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CHAPTER 19 – CORONERS, ELECTIONS AND OTHER JURISDICTIONS

19A – CORONERS’ INQUESTS

19A.1 THE CORONER’S JURISDICTION

19A.1.1 Coroners Act

Coroners’ hearings into the causes of deaths and fires have a long history in the United Kingdom and Australia where the law has been developed and reformed. The jurisdiction is based on statute, and, in Papua New Guinea, the current legislation is the Coroners Act, which is likely to be replaced by new legislation. A brief summary of the jurisdiction is provided here.

19A.1.2 Administration

Coroners must be appointed by the Judicial and Legal Services Commission, and District Court Magistrates are frequently appointed as Coroners for the provinces within which they act as Magistrates: Coroners Act, s 2.

Coroners are required to work closely with the police and the office of the Attorney-General. The police submit their investigations and reports to the Coroner under the Coroners Act, and assist the Coroner during inquests. The police officer working with the Coroner is the “officer assisting the Coroner”, and is frequently a police prosecutor.

19A.1.3 Functions

As the jurisdiction is entirely statutory, a Coroner has no power to inquire into any other matters.

19A.1.4 Procedural stages

There are two stages:

Stage I: In the case of each of the three types of matters above, the Coroner’s duties begin with an initial investigation into the report of death, fire or missing person that the Coroner has received: 19A.2.1. This task ends with the Coroner’s decision on whether or not to hold a formal inquiry, called an “inquest”: 19A.2.2.

Stage II: If an inquest is to be held, further procedural rules apply: 19A.3.

19A.2 STAGE I – INITIAL INVESTIGATIONS

19A.2.1 Notices, reports and examinations

On receiving notices and reports from doctors, police officers and members of the public, as required under the Coroners Act, the Coroner may request the police to carry out further inquiries, and may, if appropriate, direct the post-mortem of a deceased person or issue a warrant for the exhumation of a buried body.

19A.2.2 Decision whether to hold an inquest

After considering all the information received, the Coroner is required to decide whether or not to hold an inquest. In the case of death or fire, if the Coroner considers that “no good purpose would be served” by holding an inquest, the Coroner must report the decision to the Attorney-General: Coroners Act, s 7 in the case of deaths, and s 17 in the case of fires. Where a missing person is concerned, the Coroner may be called upon to decide whether, “in the opinion” of the Coroner, an inquest should be held: s 20.

In every such case, the decision of the Coroner is a judicial act that must be carried out on the basis of the evidence available, in good faith, and having regard to the purposes of the Act (which include the public’s interest in having satisfactory explanations of deaths, fires and disappearances).

19A.2.3 Directions by Attorney-General and requests by other persons

Independently of the Coroner’s decision, the Attorney-General is empowered to direct that an inquest be held. In prescribed circumstances, persons recognised by the Act may request an inquest, in which case the Coroner is obliged to conduct one.

19A.3 STAGE II – INQUESTS

19A.3.1 Purposes of the findings of an inquest

The purposes for which the Coroner is required to make findings are linked to the Coroner’s three main functions: see 19A.1.3 above. The Coroner is required to ascertain, so far as the evidence may establish, and certify findings as to:

·        Deaths –

·           the identity of the deceased;

·           how, when and where the deceased came by his or her death; and

·           whether the cause of death was through wilful murder, murder or manslaughter, and, if so, the person responsible: Coroners Act, s 10.

·        Fires –

·           the time when, and the place where, the fire occurred;

·           the cause of the fire; and

·           where the offence of arson has been committed, the person (if any) whom the Coroner finds to have been guilty of the offence: s 17.

·        Missing persons –

·           whether the missing person is alive or dead; and

·           if the person is alive, or likely to be alive, his or her whereabouts at the time of the inquest: s 20.

19A.3.2 Inquest procedure generally

The Coroner’s inquest is normally held in a courthouse open to the public, and with much the same procedures and formalities as those of a criminal hearing. For example, the Coroner has all the powers of a Magistrate conferred under the District Courts Act in respect of the preliminary hearing of an indictable offence (Coroners Act, s 22): see Chapter 11.

Because the functions of a Coroner are not the same as those of a Magistrate, Coroners are addressed as “Sir” or “Madam”, and not “Your Worship”. At the beginning of the inquest, the officer assisting the Coroner opens the proceedings by announcing “The inquest concerning the death of the late ... [name] ... is now in session”.

19A.3.3 Coroner’s control of the evidence

In order to perform his or her functions, the Coroner is required to examine on oath all persons:

·           whom he or she thinks fit to examine;

·           who tender their evidence; or

·           who, in the opinion of the Coroner, are able to give relevant evidence respecting the facts: Coroners Act, ss 10, 17 and 20.

Note that the Coroner is required by the Act to examine all witnesses who fall within the above categories.

The Coroner may issue summonses and warrants in order to secure attendance of witnesses: ss 25 and 26. The Coroner’s control of inquest proceedings is supported by the power to impose fines for contempt: s 28.

19A.3.4 Difference between inquest and prosecution

The Coroner’s inquest is not intended to be a process that determines criminal responsibility or civil liability. Accordingly, no person who claims to be interested in the proceedings has the absolute right to call or cross-examine witnesses. The Coroner will call the witnesses, and will usually allow cross-examination by, or on behalf of, persons who are recognised as having a sufficient interest: see 19A.3.7.

