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CHAPTER 5 � KEY CONCEPTS IN EVIDENCE

5.1 INTRODUCTION

The law of evidence is a collection of rules that apply to the proof of facts in court. Many of the rules of evidence originate in the common law, at a time when the institution of the jury was prevalent in both civil and criminal trials. Many of the rules of evidence continue to be explainable in light of the separation in the function of a judge as the trier of law and the one who controlled the proceedings of a trial and the jury, which was a collection of people who together listened to the evidence and made findings of fact based on the evidence.

This chapter is intended as a summary of the most important rules of evidence in Papua New Guinea. It is not intended to be a substitute for case law or statutory authority. Neither is it a substitute for a text that deals exclusively and comprehensively with the law and rules of evidence.

In Papua New Guinea, the Evidence Act contains both common law and statutory provisions, most of which originated in England years ago. However, there are rules of evidence which exist apart from the Evidence Act, either pursuant to other statutes or as part of the underlying law originating in the common law. The rules of evidence are difficult to classify in a systematic way. Any two texts on the subject are likely to be organised very differently, even where the same topics are covered.

Many of the rules of evidence were originally designed to protect and guide the jury in their duty to determine the facts of a case. For instance, the rules relating to hearsay and opinion might be thought of as means of protecting unsophisticated members of a jury from relying on evidence which might result in mistaken or unreliable findings of fact.

Other rules of evidence can be explained in terms of different considerations. For instance, public policy lies behind the rules of evidence relating to privilege. Evidence may be privileged, not because it is unreliable, but because society places a higher importance on protecting the evidence from disclosure than it does on the probative value that the evidence would otherwise have. Similarly, rules concerning compellability and the presumption of innocence can be explained in terms of public policy. Convenience is a concern that lies behind other rules of evidence. For instance, rules pertaining to judicial notice provide that some facts can be established without calling any evidence at all. Such facts would often require a great deal of inconvenience and expense to prove in a conventional way. Rules relating to relevance and previous consistent statements have much to do with preventing trials from becoming even more drawn out affairs than they already are.

Although it is impossible to accurately simplify the law of evidence, it might be useful for Magistrates to keep in mind that some rules and concepts are more central than others.

5.2 ADMISSIONS

A party against whom a fact would otherwise need to be proved may agree to admit that fact. When this happens, the fact may be taken by the court as having been proved without evidence being called.

Admissions may be made in both criminal proceedings (see Criminal Code, s 589) and civil proceedings. A Magistrate must ensure that both parties are clear and that the Magistrate is also clear on what exactly is being admitted. The purpose for which the admission is being made is also important. A fact might be admitted for one purpose but not for another.

An admission can only bind the party that is making it. For example, if there are two plaintiffs making a claim for damages arising out of a defendant�s negligence, one plaintiff might admit that the defendant was sober at the time of the accident. The other plaintiff might not be prepared to make this admission. If the state of the defendant�s sobriety is in issue, the admission of one plaintiff only applies with respect to that plaintiff�s claim. It cannot be used to prejudice another party who does not admit the fact.

The best way to establish that an admission is being made is to have it reduced to writing and signed by the party or lawyer making the admission. This practice avoids any doubt about exactly what is being admitted. If this is not practicable then the Magistrate should write the admission word for word in his or her bench notes and then read the admission back to the party making it to ensure that what has been written is correct.

A Magistrate cannot force a party to make an admission even though the admission might be reasonable in the circumstances and even though not making the admission forces the other side to call evidence to prove the fact, thereby requiring delays and inconvenience.

5.3 AFFIDAVITS

An affidavit is a written statement of fact that is signed and its contents sworn to be true by the deponent. Although it is sworn, an affidavit is not automatically admissible to prove a fact in issue in a trial. Because an affidavit is sworn to be true it may be more reliable than an out-of-court statement that is not sworn. However, it is still hearsay, and the party against whom it is admitted (unless the maker of the affidavit is called as a witness) is denied the opportunity of cross-examining the maker of the statement.

Affidavits can be a convenient shortcut for adducing evidence. However, they can create difficulty for a Magistrate where credibility of the deponent is in issue. Therefore, in a situation where parties adduce inconsistent evidence by means of affidavits, and a Magistrate is forced to make a finding of fact, it may be necessary to call the deponents for cross-examination.

There are a number of statutory provisions that permit the admission of affidavits as evidence. They are found in the Evidence Act and in various other statutes. The following are some of the most commonly relied upon provisions.

Sections 32-37 of the Evidence Act provide specific instances and rules governing the use of affidavits to prove facts in District Court proceedings. These sections give a Magistrate the discretion to allow evidence to be adduced by affidavit.

Section 46 of the Evidence Act provides for the admission of affidavit evidence to prove a previous conviction outside of Papua New Guinea.

Sections 75-78 of the Evidence Act are examples of other statutory provisions that authorise the use of affidavits to prove particular facts subject to certain conditions. These pertain to documents and copies of documents.

Other statutes provide for admission of affidavits in particular circumstances. A party wishing to have an affidavit admitted as evidence should be called upon to provide authority for its admission.

An example of a statutory provision that allows for admission of affidavits is s 19 of the Deserted Wives and Children�s Act, which provides that:

<Legislation Quotation>

�a woman who complains that she has been deserted by her husband or left by him without means of support shall produce direct evidence of her marriage to the defendant or, if she is unable to produce direct evidence to the satisfaction of the Court, shall make and produce an affidavit setting out the time, place and circumstances of the marriage�.

<End Legislation Quotation>

5.4 BURDEN OF PROOF

The general rule is that the party who makes an allegation of fact has the burden of proving it (for exceptions see 5.21 and 5.26). This means that the plaintiff in a civil action has the burden of proving the allegations that together constitute the claim. The prosecution in a criminal case has the burden of proving the allegations that form the basis of the charge.

The burden of proof can refer to the evidential burden or the legal burden. The evidential burden is the burden that must be met by a prosecutor or a plaintiff in order to present a prima facie case. If the evidential burden is not met, a criminal case may be dismissed as a result of a no case submission. In a civil case, a similar motion, sometimes called a non suit motion, may be made: see 5.23.

In a criminal case, if a defendant wishes to rely upon some defence such as consent or self-defence, he or she must adduce some evidence that points to the existence of that defence. This imposes a burden on the defendant. However, this burden is not an onerous one. It takes only a minimal amount of evidence to discharge this burden. If a defendant raises some evidence (either during cross-examination of the prosecution witnesses or by calling evidence during the defence case) then a Magistrate is obliged to consider the existence of such a defence when deciding whether the prosecution has proved its case beyond a reasonable doubt.

In a criminal case, where a defendant wishes to rely on a statutory excuse, a proviso, justification or licence for the actions which constitute the actus rea of the offence, then a higher evidential burden is cast upon the defendant.

An example of an offence where such a defence might be advanced is s 43 of the Summary Offences Act, which provides that:

<Legislation Quotation>

�a person who, without lawful authority, in a public place � defaces � a building is guilty of an offence.�

<End Legislation Quotation>

Other examples of offences where such a defence must be proved on the balance of probabilities are found in s 4(c) of the Dangerous Drugs Act and s 26(4) of the Firearms Act.

In a civil case, a defendant who wishes to rely on a defence (such as contributory negligence or failure to mitigate) must discharge an evidentiary burden in relation to the allegations that provide the basis of such a defence. In civil cases this burden of proof on the defendant is the same as the burden borne by the plaintiff. The evidentiary burden must be discharged on the balance of probabilities.

The evidential burden of proof relates to the question of whether a party has adduced a prima facie case. Generally, the evidential burden is met when there is some evidence going to each element of an offence (in a criminal case) or each ingredient of a cause of action (in a civil case): see also 5.23.

