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CHAPTER 9 – SUMMONSES AND WARRANTS

9.1 BRINGING THE DEFENDANT TO COURT

Although the defendant is suspected of having committed an offence, it is fundamental to the system of justice in Papua New Guinea that, during the summons or arrest stages, and until found guilty by the court, the defendant is entitled to claim to be innocent until proved guilty according to law: Constitution, s 7(4)(a).

As in Chapter 8, this chapter will deal with summonses and warrants generally in relation to the Magistrates’ Courts.

9.2 SUMMONSES

9.2.1 Form and content

A summons is a document addressed to the defendant and signed by a Magistrate or Clerk of the Court. The provisions of ss 41-48 of the District Courts Act (DCA) apply.

The Constitution requires that the defendant “shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged”: s 37(4)(b).

A summons is required to state shortly the offence or matter of the information. As the summons has followed the laying of an information which should contain the details of the charges, as set out in Chapter 8 above, the same details should be written in the summons. As a matter of practice, a police informant should prepare the summons at the same time as the information and submit both for signature by the Magistrate or Court Clerk: DCA, ss 44 and 45.

The summons must state the date on which the defendant must come to court (the “return date”). In deciding on the date, it should be remembered that the summons must be served on the defendant at least 72 hours before the time appointed in the summons for the hearing. The return date may be extended: DCA, s 46. The summons itself must also be dated, and that date will be its date of issue.

The Magistrate has responsibility to oversee the laying of informations in the court (see Chapter 8), and shares with the clerk the responsibility for issuing summonses.

9.2.2 Service of summons and proof of service

A summons must be served on the defendant (within the time referred to above) by delivering a copy to him or her personally. If the defendant cannot be found, a copy of the summons may be left with some person, apparently not less than 16 years of age, who appears to be living at the place where the defendant was last known to have lived. For service on companies, and for substituted service, reference should be made to the specific rules contained in ss 47(1) and 48 of the District Courts Act.

The person serving a summons must prove that service has occurred, or the court cannot deal with the matter. Proof is by sworn affidavit. The person who served the summons should take the original summons (a copy of which has been left with the defendant) and write on the back of it a statement that he or she has served the summons in a certain way at a certain place and time. He or she must state on oath before a Magistrate, or other person duly authorised to take affidavits, that the endorsed statement is true. This is an affidavit. It must be duly signed by the server and by the Magistrate or other person before whom it was made, within seven days after service of the summons. After it has been sworn it should be returned immediately to the clerk: DCA, s 47(2).

At the hearing, the affidavit will be prima facie evidence of the service of the summons. This proof may be important if the summons is disobeyed and if the court has to consider an application for a warrant for the arrest of a defendant.

9.3 ARREST GENERALLY

9.3.1 Constitutional requirements

The action of the state (through courts and police officers) in arresting persons and holding them against their will would be in breach of the constitutional “Right to Liberty” were it not for certain specific exceptions and conditions. Under the heading “Rights of All Persons”, s 42 of the Constitution sets out exceptions and conditions. Those relevant to this chapter are below.

9.3.2 The Arrest Act

Generally speaking, the Arrest Act (AA) gives effect to the constitutional requirements, and goes further with detailed instructions covering:

·           how police officers should carry out their duties with regard to arrest without warrant (AA, s 3);

·           warrants issued by the court (AA, ss 8 and 10-13);

·           the manner of carrying out an arrest (AA, s 14); and

·           duties after arrest and at the police station (AA, ss 17-22).

It is strongly recommended that Magistrates should be fully aware of these provisions.

Three further aspects of the Arrest Act should be noted:

1.         It abolishes all common law powers and duties in relation to arrest.

2.         The Act is a more recent statute than the District Courts Act and takes precedence over it if there is any clear conflict. However, in most situations the Acts can be read side by side without conflict. If there is conflict, the more detailed provisions of the Arrest Act will apply: The State v Kiap Bonga [1989] PNGLR 359.

