Not every witness can come to Court. Order 11 Division 2 of the National Court Rules 1983 allows their evidence to be taken elsewhere and used at trial.
Rule 8 — two routes
The Court may, for the purpose of proceedings in the Court, make orders —
(a) in Form 47 for the examination of any person on oath before an officer of the Court or before such other person as the Court may in Form 48 appoint as examiner, at any place whether in or out of Papua New Guinea; or
(b) in Form 49 for the sending of a letter of request to the judicial authorities of another country to take, or cause to be taken, the evidence of any person.
| Examiner — r 8(a) | Letter of request — r 8(b) | |
|---|---|---|
| Forms | Form 47; examiner appointed by Form 48 | Form 49 |
| Where | Any place, in or out of Papua New Guinea | Another country |
| Who takes it | An officer of the Court, or a person the Court appoints | The judicial authorities of that country |
| Control | The Court’s own procedure applies | The foreign court’s procedure applies |
| When to use | Witness in PNG but unable to attend trial; or abroad and willing | Witness abroad and unwilling, or where local law requires it |
Rule 9
The party obtaining the order must lodge with the Registrar the letter of request, any interrogatories and cross-interrogatories, and — where English is not an official language of the country — a translation of each, certified by the translator as correct and stating his full name, address and qualifications. A copy of each must be filed, together with an undertaking by the party or solicitor to be responsible for all expenses incurred by the Court or by any person at the request of the Court. See evidence from overseas.
Rules 10 to 13
Rule 10 — the party obtaining the order shall furnish the examiner with copies of such documents in the proceedings as are necessary to inform the examiner of the questions to which the examination is to relate; where those are insufficient, the Court shall state the questions.
Rule 11 — the examiner shall appoint a place and time, as soon as practicable having regard to the convenience of the person to be examined; the examiner notifies the party obtaining the order, who shall, not less than three days before the time appointed, give notice to each other party.
Rule 12 — the examiner shall permit each party, his counsel and solicitor to attend; proceedings shall be in accordance with the procedure of the Court; the examiner may administer an oath or affirmation; the person examined may, unless the Court otherwise orders, be cross-examined and re-examined, in like manner as at a trial; the examiner may put any question as to the meaning of any answer or any matter arising; and may adjourn from time to time or from place to place.
Rule 13 — the examiner may, with the written consent of each party, examine a person in addition to the person named, annexing the consents to that person’s deposition.
Rule 14 — the examiner does not rule
Where objection is taken to a question, or the person examined objects to answering or to producing a document or thing —
(a) the examiner shall state to the parties his opinion on, but shall not decide, the validity of the ground for the objection;
(b) the question, the ground for the objection, the opinion of the examiner, and the answer (if any) must be set out in the deposition or in a statement attached to it;
(c) the Court may, on motion by any party, decide the validity of the ground; and
(d) if the Court decides against the objector, the Court may order him to pay the costs occasioned by the objection.
An examiner has no power to rule on privilege or admissibility. The mechanism is to record everything — question, objection, the examiner’s opinion, and the answer if given — and let the Court decide on motion.
Paragraph (d) discourages tactical objections: an objector who is wrong may pay the costs.
Rules 15 to 18
Rule 15 — the deposition must be taken down by the examiner or a shorthand writer or some other person in the presence of the examiner, and must contain as nearly as may be the statement of the person examined. The examiner may direct that the words of any question and the answer be set out; otherwise the deposition need not set out every question and answer.
Rule 16 — the deposition shall be read to the person examined; the examiner shall, if any party so requests, ask him to sign it; the examiner shall authenticate the deposition by his signature, note the time occupied and the fees received, send the deposition to the Registrar to be filed in the proceedings, and send the exhibits to the Registrar to be dealt with as the Court directs.
Rule 17 — the examiner may make a special report to the Court about the examination, or about the absence of any person from, or the conduct of any person at, it; and the Court may direct such proceedings or make such order as it thinks fit.
Where a person required by summons to attend before an examiner refuses to be sworn or affirmed, or to answer any lawful question, or to produce any document or thing, the examiner shall, at the request of any party, give a certificate of the refusal.
On the certificate being filed, the Court may order that person to be sworn, or to answer, or to produce, and order him to pay any costs occasioned by his refusal. Disobedience to that order is then a matter for contempt.
Rule 20
Sources
- National Court Rules 1983 — O 6 rr 19, 31; O 11 rr 8–20, Divs 1, 3; O 14 Div 6; Forms 47–49
- Attorney-General Act 1989
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. 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.