The legal burden is the burden of proof that a plaintiff or a prosecutor must meet in order to succeed at the end of the case after all the evidence has been called by both sides. In a criminal case it is proof beyond a reasonable doubt. In a civil case it is proof on the balance of probabilities.

5.5 CHARACTER EVIDENCE

Character evidence is evidence that shows what qualities a person has. Character evidence is usually adduced in relation to the credibility of a witness to show that a person�s evidence should or should not be believed.

The common law rules relating to the admission of evidence of character have resulted in a fairly complex set of rules and exceptions. Much of this may be explained in terms of relevance. If evidence of a person�s character is relevant to an issue, including credibility, then it is likely to be admissible.

Section 21 of the Evidence Act permits a party to test the credit of his or her own witness, but not by means of character evidence. A party may test the credit of an opposing party�s witness by character evidence, provided it is probative and relevant. This applies to both criminal and civil cases.

In criminal law there are important statutory limitations to the admissibility of evidence concerning the character of the defendant, including evidence of a prior criminal conviction.

Section 15 of the Evidence Act prevents the character of the accused from being raised by the prosecution, except in certain circumstances.

One circumstance where character evidence is admissible is pursuant to s 15(c), where proof of a previous conviction is necessary to prove the commission of the offence with which the defendant is charged. An example is when a defendant is charged with escaping from lawful custody pursuant to s 139 of the Criminal Code. In order to prove the offence, the prosecution must prove that the custody from which the defendant is accused of escaping was lawful. If the custody that the defendant escaped from results from a sentence for the commission of a criminal offence, then it is necessary to prove that criminal offence and therefore the criminal record for that offence.

Other instances where evidence of the defendant�s character is admissible are triggered by the manner in which the defendant conducts his or her defence.

5.6 CIRCUMSTANTIAL EVIDENCE

Circumstantial evidence is sometimes called indirect evidence. It is evidence that is relevant, not because it proves a fact in issue, but because it proves another fact which makes a fact in issue more or less probable. Circumstantial evidence requires an inference to be drawn on the part of the Magistrate in order to relate it to a fact in issue.

Sometimes circumstantial evidence is relevant because it makes a fact in issue less probable. If the defendant in the above example gave evidence that he had a friend in the neighbourhood whom he had been visiting, and that he was walking home when the break-in occurred, it would not prove that he did not commit the break in. However, it would be relevant circumstantial evidence because if accepted, it would tend to reduce the probability that the defendant committed the offence.

If there is enough circumstantial evidence of sufficient weight, a Magistrate may find that the offence is proved beyond a reasonable doubt, even without direct evidence. Sometimes, a combination of direct and circumstantial evidence proves an offence.

5.7 COMPELLABILITY

A person is compellable if that person can be forced, against his or her will, to be a witness. The general rule is that everyone who is competent is compellable. The usual means of obliging a person to give evidence is to serve the person with a summons or issue a warrant to bring them to court: District Courts Act, ss 66-73. Even a person who has not been summoned (the Evidence Act uses the word �subpoena�) is compellable as a witness if he or she is �present at any legal proceeding�: Evidence Act, s 10. If a compellable witness who is present in court refuses to give evidence, he or she may be dealt with pursuant to s 70 of the District Courts Act. This section gives a Magistrate the power to commit a person to custody for a period of up to eight days.

Exceptions: There are exceptions to the general rule that competent witnesses are compellable. Certain people are competent witnesses but cannot be compelled to give evidence.

The most important exception to the general rule is a defendant in a criminal case. The right to silence continues throughout a trial. Section 14 of the Evidence Act makes this clear in the following words:

<Legislation Quotation>

�A person charged with an offence shall not be called as a witness by the prosecution in any legal proceedings in connexion with the offence.�

<End Legislation Quotation>

Of course a defendant in a criminal case may choose to give evidence: see 5.8. If the defendant chooses to do this, he or she may be cross-examined by the prosecution.

A co-accused cannot be compelled to give evidence, but may choose to do so. If a co-accused gives evidence, it may be evidence that the other co-accused was the one who committed the offence. This opens the testifying co-accused to cross-examination about his or her own character: see 5.5.

A spouse of a defendant in a criminal case is not compellable as a witness against the defendant in relation to most types of offences, unless the defendant consents: Evidence Act, s 13.

Some witnesses who are compellable may be permitted to refuse to answer particular types of questions. This is a matter of privilege, not compellability: see 5.29.

5.8 COMPETENCE

A person is competent to testify as a witness if the person is permitted by the court to testify. The general rule is that everyone is competent to testify. The importance of the rule about competence lies in the exceptions to the general rule.

The mental capacity of a person to make an oath or affirmation is the main limiting factor in deciding whether or not a person is competent to give evidence. If a person understands the meaning of an oath or an affirmation then the person is competent to give evidence. In Papua New Guinea, the Oaths Affirmations and Statutory Declarations Act governs the giving of an oath.

In certain circumstances a witness may give evidence without taking an oath or making an affirmation. Section 6 of the Oaths, Affirmations and Statutory Declarations Act provides that:

<Legislation Quotation>

�a person called in a civil or criminal proceeding who does not appear capable of understanding the nature of an oath or of understanding the meaning of a statutory declaration or affirmation may be permitted to give evidence�.

<End Legislation Quotation>

However, this is only permitted if a Magistrate is satisfied that the person understands that he or she is liable to punishment for giving false evidence. Children often fit within the meaning of this section. This is a special category of competence, and a Magistrate must treat such evidence with extra care: see 5.10.

5.9 CONFESSION

A confession is a full admission by an accused person of the commission of a criminal offence. Although most confessions are reduced to writing, they can also be made orally.

A confession is a form of hearsay evidence. It is an out-of-court statement that a prosecutor wishes to adduce as evidence to prove the truth of what was said. Confessions may therefore be thought of as an exception to the rule against hearsay. The exception falls generally within the scope of the larger exception referred to as statements against interest.

Special rules govern the admission of confessions in a criminal prosecution. The party seeking to have it admitted must prove that the confession was voluntarily made, that is, that it was not induced by threats or promises: Evidence Act, s 28. The procedure for determining whether the prosecution can demonstrate that the confession has not been induced by threats or promises is called a voir dire: see 5.36.

The requirement that a prosecutor prove that a statement is voluntary before it can be admitted as evidence is based on the perceived risk that a person might confess to something not because it is true, but because he or she is frightened as a result of an express or implied threat, or expects to receive some benefit as a result of making a confession. The perceived benefit that induces a confession might be release from custody or a lenient sentence, or it might be directed towards some other person (protection of a friend or family member who could be charged with an offence). A prosecutor must satisfy the Magistrate that a confession does not result from these or other similar motives.

During a voir dire the issue is not whether the confession is true, nor is it whether the confession is sufficient to form the basis of a conviction. The only issue is the admissibility of the confession. Stated another way, the issue is whether the confession was made as a result of threats or promises, express or implied. The important factor is not whether threats or promises were intended to be made, but rather whether a defendant would have perceived a threat or a promise.

If a prosecutor demonstrates during a voir dire that the confession was not made as a result of perceived threats or promises, that is, that it was voluntarily made, then it may be admitted as evidence: see 5.20. When this happens, it is subjected to the same considerations as any other evidence in relation to the weight that should be given to it. For instance, a confession might be admissible but be of little weight. It might not be clear what the defendant is confessing to or what exactly the defendant meant by the words he or she used. These are matters of weight which can be considered after a decision to admit evidence has been made.

