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CHAPTER 3 – MAGISTRATES’ POWERS, REPRESENTATION OF PARTIES AND THE CONDUCT OF MATTERS IN COURT

3.1 THE MAGISTRATE IN COURT

3.1.1 The atmosphere of the court

The court’s function is to do justice. The Magistrate sets the tone of the proceedings by ensuring that not only is the law administered justly with fairness and compassion, but that this is seen to be done: see also the discussion in Chapters 1 and 2.

It is important to remember that the court is a government service to the public acting on behalf of the people of Papua New Guinea in order to enforce the law and resolve disputes. All parties, witnesses and other members of the public should be helped to feel at ease and as comfortable as possible in a place which is often very stressful for many people and where emotions often run high.

The dignity of the Court is maintained better by encouraging people to understand its procedures and respect its fairness, rather than by causing people to fear its authority.

The court is an open environment to which the public is entitled to have access, unless special circumstances arise: see Chapter 4.6.

Magistrates’ approach to their work not only sets the tone of the court hearings, but it also reflects the commitment of Magistrates to their duties. It is often said that that commitment may be demonstrated by patience, courtesy, punctuality, and generally the appearance of doing right.

3.1.2 The authority of Magistrates

Magistrates are in charge of the courtroom and are expected to control proceedings so that they are just and fair. The procedure of hearings is discussed in Chapter 4. As a general rule, the Magistrate should allow parties to conduct their cases as they think fit: see Chapter 2.9 for the Magistrate’s role in adversarial proceedings. However, the Magistrate is like a referee who should politely but firmly control the individual behaviour of parties, lawyers and witnesses if that behaviour interferes with the opportunities of others to present their cases. Just as a referee can send a player off the field, the Magistrate can order a person to sit down, be quiet or, in extreme circumstances, leave the courtroom.

Magistrates have certain statutory powers to assist them to keep order in court. Because the court is a creature of statute, the sanctions Magistrates can use to assist them maintain order in court are found in the District Courts Act and Village Courts Act.

3.1.3 Contempt of court

3.1.3.1 The Magistrate’s approach to contempt

This is the most powerful tool available to the Magistrate and should be used only when it is absolutely necessary. The reason for this is that if the Magistrate is obliged to punish somebody for contempt, that may be an indication that the Magistrate has not been careful to anticipate problems in the court and to take less drastic steps to maintain order in the court. For example, if a party, lawyer or witness has lost his or her temper, or is inclined to persist in arguing with the Magistrate, the Magistrate should quietly adjourn the case for an hour or two or until the afternoon, or even the next day, to enable people to quieten down. The Magistrate could go on to deal with other cases in the meantime. An adjournment is better than a shouting match, and, on resuming the case, the Magistrate can state that such unruly conduct is unbecoming and cannot be permitted.

Above all, the Magistrate must be decisive and act with dignity. The case can be carried on, but if the disturbance continues then the Magistrate should deal with it as a matter of contempt.

Contempt is an offence, and so must be proved beyond reasonable doubt to have been committed in the manner alleged.

Contempt can be divided into four categories, two “in court” and two “out of court”:

Magistrates must follow the statutes in relation to the first two categories of “in court” contempt but, unlike the National and Supreme Courts, Magistrates have no power to deal with contempt committed “out of court” (the third and fourth categories).

3.1.3.2 In the District Court

In addition, a person who, in the opinion of the court, wilfully prevaricates in giving evidence may be found guilty and fined up to K100: s 277(2).

It is important to note that where any such offence appears to have been committed in the presence of the court, the Magistrate may rely on his or her own knowledge or may call any person to the stand to give evidence as a witness. If the court convicts the offender a fine may be ordered, but, if before the court arises the offender makes an apology which the court considers satisfactory, the fine may be remitted wholly or in part: s 277(4). The enforcement of court orders is dealt with in Chapter 20.

3.1.3.3 In the Village Court

The Village Court has somewhat different powers.

