel for the Applicant informed the court that the Applicant had given notice that the Applicant required to cross-examine Mr. Yonge. It was submitted that as Mr. Yonge had not been produced, pursuant to s.36(b) Evidence Act, the seventh intervener was not entitled to use or rely on the affidavit as evidence without leave of the court and leave of the court had not been sought or obtained.

5. Counsel for the seventh intervener submitted that cross examination of the deponent of an affidavit in an interlocutory application was not permitted without leave of the court pursuant to Order 4 Rule 49(12)(5) National Court Rules which he sought to rely on by reliance upon Order 2 Rule 1(h) Supreme Court Rules. Leave had not been sought and obtained by the Applicant.

6. Counsel for the first intervener submitted that s. 36 Evidence Act did not apply as this proceeding does not fall within the definition of, “legal proceedings” in s. 1 Evidence Act. 

7. Counsel for the third intervener submitted that this court has the discretion whether to permit cross examination of a deponent of an affidavit in an interlocutory application. Further, it was not appropriate that cross examination be permitted as it is not part of the court’s function at the interlocutory stage to attempt to resolve conflicts of evidence on the affidavits before the court.

8. The fourth intervener did not take a position on the issue. Counsel for the sixth intervener submitted that as the question of cross examination was not dealt with in the Supreme Court Act or Supreme Court Rules, it was a matter for the court’s discretion.

Consideration

9. It is common ground that the notice to cross-examine was filed and served. Section 36 Evidence Act applies to a party or person interested in any legal proceedings before a tribunal, “to which this Division applies”. Section 33 defines that phrase to mean amongst others, the Supreme Court, or a Judge. In s. 3 (1) Interpretation Act, “Judge” means a Judge of the Supreme Court or of the National Court. I am satisfied that this court comprised of a single Supreme Court Judge falls within the definition of, “to which this Division applies” in s. 33 Evidence Act. 

10. As to whether what is being heard by this court falls within the definition of “legal proceedings”, in s. 1 Evidence Act, that definition is as follows:

“includes any civil, criminal or mixed proceedings and an inquiry in which evidence is or may be given before a court.”

11. The first intervener submitted that the proceeding before this court is a proceeding commenced in the original jurisdiction of the Supreme Court and it could not be categorised as civil, criminal or mixed proceedings. No case authority was relied upon for this submission. To my mind, the definition of, “legal proceedings” is sufficiently wide to include this proceeding. The definition begins with the word “includes” and so is not restricted to “civil, criminal or mixed proceedings”. Notwithstanding this, as this proceeding is not brought in the criminal jurisdiction of the court, I am satisfied that the proceeding before this court is a civil proceeding and I proceed on that basis.

12. Section 36(b) Evidence Act is as follows:

“(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; …”

13. It is clear that the party or person served with the requisite notice, if he does not produce the deponent of the subject affidavit at the hearing, is not entitled to use or rely on the deponent’s affidavit. If he wishes to rely on it, then leave of the court is required. As to reliance upon Order 4 Rule 49(12)(5) National Court Rules, it is as follows:

“(5) With the exception of contempt hearings, there shall be no cross-examination of deponents of affidavits, except with leave of the Court.”

14. This provision is made in the context of the filing, serving and hearing of notices of motions in the National Court and motions being made only for interlocutory relief.

15. Putting aside the issue of whether the seventh intervener may rely upon this provision by relying upon Order 2 Rule 1(h) Supreme Court Rules, it is still a Rule. The Evidence Act is an Act of Parliament which takes precedence over a Rule of Court. Consequently, a party or person has a right to cross-examine a person who has made an affidavit used or intended to be used in proceedings, notwithstanding a purported restriction of that right, by a Rule.

16. In this regard, the reliance by the third intervener on the case of Shane McCarthy v. Seamus Murphy (2016) IEHC 391, is of little assistance as the Court in that instance was considering a Rule which provides that application has to be made to enable the cross-examination of a deponent of an affidavit and not a statutory provision similar to s. 36(b) Evidence Act. The National Court cases of State v. Raima [1993] PNGLR 230 and Kunnuga v. State (2004) N2689 which were cited, do not give a detailed consideration as to how a discretion is purportedly conferred upon the court in its application of s. 36(b) Evidence Act when s. 36(b) is clear on its face and does not give such a discretion. Section 158(2) Constitution, which concerns the duty to give paramount consideration to the dispensation of justice, was relied on to give the Court a discretion. Section 158(2) provides that:

“In interpreting the law the Courts shall give paramount consideration to the dispensation of justice.”

17. “Justice” has been interpreted by numerous Supreme Court judgments as, “justice according to law”. The law in this instance is s. 36(b) Evidence Act. In s.36(b) Evidence Act no discretion is given to the court, apart from when an application for leave is made. Section 158(2) Constitution does not permit this court to disregard the plain wording of s. 36(b) Evidence Act. In my view, if a notice to cross-examine is given and the deponent is not produced for cross examination, the court does not have the discretion to permit the party or person to use or rely on the subject affidavit in the absence of an application for leave. Section 158(2) Constitution cannot be relied upon to give an opposite result.

18. Consequently, given the above, the seventh intervener is not entitled to use or to rely on the affidavit of Mr. Philip Yonge filed 21st August 2021 as he did not produce Mr. Yonge at the hearing and he did not apply for or obtain leave to rely upon Mr. Yonge’s affidavit pursuant to s. 36(b) Evidence Act. The hearing of the application of the seventh intervener filed 20th September 2021 shall continue at a time to be set.
__________________________________________________________________
Young &Williams Lawyers: Lawyers for the Applicant                          
Office of the Solicitor General: Lawyers for the First Intervener                
Jema Lawyers: Lawyers for the Third Intervener               
Allens Lawyers: Lawyers for the Fourth Intervener             
Corrs Chambers Westgarth:  Lawyers for the Fifth Intervener                
Tamutai Lawyers: Lawyers for the Sixth Intervener                
Kopunye Lawyers: Lawyers for the Seventh Intervener