Apart from the possibility that a confession may be inadmissible because the prosecutor is unable to prove that it was not made as a result of perceived promise or threat, it may be alleged that the confession was obtained by other wrongful, illegal or unconstitutional means. This may lead to its rejection: see 5.20.

5.10 CORROBORATION

Corroborating evidence is independent evidence that confirms or supports some other evidence. It can take the form of oral testimony, documentary evidence or real evidence. It might be direct evidence or it might be circumstantial. A finding that an accused has told lies in court may amount to corroboration. However, evidence of a recent complaint by a victim of a sexual offence is not corroboration because it is not independent.

Section 1 of the Criminal Code defines �uncorroborated testimony� in relation to an accused person as �testimony that is not corroborated in some material particular by other evidence implicating him�.

There are particular types of cases (both criminal and civil) where corroboration is important. These cases break down into two categories:

1.         Cases where corroboration is required before a particular finding can be made.

2.         Cases where a Magistrate may make a finding without corroboration but must first warn himself or herself of the danger of doing so. Rules about corroboration can be traced to what has been regarded as the inherent weakness in the types of evidence that require corroboration.

5.10.1 Where corroboration is required

The following are some instances where corroboration is required before there can be a finding made against a defendant.

5.10.2 Where a warning is required

Where a warning is required before convicting on uncorroborated evidence, a failure of a Magistrate to direct his or her mind properly and clearly to this rule of evidence may, on appeal, be regarded as an error of law sufficient to overturn a conviction.

The types of cases where this warning is required are as follows:

5.10.3 Illustration of corroborating evidence

Suppose a victim of an assault gave evidence that the defendant hit him with a stick on the head and the defendant gave evidence that he did not hit the victim with a stick. A Magistrate might have some difficulty in making a finding of fact. The finding would have to be made by weighing the evidence of each witness and applying the burden and standard of proof. If the evidence of one of the witnesses was corroborated (confirmed or supported by independent evidence), for instance by medical evidence that the injuries of the victim are consistent with blows by a stick, it could make the Magistrate�s task easier. Where the sides appear equally credible, corroborating evidence in support of one side can assist in determining whether the burden of proof has been discharged.

5.11 CREDIT

The credit of evidence refers to the extent to which a court may give it weight or accept it as true. Similarly, the credibility of a witness refers to the extent to which a witness should be believed. A witness whose evidence is accepted as true is one who is found to be credible.

A question put to a witness in relation to his or her credit is relevant if it assists the court in deciding how much weight, if any, to attach to the witness�s testimony.

Sometimes evidence of credit relates to the character of a witness: see 5.5. For instance, suppose a witness was caught cheating on a school exam 10 years ago. The witness might be cross-examined by the opposing party about this. Even though the exam might have nothing to do with the case before the court, if the fact that the witness cheated on an exam 10 years ago may help to determine whether the witness is telling the truth about an issue before the court, then it is relevant. However, Magistrates are given discretion by s 26 of the Evidence Act to decide whether a witness has to answer these types of questions.

The exercise of this discretion turns on whether the answer to a question about character (used to attack the credit of a witness) would have a far greater negative effect on the character of a witness compared to the extent to which it really helps a court to decide whether the witness is telling the truth. If so, then a Magistrate is entitled to tell a witness that he or she is not obliged to answer the question.

Even if the answer to the question that the cross-examiner is seeking would only have a very small effect on the credibility of a witness, then a Magistrate has the discretion to inform a witness that he or she is not obliged to answer it. The example given above about whether a witness was caught cheating on an exam many years ago is an example of this type of question.

It is difficult to determine credibility in relation to hearsay evidence, whether oral or written: see 5.3 and 5.17.

Where documentary hearsay evidence in the form of computer-generated documents is considered for credibility, s 67 of the Evidence Act provides guidelines.

5.12 CROSS-EXAMINATION

5.12.1 What is cross-examination?

Cross-examination is an important tool in the search for truth in the adversary system of justice. It allows a party to test and probe the evidence that has been given by an adverse witness. There are two main purposes of cross-examination. One is to expose the weaknesses of the witness� evidence. The weight of an opposing witness� evidence may be diminished and the opponent�s case therefore rendered less damaging. The other purpose of cross-examination is to elicit evidence from an adverse witness that is favourable to one�s own case.

Cross-examination is distinguished from examination-in-chief mainly by the fact that leading questions are allowed. See 5.16 for description and examples of leading questions.

While a wide range of questions may be asked of a witness during cross-examination, it is not unlimited. For instance, the questions have to have some relevance.

Other rules of admissibility also apply to evidence elicited in cross-examination.

During cross-examination, a witness may be challenged on a previous inconsistent statement: see 5.28.

5.12.2 Browne v Dunn

If a defence that is intended to be advanced involves a denial or contradiction of evidence given by a prosecution or plaintiff witness, the defence version of facts should be put to the witness in cross-examination. This is known as the rule in Browne v Dunn [1894] 6 R 67.

For instance, suppose a prosecution witness says that he saw the defendant in Waigani on the night of the crime. Suppose also that the defendant will be giving evidence that he was not in Waigani. In such a case, the proposition that the accused was not in Waigani on the night of the crime (that the person that the witness thought was the accused was really someone else, or that the witness is not telling the truth) must be put to the prosecution witness during cross-examination.

The rule in Browne v Dunn allows a party to know before closing their case what parts of his or her case are going to be challenged by evidence from a defence witness. A party may then decide to re-examine their own witness on this point or choose to call further evidence in support of the fact that will be disputed: see 5.34.

If a party ignores the rule in Browne v Dunn and later attempts to lead evidence that is inconsistent with evidence adduced by an opposing witness, a Magistrate may exercise discretion to disallow this evidence or take into account the failure to cross-examine on the point when weighing the defendant�s evidence.

5.13 CUSTOM

Custom is an important source of law in Papua New Guinea. The Constitution and the Underlying Law Act give it priority to the common law: see Chapter 2.3.8 and 2.4. Where a party�s case involves custom, the court must determine what is and is not custom and whether custom is applicable to the facts and issues before the court. Until recently, custom was a matter that had to be proved as a fact: see Customs Recognition Act, s 2. Now, however, s 16 of the Underlying Law Act provides that a question as to the existence or content of custom is a question of law and not a question of fact. This gives a Magistrate much wider scope for the determination of custom than previously existed.

A Magistrate, pursuant to s 16(2) of the Underlying Law Act, must consider the submissions on behalf of the parties, and may:

�           refer to cases, books, treatises, reports and other works of reference on the customary law relevant to the proceedings;

�           refer to statements and declarations of customary law made by local, provincial and other authorities in accordance with a law empowering them to make such statements;

�           consider evidence and information concerning the customary law relevant to the proceeding presented to it by a person the court is satisfied has knowledge of the customary law relevant to the proceedings; or

�           obtain evidence, information and opinion of his or her own motion.

In determining which particular customary law should apply to the matter in hand, the court must follow the rules set out in s 17 of the Underlying Law Act. For example, it may be necessary to consider which community or communities the parties belong to. The rules for ascertaining membership of a community are contained in s 1(2) of the Act.

In criminal cases, custom may only be taken into account for specific purposes. These purposes are set out in s 4 of the Customs Recognition Act. They are:

�           ascertaining a person�s state of mind;

�           deciding the reasonableness of a person�s act or omission;

�           determining the reasonableness of an excuse;

�           deciding whether to proceed with a conviction (or to grant a discharge); and

�           determining an appropriate sentence.

See also 2.4.2.2, which deals with custom in criminal matters.

Custom in civil matters is dealt with in 2.4.2.3, and see 25.6.4 for decisions in customary matters.