Natural justice requires the Coroner to protect the procedural interests of any person who it seems may be found to have caused the death or fire. Such a person must be allowed to cross-examine witnesses, and the Coroner should consider carefully whether to call those witnesses whom the suspect person wishes to give evidence at the inquest.

Furthermore, witnesses who claim that they might incriminate themselves if required to answer particular questions, may request to have the benefit of the rule against self-incrimination: see Chapter 5.

19A.3.5 Prosecutions

If, after initial investigations have been carried out by the Coroner (Stage I – 19A.2) and the police, the latter decide to prosecute the person they consider responsible for the death or fire, the Coroner will usually suspend or adjourn the inquest until after the criminal proceedings have been concluded.

19A.3.6 Charge and committal by the Coroner

The Coroner is also given power to charge a person with the offence of wilful murder, murder, manslaughter or arson: Coroners Act, s 19. This power is seldom used, because it is desirable to keep the inquest and prosecution functions separate and, in any case, the police are usually in a better position than the Coroner’s staff to conduct a prosecution.

If a person is charged under s 19, the Coroner is required to read the charge and explain its nature in ordinary language to the effect of the words set out in s 19. The Coroner must put into writing whatever the charged person says, and commit that person for trial in the National Court. The accused will be detained, and all witnesses examined at the inquest will be bound by recognisance to appear at the trial. The Coroner must transmit the charges, depositions and statements to the Registrar of the National Court without delay.

19A.3.7 Presence at inquests and publication of proceedings

Witnesses are not normally permitted to be present at the inquest except during and after the giving of their evidence. However, any person, whether summonsed as a witness or not, whom the Coroner considers:

·           has a particular interest in the proceedings, or

·           is responsible for any conduct or act which is material to the subject matter of the inquest,

may be permitted to be present throughout the inquest. Such a person is entitled to examine and cross-examine witnesses and to be represented by a lawyer: Coroners Act, s 29.

Subject to the above, a Coroner may exclude a person from the inquest in the interests of public morality: s 30(1). Lawyers and representatives of newspapers may not be excluded, but the Coroner may forbid the publication of any report or the account of the evidence or other proceedings in the inquest: s 30(2) and (3).

19A.3.8 Depositions, findings and reasons

The Coroner must put into writing all evidence given before him or her, and such depositions of witnesses must be read to or by the witness and signed by the witness and the Coroner. On the trial of a person, the depositions and any statement of the person charged taken under s 19 are admissible in evidence at the trial.

At the conclusion of every inquest, the Coroner must record his or her findings as to the death or fire (ss 10 and 17 – see 19A.3.1), complete the required certificate and forward it to the Attorney-General: Coroners Act, s 23. The findings should arise directly out of the relevant evidence, and, before making a particular finding, the Coroner should be satisfied on the balance of the probabilities (except where considering whether to commit a person for trial, when the Coroner must be satisfied that there is a prima facie case). Of course, it is particularly important that the Coroner should give reasons for his or her findings, so that these may assist in the prevention of deaths and fires in the future.

The Coroner is also required to prepare an abstract of the proceedings, and his or her findings, that refers to the names of all the witnesses examined, the costs and the amount of time taken for the inquest. This abstract must also be forwarded to the Attorney-General: s 34.

19A.3.9 Reopening the inquest

If a Coroner considers that an inquest should be re-opened, or is requested to do so by a person authorised under s 21(5) of the Coroners Act, the Coroner may, as a judicial act, re-open an inquest that was previously closed by him or her or by another Coroner. The Attorney-General has final authority to require that an inquest be held or re-opened: s 21(1).

19A.3.10 Changing demands on today’s Coroners

Many coronial inquests are now broad in their scope, and a finding that a person caused or contributed to the death of another person (or to a major fire) will lead not only to criminal prosecution and the possibility of civil action, but also to significant media attention. Indeed, whether or not there is such a finding, public attention is often attracted to the inquest. While the inquest is technically an inquisitorial proceeding, there are often, in practice, a number of “parties” with fundamentally opposed objectives. Because of the increasing recognition of the potential impact of coronial findings following notorious crimes or major disasters, proceedings in Coroners’ Courts are often aggressively contested before the Coroner in an adversarial manner. Consequently, the Coroner needs to be aware of the importance of the findings and recommendations of the inquest. During the course of the hearing, the Coroner will need to pay special attention to such matters as the appearance of witnesses as “parties”, the level of proof required, suppression (if desirable) of publication of parts of the proceedings, the privilege against self-incrimination, and the function of the police with regard to prosecutions.

19B – ELECTIONS

In a democratic society, the courts play a vital role in ruling on disputes associated with the electoral process. In the interests of speedy and certain outcomes in elections, the courts are called upon to hear the parties and deliver reasoned decisions without delay. In Papua New Guinea, the relevant law is contained in the Organic Law on National and Local-level Government Elections (“Organic Law on Elections”), as supplemented by decisions of the courts.

In Papua New Guinea, Magistrates may be involved in three aspects of the election process:

·        enrolment appeals: national and local-level elections;

·        petitions: disputed elections or returns (local-level elections); and

·        references: disputed qualifications or vacancies (local-level elections).

This chapter will deal with each of these.

19B.1 ENROLMENT APPEALS (NATIONAL AND LOCAL-LEVEL ELECTIONS)

19B.1.1 Objections to enrolment

In both national and local-level elections, the right to vote is dependent upon the citizen’s name being on the correct electoral roll at the time of the election. The Returning Officer decides persons’ claims to be enrolled or to have their enrolment transferred, and also decides questions of objections to names on a roll and removal of names from a roll. Any elector on the same roll can object to a name, and the Returning Officer is obliged to object to a name that he or she believes ought not to be on the roll. When an objection has been lodged and served, the Returning Officer makes a determination on the objection and advises the parties.