Instead of a penalty of up to six months imprisonment, the court may order community work (s 62(2)) or impose a fine. If imprisonment is ordered, it cannot take effect unless endorsed by a Magistrate: s 68. A similar set of provisions applies if a person fails to obey certain orders of a Village Peace Officer or a Village Court: s 73. Throughout, the court is obliged to carry out its procedures in accordance with the principles of natural justice: s 59.

3.1.4 Order to leave and be excluded from the court

The power to order a person to leave the court (District Courts Act, s 277(1)) can be exercised without imposing a fine for contempt. Of course, if it is the defendant in a criminal matter who wilfully disrupts the proceedings, care must be taken to ensure that the defendant’s conduct has been so disruptive “as to render the continuance of the proceedings in his absence impracticable”: Constitution, s 37(5). Otherwise, the defendant has the constitutional right to be present at the trial throughout (Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329), unless it is a simple offence not involving imprisonment: see District Courts Act, s 125.

A Village Court has no statutory powers to exclude a person from court unless s 62, above, has been breached.

The public’s general right to be present in “open court” is discussed in Chapter 4.

3.1.5 Costs order against a party

A costs order is a sanction available to a Magistrate where one of the parties behaves in such a way as to cause harm or serious inconvenience to other parties. For example, a party, personally or through an agent or lawyer, might wilfully mislead the court and another party, might delay proceedings without reasonable excuse, or might be responsible for causing the case to be adjourned.

A Village Court has no statutory powers in this regard. For further discussion of costs, see Chapter 21.

3.1.6 Conduct of legal representatives

The Magistrate’s contempt powers (above) apply to lawyers and others authorised to represent parties (as defined in District Courts Act, s 59).

Sometimes legal representatives make the Magistrate’s task difficult. While most lawyers take their duty to assist the court seriously, a Magistrate’s patience may be tested by a lawyer who argues with the court, or refuses to accept the Magistrate’s advice to stop asking a witness irrelevant questions, or who persists in using discourteous language when referring to parties and witnesses. In these circumstances, the Magistrate should try to remain calm and preserve the dignity of judicial office. Because of the party’s right to be represented, the Magistrate should allow the lawyer considerable latitude. However, if the interests of justice are clearly interfered with, the Magistrate may warn the lawyer and, if the conduct continues, may adjourn the case and retire from the courtroom or order the lawyer to leave the court. Conviction of a lawyer for contempt would be an extreme course of action.

Breaches of professional conduct and ethics should be reported by the Magistrate to the Lawyers Statutory Committee of the Law Society in Port Moresby: see 3.4.3 below.

3.1.7 Delay

Magistrates are responsible for the efficient flow of cases from issue to final determination: see Chapter 23. The old saying “justice delayed is justice denied” holds true today. The Constitution requires that the hearing of a charge shall be “within a reasonable time”: s 37(3). It is part of the four-sided right of the accused – to a fair hearing within a reasonable time by an independent and impartial court. Apart from anything else, an accused who denies the charge is entitled to have his or her name cleared: The State v John R Kaputin [1979] PNGLR 532 at 535.

The discretion of Magistrates to adjourn cases is discussed in Chapter 4, and in deciding whether to grant an adjournment the constitutional right is always a factor to be considered. As Batari AJ observed in The State v Jeffrey Balakau (1996) N1528:

<Case Quotation>

“it is incumbent on those responsible for the fair administration of justice; the courts, judges, magistrates, lawyers, police and correctional officers to bring the [accused’s] case to speedy fruition. In the event of breach, he is entitled to the protection of his right under Constitution s 37(3).”

<End Case Quotation>

What is a reasonable time? Every case must be decided on its merits and there is no “rule of thumb”. The Magistrate’s responsibility is always to hear both parties on the question of adjournments and, if it appears the constitutional right has been contravened, the Magistrate may either dismiss the charge or order the matter to be brought to trial by a specified date.