5.14 DIRECT EVIDENCE

Direct evidence is evidence of one of the actual facts that must be proved in order to convict in a criminal case, or to make a finding in favour of a plaintiff in a civil case. Direct evidence does not require a Magistrate to draw an inference.

For instance, if a defendant is charged with breaking and entering a dwelling-house, and a witness gives evidence in court that he saw the defendant kick in the door and go into the house, that is direct evidence. Similarly, if a person is alleged to have left the scene of an accident and a witness at the scene of the accident gives evidence that the defendant drove away, it is also direct evidence. It is not necessary for a Magistrate to draw any inference from this evidence in order to link it to an element of the offence.

Direct evidence can be contrasted with indirect or circumstantial evidence which requires a trier of fact to draw an inference to link the evidence with a fact that must be proved: see 5.6. Because there is no risk of drawing an incorrect inference in relation to direct evidence, it is therefore considered to be inherently more reliable than circumstantial evidence (subject to the credibility of the source of the evidence).

5.15 DOCUMENTARY EVIDENCE

A document usually takes the form of a piece of paper with writing on it. However, this is not always the case. Section 1 of the Evidence Act defines a document to include �a book, plan, paper, parchment or other material on which there is any writing that is marked with letters or marks denoting words or any other signs capable of carrying a definite meaning to persons conversant with them, and includes any part of a document�.

When deciding upon the admissibility of a document and the use to which it can be put if admitted, it is useful to think of the several categories of documents.

One way of distinguishing documents is to decide whether the document has some legal significance (for instance a lease or a contract) or whether the document is intended to prove the truth of assertions made in the document. The first type of document does not present a hearsay issue. The latter type does.

If the document does not present a hearsay problem (that is, it is not being adduced to prove the truth of an assertion contained in it), then its admission usually depends only on its relevance and upon it being properly identified as what it purports to be. In most cases this will require a witness to identify the document and to establish its relevance.

If a document is being offered to prove the truth of assertions contained in it then it is hearsay, and its admission may depend on it fitting within some exception to the hearsay rule.

See also 5.18.

Copies of documents: Often, it is not the original but the copy of a document that a party attempts to adduce in court. The best evidence rule is a common law rule which requires that if an original of a document can be produced in court that a copy should not be allowed. However, the best evidence rule is not as rigorously enforced as it once was. With computers storing original information, it is arguable that all printed documents are really copies. The main concern with producing a copy of a document as evidence is whether it accurately reflects the contents of the original. This is the major concern in relation to the admissibility of a copy.

Sections 68-90 of the Evidence Act set out detailed provisions providing for the admission of photocopied documents. These sections appear to be outdated and difficult to apply.

5.16 EXAMINATION-IN-CHIEF

Examination-in-chief is the process by which the party who calls a witness elicits the witness�s testimony about matters in question. Examination-in-chief consists of questions and answers.

5.16.1 Rule against leading questions

A leading question is a question that suggests a particular answer.

There are several types of leading questions. An example of one type is: �You were present at the restaurant when the defendant walked up to the counter with a gun, weren�t you?� It is obvious that the questioner is expecting the witness to answer �yes� to such a question.

A variation on this type of leading question is where the question contains detailed information that suggests what answer is expected. For instance, �When you awoke during the middle of the night after hearing a loud noise, did you react by getting out of bed immediately?� This is clearly a leading question. It suggests that the witness was awakened in the middle of the night, that the cause of the awakening was a loud noise and further, it tends to suggest that the witness got out of bed immediately upon hearing the noise.

Another type of leading question is one that implies an affirmative answer to an embedded question. For instance, if a witness is asked �Have you been driving without a licence for a long time?�, an answer of either �yes� or �no� implies that the witness has been driving without a licence. It is therefore a leading question.

Leading questions are sometimes easy to detect, in that they often require the answer to be �yes� or �no�. However, not all �yes� or �no� questions are leading questions. For instance, the question �Are you a citizen of Papua New Guinea?� is not a leading question. Although it demands a �yes� or �no� answer, neither answer is suggested by the question.

In court, a lawyer representing an opposing party might object to leading questions. If the lawyer does not do so, it may be assumed that the lawyer consents to the leading questions being asked. However, if the opposing party is not represented by a lawyer, no such assumption should be made. The party is unlikely to know the rules of evidence. In such a case, it is up to the Magistrate to ensure fairness in the trial by controlling the degree to which a party is allowed to ask leading questions.

5.16.2 Exceptions to rule against leading questions

1.         Where a witness is being asked introductory and background questions about matters which are not in issue. For instance, the witness�s name, address, profession and any other relevant background information.

2.         Where the answer to the question has been established by some earlier evidence, either by the witness�s own answers or by some other witness. For instance, in the example above, if the witness (who was asked about being awakened in the night by a loud noise) has already answered non-leading questions that establish that the witness was awakened by a loud noise in the middle of the night and that as a result the witness got out of bed, the questioner might want simply to establish whether the witness got out of bed immediately.

3.         Where the opposing side does not object to the leading question. However, as mentioned above, if the other side is not represented by a lawyer it is appropriate for a Magistrate to limit the asking of leading questions.

4.         Where the subject matter of the question is not in dispute.

See also 5.27, 5.19 and 5.32.

5.17 HEARSAY RULE

5.17.1 What is hearsay?

The rule against hearsay, together with its exceptions, is one of the most important rules of evidence. The purpose for which the statement is intended to be used is important in deciding whether it is hearsay. A witness�s statement or document that repeats something that was said out of court is only hearsay if the statement is repeated in court to prove that the facts asserted in the statement are true. If the statement is offered in court simply to prove that the statement was made, and not to prove that what is asserted is true, then it is not hearsay.

Example: Suppose a witness (let�s call him Tim) is called to give evidence and says �My brother John told me that the university was closed last Saturday.� If the evidence is offered as proof that the university was closed on Saturday, then it is hearsay. However, suppose Tim is a delivery person and there is an issue about the reasonableness of Tim not making a delivery to the university on Saturday. The evidence of what Tim�s brother John said is not hearsay. It is not being introduced to prove that the university was closed (the truth of the assertion by John), but only to explain the reasonableness of what Tim did on being told that it is closed.

Other types of court statements may be repeated in court because they are not intended to prove the truth of the out-of-court statement. Such statements are not hearsay.

Statements having legal effect: An example of such a statement would be a statement that has legal effect. For instance, if a representation is made as part of a contractual relation, that statement might be adduced in court to clarify the legal obligations of the parties, not to prove that the statement is true. For instance, if Joe sells Mary his car and, in the discussions leading up to the sale, tells her that the car�s air conditioner works (when in fact it does not), then if Mary sued Joe for breach of contract she may adduce the out-of-court statement, not to prove that it is true, but to prove that it was made (and that she relied upon it).

Statements disclosing state of mind: Another example is where a statement made by a person out of court is adduced as evidence in court to show the state of mind of the person. For instance, a person might say to a neighbour �If you don�t stop your dog from barking, I will shoot it.� This statement might be admissible in court, not to show that it is true, but to indicate the state of mind of the person who made it at the time it was made.

5.17.2 Rationale for hearsay rule

An important reason for the hearsay rule is a Magistrate�s need to make findings of credibility. If a witness who actually saw an event is in court when the evidence about that event is given, that witness can be cross-examined about what he or she perceived, how well he or she remembered, or whether he or she has a motive for not telling the truth. If the witness deliberately attempts to distort the truth or is somehow mistaken, this has a good chance of being revealed. The Magistrate can also evaluate the witness� demeanour (non-verbal communication).