19B.1.2 Appeal to the District Court

Under two identical sections of the Organic Law on Elections (s 72 for national elections and s 270 for local-level elections), the decisions of Returning Officers can be appealed to the District Court.

The application is to be made to the District Court in the prescribed manner. Regulation 12 of the National and Local-level Government Regulation 1997 provides that the application must be in writing, lodged within two months after receipt of notice of the rejection or after determination of the objection, as the case may be. A notice of the application must be served on the objector or the person objected to, as the case requires.

19B.1.3 The hearing

Sections 72 or 270 of the Organic Law on Elections (depending on the level of the election) confers jurisdiction on the District Court to “hear and determine” such an application, and to make such order regarding the costs of the application as it thinks fit. The Organic Law on Elections provides no other guidance as to how the court should proceed to deal with the matter. These applications to the District Court are in the nature of civil actions to test and/or enforce the right to be enrolled for the purpose of elections, and they are served on other parties to enable them to appear at the hearing.

19B.1.4 Determination of the court

The clerk of the court is required to send a certified copy of the court’s order to the Returning Officer, who must make such entries in the roll as are necessary to give effect to the order: Organic Law on Elections, ss 70(6) and 270(6).

19B.2 PETITIONS: DISPUTED ELECTIONS OR RETURNS (LOCAL-LEVEL)

19B.2.1 Disputed elections and returns under the Organic Law on Elections

19B.2.1.1 Court of disputed elections and returns

It is the responsibility of the court system to deal with disputes, irregularities and illegalities that occur during general elections at national and local levels. An efficient electoral process requires the just and prompt resolution of such matters in the public interest. A special jurisdiction is conferred on National and District Courts by the Organic Law on Elections. It is conferred on National Courts for national elections, and on District Courts for local-level elections, and such courts sit as courts of “Disputed Elections and Returns”.

It is well established, in countries with parliamentary systems similar to that of Papua New Guinea, that the Court of Disputed Elections and Returns takes full responsibility for these matters, and that, in the interests of disposing of electoral challenges early, and to achieve finality following an election, there is no appeal from the court’s decision. Such a decision “shall not be questioned in any way”: Organic Law on Elections, ss 220 and 287.

19B.2.1.2 Scheme of the Organic Law on Elections

The Organic Law on Elections is a code of the law relating to elections at both levels, supplemented only by the Criminal Code. Most of the Organic Law on Elections is taken up with elections generally and national-level elections. Part XIX deals with local-level elections in particular. As far as disputed elections and returns are concerned, the Organic Law on Elections spells out the law governing the role of the National Court (Pt XVIII), and declares that most, but not all, of that law shall also apply, with modifications, to the role of the District Court in local-level elections: see Pt XIX and the important provisions of s 287. It must be remembered that the Organic Law on Elections applies to local-level elections only to the extent authorised by Pt XIX: s 3.

19B.2.1.3 Electoral rights

The constitutional guarantees of the rights to vote and stand for public office, freedom of expression, freedom of assembly and freedom of information are essential to the notion of “free and democratic elections”. The courts are the guardians of these rights. The Organic Law on Elections may restrict these rights only to the extent necessary to give effect to the public interest in public safety, public order and public welfare: s 1.

19B.2.1.4 Electoral process in local-level elections

The Organic Law on Elections provides for the entire process, beginning with the issue of writs for the elections (Pt XIX, Div 8), nominations, voting (or “polling”) on election day, scrutiny of votes cast, return of the writs, illegal practices and disputed elections and returns (Pt XIX, Divs 9-14).

19B.2.1.5 Disputes and offences in local-level elections

The requirements of free and democratic elections at the local-level are re-enforced by procedures laid down in the Organic Law on Elections for:

(a)        petitions disputing the validity of an election or return on the ground of irregularities, illegal practices, bribery or undue influence; and

(b)        prosecution of persons alleged to have committed:

(i)         illegal practices defined in s 286;

(ii)        breaches of Pt III, Div 3 of the Criminal Code; or

(iii)       other breaches of provisions of the Organic Law on Elections.

This chapter (19B) is concerned only with petitions, and not with prosecutions.

19B.2.2 Jurisdiction of the District Court

19B.2.2.1 The court’s powers

Subject to specific modifications that are spelled out, Pt XVII, Div 3 of the Organic Law on Elections, which confers powers on the National Court, is deemed to apply also to the District Court in the case of local-level elections.

19B.2.2.2 Grounds on which court may exercise powers

The Organic Law on Elections declares that the District Court may exercise all or any of the above powers on such grounds as it, “in its discretion, thinks just and sufficient”: s 212(3). Although subsequent sections introduce some limitations on the discretion, it remains a very wide discretion which imposes a duty on the court to familiarise itself with the Organic Law on Elections, to ensure that the statutory procedures are strictly complied with and to develop its reasoning carefully.

19B.2.2.3 Bribery, undue influence and illegal practices

If a successful candidate is found to have committed bribery or undue influence (see Criminal Code, ss 102 and 103), or to have attempted to commit either of them, the District Court must declare the election void: Organic Law on Elections, s 215(1). It is also clear that proof that illegal practices were committed in connection with an election may be sufficient ground for the court to declare a person not duly elected or to declare an election void: s 212(4).