In both criminal and civil cases, once a hearing is under way and evidence begins, the Magistrate is “seized of the case” and has the responsibility personally to hear the case and decide it. The Magistrate is responsible for keeping a close eye on the time taken by the prosecution or the civil complainant to bring their case to a conclusion. Delay on their part may be inconsistent with the constitutional right to a fair hearing. Effective case flow management is discussed in Chapter 23. Where parties are legally represented, Magistrates should be on their guard against attempts by lawyers to manipulate the court process in order to delay matters.

A Magistrate has no control over delay in charging or issuing proceedings against the accused from the time an offence is alleged to have occurred, but there are statutory time limits for these steps: see Chapters 6 and 8. Of course, this type of delay may contribute to a larger picture of failures on the part of the prosecution in a particular case.

Delay on the part of the police and prosecution which is prejudicial to the rights of the accused to a fair trial may be grounds for dismissal of the charge. Indeed, the Magistrate is obliged by statute to dismiss an information if the defendant appears on the appointed day and, having had notice, the prosecution does not: District Courts Act, s 124. Further, substantial delay on the part of the prosecution is a matter which the Magistrate may take into account in passing sentence, especially if the accused has been kept in custody.

3.1.8 Disobedience of court orders

In addition to the procedures that are available to a party to enforce court orders (see Chapter 20), the proper running of a case may mean that a Magistrate is asked to enforce procedures such as the attendance at court of the defendant (District Courts Act, ss 93 and 125 and Village Courts Act, ss 81(1) and 91) or witnesses (District Courts Act, ss 113 and Village Courts Act, ss 81(2) and 91).

The many provisions outlined above give the Magistrate ample authority to control the conduct of matters in court, but at all times control must be exercised within the powers conferred by the statutes and in accordance with the principles of natural justice.

3.2 THE MAGISTRATE AND UNREPRESENTED PARTIES

3.2.1 Generally

In exercising authority in court, the Magistrate should remember that most parties have little or no knowledge of the law and court procedures. If they have no legal representation, the Magistrate should be alert to the possibility that justice may not be done unless the Magistrate provides some assistance to the parties concerned. To begin with, the Magistrate should consider the ability of the defendant to act for himself or herself and, where appropriate, the defendant should be supplied with paper and pencil and invited to sit at the bar table. If a defendant wishes to have a person other than a lawyer to provide some assistance on the day, the Magistrate should consider the issues raised under 3.5.3 below.

Next, the Magistrate may decide to explain to an unrepresented party the implications of proceeding or not proceeding in a particular way. For example, after the court has heard a key witness against the defendant, he or she may sit silent not understanding the importance of cross-examination, unless the Magistrate points out how damaging to the defendant the evidence appears to be.

For the same reason, where the defendant is unrepresented, the Magistrate may have to take a more active role in questioning witnesses in order to bring out facts which will assist the Magistrate to make a just decision. As is pointed out in Chapters 1 and 2.9.4, the court should not conduct an extensive inquiry, but, where parties are unrepresented, the Magistrate may have to intervene more than would otherwise be the case in order to ensure justice is done.

A difficult situation arises if it appears that an accused who is called upon to plead to an indictment may be unable to understand the proceedings. This is not a question of language. It is more likely to arise due to mental illness or some unusual circumstances, and s 569 of the Criminal Code provides a procedure to be followed.

The Magistrate would also be mindful of the importance of assisting the parties to reach agreement on factual issues and to settle the case: see Chapter 24.

Of course, the Magistrate should always be careful not to appear to prefer one party over the other. As discussed in Chapters 1 and 2.9.4, impartiality must be preserved.

3.2.2 The unrepresented accused

Here, the Magistrate has a clear duty to inquire and determine whether the accused has the ability to act for himself or herself.

If, at the end of the prosecution case, the Magistrate has decided that there is a case to answer, the next step is to give to the unrepresented defendant information which may be usefully summarised in the following words:

“You have heard the evidence against you. Now is the time for you to make your defence. You have a choice.