On the other hand, if the person who witnessed an event is not in court to give evidence about what was seen, heard or felt, but the information is passed on to court through some other person, it is difficult for a trier of fact to weigh the evidence. It is difficult or even impossible to know whether the person who witnessed the events was lying, whether he or she saw or heard the events clearly, whether he or she has a motive for not telling the truth or whether he or she has a bad memory.

Hearsay is often contained in documents. When a person presents a document in court as evidence of the truth of what the documents says, then it is hearsay, just as it is when a person reports orally what another person said outside court: see 5.15.

5.18 HEARSAY RULE - EXCEPTIONS

There are many exceptions to the hearsay rule. Some are based on statute and some are part of the common law which forms part of the underlying law in Papua New Guinea. Together they provide for instances where an out-of-court assertion may be adduced in court (either orally or in writing) to prove the truth of the assertion.

5.18.1 Common law exceptions

Res gestae: If a statement is made in a state of great emotional excitement at the time of the events to which the statement relates, then it may be admitted as an exception to the hearsay rule. The statement must be spontaneous in the sense that it is not premeditated.

The res gestae exception also covers statements made by a person about how he or she feels at the time the statement is made. For example, �I am tired� or �I have a pain in my head.�Evidence that a person (who is not a witness) said such a thing may be admitted to prove that that is how they really felt, even though the evidence is hearsay.

Statements against interest: This common law exception to the hearsay rule is based on the assumption that a person who makes a statement that is against his or her own interest would not do so unless that statement is true.

The most important example of this exception is a full confession that is made in a criminal case by a defendant to a person in authority. A person who confesses to a criminal offence makes the ultimate statement against interest. There are special rules governing this exception which are designed to ensure that the confession in made voluntarily and that other prerequisites are met: see 5.9 and 5.20.

A statement against interest, other than a confession in a criminal case, does not require a voir dire: see 5.36. For instance, an accused person may make an out-of-court statement that they are 18 years of age. This is a statement against interest if their age is in question and they are being tried in an adult court. Another example in a civil case would be where a person being sued for negligence admits that they were driving too fast for road conditions at the relevant time. A further example is where a person admits out of court that they owe someone else money. This statement is against the interest of the person making the statement and would therefore be admissible as an exception to the hearsay rule.

5.18.2 Statutory exceptions to the hearsay rule

5.19 HOSTILE WITNESS

A hostile witness is one who may be cross-examined by the party who called the witness. The determination that a witness is hostile is made by the Magistrate upon application by the party who called the witness.

The prerequisite for a declaration that a witness is hostile is a finding by a Magistrate that the witness is motivated by dishonesty or malice in the giving of evidence. A witness who tries not to tell the truth as a result of bribery or intimidation may be declared hostile.

Lawyers will sometimes seek a declaration that a witness is hostile simply because the evidence given by the witness in examination-in-chief does not come up to proof (does not say what is expected). However, this alone does not mean that a witness is hostile. A witness is not hostile simply because the witness is forgetful, confused or in error.

5.20 ILLEGALLY OR WRONGFULLY OBTAINED EVIDENCE

A Magistrate must make a ruling on such an objection. This involves two distinct issues.

1.         The first issue is to decide whether the evidence has been illegally or unconstitutionally obtained.

2.         The second issue is to decide what, if any, steps should be taken as a result of the evidence having been wrongfully obtained.

A decision on the first question often involves the Magistrate having to hear (or see) the evidence and to hear evidence about how the evidence was obtained. This is typically done in the context of a voir dire: see 5.36.

A decision about what to do if a finding has been made that the evidence is wrongfully obtained raises a number of questions. One is what powers does a Magistrate have when dealing with this sort of evidentiary issue?

If it is alleged that the evidence was obtained in an unconstitutional manner and should be excluded for that reason pursuant to s 57 of the Constitution, the case must be adjourned so that the National Court can rule on that question. The District Courts have no jurisdiction to rule on applications for relief (in the form of an order for the exclusion of evidence or otherwise) for breaches of the Constitution.

However, Magistrates have discretion, based on common law, to exclude evidence which has been obtained in an unfair manner. The Judges Rules, which originated in England in 1912, provide a basis for the exercise of this discretion. They were intended to guide the conduct of police in dealing with criminal suspects. The rules provided that suspects are to be warned that they are not obliged to give evidence.

This common law discretion relates primarily to the exclusion of evidence in a criminal case. It most commonly relates to a confession or evidence that has been obtained as a result of information given to the police by a defendant. For instance, if a person was threatened or assaulted by the police and, as a result, told the police where stolen property was located (which would link that person to the offence), a discretion to exclude might be exercised. This would not be as a result of the evidence being unreliable (which is the concern underlying confessions obtained by threats or promises), but because the evidence was wrongfully obtained as a result of an assault upon the accused. In many cases the discretion to exclude evidence on this basis overlaps with the need to determine whether a confession was obtained as a result of a promise or threat: see 5.9.

5.21 JUDICIAL NOTICE

Judicial notice is a way of establishing facts in court without calling evidence. When a Judge or Magistrate takes judicial notice of a particular fact, it is established for the purposes of the hearing or trial. It is not necessary for a party to call evidence to prove a fact that has been judicially noticed.

5.21.1 Judicial notice pursuant to statute

Sections 3-8 of the Evidence Act set out matters of which a Magistrate or Judge is required to take judicial notice. These include the laws of Papua New Guinea and Australia, including regulations, by-laws, commissions, determinations, proclamations or orders made by a government official pursuant to a statute or ordinance. Judicial notice must be taken of the existence of certain public offices and office holders in Papua New Guinea or Australia pursuant to s 7 of the Evidence Act.

Custom is a matter that is a question of law. Section 16 of the Underlying Law Act provides that custom is a question of law. This allows a Magistrate to take judicial notice of custom without receiving evidence on the matter (although evidence may also be received instead of, or in addition to, judicial notice of custom: see 5.13).

5.21.2 Judicial notice of other matters

Judicial notice may also be taken of matters other than those specified in the Evidence Act. The common law has established criteria which can be used as a guide in deciding whether to take judicial notice of a particular fact.

A fact that is so well known to the general public that is cannot be seriously disputed may be judicially noticed. Sometimes such facts are said to be notorious. For instance, in Papua New Guinea it is commonly known that snow does not fall in Port Moresby. No-one would seriously dispute this fact. If this fact becomes relevant to an issue before the court, a Magistrate could take judicial notice of it. Other examples of facts that are commonly known are that there is no highway between Port Moresby and Lae, that chewing buai is a popular habit in Papua New Guinea, and that the Post Courier is the name of a newspaper that is published in Papua New Guinea. These are only examples of facts that are so commonly known that they cannot seriously be disputed. No-one would expect a Magistrate to require sworn testimony to establish these facts. It would be impossible to list all of the facts that a Magistrate might take judicial notice of on this basis.

In the case of Tomalana v Drug House of Papua New Guinea [1991] PNGLR 65, the court explained judicial notice in the following words:

<Case Quotation>

�It is as if the proposition put to any reasonable person in that locality at that time, would bring an answer �of course� or �obviously that is correct�.�

<End Case Quotation>

Judicial notice may also be taken of a fact if a Magistrate is able to satisfy himself or herself of the truth of the fact by reference to a well-known authority of indisputable accuracy. For instance, a Magistrate could consult a published atlas to determine the distance between two towns. If there is a question of what day of the week Christmas fell on in 1998, a Magistrate might consult a calendar to make the determination and then take judicial notice that it fell on a Friday.

However, the scope of this type of judicial notice is restricted. In Mesalam Tomalana v Drug House of Papua New Guinea, referred to above, the court held that judicial notice could not be taken of a published article in a medical journal.