Section 286 of the Organic Law on Elections lists 22 illegal practices, each of which is also an offence punishable by fine or imprisonment. In addition, “illegal practice” is defined (s 235) to include offences under the Criminal Code, such as undue influence, bribery and illegal practices: Criminal Code, ss 102, 103,105 and 106.

19B.2.2.4 Residence, irregularities and other grounds

Lack of residential qualification to be elected as a head or member of a local-level government, or councillor of a ward, may be a ground for action against a candidate, bearing in mind the constitutional requirement of residence: Constitution, s 103, and Organic Law on Elections, s 253 in relation to wards): see In re Disputed Return for Moresby North-West Electorate (1998) N1670 (Woods J); Joel McRay Aka v Dinah Patiliu (Ward 8 in Kimbe Town Local-level Government) [1998] PNGDC 17 (Manuhu, Principal Magistrate); and Vitus Noah v Gilson Leslie (Wards 1 and 2 in Mosa Local-level Government) [1998] PNGDC 16 (Lenalia, Principal Magistrate).

Residence is described as a “threshold question”, which, although it is not specifically mentioned in the Organic Law on Elections, falls to be decided by the Court of Disputed Elections and Returns: In re Election for Enga Provincial Electorate (1997) N1701 (Sakora J).

Failures on the part of a Returning Officer, Presiding Officer or other officials to administer an election strictly in accordance with the Organic Law on Elections may result in grounds for relief in the court: see examples of such failures in In re Election for Enga Provincial Electorate (1997) N1701 (Sakora J); and In re Election for Kainantu Open Electorate (1997) N1752 (Sakora J). The National and Local-level Government Electoral Regulation 1997 also sets out several specific procedures to be followed by officials.

However, immaterial errors will not be allowed to upset an election. The test is whether delay on the part of an officer, or absence, error or omission, affected the result of the election. Further, if an elector is prevented from voting for such a reason, the court is not permitted to admit evidence of which way the elector intended to vote at the election: Organic Law on Elections, s 218.

Subject to the specific restrictions and limitations imposed by the Organic Law on Elections, the court is given wide discretion as to the grounds on which it may rely in reaching its decision: see 19B.2.2.1.

19B.2.3 Procedure

19B.2.3.1 Petition

The only procedure by which a local-level election or return can be disputed is by petition to the District Court. It is to be heard and dealt with by a single Magistrate: Organic Law on Elections, ss 206 and 207. There is no prescribed form for an election petition, but it must:

·           set out the facts relied upon to invalidate the election or return; and

·           specify the relief to which the petitioner claims to be entitled: s 208(a) and (b).

Compliance with these requirements is strict, and failure to comply can result in the petition being struck out or dismissed at a preliminary stage of the proceedings. In the case of In re West New Britain Provincial Electorate, Greg Mongi v Bernard Vogae and Electoral Commission (1997) N1635, the petition was struck out by Injia J because insufficient facts were set out to support the grounds alleged and the petition failed to seek the correct relief. See also In re Election for Kairuki-Hiri Open Electorate (1997) N1676; and In re Election for Enga Provincial Electorate (1997) N1701.

Further, the petition must be signed by a candidate at the election or by a person qualified to vote: Organic Law on Elections, s 208(c) and (d). The court must itself inquire whether the petition is duly signed: s 214. The petition must also be attested by two witnesses whose occupations and addresses are stated: s 208(d).

19B.2.3.2 Filing petition and security for costs

A petition to dispute a local-level election must be filed at the District Court in the town containing the headquarters of the provincial government, which includes the area of the local-level government in respect of which the election was held: Organic Law on Elections, s 287(3). The time for filing a petition is not specified. Section 208(e), which requires national-level petitions to be filed within 40 days after the declaration of the result of the election, does not apply to local-level elections (s 287(1)), and practice directions may be made on the subject: see 19B.2.4.

Where there is a time limit fixed for filing a petition, it will be strictly applied by the courts (In re Election for Central Bougainville Open Electorate (1997) N1694 (Sawong J)), and no amended petition can be filed after that time (In re Namatanai Open Electorate (1997) N1627 (Injia J)).

Security for costs in the sum of K50 must be deposited with the clerk of the District Court: Organic Law on Elections, s 287(4).

19B.2.3.3 Strict compliance

In addition to the approach taken by the courts referred to above, it should be noted that the provisions of the Organic Law on Elections are such that the District Court is powerless to hear proceedings on a petition unless the above-mentioned requirements under ss 208 (a)-(d) and 214 have been complied with.

19B.2.4 Service of petition and compulsory conference

19B.2.4.1 Practice directions

In 1997, the National Court issued “Practice Directions for Presentation and Conduct of Election Petitions”. It is likely that these will apply to local-level government elections in future, with suitable modifications to conform to the Organic Law on Elections on such elections and to make them applicable to the District Court. The following sections are written with these practice directions in mind, but Magistrates should check whether they, or subsequent practice directions, are current and applicable.

19B.2.4.2 Service of petition

The 1997 practice directions require that, within 14 days of filing, the petition must be served personally on the respondent, together with notification of a compulsory conference. A copy of the petition must also be sent promptly to the clerk of the local-level government (Organic Law on Elections, s 221), and a copy should be sent to the Electoral Commission, which is entitled to be represented at the hearing: s 211.

Proof of service on the respondent must be filed in the District Court within 14 days of service. A respondent who intends to appear on the hearing of the petition must file a notice to that effect in the court and serve a copy on the petitioner. The practice directions also deal with the place of trial and production of documents.

