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CHAPTER 25 – DECISIONS AND REASONS

25.1 INTRODUCTION

Decision-making is an integral part of a Magistrate’s job. In every matter that comes before a Magistrate, it is the Magistrate who must make decisions. Some decisions have the effect of imposing a final resolution of the matter. Other decisions do not resolve the matter, but merely allow it to proceed to the next step in the proceedings. In either case, a Magistrate cannot refuse to make a decision because it is difficult or unpopular.

This chapter is about making decisions and giving reasons for them. It deals with:

·           how Magistrates should make records of decisions;

·           the importance of giving reasons for decisions; and

·           how to communicate reasons for a decision as effectively as possible.

25.2 FORMALITIES OF RECORDING JUDGMENTS

25.2.1 Final orders

In the District Court, there is a statutory requirement that final decisions in any matter be recorded. Section 160 of the District Courts Act provides:

<Legislation Quotation>

“Where a Court convicts or makes an order against a defendant, a minute or memorandum of the conviction or order shall be made and signed by the Magistrate constituting the Court.”

<End Legislation Quotation>

The words “memorandum” and “minute” are not defined in the Act. For our purposes, it is reasonable to think of a minute or memorandum as a carefully worded record of what is ordered by a Magistrate. The District Courts Act does not prescribe the use of a specific form for keeping minutes and memoranda. These should be kept as part of the overall notes that a Magistrate makes during a hearing. Alternatively, they may be drafted on a separate sheet of paper and retained in the court file.

The requirement that a minute or memorandum be made applies to decisions in both civil and criminal cases. There is good reason for this statutory requirement. A record of this sort of order is necessary in case a party requires confirmation of the terms of an order or that a formal order be drawn up. This might be needed where there is an appeal of a decision or where enforcement proceedings are undertaken.

In a District Court matter, where a decision takes the form of a dismissal of an information, complaint or set off, it is necessary to make a memorandum of the order with the same degree of care as where a conviction or other order against a defendant is made. A party may require a certificate under s 162 of the District Courts Act as proof that proceedings were dismissed. This requirement may arise some time after the hearing, when the Magistrate’s memory of the exact terms of a decision has faded.

Regulation 10 of the District Courts Regulations requires that Magistrates keep a register of proceedings using a form that is prescribed and annexed to the Act. Form 1 specifies a number of details pertaining to a particular decision. There may be further particulars for which the form does not provide. In instances where this occurs, it is necessary for a Magistrate to make a separate memorandum of the additional information.

The minute or memorandum must be complete in every respect.

When a Magistrate makes an order that requires a defendant to do something, the Magistrate must be careful to ensure that all necessary terms of the order are included. For example, in making a final order in a family case where the defendant is ordered to pay maintenance, it is necessary to specify how, when, where and to whom the payment should be made. A defendant may try to frustrate the intention of the order. Any ambiguity in the order, or in the record that is made of the order, might enable him or her to do this.

If a decision involves an award of damages, matters that are ancillary to the main term of the order should be specified and noted in the memorandum. Ancillary terms could cover interest and costs and the details pertaining to each.

If an award of pre-judgment interest is to be included as part of a final order, the date from which it commences and the rate of interest should be specified. If costs are awarded, these too need to be specified, so that the party in whose favour the order is made can take steps to enforce it. The order and the memorandum of it should not be vague or omit anything that will allow the party against whom it is made to frustrate the court’s intention.

If a sentence in a criminal matter involves a fine, the time to pay and any term of imprisonment in default of payment should be clearly specified and noted. If imprisonment is ordered in the first instance, and there is more than one information or more than one charge on an information, the record of the final order must specify whether the terms of imprisonment are to be served concurrently or cumulatively.

25.3 INTERIM DECISIONS AND ORDERS

The expression “interim order” refers to any order or decision in a matter that affects the parties’ positions prior to a final order, or the procedure to be followed in arriving at a final order. It does not include the final decision. In a criminal matter, an example of an interim decision is the issuing of a summons or warrant. In a civil or criminal matter, it might be a decision about the admissibility of some evidence. It may also be a decision in relation to an adjournment application, even an uncontested one. There are a large number of possible interim decisions in both criminal and civil cases.

Some interim decisions create records automatically. An example is a decision to issue a warrant for the arrest of a person who has failed to obey a summons. The warrant itself provides a record of this decision.