A Magistrate should be careful not to take judicial notice of a fact that is within his or her personal knowledge but is not commonly known. For instance, a Magistrate might know that the traffic lights at a particular intersection were not working on a particular date. The Magistrate might know this because he or she drives through the intersection on the way to work every day. However, if it is not well known to the general public, then a Magistrate should not take judicial notice of the fact. To do so would be to take the role of a witness. It is up to the party seeking to establish that fact to call evidence.

5.21.3 When judicial notice may be taken

Judicial notice can be taken at any stage of a trial or hearing. A party may request that a Magistrate take judicial notice of a fact. Alternatively, a Magistrate may take judicial notice of a fact without specifically being asked to do so. A Magistrate should make clear to all parties a matter of which judicial notice is being taken.

5.22 LEADING QUESTIONS

See 5.16 and 5.12.

5.23 NO CASE SUBMISSION

At the end of a prosecution�s case in a criminal trial, defence counsel may make a no case submission (sometimes called a no case motion or a no evidence motion). A similar motion in civil proceedings is sometimes called a non suit motion. The defendant submits that no prima facie case has been made out. In other words, it is a submission that evidence of some essential element of the offence is missing in the case. This is an invitation to the court to dismiss the charge against an accused.

The question that a Magistrate must consider when a no case submission is made is this: Is there some evidence going to each element of the charge? In order to answer this, it is necessary to break an offence down into its constituent elements or parts.

A Magistrate does not need to weigh evidence or make findings of credibility in deciding a no case submission. That can wait until the end of the case when both sides have had an opportunity to present all their evidence. Rather, a Magistrate should ask himself or herself whether someone who found the evidence of the prosecution credible could possibly convict on the evidence adduced.

A counsel for a defendant who makes a no case submission does not forfeit an opportunity to make submissions if the no case submission fails. If a no case submission is rejected and defence counsel elects to call no evidence, then both sides must be invited to give closing submissions. These submissions would properly invite the Magistrate to draw inferences from the evidence, make findings of credibility, deal with any issues of law and ultimately whether the case has been proved beyond a reasonable doubt: see 5.4 and 5.35.

5.24 OATHS AND AFFIRMATIONS

See 5.8.

5.25 OPINION

Opinion evidence is evidence of what someone thinks rather than what someone knows as a result of direct experience. Opinion evidence can often be detected because it often begins with expressions such as �I think that ��, �In my opinion ��, �I believe that �� or �I would say that ��. Sometimes it is difficult to determine where factual evidence leaves off and opinion evidence begins. For example, when a witness says of a person, �she looked tired� or �he appeared to be at least 60 years old� it can be characterised either as opinion evidence or as factual evidence.

As a general rule, opinion evidence is not admissible. It is considered the role of a Magistrate as trier of fact to listen to factual evidence and form opinions, where necessary, on the basis of the factual evidence. The general rule against opinion evidence is based on the idea that when witnesses give opinions, they are usurping the role of the Magistrate. However, there are important exceptions to the general rule against the admission of opinions.

5.25.1 Opinion about matters of common experience

One exception is that witnesses are allowed to give opinions on matters of common experience. This includes a description of a person�s state as tired, sad, exhausted, upset, old, young, disabled, aggressive or drunk. The speed of a motor vehicle based on a witness�s observation and experience is also commonly accepted as an exception to the general rule against opinion evidence.

5.25.2 Expert opinion

Another exception to the general rule against opinion evidence is that of expert opinion. Where an issue in a case concerns specialised knowledge, a person who is qualified as an expert in that area of knowledge may be permitted to give opinion evidence within the scope of his or her expertise. A very common example of this exception is when a medical doctor is permitted to give evidence about a person�s medical condition, treatment, cause of the condition or effects of the condition. Other examples include fingerprint evidence, handwriting analysis, property valuation and evidence about loss of future profits or income. It would be impossible to make an exhaustive list of the areas where expert opinion evidence could be admissible.

Before expert opinion evidence is admitted, it is necessary for the Magistrate to be satisfied that the person really is an expert in the area in which he or she has been asked to give an opinion. Determining this issue requires the Magistrate to consider the qualifications of the proposed expert. Many experts gain their qualifications by formal education and professional experience. However, this is not always the case. For example, a Chief may have no formal training but be qualified to give opinion evidence concerning matters of custom in a particular area. If there is an objection to the expert�s qualifications, the question of whether the witness is an expert should be resolved by way of a voir dire: see 5.36.

Once an expert is qualified to give opinion evidence he or she is permitted to give factual evidence and opinion evidence based on facts or assumptions. The evidence of the expert is led by the party calling the expert. Then the expert may be cross-examined by adverse parties.

There may be an objection to expert evidence on the basis that the other side is taken by surprise by such evidence. In such a case, a Magistrate should take care to ensure that fairness prevails. If the party calling an expert did not give notice to the opposing party that expert opinion evidence would be called, or did not give the other side an idea of what the anticipated opinion would be, then fairness may require that the opposing party be given time to prepare for cross-examination of the expert or to call its own opinion evidence. The complexity of the subject matter in which an opinion is to be offered may be a factor in determining this.

5.25.3 Opinion about custom

Section 16(2) of the Underlying Law Act provides that a Magistrate may accept opinion, along with several other sources of information, when determining what custom applies to a matter. The source of this opinion is not limited to an �expert� in the usual sense, and may be obtained from anyone that the Magistrate thinks fit.

5.26 PRESUMPTIONS

A presumption is a rule of law that provides that where a party proves a particular fact or facts, another particular fact is taken to be proved in the absence of evidence to the contrary. A presumption allows a party to establish one fact by calling evidence to establish another specific fact or facts.

Establishing a presumption in court can be considered a two-stage process. The first is proof of necessary pre-existing fact or facts. The second is the drawing of an inference when the pre-requisite fact or facts are proved.

5.26.1 Some common presumptions

Presumption of legitimacy: When evidence is led to prove that:

�           a child was born to a married woman;

�           the child was born during the marriage or within the normal period of gestation after marriage; and

�           the husband was alive at the time of gestation,

then a presumption arises that the child is legitimate. Unless an opposing party calls evidence to displace the presumption, the presumption of legitimacy operates.

Presumption of marriage: When evidence is led to prove that:

�           a man and a woman cohabited; or

�           a man and a woman went through a form of marriage celebration,

then a presumption arises that the parties were legally married. An opposing party may adduce evidence to rebut this presumption.

Presumption of death: Where evidence has been led to prove that:

�           there has been no evidence that a person is alive for a continuous period of seven years;

�           anyone who is likely to have heard from the person during that period has not heard from him or her; and

�           all appropriate inquiries concerning the whereabouts of the person in question have been made without success,

then the court is entitled to make a presumption that the person is dead.

The presumption of regularity: There is a presumption in law that �all things are presumed to be done rightly.� The operation of this presumption has a number of applications. For instance, if a minister or priest conducts a marriage ceremony, it will be presumed that he or she had the capacity to do so. This presumption also operates in relation to mechanical devices. A person who is charged for speeding on the basis of a radar reading must rebut the presumption that the radar device was working properly if he or she wishes to avoid a conviction for speeding. Similarly, if a device for measuring the alcohol content of a person�s blood gives a particular reading, it will be presumed that the blood alcohol reading is what the machine says, because of the presumption of regularity. Any of these presumptions may be rebutted. However, the onus is on the party against whom the presumption operates to adduce evidence to rebut the presumption.

Presumption of knowledge (stolen property): There is also a presumption that a person in possession of stolen property knows that the property is stolen. The facts that give rise to this presumption are that:

�           the property in question is stolen; and

�           the person in question is in possession.

This presumption may be rebutted by evidence that the possessor of the stolen property did not know that the property was stolen.