19B.2.4.3 Compulsory conference

It is always desirable (and is required by the practice directions) that a compulsory conference of the parties be held before a Magistrate, to determine such matters as:

·           representation by counsel;

·           possibility of settlement;

·           simplification of issues and streamlining of pleadings;

·           necessity to direct electoral records to be produced;

·           estimation of length of hearing; and

·           date of hearing.

19B.2.5 Hearing and decision

19B.2.5.1 Hearing and representation

An election petition should be heard in the same manner as a civil claim: see Chapter 4 as to hearing procedure. No party is entitled to be represented by a lawyer unless all parties consent or the court gives leave – and in no case may more than one lawyer appear for a party: Organic Law on Elections, s 222. Woods J, in the case of In re Election for Lufa Open Electorate (1997) N1617, pointed out that it greatly assists the court if a person with knowledge of the statute and procedure, preferably a lawyer, has drafted the petition.

19B.2.5.2 Evidence and “substantial merits of the case”

The onus of proof of the allegations made in the petition is on the petitioner throughout. The standard of proof required is the civil standard, but it is raised to take into account the seriousness of the issue at stake. Frost CJ, in the case of In re Moresby North East Parliamentary Election (No2) [1977] PNGLR 448 at 450, observed that “an election is a serious and expensive matter and is not lightly to be set aside”, and stated the test adopted, namely:

<Case Quotation>

“in a case such as the present where the issues are of real gravity, the Court should require clear and cogent proof so as to induce, on a balance of the probabilities, an actual persuasion of the mind that the candidate did in fact lack the required qualifications”.

<End Case Quotation>

In the case of In re Election for Kairuki-Hiri Open Electorate (1997) N1676, Sakora J referred to the heavy obligation on the petitioner to plead and prove his or her case: see also In re Return for Moresby North West Electorate (1998) N1670; In re West New Britain Provincial Electorate, Greg Mongi v Bernard Vogae and Electoral Commission (1997) N1635; and Joel McRay Aka v Dinah Patiliu (Ward 8 in Kimbe Town Local-level Government) [1998] PNGDC 17.

This test of proof adopted by the courts must be read together with the broad discretion as to evidence conferred by the Organic Law on Elections. Section 217 states that the court:

<Legislation Quotation>

“shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not”.

<End Legislation Quotation>

There is certain evidence that the court is not permitted to hear in relation to a witness claiming that he or she was not permitted to vote: Organic Law on Elections, s 219. Also, although the court can inquire into whether votes were improperly admitted or rejected, it cannot hear evidence as to the correctness of the electoral roll: s 214. As to the weight to be attached to evidence of immaterial errors committed by officials, see 19B.2.2.4 above.

Finally, the “substantial merits” test, referred to above, may lead to the need for a common-sense approach. For example, Woods J, in the case of In re Election for Eastern Highlands Regional Electorate (1998) N1690, found that the undue influence and false statements complained of “was no more than tough political campaigning”, and that “what had happened in PNG over the past year was bound to lead to tough criticism and campaigning”.

19B.2.5.3 Decision and finality

Having read the documents, heard the evidence and listened to argument from both sides, the Magistrate is advised to adjourn for several days in order to prepare the decision and the reasoning that supports it. In view of the urgency of electoral matters, an adjournment of more than a week might be regarded as unacceptable.

In preparing the decision, the Magistrate should go back through the provisions of the Organic Law on Elections that confer jurisdiction, and carefully examine the court’s powers: see 19B.2.2 above, particularly 19B.2.2.1 on “verdict” and 19B.2.2.2 on “grounds – just and sufficient”. In a case of bribery, undue influence or illegal practices, it is useful to refer to 19B.2.2.3, and to note where the court is bound by law to declare the election void (s 215(1)) and where the court’s powers are limited (s 215(3)).

Costs may be awarded against an unsuccessful party and, if it is the petitioner who is unsuccessful, the deposit of security for costs will be paid as part of the other party’s costs. A successful petitioner recovers his or her deposit: Organic Law on Elections, ss 223 and 224.

The decision on the petition should be announced in open court, and a copy of the court’s order must be forwarded promptly to the clerk of the local-level government.

In keeping with the function and purpose of a Court of Disputed Elections and Returns, its decision is “final and conclusive and without appeal” and “shall not be questioned in any way”: Organic Law on Elections, s 220. Thus, the weight of the court’s responsibility to reach a decision that is correct in law, while also fair and just, is heavy indeed.

19B.3 REFERENCES: DISPUTED QUALIFICATIONS OR VACANCIES (LOCAL-LEVEL)

19B.3.1 Jurisdiction

19B.3.1.1 Questions referred by local-level government

At any time during the life of a local-level government, and most commonly during or after an election, a question may arise as to whether:

·           a member of a local-level government is qualified to be a member;

·           a person is capable of being chosen or of sitting as a member; or

·           there is a vacancy in the government.

Such a question may be referred to the District Court by the local-level government: Organic Law on Elections, s 228.

19B.3.1.2 Statement of the question

If the local-level government decides, by resolution, to refer a question to the District Court, the head of the government should transmit to the court a statement of the question upon which the determination of the court is desired, together with any proceedings, papers, reports or documents, in the possession of the government, that relate to the question: Organic Law on Elections, s 229.

19B.3.2 The hearing

19B.3.2.1 Parties and representation

To establish who will be parties to contest the question before the District Court, the court may allow persons who, in the court’s opinion, are interested in the determination of the question, to be heard at the hearing of the reference, and may direct notice of the reference to be served on any person whom the court considers could assist the court. Persons allowed to be heard or served with notice are deemed to be parties to the reference: Organic Law on Elections, s 230.