3.         The Arrest Act provides a civil remedy for the wrongful exercise of powers conferred by the Act: ss 26-29. A person who breaches the Act in making an arrest or carrying out other powers under the Act, or who fails to perform a duty imposed by the Act, may be liable to pay damages to the person aggrieved by that breach. Such an action may be brought in the District Court, within the jurisdiction limits provided for in s 21 of the District Courts Act. It should be noted that the court has the power to award exemplary damages, which means that, in addition to compensating the aggrieved plaintiff, the court may order the payment of additional damages as a punishment to the person who has breached the Act. See also Chapter 22 regarding the liability and protection of Magistrates.

9.4 ARREST WITHOUT WARRANT, AND POLICE POWERS AND DUTIES

The provisions of the Arrest Act relating to arrest without warrant, the manner of arrest, police duties to be performed after arrest, and questions of fingerprinting and medical examination are important and should be known by the Magistrate. Sometimes the conduct of the police will subsequently be relevant to the validity of the proceedings, to the prosecution’s case or to defences raised. For example, if the statute requires that a warrant be issued in the circumstances of the case, then an arrest without warrant is illegal, any admissions made by the defendant are inadmissible, and subsequent proceedings can have no effect. The defendant should be discharged: The State v Kiap Bonga [1989] PNGLR 359 and The State v Natpalau Tulong [1995] PNGLR 329.

9.5 ARREST WARRANTS ISSUED BY THE COURT

9.5.1 The two Acts

As stated (9.3.2), the more detailed provisions of s 8 of the Arrest Act should be read into the sections of the District Courts Act relating to the issue of warrants for arrest (DCA, ss 49-56).

9.5.2 Issue of warrant in the first instance

Where an information has been laid before a Magistrate stating that a person is suspected of having committed an indictable offence or a simple offence, ss 49 and 50 of the District Courts Act give the Magistrate power to issue either a warrant for arrest or a summons against that person. Even after a summons has been issued, a warrant may also be issued at any time: DCA, s 49. The Magistrate must have before him or her evidence on oath “substantiating the matter of the information to his satisfaction” (DCA, s 50), and only then can he or she issue a warrant of arrest. This is consistent with s 35, which requires that, where it is intended to issue a warrant in the first instance, the information must be in writing and on oath: see 8.2.

9.5.3 Warrant for failure to attend on summons

The issue of a summons does not preclude the subsequent issue of a warrant at any time before the return date specified in the summons. If, on the other hand, a defendant who has been served with a summons fails to attend court on the return date specified, the Magistrate may issue a warrant for arrest. In indictable matters not to be tried summarily, authority is provided by s 93 of the District Courts Act. In cases of simple offences and indictable offences to be tried summarily, see s 125(b) of that Act.

Note: The provisions of s 125(a) of the District Courts Act, which purport to give the Magistrate the power to proceed ex parte and determine the case in the absence of a defendant who fails to appear on a summons, have been declared unconstitutional and void as a breach of a defendant’s right to be heard on the charge: Supreme Court Reference No 1A [1981-1982] PNGLR 122.

A person arrested and taken into custody for an offence must be brought before the court as soon as practicable after he or she is taken into custody: DCA, s 55. The person may be dealt with immediately if the prosecution is ready, and provided that the defendant has had adequate time to prepare his or her defence. It is more usual for the defendant to be released on bail: DCA, s 56, and see Chapter 10.

9.6 OTHER OCCASIONS FOR ARREST WARRANTS

9.6.1 Breach of bail

Where a defendant has been released on bail before the hearing takes place, or during any adjournment, and fails to appear at the time and place specified in the recognisance, the Magistrate may adjourn the hearing and issue a warrant for the defendant’s arrest. If sureties have been required for the defendant’s appearance, the Magistrate should check whether they have appeared at court and, if they have, examine them as to their responsibilities: see Chapter 10.

9.6.2 Indictable offences

Where a person is charged with an indictable offence which is to be dealt with under Pt VI of the District Courts Act and not tried summarily, the District Court has powers to issue a warrant similar to those mentioned above: DCA, s 93.

9.7 ATTENDANCE OF WITNESSES

The Magistrate’s role in relation to witnesses has been discussed in 3.7. In order to secure the attendance of a witness, the Magistrate may issue a summons to the witness to attend at the time and place fixed for the hearing. The same rules regarding service apply as in the case of a defendant: DCA, ss 47, 66 and 67. If the witness fails to appear, he or she may be fined, but not until the Magistrate has considered any “just excuse” for the non-appearance.

