[Home] [Databases] [WorldLII] [Search] [Copyright] [Privacy] [Disclaimers] [Help] [Feedback] Papua New Guinea - Magistrates' Manual

You are here:  PacLII >> Papua New Guinea>> Magistrates' Manual

CHAPTER 4 – COURT HEARINGS

4.1 PROCEDURE IN COURT

4.1.1 Sources of procedure

The procedure to be followed in a particular case depends upon the jurisdiction being exercised. Here is a rough guide to the sources to which District Court Magistrates may refer:

Guide to sources of procedure

4.1.2 Statutes and court rules

In every case where a statute provides for the procedure, that procedure must be followed. For example, criminal cases in the District Court are usually governed by the District Courts Act and the Criminal Code. However, some aspects of criminal procedure, such as the examination and cross-examination of witnesses, are not dealt with by statute, and the procedure of the National Court should be followed: DCA, s 131.

4.1.3 Natural justice in criminal and civil matters

The framework of statutory procedures for criminal and civil cases is constructed so as to give effect to the principles of natural justice, some of which are mentioned in the Constitution: see 2.6.2. There are gaps, as where the statute book fails to provide for a particular situation. More importantly, Magistrates frequently exercise discretions with regard to such matters as hearings, documentation, witnesses and issues to be tried. Where the statute does not provide a clear answer, the Magistrate is still bound by the same basic principles, as the following guide indicates.

4.2 CHOICE OF JURISDICTION, VENUE OF THE COURT AND TRANSFER OF PROCEEDINGS

The relevant statutes set out which jurisdiction is appropriate in criminal and civil cases, depending on the gravity of the offence alleged and the nature and amount of the remedy sought. These will determine the jurisdiction to be used (National, District or Village Court) and, in the District Courts, the status of the Magistrate who may preside over the case: see Chapter 6 for criminal jurisdiction and Chapter 14 for civil jurisdiction.

4.2.1 Concurrent jurisdiction

The National Court has concurrent jurisdiction with the District Court to hear and determine indictable offences punishable on summary conviction, being offences specified in Sch 2 of the Criminal Code: DCA, s 20. The District Court may transfer proceedings to the National Court, and the National Court has power to order District Court proceedings to be transferred to the National Court. The power to transfer proceedings between National and District Courts is dealt with under 4.2.3 below, as is the referral of a matter into or out of a Village Court. The situation is complicated by overlapping or concurrent jurisdictions and rules regarding venue. The District Courts have jurisdiction over all offences triable summarily and over civil actions at law or in equity.

4.2.2 Venue

Compliance with the above statutory provisions is mandatory.

As to the appropriate venue for the commencement and hearing of proceedings, see Chapter 6 for criminal proceedings and Chapter 14 for civil proceedings.

4.2.3 Transfer from one jurisdiction/court to another

The National Court may “reach down” and order the transfer of certain matters from the District Court to the National Court on certain terms: see DCA, s 24(2).

A Magistrate in a District Court may transfer proceedings out of his or her jurisdiction by means of:

·           transfer “upwards” from the District Court to the National Court (DCA, s 24(1)); or

·           transfer “outwards” from the District Court out to some other District Court (DCA, s 24(1)).

Transfer up to a more senior court is justified if the matter is particularly serious or raises major questions of legal principle or public policy. In other circumstances it is the duty of the Magistrate to endeavour to deal with the proceedings where they are instituted – to the best of his or her ability.

An unusual example of power to change the jurisdiction under which a case will be dealt with arises under s 425 of the Criminal Code, where a Magistrate can abstain from dealing with certain summary property offences (under ss 422-424) if he or she considers that they should be replaced with indictable offences. The Magistrate would then commit the defendant for trial in the National Court on the indictable offences.

Transfer outwards from one District Court to another may require an adjournment of the case. In civil proceedings the defendant can obtain an adjournment if he or she can satisfy the Magistrate that the complaint could “more conveniently and more properly” be heard before the other court: DCA, s 150. If the bringing of the action in the wrong court was “vexatious and oppressive”, the Magistrate may award compensation to the defendant: DCA, s 151.