The position with regard to lawyers appearing in court is the same as for the hearing of disputed petitions: s 222; and see 19B.2.5.1.

19B.3.2.2 Hearing of the reference

Since the responsibility lies upon the District Court to answer the question referred to it, the court should proceed to conduct an inquiry and utilise its powers under the Organic Law on Elections to compel the attendance of witnesses for examination by the court and the production of documents: Organic Law on Elections, ss 212 and 231. At the same time, it is likely that certain parties will be interested in establishing certain facts (for example, a member of government may seek to establish that he or she is qualified to be a member, while another candidate may have evidence to the contrary). It is recommended that the court should hold a compulsory conference of the parties before the hearing, in order to determine on which party, if any, a burden of proof should lie. The court may also deal with such of the matters set out in 19B.2.4.3 as are relevant to the hearing of the reference.

Once commenced, the hearing must proceed in open court (s 231), and may be adjourned from time to time to enable further evidence to be obtained: s 212(1)(a). The court is to be guided by the “substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not”: ss 217 and 233.

The provision relating to immaterial errors in petition hearings also applies: ss 218 and 233.

19B.3.3 The determination

19B.3.3.1 The court’s powers

In answering the question referred to it, the District Court has all the powers relevant to petitions as listed in s 212 of the Organic Law on Elections (see 19B.2.2.1), together with the power to determine three further matters (provided in s 231 and set out in 19B.3.1.1 above) relating to references.

19B.3.3.2 Declarations and finality

The court should take time for consideration, but not more than is strictly necessary. It is important to note that the law and practice set out in 19B.2.5.3 above, with regard to forwarding the court’s declarations to the local-level government, and with regard to the finality of the court’s decision, also apply to this jurisdiction.

19C – SURETY OF THE PEACE AND GOOD BEHAVIOUR

19C.1 PART X OF THE DISTRICT COURTS ACT

19C.1.1 Causing fear in others

Members of society sometimes act in a fashion that falls short of criminal behaviour (or criminal behaviour that is likely to result in a prosecution) and yet which causes fear in others. Part X (ss 209-218) of the District Courts Act provides Magistrates with a jurisdiction to deal with such behaviour and impose orders designed to alleviate the fears that it causes.

19C.1.2 Jurisdiction

Part X of the District Courts Act empowers Magistrates to compel persons before the court to answer complaints about their behaviour or intentions. Specifically, it may be alleged that a person has threatened, or indicated an intention to cause, a breach of the peace. Where grounds are made out to support these allegations, the person (the defendant) may either be required to enter into a recognisance to keep the peace or, if this is refused, be committed to prison for up to six months. A Magistrate’s jurisdiction under Pt X is, strictly speaking, neither criminal nor civil in nature. It is a special statutory jurisdiction that may be utilised in a variety of contexts, often where no other available remedies or sanctions are appropriate.

A recognisance is a promise that is made by a defendant to the court to keep the peace. The expression “keep the peace” is not defined in the District Courts Act. It is an expression that has a long history in the common law. Some guidance may be found in the meaning of “peace” as it has been found in other common law jurisdictions. It has been interpreted to mean “the King’s peace in its widest sense, the general peace and order of the realm as provided for by law”: Stephens History of the Criminal Law, Vol 1, p 185. It may also be considered to connote “a quiet and harmless behaviour towards the King and his people”: R (Wilbur) v Magee [1923] 3 WWR 55. When this meaning is applied in a Papua New Guinean context, a wide range of behaviour may amount to a breach of the peace.

A recognisance to keep the peace may require the defendant to pay a sum of money to the court. It may also require third parties, known as sureties, to come forward and either promise to pay, or actually deposit a sum of money with, the court on condition that the money will be payable or forfeited (as the case may be) to the court in the event that the defendant does not comply with his or her obligations during the term of the recognisance.

19C.2 GROUNDS FOR INVOKING THE COURT’S JURISDICTION

The District Courts Act does not provide that a threat must be communicated in any specific manner. It is therefore possible to invoke the jurisdiction of the court where a threat consists of spoken words, written words or gestures, or a combination of these. The Act does state that using language that indicates intention to do any of the above acts is sufficient. A threat may be communicated directly or indirectly to the informant.

An information under Pt X is essential. In the absence of an information, a Magistrate has no power to make an order under Pt X, even where the Magistrate becomes aware of a threat to a person in the course of some other proceedings.

19C.3 THE PROCEDURE

A proceeding under Pt X of the District Courts Act is initiated by way of an information pursuant to s 209 or 210. The information must be in writing and may be on oath in every case, except where the defendant is alleged to be of evil fame, in which case the information must be on oath.

If an information is on oath, a Magistrate has a choice of compelling the attendance of the person named in the information by means of a warrant. If the information is not on oath, a summons is used. If a summons is used and the defendant does not appear, a warrant may be issued pursuant to s 212(1)(a), in the same way it would be if a defendant charged with a simple offence failed to appear. In such cases, a Magistrate must ensure that service of the summons has been effected on the defendant.

If a Magistrate is satisfied that an information is laid only as a result of malice or vexation, he or she may refuse to issue any process to compel the attendance of the defendant. This effectively puts a stop to the proceedings. Reasons should be given to the complainant in such a case.