1.         You may go into the witness box and give evidence on oath and be cross-examined like any other witness, and you may call witnesses in your defence – but you are not obliged to do this: you do not have to give or call any evidence.

2.         Instead, you may remain silent, or you may make an unsworn statement to the court.

Whichever you decide, you may address the court before the court makes a decision on the evidence.”

The Magistrate must then ask the defendant –

“Do you wish to give evidence yourself?” and “Do you wish to call witnesses?”

The procedure laid down for dealing with committals in the District Court for trial of indictable offences requires a form of words to be used by the court whether or not the defendant is represented: District Courts Act, s 96.

3.3 THE REPRESENTATION OF PARTIES

3.3.1 The right to legal representation in criminal matters

The right does not extend to the Village Court: see 3.3.3 below.

Legal representation for the accused provides essential protection for the rights of the citizen in a legal system where prosecution and defence are adversaries, and the resources of the state are available to one side only. As discussed in Chapter 2.7.2, under this system the court is supposed to arrive at the truth of the matter through the testing of evidence given by witnesses in the course of examination and cross-examination. An accused unskilled in the art of questioning is at a serious disadvantage. So also is an accused who is unaware of the intricacies of the law and procedure.

3.3.2 Representation in the District Court

The District Courts Act goes further than the Constitution. It provides that a party, whether in a criminal or a civil case, is entitled to be represented by a lawyer if they wish, or, as discussed below under 3.5, they may be represented by a trainee lawyer, law student or other person authorised by law or with the leave of the court: District Courts Act, s 59.

3.3.3 In the other courts

In the Village Courts, a party to proceedings in criminal, civil or enforcement matters is not entitled to legal representation, but may be represented by any other person: see 3.5 below. Section 80 of the Village Courts Act refers to Pt V, Divs 3, 4 and 9. Curiously, s 80 is silent as to Divs 5, 6 and 7 relating to the Village Court’s preventive jurisdiction, mediatory jurisdiction and joint jurisdiction, respectively. The usual rules of statutory interpretation would have the effect of permitting a party to be represented by a lawyer or any other person in relation to these three jurisdictions.

Legal representation is not permitted at all in a Local Land Court, and is only permitted in a Provincial Land Court where the court considers that the case before it involves “a matter of unusual difficulty or complexity” and all parties agree with the court that it is necessary that all parties should have the right to legal representation: Land Disputes Settlement Act, s 72. In other cases, a Local or Provincial Land Court may permit a group to be represented by a member of the group. It may also permit an infant, a severely disadvantaged person or a person for whom representation is required by custom, to be represented by a person other than a lawyer: Land Disputes Settlement Act, s 72.

3.4 LEGAL REPRESENTATION

3.4.1 The significance of legal representation

Representation by a lawyer is of great assistance to a party and may also facilitate the work of the court. Legal representation gives a party a distinct advantage. If only one party to a dispute has a lawyer, the Magistrate may be obliged to ensure that the unrepresented party is not unfairly disadvantaged.

It is important for Magistrates to have some understanding of the lawyer’s professional role, and also his or her obligations to the client and to the court. The Magistrate should know what are the limits of acceptable conduct on the part of members of the legal profession. A useful guide is the set of Lawyers’ Professional Conduct Rules 1989 made under the Lawyers Act 1986.

3.4.2 Role of the lawyer

While a lawyer is engaged to represent his or her client as a party with determination and without fear, the legal training and practical skills that the lawyer brings to the court can be of great assistance to the Magistrate in the conduct of the case in hand. Lawyers are often facilitators whose knowledge of the parties and the background facts can fill gaps in the Magistrate’s understanding of the case. In appropriate cases, the lawyer will clarify the issues of fact and law, and may present argument that assists the court to reach a just decision.