The case of the Village Court is somewhat different: see 18.8.9. The test is whether the proceedings could “more appropriately” be dealt with by the Village Court or some other court having jurisdiction in the matter. Under s 97 of the Village Courts Act, a National or District Court may refer a matter to a Village Court, and, conversely, a Village Court may refer a matter to another court.

4.3 ISSUES TO BE DETERMINED AND ROLES OF PARTIES

4.3.1 Law and facts

The Magistrate is presiding over a court of law which, in the course of doing justice, is responsible for deciding issues of law and fact. It is always the duty of the Magistrate to find the law and apply it to the relevant facts. This is how the public generally see the function of the Magistrate, and the distinction between criminal proceedings and civil (and other non-criminal) proceedings is not widely understood. The picture is complicated by the power of the Magistrate in criminal proceedings to order monetary compensation to the party harmed by the accused’s actions.

This manual is structured to demonstrate the importance of the common functions and the basic duties of Magistrates (particularly Chapters 1-5 and 20-26) while also highlighting the difference between criminal and non-criminal proceedings (in Chapters 6-19).

4.3.2 Criminal jurisdiction

The issues arise between the parties in two stages -

4.3.2.1 Determination of guilt

The guilt issue is not a choice between “guilt” or “innocence” – but whether the prosecution has established that the accused is guilty beyond reasonable doubt. The role of the prosecutor is to represent the interests of the informant, those harmed or aggrieved by the alleged offence and the wider public interest in dealing with crime. The members of the judiciary have no function in relation to decisions by the prosecution. A Magistrate cannot direct that a prosecution should be launched: see 3.6 above.

Private prosecutions may be brought for an indictable offence. In that situation, the interests of the private person alone are being pursued. Sections 616-618 of the Criminal Code require a private person to obtain the permission of the National Court and give security for costs before presenting an information.

If guilt is not proved, the accused is acquitted and discharged. The role of the accused is to test the evidence called against him or her and to present evidence if he or she wishes, but the accused is not obliged to give or call evidence. The accused may, at the outset, or at any time, enter a plea of guilty to the charge. A finding on the guilt issue ends the proceedings if it is an acquittal. A determination or plea of guilty leads to the second stage.

4.3.2.2 Determination of sentence

At this stage the procedures and practices of the court are designed to assist the Magistrate to carry out an inquiry as to the appropriate sentence to be passed. The Magistrate has discretion to receive evidence needed to perform this task (Criminal Code, s 596(4)), and should ensure that both prosecution and defence co-operate with the court as discussed in Chapter 13. Unlike a contested criminal trial (see 2.9.2), this stage of the proceedings should be non-adversarial.

4.3.3 Civil jurisdiction

At the hearing of civil proceedings, the main issues are again two-fold.

4.3.3.1 Determination of liability

A person seeking redress for harm or loss caused by the actions of another comes to the court as a complainant alleging a recognised cause of action and ready to prove facts on the balance of the probabilities. The first issue is whether the complainant can show that the facts of the case support a finding of civil liability against the defendant based on a cause of action known to law. If liability is not established, the defendant is entitled to judgment in the defendant’s favour. A finding in favour of the complainant leads to the second stage.

4.3.3.2 Determination of nature and amount of remedy

Depending on the type of cause of action issued, the complainant may seek to prove entitlement to damages or the benefit of orders such as specific performance, restitution or injunction. Unlike the second (sentencing) stage of criminal proceedings, this second stage of civil proceedings requires evidentiary proof on the balance of the probabilities – to be brought to the court by the complainant in the same manner as the first stage. The proceedings are still adversarial. See Chapter 14 for further discussion.