A hearing under Pt X of the District Courts Act is conducted in the same manner as a hearing for a simple criminal offence. The rules of natural justice are observed. A Magistrate must provide a defendant with an opportunity to answer the information and the evidence adduced against him or her. It is not clear whether a defendant has a right to cross-examine the makers of affidavits supporting the allegation in the information. If evidence against a defendant is adduced orally, a defendant will certainly have that right.

19C.4 EVIDENCE

19C.4.1 Affidavits

Section 211 of the District Courts Act establishes a statutory exception to the hearsay rule, in providing that the information may be supported by affidavits from third parties. This does not rule out the more usual manner of admitting sworn oral evidence.

19C.4.2 Standard of proof

The burden of proof required in a proceeding under Pt X of the District Courts Act is not specified. However, it appears that the burden is something less than beyond a reasonable doubt, the usual criminal standard.

19C.5 RECOGNISANCE

Section 214 of the District Courts Act provides that after hearing and considering evidence in relation to the information, a Magistrate may:

(a)        dismiss the case;

(b)        require the defendant immediately, or at some time to be specified by the court, to enter into an oral or written recognisance, with or without sureties, in such reasonable amount as the court thinks fit, to keep the peace or be of good behaviour, as the case may be, for such time as it thinks fit; or

(c)        in default, commit the defendant to a corrective institution or police lock-up for such time as the court thinks fit, not exceeding six months, unless in the meantime the required recognisance is given.

If a recognisance is conditioned on the defendant keeping the peace, the commission of a criminal offence will not automatically result in a breach of a recognisance. This is because some offences do not amount to a breach of the peace. However, a criminal offence will automatically result in a breach of a recognisance that is conditioned on good behaviour, as the commission of any offence is, by its nature, bad behaviour.

The main benefit of an order requiring a defendant to enter into a recognisance is the deterrent effect that comes with the risk of forfeiting money if the terms of the recognisance are not complied with. This deterrent effect is presumably enhanced where sureties are involved and the amount of money in question is, in the eyes of the defendant and the sureties, substantial.

Another benefit may stem from a simple recognition on the part of a defendant that the justice system is capable of dealing with a threatened breach of the peace. When a defendant has been brought to court pursuant to Pt X of the District Courts Act, a Magistrate has an opportunity to speak directly to the defendant and warn him or her of the seriousness of the matter and the consequences of breaching a recognisance.

19C.6 FORFEITURE OF RECOGNISANCE

A Magistrate may declare a recognisance forfeited on application. Section 217 of the District Courts Act imposes no restrictions on who may apply. However, in order for an application to succeed, it must be proved that:

·           the person bound by the recognisance has committed an offence that amounts to a breach of the recognisance; and

·           notice of the application has been personally served or left at the usual or last known residence of the person at least seven days before the application.

The realities of the investigation and successful prosecution mean that a defendant, in many cases, will be able to delay any possible conviction until after an existing recognisance has expired. Further, behaviour that amounts to a breach of the peace or bad behaviour, and thereby breaches a recognisance but does not amount to a criminal offence, cannot result in a forfeiture. The result is that, under the present law, few recognisances are likely to be forfeited.

19D – MOTOR VEHICLE DEATHS COMPENSATION

19D.1 THE MOTOR VEHICLES (THIRD PARTY INSURANCE) (BASIC PROTECTION COMPENSATION) ACT

19D.1.1 Purpose of the Act

The Motor Vehicles (Third Party Insurance) (Basic Protection Compensation) Act is intended to provide for the speedy payment of a limited amount of compensation to the dependants of persons whose deaths are directly or indirectly attributable to the use of motor vehicles, without regard to the issue of negligence: preamble to the Act. The underlying purpose of the scheme is to use the prompt payment of some compensation to the deceased’s dependants as a means of discouraging violent retributive action on their part, and also to contribute towards their expenses arising out of the death.

19D.1.2 Assessment Officers and assessors

Magistrates of the District Courts and Coroners are, by virtue of their office, Assessment Officers, and have jurisdiction, power and authority throughout the country: s 6. An Assessment Officer (“AO”) may appoint up to three persons to assist him or her with a particular inquiry, and such assessors will carry out the functions and duties directed by the AO, but will not take part in the making of a determination under the Act: s 7. The Motor Vehicles (Third Party Insurance) (Basic Protection Compensation) Regulation suggests the type of work assessors should carry out: reg 2.

19D.2 THE INQUIRY

19D.2.1 Two-stage process

In brief, the Motor Vehicles (Third Party Insurance) (Basic Protection Compensation) Act requires two stages, the second dependant on the first. If, in the first stage, the AO finds that the death of the person under inquiry was not directly or indirectly attributable to the use of a motor vehicle, that is the end of the matter. If, on the other hand, the death was found to be so attributable, the AO must go to the second stage in order to determine three questions – by whom compensation should be paid, to whom and how much.

19D.2.2 Initiating the inquiry

An AO is required to conduct a full inquiry into the cause of death of a person if the AO has reasonable cause to believe that the death of the person was directly or indirectly attributable to the use of a motor vehicle: see definition of “motor vehicle” in s 1 of the Act. The AO may initiate the inquiry himself or herself, but, in any case, must do so as soon as practicable after receiving a request to do so from:

·           a person likely to be entitled to compensation;

·           a member of the police force; or

·           the Minister: s 8(1).

The request may be oral or written: reg 3.