Further, in cases where a question arises as to whether custom applies, counsel is under a statutory duty to call evidence and obtain information and opinion that would assist the court in determining the nature of the relevant rules of customary law, and whether or not to apply those rules in the case: Customary Law Act, s 15. “Existence and content” of custom is a question of law, and the range of material that the court may consider is set out in s 16.

For these reasons, a Magistrate who develops good professional relationships with the lawyers appearing in a case can benefit significantly and improve the throughput of cases. The Magistrate’s virtues of patience, courtesy and appropriate firmness have been mentioned in 3.1.1 above. Tactics used by lawyers, which run against the interests of justice, must be dealt with firmly as soon as they become apparent. The Magistrate has certain powers to deal with lawyers’ conduct in court, and suggestions for how to deal with a lawyer whose behaviour is making the Magistrate’s task difficult are discussed in 3.1.6 above.

3.4.3 Rules of professional conduct

The lawyer’s duty to the client requires that the client’s instructions must be carried out with competence and with loyalty to the interests of the client. The lawyer owes an over-riding duty of confidentiality to the client which may prevent disclosure of matters to the court unless the client agrees. Loyalty also means that the lawyer may not act for a client if there is a conflict between the interests of that client and another present or former client: Lawyers’ Professional Conduct Rules, rule 10.

The Magistrate should be aware of the special difficulty (the subject of paragraphs 10 and 11 above) which can arise when a lawyer is acting for someone the lawyer knows, or suspects, to be guilty of the charge. The lawyer to whom the client-defendant has privately admitted his or her guilt is bound by rules of confidentiality not to inform the court unless the defendant agrees. Further, it is the obligation of the lawyer to put the prosecution/complainant case to the test and to argue the sufficiency of evidence called against the defendant: Nai’U Limagwe v The State [1976] PNGLR 382. It is for the court to determine the question of guilt beyond reasonable doubt, according to law. The lawyer is not a judge. However, the lawyer must be careful not to put forward an alibi or positive defence which is inconsistent with the defendant’s private admission of guilt. That would amount to misleading the court, and is a serious breach of professional ethics.

If a lawyer has deliberately misled the court or a party, or wilfully delayed or disrupted proceedings, or otherwise interfered with the court’s ability to do justice in a case, the Magistrate may make a written report on the matter and send it to the secretary of the Lawyers Statutory Committee of the Papua New Guinea Law Society, which has authority under ss 52-54 of the Lawyers Act to inquire into and deal with complaints of improper conduct on the part of a lawyer.

In short, the vigilance of the Magistrate is important. While the parties’ interests, as well as those of the court, are usually protected by the involvement of lawyers, it should not be forgotten that lawyers are subject to professional discipline for breaches of rules of ethical conduct.

3.5 REPRESENTATION BY PERSON OTHER THAN A LAWYER

3.5.1 Law trainees/students

Trainees at the Legal Training Institute and law students at the University of Papua New Guinea, all of whom must be properly certified under the District Courts Act (s 59(1)), are entitled to represent parties who request their services for Magistrates’ Court proceedings.

Their participation helps to meet the need for representation in the courts, and it also provides valuable training experience for people who have been studying law and need practical experience.

The Magistrate should always check the certification of trainees and students before they appear, and should be aware that they lack experience and may make mistakes. On the other hand, they might appreciate feedback on their performance in court, if given to them informally after the court has risen. The Magistrate should be aware that misconduct may be reported to the University Dean or to the Head of the Institute. The Magistrate may also order that a student (but not a trainee) be prohibited from representing a party if, in the opinion of the Magistrate, the student’s conduct is detrimental to the interests of that party. The Magistrate must give the reason for such an order: s 59(3).

3.5.2 Authorised by law

A person authorised by statute to represent a party in the courts may do so (s 59(1)), for example, health, customs, companies and fisheries officers under their respective statutes.

On the hearing of an information, the informant may be represented by a police officer: s 59(2).

