Most prosecution statements in Papua New Guinea are written in English by a police officer on behalf of a witness who may speak little English and may not read at all. Section 94C is the Act’s answer to the obvious risk that such a statement says what the officer, not the witness, meant.
The provision
(1) When conducting a committal hearing, the Court may, subject to Subsection (2), have regard to (a) the evidence contained in a written statement; and (b) documents and exhibits, of which a copy has been served on the defendant under Section 94(1) or made available for inspection under Section 94(2).
(2) Before admitting a written statement, the Court shall be satisfied that the person who made the statement had read and understood it, or if unable to read, had had it read to him in a language that he understood.
Subsection (1) limits the Court to served material. Subsection (2) imposes a condition on admitting any of it. Together with the certificate of truth in section 94(1A), which the maker must sign, they make up the statutory test for a committal statement.
The leading case
An illiterate villager from Misima who spoke only his own dialect pleaded guilty in the National Court to attempted rape. The committal depositions contained statements in English by the accused and the victim, a blind girl, with no evidence that they had been read over and understood. Injia AJ held:
(1) The combined effect of sections 94(1A) and 94C(2) is that the committal Court must conduct an enquiry to ensure that the makers of statements had full knowledge of the contents, correctness and truth of the written statements they signed. (2) The requirement is mandatory and requires strict compliance; the enquiry is an independent one which the Court must conduct in the exercise of its judicial function. (3) After the enquiry the Court has a discretion to admit or reject the statement, and must record the nature and extent of the enquiry and its findings. (4) Failure to conduct the enquiry and record its findings may result in voiding the committal.
The judgment also suggested a form of certificate to be signed by an interpreter where a statement is taken through one. The Magistrates’ Manual adopts it: without certificates as to the reading and interpreting of a statement, the statement cannot be accepted despite the maker’s signature, and the only way to overcome the defect is to call the person to give oral evidence.
What the inquiry involves
| Question | Evidence that answers it |
|---|---|
| Was the statement made by the person whose name appears on it? | Signature; the certificate under s 94(1A); the recording officer’s own statement |
| Can the maker read? | Stated in the statement or in the officer’s statement; the language of the statement compared with the maker’s language |
| If not, was it read to the maker in a language he understood? | An endorsement that the statement was read back; an interpreter’s certificate identifying the language |
| Did the maker understand and adopt the contents? | The certificate of truth, provided the maker understood what he was signing |
The Manual adds that section 94C(2) places a corresponding duty on the police: the informant or any person who records a statement must ensure the maker reads it, or has it read back and, if necessary, translated, before signing, and should endorse the statement accordingly.
Whose job it is
Kai Wabu describes the inquiry as independent and judicial. The magistrate must do it whether or not the defence raises the point, and must record it. The Manual notes that the Act is silent on whether the defendant may be heard on compliance with section 94C, but nothing prevents a defence lawyer from drawing a defective certificate to the Court’s attention, and it will usually be in the defendant’s interest to do so. A defendant who consents to a committal under section 94B forgoes the inquiry altogether, because in that procedure the Court does not consider the statements.
If the inquiry is not done
Three consequences follow from Kai Wabu. At the committal, a statement that fails the test should be rejected, and if the remaining evidence is insufficient the defendant is discharged under section 95. On judicial review, a committal founded on statements admitted without the inquiry is liable to be quashed as made in breach of a mandatory requirement, the ground recognised in State v Rush [1984] PNGLR 124. At trial, the National Court will not act on such a statement, and in Kai Wabu itself the judge declined to rely on the depositions in deciding whether to accept the plea.
The accused’s own record of interview
The same principle applies with more force to the accused’s record of interview, which in Kai Wabu was in English although the accused spoke only Misima. Section 98 preserves the prosecution’s right to tender an admission or confession that is admissible by law, but admissibility at trial depends on the ordinary rules about voluntariness and understanding, and a record of interview that fails section 94C at the committal will face the same difficulty before the judge.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.