4.4 EX PARTE HEARINGS

“Ex parte” means that the court is asked to proceed in the absence of one party, usually the defendant, in criminal or civil cases. Sometimes preliminary orders as to the service of documents or interim injunctions are made ex parte, in order to speed up the process until the full hearing takes place. The absence of the defendant is an exception to the basic principle that the defendant is entitled to be present throughout his or her trial. This is a constitutional right: Constitution, s 37(5).

In the case of a defendant’s failure to attend court on a summons for a simple offence for which the maximum penalty does not include imprisonment, the Magistrate may proceed to hear the case ex parte: DCA, s 125. This means that the Magistrate must hear the evidence against the defendant and decide whether or not he or she is guilty. The prosecution evidence must be given in court on oath, otherwise the constitutional requirement that there be a “hearing” is breached. In 1982, the Supreme Court struck down s 132A(b) of the District Courts Act (then s 138A(1)(b)) and the corresponding provision of the Motor Traffic Act because those provisions purported to require the Magistrate to record a plea of guilty merely on proof of service of the summons and non-attendance at court on the day: Supreme Court Reference No 1A of 1981 [1982] PNGLR 124. See also Chapter 9.4.

If the defendant fails to attend on summons in the case of a simple offence involving imprisonment or an indictable offence triable summarily, the Magistrate may issue a warrant for arrest to have the defendant brought to court to answer the information: DCA, s 125.

If a case is adjourned and either or both of the parties or their representatives fails to attend at the adjourned date, the court may proceed in their absence, or, if the complainant does not attend, may dismiss the charges: DCA, s 130.

In relation to charges punishable by imprisonment, these sections in the District Courts Act should be read in light of the first and third constitutional exceptions above. They seem to require that, before a court can proceed to hear such a charge in the absence of the defendant, the defendant must have communicated his or her consent in a positive way, perhaps in writing or through a representative. The defendant’s failure to appear after having been served with a summons would not be enough. Mere proof of service of the summons on the defendant would not meet the constitutional requirements. In short, in such cases the defendant should be present voluntarily, by a representative, or brought to court by a bench warrant, at least for the opening stage of the hearing.

Court decisions made ex parte may be challenged later by the party who was absent. The court has discretion to set aside a conviction or other decision and to order a rehearing of the decision on terms the court considers to be just. The court should consider all the circumstances of the case and, in particular:

·        whether the defendant had a reasonable explanation for failing to attend;

·        whether the defendant appeared to have a good defence to the charge(s) and

·        the seriousness of the charge(s).

For the procedure to be followed in this situation, see s 25 of the District Courts Act.

In the civil jurisdiction, there is an important distinction between an ordinary complaint/summons and a default summons for a liquidated sum: see Chapters 14 and 15.

4.5 JOINT PARTIES AND SEVERANCE OF PARTIES

Courts are generally concerned to adjust rights and obligations and enforce the law between single parties. Sometimes the interests of justice may require that two or more parties, whose positions at law and on the facts are very similar, should be joined together so that their cases will be heard at the same time. For example, several complainants may join together in bringing a civil claim, and a complainant may sue several defendants who are alleged to have caused harm to the complainant in the same set of circumstances.

In criminal proceedings, the prosecution may charge two or more accused with offences arising out of the same set of facts, or closely related facts, and they may be tried together: see, for example, Criminal Code, ss 7, 8 and 532(6)-(9). The question of several charges alleged in a single information is a difficult issue: see Chapter 8.

On a joint indictment, if one accused pleads guilty and the other not guilty, the sentencing of the first accused should not occur until after the trial of the other has finished. If a joint hearing would prejudice the defence of one of the accused, application may be made for separate trials: Criminal Code, s 568. The Magistrate should consider whether the joint nature of the trial raises the real possibility that one or more of the accused will not receive a fair trial. Generally, if an accused requests a separate trial, this should be granted.