3.5.3 Other persons

The Magistrate also has the discretion to permit any suitable person to represent a party: s 59(1)(d). The leave which may be granted to such a person applies only to the one sitting of the court and is limited to the one proceeding. Subject to the cautions indicated, a grant of leave may be justified in two main types of situations:

[ASSISTING A DISADVANTAGED PARTY]

If the party has a disability, such as one which affects hearing or speaking, or is too young, old, ill-educated or otherwise weak or disadvantaged to represent himself or herself, the Magistrate should consider the situation carefully. In the first place, the Magistrate should weigh up the considerations referred to in 3.2.1 above. Also, is it absolutely clear that the party wishes to be assisted by the particular person who has come forward? What is the relationship between the two? The non-lawyer representative may be able to help with advice and oral argument, but the Magistrate should always take care that the representative is acting under the instructions of the party and is not “driving the case”. If there is any doubt, the Magistrate should test what the party’s true position is by asking a question direct to the party.

[REPRESENTING AN ABSENT PARTY OR LAWYER]

If a party is unable to be present at a hearing or other due date, the party may seek to arrange for a person to represent the party on a particular day for limited purposes, such as asking for an adjournment. That person must seek the leave of the court to do so, and the Magistrate has an obligation to exercise his or her discretion judicially. Provided the Magistrate has made inquiries and is satisfied that it is proper to do so, it may be convenient for all concerned for the Magistrate to grant leave to appear on that day and for that limited purpose.

With regard to the representation of companies, co-operatives and other incorporated bodies, it is wise for a Magistrate to require the representative to produce an official letter, or other authentic documentation, in order to show that the person has the authority of the senior management of the company to appear in the particular matter before the court.

A more difficult question arises where the lawyer representing a party is unable to appear on a particular day and is unable to arrange for another lawyer to appear temporarily in the matter as agent. Again, it is for the Magistrate to exercise discretion under s 59 whether or not to permit a clerk or other employee of the lawyer to appear on that day for a limited purpose. One consideration may be whether the person attending court has the authority of the lawyer or client to make decisions about, or agree to, procedural steps which need to be taken in the case. For example, a Magistrate may refuse to allow a lawyer’s clerk to enter an appearance for a party unless the clerk has authority to give undertakings as to the filing of documents and the length of an adjournment subject to costs or other order, so that the case can be moved along and brought to trial without delay. In other words, unless the clerk’s appearance is able to assist the court, the Magistrate may decide to treat it as a “non-appearance” for the party and award costs or even judgment to the other party.

Finally, the Magistrate should be on guard to ensure that any representation or assistance provided to a party by a non-lawyer does not misrepresent the party’s wishes, mislead the court, or otherwise interfere with a fair hearing. Remember that a Magistrate who has granted leave to a person under the District Courts Act may revoke that leave at any time, if it is in the interests of justice to do so. Further, persons other than lawyers who represent parties are not subject to professional rules. It is a breach of the Lawyers Act for persons other than lawyers to make it their practice or business to represent parties in court.

3.6 PROSECUTORS

3.6.1 The role of the prosecutor

Underlying the function of the prosecution is its responsibility to decide whether or not to prosecute and to retain control of that decision. A Magistrate cannot direct that charges be laid or discontinued. It is important, however, that Magistrates should understand the nature of the prosecution’s responsibilities.

Although by definition an executive act, the decision whether or not to prosecute should be exercised in a quasi-judicial way. There is no rule that requires that suspected criminal offences must automatically be the subject of prosecution. The dominant consideration for the prosecution in every case is whether, by virtue of the offence itself, or the circumstances surrounding the commission of the offence, the question may be asked: “Is there enough evidence to justify putting the case before the court?” That does not end the matter, because, if the answer is “yes”, there remains the question whether, in the particular circumstances of the case, public interest considerations might be persuasive against prosecution (such as, perhaps, public expense, the age of the offender, and/or that it was a victimless crime).