Examples of other interim decisions that do not automatically create a record are:

·           a direction that a party provide particulars to another party (District Courts Act, s 31);

·           a decision to close the court to the public in a particular matter or during part of a hearing (s 57);

·           an order made where a witness refuses to be sworn or to answer questions (s 70); and

·           a decision to proceed ex parte where a defendant in a civil proceeding does not show up and where there is proof of service.

25.4 REASONS FOR DECISIONS

25.4.1 The importance of reasons

It is important for a Magistrate to record each decision made in a case. However, it is not possible or desirable for a Magistrate to give detailed reasons for each decision that is made. An obvious example occurs at the end of a day of hearing when an incomplete matter has to be adjourned. It is not expected that a Magistrate will explain the reason for adjourning a case in such circumstances.

There are statutory provisions that require Magistrates to give reasons for some decisions. Section 16 of the Bail Act requires that a Magistrate who refuses bail to an applicant must give reasons for the refusal. Section 59 of the District Courts Act requires a Magistrate to give reasons where a law student from UPNG is refused leave to represent a person.

Apart from occasions where a Magistrate is required to give reasons for a decision, there are other occasions in court when it is desirable for a Magistrate to give reasons for a decision, even though there is no statutory requirement that the Magistrate do so.

Most interim decisions are of less consequence than final decisions in both criminal and civil cases. However, some interim decisions are more important than others, as they have a direct bearing on the outcome of a case. An example of such a decision is the admission of an out-of-court confession in a criminal hearing. The greater the effect that an interim decision has on the outcome of a case, the more desirable it is to explain reasons for making the decision.

It is always desirable for a Magistrate to explain reasons for a final decision in all types of matters. There are a number of reasons for this.

25.4.2 Reasons for a final decision

A party’s right to know

The most important reason for giving reasons for a decision is that the parties who are directly affected are entitled to know that their case was carefully considered on its merits by the court. In some cases, the evidence and the manner in which the case proceeds gives some idea of why the final decision is the way it is. In other cases, this is not so. Even in cases where the Magistrate thinks that the parties follow the case in a way that makes the outcome self-explanatory, in fact, parties are not able to do this.

Shaping the law

Judges in the National Court routinely give reasons for the decisions they make, in particular, final decisions. These decisions are nearly all reduced to writing. Cumulatively, they help define the law in Papua New Guinea. They also allow law-makers and others to see into the workings of the justice system of the country. Problems or weaknesses in the law are more likely to become obvious when Judges give reasons for their decisions. When problems become obvious, solutions can be formulated. The more reasons for judgment that are recorded, the more quickly and completely the underlying law of the country can be defined. The District Court is an important institution in the process of development of the underlying law.

Guidance and predictability

The National and Supreme Courts are superior courts of inherent jurisdiction. The decisions of these courts have precedent value and, depending on the courts in which they are made and cited, they may have binding or persuasive authority in later cases that involve the same issues. Decisions of the District Court do not have this effect. They are not binding on any court. However, there are some areas of the law that only the Magistrates’ Courts deal with on a routine basis. Although appeals of some of these cases go to the National Court, and possibly on to the Supreme Court, it takes a long time for a body of related decisions to build up. Written reasons of decisions made by Magistrates, even though not binding on other Magistrates, would be useful in creating non-binding precedents that could provide guidance.

25.5 COMMUNICATING REASONS FOR A DECISION

Reasons for a decision may be made either orally or in writing. Giving reasons orally is usually a quicker way to dispose of a case. Giving reasons in writing usually takes more time and effort. However, there are at least two reasons why giving reasons in writing is preferable to giving reasons orally:

1.         The time and effort required to draft a written judgment can actually help a Magistrate to think about the decision. If there is vagueness or uncertainty in a Magistrate’s mind, the act of writing out the reasons for a decision can help focus a Magistrate’s mind and thereby clarify the reasoning behind the decision. The act of writing enables a Magistrate to look at what is written, evaluate it and consider improvements before the reasons are revealed to the world.

2.         Providing written reasons reduces the chance of being misquoted. Oral reasons disappear as soon as they are given, and all that is left is the imperfect memory of the people who were present in the courtroom. In addition to having imperfect memories, parties may allow their vested interests to distort their understanding of the reasons. Even if notes are taken while the oral reasons are being delivered, they are seldom written word for word, and they too can be a source of distortion.