4.6 OPEN COURT

The court is a public place subject to the authority of the Magistrate, whose responsibility it is to maintain the dignity of the court while at the same time ensuring that, as far as possible, the public can see that justice is being done. Parties are entitled to a public hearing, and the guarantee in the Constitution (s 37(12) and (13)) adds weight to s 57 of the District Courts Act which requires that the room or place in which the court sits shall be “an open and public court to which all persons may have access so far as the room or place can conveniently contain them”. “Open” means that the door must be open throughout the trial so that the public feel free to enter and leave as they please. Police should not stand near the door so as to block it.

Of course, the section also empowers the Magistrate to close the court or require that particular persons be excluded from it, if the Magistrate is of the opinion that the interests of public morality require it. The interests of justice may require that, during committal proceedings for an indictable offence, the taking of statements of the accused should not be in open court: DCA, s 58. Further, child welfare proceedings and charges against children should not be held in open court: see Chapter 16. The power to exclude does not extend to parties or their legal representatives.

As far as witnesses are concerned, it is usual for the parties to request the Magistrate (or for the Magistrate on his or her own initiative) to order witnesses to remain outside the court until they have been called. They can remain in court after giving evidence. If anyone’s behaviour in court interferes with the court’s ability to do justice, the Magistrate can exercise such powers as exclusion from the court and contempt of court, which are discussed in 3.1.3 and 3.1.4.

4.7 AT THE BEGINNING OF A DAY’S HEARINGS

Before the Magistrate enters the courtroom, it is wise to check arrangements with the court clerk.

As the Magistrate enters the courtroom certain formalities are observed.

4.8 ORDER OF PROCEEDINGS DURING THE HEARING

Once the Magistrate has entered the courtroom and the first case has been called, the parties should be asked to identify themselves, and problems arising out of the absence of any parties (see 4.4 above) should be dealt with. From that point, the order of proceedings will depend on the type of case. Here are some checklists.

MAGISTRATE’S PROCEDURE CHECKLISTS

A. Criminal cases before the District Courts

Summary offences and indictable offences triable summarily (DCA, ss 57-92 and 124-132)

(Sections 525-578 of the Criminal Code also provide some guidance)

B. Civil Cases before District Courts

(DCA, ss 57-92 and 133-159)

4.9 ADJOURNMENTS

A frequent judicial act performed by Magistrates concerns adjournments. Proceedings may be adjourned when a defendant is brought into court on a warrant.

The Magistrate has a general discretion as to whether to order an adjournment and, if so, for how long. See, for example, ss 88-92 and 123 of the District Courts Act. In every situation, the Magistrate should exercise the discretion judicially.

The Magistrate should consider:

4.10 CHANGE OF MAGISTRATES AND TERMINATION OF MAGISTRATE’S POWER

4.10.1 Change

When a Magistrate is unable to finish the hearing and final disposal of a case, it may be transferred to another court (see 4.2 above) or it may be heard in the same court by a different Magistrate. In both situations the case must be re-started; it must be called again and the hearing procedure must begin afresh. Preliminary matters, such as the issue of a summons or warrant, need not be repeated but, in a criminal case for example, a defendant who has pleaded not guilty must be taken through that process again by the new Magistrate.

4.10.2 Termination of power

The Magistrate exercises powers under statutory procedures. When a particular power has been exercised and finalised, the Magistrate cannot go back and exercise the same power or part of it again. This means that the Magistrate’s power is exhausted (functus officio).

To give some examples, once the Magistrate has found a defendant guilty on the evidence, he or she cannot re-open the case and hear more evidence. (The defendant may have a right of appeal on the ground of fresh evidence.) The same applies to the entry of a conviction. Similarly, once the Magistrate has passed sentence, the sentencing power is exhausted and no subsequent change can be made. The only exception to the above rule occurs when there has been an obvious mistake or defect in form but not substance – which merely requires the correction of the record. There is further provision for amendment by the National Court under s 163 of the District Courts Act.

The importance of this “termination rule” means that if the Magistrate has any doubt as to the appropriate finding or sentence, the Magistrate should take more time for consideration or, if necessary, stand the case down or adjourn it for a short period.