The prosecutor has a significant part to play in the day-to-day administration of justice. At the outset, it is the duty of the prosecution to check all informations and ensure that the correct wording of the charges is used. Then the prosecutor continues to make decisions affecting the prosecution process, such as whether or not to proceed on charges laid, whether to seek amendment and whether to agree to the reduction of charges to which the defendant will plead guilty.

The Public Prosecutor and State Prosecutors provided for under the Public Prosecutor (Office and Functions) Act are authorised to provide prosecutorial services, but at the level of the District Court prosecution is usually handled by members of the police force. In this manual, reference to the prosecutor and the prosecution includes prosecutorial services at all levels.

In the case of indictable offences triable summarily by virtue of s 420 and Sch 2 of the Criminal Code, the Public Prosecutor must decide whether the offence will be tried before a Principal Magistrate in the District Court, whether it will go through committal proceedings to the National Court (see Chapter 11.3.2 on committals and The State v The Principal Magistrate, District Court, Port Moresby: Ex parte The Public Prosecutor [1983] PNGLR 43) or whether the information will be withdrawn (District Courts Act, s 61A and Public Prosecutor (Office and Functions) Act, s 4(1)(ga)).

The duties of the prosecutor are different from those of the defendant and defence lawyer. The obligations are wider, both to the court and to the public at large. As the prosecutor is obliged to present the case fairly to the court, he or she has greater independence from those who are instructing the prosecutor than is enjoyed by other legal representatives.

3.6.2 Conduct of the case

The prosecutor has a discretion as to which witnesses to call, and whether to call a particular witness in a particular case. The Magistrate should not normally interfere with the prosecutor’s discretion, but the prosecutor has a duty to be fair to the accused: The State v Theo Yandalin (1995) N1329. For example, if the prosecutor knows of a witness whose evidence would materially assist the accused’s defence, the prosecutor should advise the accused and assist the accused if there is difficulty in securing attendance of the witness at the hearing. On the other hand, there is no similar duty on the defence to disclose any details of the defence case (apart from an alibi) to the prosecution: Awoda v The State [1984] PNGLR 165.

For example, if the evidence of a witness is known to be unreliable, the prosecutor should not present the witness to the court as worthy of credibility. This is because the relevant information as to the reliability and background of the witnesses whom the prosecution proposes to call will be available to the prosecutor and not to the Magistrate.

3.6.3 The prosecutor in sentencing

When it comes to the sentencing process it is the prosecutor’s responsibility to provide the court with such information in relation to the defendant as will enable the Magistrate to make the appropriate determination.

It is not the function of the prosecutor to ask the court to impose a particular sentence, although it is appropriate to inform the court of such maters as the prevalence of offences of the type of which the defendant has been convicted.

When the circumstances of an offence are not particularly serious, the prosecutor should assist the court with information as to alternative penalties or courses of action which might be appropriate. See Chapter 13 on sentencing.

3.7 WITNESSES IN COURT

3.7.1 Witnesses generally

It is usual for the parties to decide whether or not to call a witness or to request the issue of a witness summons, but it is the responsibility of the Magistrate, once the witnesses are in court, to ensure that the proper procedures for giving evidence are followed so that justice is done. Interpreters may be needed.

The procedures for witnesses giving evidence in court hearings, both civil and criminal, are discussed in Chapters in 4 and 5, and it has been pointed out in Chapter 1, Rule 3.1 that there may be circumstances where a Magistrate may re-call witnesses who are in the precincts of the court. The non-attendance at court of witnesses is dealt with in Chapter 9.

3.7.2 Protection of witnesses

While it is the duty of members of the public to come forward in the interests of justice and give evidence in court proceedings, they are entitled not to be treated unfairly in court. It is the responsibility of the Magistrate to protect witnesses, including the parties, from questioning on matters which are not relevant to the case in hand, and to ensure that witnesses understand their rights.

Further Evidence Act provisions govern the circumstances in which the court must decide whether:

·           the party calling a witness can discredit him or her (s 21);

·           a witness can be cross-examined as to credit (s 26); and

·           members of the clergy and medical practitioners should refuse to divulge communications made to them in the circumstances of the case (s 19).