25.5.1 The audience

Whether giving reasons orally or in writing, it is useful for a Magistrate to first think about who the audience is. Depending on the particular case that is being decided, an audience will consist of one or more of the following groups of people:

·           the parties;

·           counsel for the parties;

·           the legal profession generally;

·           the media and the public;

·           the makers of law and policy;

·           other Magistrates;

·           the appeal court.

The parties

The parties are the primary audience when a Magistrate gives any reasons. Reasons for a decision, whether oral or in writing, let parties know how and why the case has been decided as it has. In addition, conveying reasons will let both sides know that their case has been carefully considered before being decided. The parties are the most important audience in any case where reasons for a decision are given. Particular thought should be given to the party who is the “loser” in the matter before the court.

Counsel for the parties

This audience has the same interests as the parties themselves. In addition, the lawyer for the unsuccessful party will want to scrutinise the reasons for judgment to help explain the decision to that party, and, in the case of the losing party, with a view to possible appeal.

The legal profession generally

Even lawyers who have no involvement in a particular case may be interested in a decision and the reasons for it. They may have similar cases pending, or they may anticipate that they will have similar cases in the future. Knowing not only a decision, but also the reasons for it, may assist a lawyer to evaluate his or her own case. This understanding can help a lawyer to advise a client, and can significantly increase the chance of a case being settled.

The public and the media

Cases are often of great interest to the public and the media. The law can seem like a mysterious and complex matter for members of the public who have no legal background or training. In a participatory democracy, it is necessary for the public to know how public institutions operate, including the courts. Although few people may be interested in routine cases, it is appropriate that for those who are, reasons should be available and understandable. In significant cases that attract greater public attention, this is even more important.

The law-makers

Although members of parliament are unlikely to be sitting in a Magistrate’s courtroom, the decisions that are made, and the reasons given for them (especially in significant cases), may circulate privately or be picked up by the press. It is unlikely that one case would lead to a change in the law. More likely, it will generate debate and discussion of policy matters. This is a healthy feature of any free society. If a pattern of cases demonstrates some weakness or deficiency in the law, it can lead to changes being made.

Other Magistrates

Magistrates have no time to sit in other Magistrates’ courtrooms and observe proceedings. Even if they did, their presence in the courtroom might have a disturbing influence on the proceedings. If reasons for decisions are given in writing, other Magistrates will have access to those reasons. This will benefit Magistrates, as they will learn, by the example of others, how to communicate effectively. It could also help Magistrates to keep current on substantive law.

The appeal court

When a case is appealed, the appellate court will resort to the reasons given by the Magistrate who presided over the hearing of the case. If no reasons were given at the time of the decision that is being appealed, a Magistrate in the District Court is required, pursuant to s 224 of the District Courts Act, to provide reasons.

25.6 THE QUALITIES OF A GOOD JUDGMENT

The most important feature of any decision is the accuracy of the decision itself and the sense of justice and fairness that it conveys. This is so whether it is a final decision made after a lengthy hearing, or an interim decision made at some step of the process leading to a final decision. This accuracy and sense of justice can be characterised as the substance or the “what” of the judgment. In order to communicate the substance of a decision effectively, a Magistrate needs to pay attention to how it is communicated.

Experience and effort are important in developing effective communication skills in giving reasons for decisions. It also helps to keep in mind a number of key points when formulating reasons and in delivering them. The following text is designed to make Magistrates aware of these key points.

25.6.1 Language and grammar

Use short sentences

Long sentences, both written and oral, are more difficult to follow than several short ones. A reader or listener may become confused if he or she is forced to follow long sentences with interrelated ideas. Sometimes long sentences are difficult to avoid. However, in writing or speaking, a Magistrate should try to avoid long sentences where possible.

Avoid legalese and archaic words

In every field of expertise, experts use jargon. Jargon can be useful in communications among people with the same expertise. When lawyers or Magistrates speak to other lawyers or Magistrates, legalese and jargon can be a way of achieving a concise and exact communication. It might actually enhance communication. However, when lawyers or Magistrates use this same jargon to communicate with those who have no legal background, it can have the opposite result. It can create confusion, a loss of interest and a loss of respect. The parties to most contested matters in the District Court have no legal background. When giving reasons, keep the audience in mind. Avoid the use of jargon that part of that audience cannot understand.

