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CHAPTER 8 – INFORMATIONS

8.1 COMMENCEMENT OF CRIMINAL PROCEEDINGS

Criminal proceedings are commenced by an information in the District Court for simple/summary offences and for indictable offences triable summarily. Informations may be laid by an informant or legal representative or by a police officer or other official authorised for the purpose: District Courts Act (DCA), s 28.

8.2 FORM

An information is in writing, and is required to be in writing and on oath if a warrant is to issue: DCA, s 35. It is an important record of the commencement of proceedings which the Magistrate should always check. The principle is that the defendant is entitled to read an accurate statement of the allegations against him or her.

8.3 ESSENTIAL INGREDIENTS

8.4 PARTICULARS

Every person must be informed, as soon as possible and in a language that he or she understands, and in detail, of the nature of the offence with which he or she is charged: Constitution, s 37(4)(b). The information should refer to the time and place of the alleged offence. Details will depend on the nature of the offence. For example, the time of day may be important, while, in other circumstances, the precise date may not be essential and it may be sufficient to allege that the offence took place “on or about” the date in question. Of course, the date becomes essential if the time limit between the commission of an alleged offence and the issue of proceedings is relevant: see the discussion in 6.6. It should be noted that the six months’ limitation on laying charges under the Summary Offences Act is an absolute requirement: Summary Offences Act (SOA), s 69.

A defendant is entitled to be informed not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing which is alleged as the foundation of the charge. Nevertheless, this right to be given particulars does not entitle a defendant to ask for facts and circumstances that probe for evidence. It is a material fact, not the evidence to establish it, which must be indicated to the defendant.

The court has power to order that particulars be given to the defendant if it thinks it appropriate to do so, and the hearing of the case may be adjourned for that purpose: DCA, s 31.

8.5 CONSIDERATION BY THE MAGISTRATE

When an information is presented to the Magistrate, he or she has a duty to bring the judicial mind to bear, and to decide whether or not, on the information before him or her, the issue of a summons is justified. The function of the Magistrate is to protect the citizen against criminal proceedings which are substantially contrary to law or technically incorrect.

There may be the further question of whether the allegation in the information is of a trivial or vexatious nature. Where it is intended to issue a warrant in the first instance, the Magistrate will require that the information be in writing and on oath, which emphasises the judicial nature of the Magistrate’s discretion to decide whether or not the proceedings should go ahead.

8.6 AMENDMENT

Any such variance may be amended later by order of the court at the hearing: DCA, s 32. If such a variance between the information and the evidence called in support of it requires an amendment of the information, the court should consider whether the variance is such that the defendant has been deceived or misled by it. The court may, and at the request of the defendant must, adjourn the hearing of the case to some future day, on such terms as it thinks just: DCA, s 33.

There is the further question of how much “variance” can reasonably be amended. If the facts proved do not establish the charge as laid, but do establish an offence under the same section which is virtually the same as that charged, the information should be amended. On the other hand, where the offence disclosed by the evidence as called is really a different offence from that which is charged, the defendant is entitled to be acquitted. The Magistrate does not have power to amend an information so that it alleges a different offence. Of course, before the defendant leaves the court, or at a later date, it is open to the prosecution to lay fresh information against the defendant for the offence which is supported by the evidence. The Magistrate should adjourn the case to give the defendant more time to prepare in relation to the newly laid offence.

It should be noted that if an information does not disclose an offence as set out in a statute, the court has no jurisdiction and the Magistrate should decline to proceed: Ganta v Nandi [1973] PNGLR 61. However, in practice, if the insufficiency of the information escapes the Magistrate’s eye, the effect of s 32 of the District Courts Act is to defer the jurisdictional issue to the hearing.

8.7 DUPLICITY AND UNCERTAINTY

The policy behind this section is that defendants should be called upon to answer only one charge at a time so that they will clearly know what they have to answer. If this policy is adhered to, the proceedings of the courts will be kept simple and the issues clear-cut. If Magistrates hear more than one charge at a time, the proceedings may become complicated by procedural rules and by questions of the relevance of evidence in relation to one charge as against another. Defending more than one charge at a time can put a defendant at great disadvantage and result in the defendant being denied a fair hearing.

Generally speaking, a single information offends the rule against duplicity if it alleges two or more offences. It will offend the rule against uncertainty if it alleges two or more offences in the alternative. For example, part of s 37 of the Summary Offences Act provides that a person commits an offence who, without reasonable excuse, obstructs or diverts from its channel, any public sewer, public drain, creek or other water course. An information would be bad for duplicity if a person was charged that he or she obstructed “a public sewer and a creek”. Obstructing either would be an offence, so there would be two offences. If the information charged that he or she obstructed “a public sewer or a creek” it would be bad for uncertainty because it would be uncertain which of the two possible offences is alleged.

When such an information has mixed charges and is bad for duplicity or uncertainty, the Magistrate should require that the prosecution elect which charge is to be proceeded with and amend the information by striking out the words indicating the additional or alternative charge.

Section 29 of the District Courts Act allows the joining together in the same information of more than one charge or “count” which are based on substantially the same act or omission on the part of the defendant. On the other hand, if the nature and purpose of the two charges appear to be the same, the defendant may be in “double jeopardy”: see 7.8.

Difficulties created by the laying of multiple charges in this way can be overcome if the defendant consents to the charges being heard together. In the case of a defendant who is unrepresented, it may be unwise for the Magistrate to allow the matter to proceed in circumstances where it is difficult for the Magistrate to be sure an injustice will not be done.

8.8 JOINT ACCUSED

Where an offence has been committed by two or more persons jointly, the charges may be heard together, but first the defendants must be told of their rights to separate trials and must clearly express a preference for a joint trial: Kereku v Dodd [1969-1970] PNGLR 176. For further discussion of joint parties and the severance of parties, see 4.5.