If the AO is unable to conclude an inquiry within two weeks of receiving a request from any of the above, the AO must report to the Minister the reasons for being unable to do so: s 8(2). That report must be sent to the Minister within 21 days after the request to conduct the inquiry was received by the AO: reg 4. It is clear that speed is a major factor in carrying out the purpose of this legislation.

19D.2.3 Conducting the inquiry

The AO’s inquiry under this Act is similar, in many respects, to a Coroner’s inquest. It has the characteristics of a judicial function, requiring all those attributes of impartiality, fairness and a just outcome that the public expect of judicial officers. Magistrates and Coroners are appointed as AOs because they are members of the judiciary. AOs are indemnified against liability for their conduct in office in good faith, in the same manner as Magistrates sitting in court (s 28), and judicial notice must be taken of their official signatures (s 26).

The main difference between the AO’s inquiry and that of the Coroner is that the AO’s inquiry does not require the AO to conduct a public hearing as such. The AO’s inquiry under this Act is to be conducted without regard to legal forms and solemnities. The AO is not bound to apply technical rules of evidence, but is obliged to admit and consider such relevant information as is available, including hearsay: s 9. It should be noted that, because the purpose of the coronial inquiry is different, the Act does not affect the operation of the Coroner’s Act: s 4.

Nevertheless, the AO’s inquiry becomes a hearing whenever witnesses are called to give evidence and oral argument is presented. This is clear from s 11 of the Act, which allows an entitled person (see below) to be represented before an AO by any person other than a lawyer. The importance of the AO’s function as a judicial officer requires that such a hearing be held in a separate room provided for the purpose.

Persons may be summonsed before the AO to give evidence or produce documents: s 10. It is an offence for a person to fail to attend when summonsed, to refuse or fail to give evidence or answer lawful questions put by the AO, or wilfully to interrupt proceedings or obstruct an AO acting under the Act: s 12.

In short, the AO’s inquiry under this Act may be a combination of hearing oral evidence and argument, and obtaining and reading documentation. The AO should keep a careful record of the facts of the accident and the evidence given at the inquiry, as these must be summarised for the AO’s “Record of Inquiry”: see reg 5, Sch – Form1.

19D.3 DETERMINATIONS

19D.3.1 Cause of death and related determinations

As indicated above, the first determination is whether or not the death was directly or indirectly attributable to the use of a motor vehicle: Motor Vehicles (Third Party Insurance) (Basic Protection Compensation) Act, s 15. If the death was attributable to such use, the AO must inquire into and determine by whom compensation should be paid, to whom and how much.

19D.3.2 By whom compensation is to be paid

In the course of the AO’s inquiry into the death, the AO is required to determine:

·           whether the deceased was an occupant of a motor vehicle;

·           if not, where it is possible to do so, the identity of the motor vehicle(s) “most closely associated with the death” (s 16(1)); and

·           whether the motor vehicle was a government vehicle (s 20).

If the motor vehicle was a government vehicle, compensation is payable by the state. In the case of a vehicle other than a government one, the compensation is payable by the “successor company” in relation to the vehicle, as nominated under s 65 of the Motor Vehicles (Third Party Insurance) Act. In any other case, the Minister may determine the proportion of compensation payable by each of the successor company and the state: Motor Vehicles (Third Party Insurance) (Basic Protection Compensation) Act, s 20. The AO must provide full details of the vehicle, its registration number, owner, driver and third party insurance in the “Record of Inquiry” form: 19D.2.3 above.

19D.3.3 To whom compensation is to be paid

If the deceased died leaving a dependant wife or dependant child, compensation is payable to the wife or child. In any other case, compensation is payable to the head of the deceased’s immediate customary kinship group as agent for all members of that group: s 17. In the latter situation, the AO must, as part of the AO’s inquiry into the facts, determine which person is, for the time being, the head of that kinship group: s 16.

A person to whom compensation is payable under s 17 of the Act is an “entitled person”: s 1.

19D.3.4 How much compensation

Subject to the maximum figures fixed in s 18 (K5,000 for dependant wife or dependant child or both, and K2,500 in any other case), the AO has full discretion to assess the amount of compensation, provided that the AO takes into account:

·           any customary disposition of property on death;

·           any economic loss suffered by any or all of the entitled persons; and

·           any other factor the AO thinks relevant: s 19.

The AO may also assess the proportionate amount payable to each entitled person, and may impose such conditions on an award as he or she chooses to specify: s 19.

It should be noted that an award of compensation under this Act does not affect the right to claim damages for the deceased’s death, provided allowance is made for compensation recovered: s 25.

In carrying out this assessment aspect of the AO’s function, it is again clear that the AO has a duty to make the assessments in the manner of a judicial task – with fairness and impartiality directed towards a just outcome.

19D.4 AWARD AND ENFORCEMENT

The AO makes an award under s 19 of the Motor Vehicles (Third Party Insurance) (Basic Protection Compensation) Act, and certified copies of the document are sent “as soon as practicable” to the Minister, the Minister for Justice, entitled person(s) named in the award and, where relevant, the successor company: s 21. The “Record of Inquiry” required by reg 5 must be lodged, with a copy of the award, in the District Court for the area in which the inquiry was conducted. The award operates as an order for the payment of a sum of money under the District Courts Act (s 22), and the AO may issue an “Order for Payment” against the person liable to make payment under the award: reg 8, Sch – Form 2.

A person liable to make payment under an award must, within seven days after service of a copy of the award under s 21 (and an order under reg 8), deposit the whole of the moneys payable with the District Court. Failure to do so is an offence (reg 7), and unpaid compensation will accrue interest at five per cent per annum: s 20.