5.26.2 Automatic presumptions

Some presumptions exist independently of any prerequisite facts. In other words, it is not necessary to prove any specific facts in order for the presumption to arise. Here are some of the more common automatic presumptions. These presumptions may be rebutted by evidence.

Other statutory presumptions also exist. For instance, s 30(3) of the Criminal Code creates a presumption that a male under the age of 14 is presumed to be incapable of having carnal knowledge. This presumption is rebuttable.

5.27 PREVIOUS CONSISTENT STATEMENT

A previous consistent statement is a statement made by a witness out of court that is offered in court along with a statement to the same effect made in court under oath. The general rule is that previous consistent statements are not admissible. This means that a party is generally not able to give evidence in court which refers to the giving of substantially the same evidence out of court.

5.27.1 Exceptions to the rule against previous consistent statements

There are several important exceptions to the rule against previous consistent statements. Exceptions to the general rule, briefly stated, are set out below.

�        Res gestae: A remark made spontaneously in a state of excitement at the time of an event, such as an assault or an accident, is said to be a res gestae statement. Such statements are also admissible as an exception to the rule against previous consistent statements: see 5.18.

�        Part of an inculpatory statement: If the prosecution wishes to adduce a statement made by the accused which is against his or her interest (for example, a confession), the entire statement must be adduced, not just the part the prosecution wishes to rely on. Part of the statement might qualify the statement in an important way. Even if that part of the statement is consistent with what the defendant says in court, it is admissible.

�        Previous identification: A witness may be asked to identify an accused in court. Further evidence might be adduced to show that the witness identified the victim earlier at a police station when asked to take part in an identification parade or on some other occasion. The earlier identification described later in court would, in effect, be a previous consistent statement. However, it falls under the previous identification exception and is admissible.

�        Recent complaints in sexual cases: Where a victim of an alleged sexual offence reports the offence very soon after the event, it is called a recent complaint. It is sometimes referred to as a proximate complaint. Even though later, in court, the victim will likely give evidence of what happened, evidence may also be given of what she said in her recent complaint. Evidence of a recent complaint is often adduced to rebut evidence that a victim later concocted her allegations. However, evidence of a recent complaint is not a required element in the proof of a sexual offence. It only goes to the credibility of the victim. The lack of a recent complaint is not evidence that a victim consented to the sexual assault.

�        Rebuttal to suggestion of recent fabrication: If it is suggested to an accused under cross-examination that the accused recently made up his or her evidence and that it is a lie, the accused is able to adduce evidence to show that the same evidence was contained in an earlier recounting of the events in question. For instance, a prosecutor may ask an accused the following question: �You said in your examination-in-chief that you were invited into the house by the owner. But that�s a lie. You just made that up didn�t you?� An accused may then adduce evidence that he or she told someone else the same thing some time ago. This previous consistent statement is admissible to show that the accused did not just make up his or her evidence in court. It is an exception to the general rule against previous consistent statements.

5.28 PREVIOUS INCONSISTENT STATEMENT

If a person gives evidence in court that is inconsistent with or contradicts a previous statement made by the person (either in court or out of court), the previous statement is said to be a previous inconsistent statement. The party or lawyer who is cross-examining such a witness may wish to establish that the witness�s sworn evidence is inconsistent with the previous statement. Cross-examination of a witness for this purpose is permitted, provided it is done properly.

Sections 22 and 23 of the Evidence Act govern the procedure for the cross-examination of a person about a previous inconsistent statement. The first step is to establish that a person made a previous statement. This is done by asking the witness whether he or she made a statement concerning the matter in question. The time and place of the previous statement should be put to the witness in order to give the witness an accurate reference to what statement is being referred to. Counsel might ask the witness if the previous statement was true or if it was made under oath as the case may be.

The contents of the previous statement should be put to the witness and the witness given an opportunity to either admit or deny that they made the previous statement. If the previous statement is in writing or reduced to writing, it should be shown to the witness to allow the witness an opportunity to examine the statement. If the witness admits to making the previous consistent statement, then it is not usually necessary to carry the line of questioning any further. The fact that the witness has made a previous statement that is inconsistent with the present testimony has been established. If a witness denies making the previous inconsistent statement, then evidence may be adduced to prove that in fact the witness did make the previous inconsistent statement.

Evidence of a previous inconsistent statement may have an impact on the credibility of the witness. This is because the witness has been shown to have said one thing on one occasion and then, under oath, said something inconsistent or contradictory with that statement. On the other hand, the inconsistency may be insignificant or there may be an explanation, in which case the inconsistency would have little or no impact on a witness�s credibility.

Proof of a previous inconsistent statement only goes to the credibility of the witness who made it. It is not a way to prove that the previous statement is the true version of events. Even if a witness admits to having made the previous statement and it is clearly inconsistent with the testimony being given in court, the Magistrate should not automatically reject the �in-court� testimony and accept the truth of the previous statement unless there are other reasons to make such a finding of fact.

5.29 PRIVILEGE

A witness may be competent and compellable and may be asked a relevant question, but if the answer to that question is privileged, the witness may refuse to answer that question. There are several types of privilege in Papua New Guinea.

5.29.1 Lawyer-client privilege

This privilege attaches to communications that are made between a client and a lawyer who is acting in his or her professional capacity. A lawyer may properly refuse to answer questions which would force the lawyer to disclose these communications, unless the client waives the privilege (ie consents to the disclosure). It does not apply if the communications between the client and the lawyer were for a criminal purpose.

Solicitor-client privilege also applies to communications between a party or a party�s lawyer and a third party if the dominant purpose of the communication is in relation to court proceedings, either underway or anticipated. This privilege often applies to doctors, accident investigators, accountants, and other witnesses who are retained to give expert opinion evidence or otherwise lend their expertise to a client�s interests.

5.29.2 Spousal privilege

Communications made by a husband to a wife or a wife to a husband are privileged, and the spouse to whom the communication is made cannot be compelled to disclose such communications. Section 18 of the Evidence Act creates this privilege. Because this section refers to �husband� and �wife�, it only applies if the parties are married at the time that the privilege is claimed. Also, it does not cover any communications made before or after a marriage.

5.29.3 Privilege against self-incrimination

This is not an absolute privilege and, when it relates to a defendant in a criminal proceeding, has to do with the issue of compellability. An accused person cannot be compelled to give evidence. If an accused decides to give evidence, then that person can be asked questions that would incriminate him or her in relation to the offence charged. However, an accused who gives evidence cannot be asked questions about any previous offence or his or her character except in limited circumstances. These circumstances are set out in s 15 of the Evidence Act.

Where an accused has given evidence against a co-accused, or where proof of a previous offence is necessary to show that the accused committed the offence with which he or she has been charged, then, by virtue of s 15(c) and (f) of the Evidence Act, the accused can be asked questions about a previous conviction. An example of a situation where proof of a previous offence would be necessary to prove the present offence is where an accused is charged with escaping from lawful custody. In order to convict, it would be necessary to prove that the accused was in lawful custody. This would involve proof of the commission of a previous offence if the person�s being in custody resulted from the commission of a criminal offence: see 5.5.

The privilege against self-incrimination extends to witnesses in either civil or criminal proceedings. A witness may claim privilege in relation to questions or the production of documents which would tend to incriminate him or her. See The Application of Graham Ellis, Constituting the Poreporena Freeway Commission of Inquiry, For Leave to Apply for Judicial Review of a Decision Made on 8 September 1992 by the Ombudsman Commission v Ombudsman Commission of Papua New Guinea [1993] PNGLR 458.