With regard to a witness who is summonsed to attend in the case of an indictable offence and fails to appear, s 68 of the District Courts Act requires that proof must be given on oath by the server of the summons that a reasonable sum was paid or offered to the witness for costs and expenses of attendance. It is noted that, in many parts of Papua New Guinea, this requirement is not practicable.

When a witness appears to give evidence or to produce documents, but, without lawful excuse:

·           refuses to be examined on oath;

·           refuses to answer a question concerning the matter that is put to him or her; or

·           refuses or neglects to produce a document specified in the summons, without sufficient excuse,

the court may adjourn the proceedings for not more than eight days, and may, in the meantime, issue a warrant committing the witness to a place where the witness will be held secure. If the witness, on being brought to an adjourned hearing, again refuses or neglects, the court may again adjourn the proceedings and commit the person for a specified period, and so again from time to time until he or she consents to be sworn or to give evidence or to produce the documents, as the case may be: DCA, s 70.

The Magistrate also has power to discharge such a witness on bail on recognisance, and the same conditions with regard to responding to bail and the issue of a warrant for non-appearance would apply to the witness as would apply to a defendant in similar circumstances: DCA, ss 79-83.

9.8 SEARCH WARRANTS

9.8.1 Constitutional requirements

In carrying out investigations and searches, the police force does not have any general power to search people, nor to enter premises to search for people or property. This is constitutionally recognised in the “Right to Privacy” (s 49) and the “Freedom from Arbitrary Search and Entry” (s 44) provisions of the Constitution. Nevertheless, Parliament is permitted under the Constitution to make reasonable provision for search and entry, which it has done by means of the Search Act (SA). Requirements that the police must observe in exercising their powers should be noted.

9.8.2 Searches of the person without warrant

9.8.3 Searches of vehicle or premises without warrant

These searches require belief on reasonable grounds regarding theft, or entry in immediate pursuit of suspects: SA, s 5. Where a search of premises is carried out without a warrant and the search is not “in immediate pursuit” of a suspect, the search is unlawful and any evidence obtained in the search is unlawfully obtained and may be rejected: The State v James Bero Popo [1987] PNGLR 286.

9.8.4 Search warrants issued by a court

Except as described above, the police must apply to the court for the issue of a search warrant.

An affidavit is generally required from a senior police officer stating:

·           what offence or offences it is alleged have occurred or might occur;

·           the type of thing or object, document or property that the police are looking for; and

·           the address or name of the premises, craft or vehicle to be searched.

In order to protect the secrecy of police operations, the police application should be heard in the Magistrate’s chambers or other place from which all persons other than the Magistrate, the police officer and the clerk are excluded.

The Search Act spells out the powers and duties of police in relation to searches of premises. The power to enter must not involve the use of force that is greater than is reasonable in the circumstances: SA, ss 6(4) and 9. Within a reasonable time after the search the police must restore the place as nearly as possible to the same state of cleanliness and neatness that existed before the search: s 9.

As in the case of powers of arrest (9.3.2), a civil remedy is provided which enables a person aggrieved by a breach of the Search Act to bring an action for damages, and possibly exemplary damages (see 9.3.2 for an explanation), against the person who is in breach of the Act: s 17. See also Chapter 22, which deals with the liability and protection of Magistrates.

9.8.5 Respect for village custom and leadership

The Search Act makes special provision for the searching of a village or village garden. In this case, a search warrant requires evidence to be given to the court on oath by a commissioned police officer that there are reasonable grounds for searching any building in a village or in any part of a village or a village garden. If a warrant is issued, the police officer to whom the warrant is directed shall, where it is practicable to do so, before executing the warrant:

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“endeavour to obtain the co-operation of those persons who, by custom, are regarded as the leaders of the village in respect of which the warrant has been issued”: SA, s 6(2) and (3).

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It has been pointed out that the intention of the statute was to lay down very careful requirements where a search warrant is sought in relation to a village, where the police officer should endeavour to obtain the co-operation of the village leaders. Parliament clearly wanted searches in a village situation to be carefully dealt with by senior police officers: The State v James Bero Popo [1987] PNGLR 286 and Acting Public Prosecutor v Richard Saronduo [1988-1989] PNGLR 17.