3.7.3 Silence or reluctance of witnesses

The accused is, of course, entitled not to give evidence if he or she wishes, and this is not to be taken as an admission of guilt. The Magistrate should be careful to ensure that an unrepresented defendant understands the implications of giving evidence in the witness box, especially in circumstances where the prosecution appears to have had difficulty in proving its case. Any pressure on the defendant to give evidence would be contrary to the principles laid down by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498.

Under the District Courts Act, s 70 deals with the situation of a witness in court who refuses to be examined. The court has certain statutory powers to deal with the situation where a person appears to give evidence on a summons or, being present, is orally required by the court to give evidence and that person:

·           without lawful excuse, refuses to be examined on oath in connection with the matter; or

·           refuses to take the oath; or

·           having taken the oath, refuses, without lawful excuse, to answer a specific question put to him or her concerning the matter.

The court may adjourn the proceedings for up to eight days and may, in the meantime, order that the person be held in custody. The same procedure may be repeated again and again until the person consents to give evidence. The section also applies to the non-production of documents.

3.7.4 False evidence

The “contempt of court” section of the District Courts Act (s 277, see above) makes it an offence if a person “wilfully prevaricates” in giving evidence. This means that it is an offence for a witness to give false or evasive replies with the intention of deceiving the court. The offence carries a fine of up to K100. There is no such provision in the Village Courts Act.

What are Magistrate’s responsibilities if it appears that a witness is deliberately lying or attempting to deceive the court? The provision in s 277 of the District Courts Act is useful because it does not require the laying of charges for perjury.

Perjury in judicial proceedings means knowingly giving false testimony concerning any matter that is material to a question raised in the proceedings: Criminal Code, s 121. That offence, and the related offence of fabricating evidence (Criminal Code, s 122), are indictable offences which cannot be tried in the District Court.

The Magistrate should proceed with caution. It may be advisable to warn a witness who appears to be lying that prevarication and perjury are serious offences. However, until all the evidence in the case has been given and considered carefully, the Magistrate cannot be certain that lies have been told. Trial and conviction for prevarication or perjury will require proof of what the witness said, as well as proof of the true facts and proof that the witness knew the truth while lying to the court. The official record of what witnesses said in court might need to be supported by notes made by others in the courtroom, such as the Magistrate, the prosecutor and counsel.

If false evidence is given by a prosecution witness or witnesses, this may so discredit the prosecution case that the charge should be dismissed.

3.7.5 Interference with witnesses

If the Magistrate suspects that someone has attempted to interfere with a witness or evidence in court, it may be necessary to act quickly to deal with this form of abuse of justice.

Interference is a serious matter for the Magistrate to consider, particularly if it appears in a case that the witnesses of one party have been interfered with by the other party. For example, supporters of an accused defendant might have attempted to influence the evidence of prosecution witnesses. As soon as this is discovered, the Magistrate may decide to re-call the witnesses in order to question them further as to the true evidence which should have been given. If the interference appears to be substantiated, or if the Magistrate has serious concerns, the matter should be referred to the police for prosecution.

3.8 WORKING WITH INTERPRETERS

Parties are entitled to understand the proceedings. In civil cases it is the parties’ own responsibility to provide interpreters. In criminal cases, if the accused cannot understand or speak the language used at the trial, the Constitution gives the right to have the assistance of an interpreter at no cost: s 37(4)(d).

Ideally, the interpreter is an independent person who serves the interests of the court. Where doubt is raised, it is the Magistrate’s responsibility to ensure that, as far as possible, the interpreter is properly qualified and independent. In criminal trials interpreters should be sworn in and should state on oath, or should affirm, that they are competent in the languages involved and that they will “well and truly interpret” between the parties, witnesses and the court. In all cases, it is also important that the interpreter should not interpose his or her own opinions or give any personal explanations, unless the Magistrate asks for them.