5.29.4 Communications with clergy or medical doctor

Section 19 of the Evidence Act creates these two categories of privilege that do not exist at common law. A member of the clergy �must not divulge in any legal proceedings a confession made to him in his professional capacity, except with the consent of the person who made the confession.� This privilege applies to both civil and criminal proceedings.

The privilege involving communications with a medical doctor is narrower. It applies only to civil proceedings and where the sanity of the patient is not the issue to be decided.

The privilege created by s 19 does not apply to any communication made for a criminal purpose or in relation to any communication made to or by a medical practitioner in relation to placing life insurance on a person�s life.

5.30 REAL EVIDENCE

Real evidence is a thing that can be made an exhibit in court. It can be a physical object, an audio or video recording, a photograph, a map or a diagram.

In order to be admissible, real evidence must be relevant. Sometimes, the relevance of some evidence is not immediately apparent. In such a case, a Magistrate could ask counsel for an explanation of how the evidence might become relevant. If satisfied that the relevance of the evidence will be established by evidence from a subsequent witness, a Magistrate may admit the evidence, subject to its relevance later being established: see 5.33.

5.31 RECENT COMPLAINT

See 5. 27.

5.32 REFRESHING MEMORY

A witness who is being examined in chief may be unable to answer a question that is put to him or her because he or she cannot remember. However, the witness may have made a note of the information at an earlier time � when he or she did remember the events in question. The examining party may wish to have the witness refer to written notes to assist the witness in recalling the answer to the question. Several rules govern whether this is permissible and how it is to be conducted.

Once the prerequisites are established through questions of the witness, the notes may be produced in court. The witness may read the notes before the question is repeated. When a witness refers to notes during examination-in-chief, the opposing party must be given an opportunity to look at the notes and to cross-examine the witness on the notes.

The notes that are used to refresh memory normally do not become exhibits in the proceeding. By themselves, they do not prove anything. It is the evidence of the witness after using the notes to refresh memory that may or may not prove something.

Only in rare circumstances do the notes themselves become relevant to an issue and therefore become admissible as evidence in relation to that issue. For example, it might be suggested that the notes were not really made by the witness, in which case the authenticity of the notes becomes an issue.

5.33 RELEVANCE

The fundamental prerequisite for the admissibility of evidence is that it is relevant to some issue before the court. The issues before the court are defined by the complaint or charge that gives rise to the proceedings and any defence that is raised. Section 137 of the District Courts Act makes this clear in relation to civil matters. In criminal matters, it is the information or complaint that defines the main issues. If evidence is not relevant, it is not necessary to go on to consider the admissibility of the evidence in relation to any other rule. However, relevant evidence may be excluded because of some other rule of evidence.

Relevance is essentially a common sense notion. If evidence is helpful in determining a fact or issue in question then it is relevant. A more technical but easily understood definition is contained in the United States Federal Rules of Evidence, rule 401(1):

<Legislation Quotation>

��Relevant evidence� means evidence having the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.�

<End Legislation Quotation>

If the relevance of evidence is not apparent, an opposing party or counsel may object to its admissibility. Even if it is not objected to, a Magistrate may ask the lawyer or party leading the evidence to explain its relevance to the court, especially if the relevance of an entire line of questioning is in doubt.

Sometimes the relevance of evidence or a line of questioning is not immediately apparent. A party or lawyer, when asked by a Magistrate how the evidence is relevant, may explain that the relevance of the evidence will become apparent when further evidence is called. In such a case, a Magistrate may allow the evidence pending the further evidence which establishes its relevance: see 5.30.

5.34 RE-EXAMINATION

After a witness has been cross-examined, the party who called the witness may wish to ask further questions of the witness. The scope of questions asked in re-examination is restricted to matters that were dealt with in cross-examination. It is not proper for a party to use re-examination to launch into any matter which has already been dealt with during examination-in-chief but which has not been dealt with in cross-examination. Nor is it an opportunity for a party to ask questions which could have been included in examination-in-chief but which were left out.

The only purpose of re-examination is the clarification of matters which have been raised in cross-examination. Often a witness during cross-examination is forced to answer �yes� or �no� without an opportunity to expand or explain the answer. Re-examination is an opportunity for clarification of those answers.

A party conducting a re-examination must adhere to the rules of questioning that apply to examination-in-chief. That means that the rule against leading questions applies: see 5.16.

5.35 STANDARD OF PROOF

The standard of proof is the degree to which a party must convince the court that a fact is true. There are two standards of proof that are used in the courts. One standard applies in civil proceedings. The other applies to criminal proceedings.

The civil standard of proof is proof on a balance of probabilities. This has sometimes been expressed as proof which establishes that a fact is more likely to be true than not true. Where an allegation in a civil trial involves criminal or morally reprehensible conduct of a person, meeting the civil standard of proof may require stronger evidence. This results from the perception that people do not ordinarily conduct themselves in illegal or immoral ways.

The criminal standard of proof is referred to as �proof beyond a reasonable doubt.� This is a higher standard than the civil standard of proof. However, it is not so high as to require that a case must be proved to a standard of absolute certainty. A useful explanation of the meaning of �proof beyond reasonable doubt� is found in the judgment of Lord Denning in Miller v Minister of Pensions [1947] 2 All ER 372:

<Case Quotation>

�Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt � If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence �of course it is possible but not in the least probable�, the case is proved beyond reasonable doubt, but nothing short of that will suffice.�

<End Case Quotation>

Proof beyond a reasonable doubt is also the standard required in a voir dire when the issue of voluntariness relating to the admissibility of a confession is being determined.

Where a defendant must prove something in a criminal case, the standard of proof is only on the balance of probabilities. The exception is insanity. If an accused wishes to advance the defence of insanity, he or she must prove insanity to a higher standard.

5.36 VOIR DIRE

A voir dire is a procedure that is followed in order to determine whether some evidence that is tendered is admissible. The expression is French and, roughly translated, it means �to look to say�. It is a process of looking at or examining evidence in order to say whether it is admissible.

The issue in a voir dire is different from the main issue in a trial. It may be whether a confession has been induced by threat or promise (ie whether it is voluntary). It may be whether some evidence has been illegally or improperly obtained to the extent that it should be excluded pursuant to a Magistrate�s discretion It is important that the issue be identified clearly so that it is not confused with the ultimate issue in the trial.

Sometimes a voir dire is appropriate where the competence of a witness is called into question. For example, if an expert witness is tendered to give expert opinion evidence, and the opposing party questions the expertise of the expert, a voir dire may be held to determine whether the witness has the required expertise to be able to offer an opinion on the topic in question.

During a voir dire the rules of natural justice prevail. Both parties are given an opportunity to lead evidence, cross-examine and make submissions. They must restrict their input to the issue of admissibility of the evidence (or competence of the witness as the case may be) and not the ultimate issue in the trial. The issue to be decided in a voir dire determines the relevance of questions and evidence led during the voir dire.

At the conclusion of a voir dire, a Magistrate must decide whether the evidence in question is admissible. If the evidence is not admissible, the Magistrate must completely disregard the evidence that was adduced during the voir dire. If the evidence is ruled to be admissible, it becomes part of the evidence of the trial proper (either by consent or by having it re-introduced).

5.37 WEIGHT

Weight is a concept that is closely related to credit and credibility. It deals with the degree to which evidence should be accepted as proof of what it is adduced to prove. Evidence which is highly credible will be given more weight than evidence that is less credible or not credible at all. Magistrates weigh evidence in order to determine whether a case has been made out to the required standard of proof.

A Magistrate should not make a final determination of the weight of evidence until all the evidence for both sides is given. It is not necessary to weigh evidence beforehand. It is not necessary to weigh evidence to rule on a no case submission (where the existence of a prima facie case is the issue), and it is generally not necessary to weigh evidence at a committal hearing.