Use the active voice

Readers or listeners are usually better able to follow what is said or written if it is delivered in the active voice. The active voice places the subject in front of the verb in a sentence. Another way of saying this it that the doer of the action (subject) is mentioned ahead of the action (verb). The following examples demonstrate the difference between the active and passive voice.

25.6.2 Structure

The structure of a judgment, whether oral or written, makes an enormous difference to the ease of comprehension. A model structure can be applied to most instances, and may be adapted to suit other circumstances. The following model consists of parts arranged in sequence:

·           Introduction and issues;

·           The evidence;

·           Findings of credibility;

·           The facts;

·           The law;

·           The disposition.

The introduction and the issues

An introduction of a judgment is a short way of conveying to the reader or listener what the decision is about. It sets the stage for what is to follow. It will typically answer these questions:

·           “What is the major issue or issues in this case?”

·           “Who are the parties?”

·           “How did this case get before the court?”

Where there is more than one question or issue, the introduction should set out clearly what they are. If there is an issue that has been conceded, this should also be set out in the introduction.

An example of an introduction that answers these questions is:

“This is an application brought by Magi Jack, the applicant against Joe Hepi, the respondent. Ms Jack brought the claim against Mr Hepi, seeking a declaration of paternity and an order for support for their daughter, Juli Jack, born on 15 July 1992. The claim is made pursuant to the … Act, Chap ... The application was filed on 30 October 1999 and was heard on 15 December 1999. Joe admits that he is the father of the child. He does not dispute Magi’s right to claim maintenance. He says that he cannot afford to pay. The only issue is whether Joe can afford to pay maintenance, and if so, how much.”

A judgment without an introduction can be confusing to an audience. In the case of an oral judgment, if there is no introduction, a listener may miss the significance of much of what follows. In the case of a written judgment, if there is no introduction, a reader might have to re-read part of the decision to understand the judgment.

The evidence

After the introduction, reasons should move on to deal with the evidence that has been adduced. Where the evidence is inconsistent, there should be an explanation of the inconsistencies. The reasons should go on to deal with issues of credibility, to indicate why some evidence is rejected and some is accepted.

The introduction in Magi Jack’s case (above) might continue to deal with the evidence and the issues in the following manner:

“During the hearing, the applicant gave evidence in support of her claim for maintenance. The respondent also gave evidence. No other witnesses were called.

Ms Jack gave evidence that she is a clerk, employed by Numbatu Trade Store in Boroko. Her evidence is that she works full time and earns K … per month. Her job is secure and she will remain employed for the foreseeable future.

Ms Jack also gave evidence that her income is completely used up for the day-to-day expenses of life. The majority of her income is spent on rent, food and clothing. Her estimated expenses were itemised for the court, and the document setting them out was entered as exhibit 1. I have reviewed it carefully. The evidence indicates that she is spending more than she earns.

Ms Jack gave evidence that she has had to borrow money from her sister in order to meet the basic cost of living. Her evidence is that over the last three months, she has had to borrow a total of K240.

Mr Hepi, during his cross-examination of Ms Jack, challenged the applicant on this point, and suggested that she does not have to pay any money back to her sister. I accept Ms Jack’s evidence that she is indebted to her sister in the amount alleged. In any event, whether or not Ms Jack has to repay the money to her sister does not alter the fact that she making less money than it takes to support herself and the child at a reasonable or even modest standard of living.

Ms Jack gave evidence that she hopes to enrol the child in school in the near future but has no money to meet the anticipated school fees. These fees will work out to K85 per month for 10 months of the year. This is a total of K850 for the year, or K71 per month if the school fees are spread out over the year.

Mr Hepi gave evidence that he works at ABC Motors in Port Moresby, where he is an assistant mechanic. He says he has been employed there for over five years. His evidence is that he is likely to be retrenched in the next month. He says there are rumours that some employees at ABC Motors will lose their jobs. When asked in cross-examination when he heard these rumours, he said is was six months ago. There is no evidence that anyone has been retrenched in the meantime. There is nothing but vague rumours to suggest that anybody might be retrenched. Even though this hearsay evidence was not objected to, I give no weight to these rumours. There is no evidence to suggest that Mr Hepi is specifically targeted for retrenchment.”

This judgment would probably continue in this way to deal with evidence of Mr Hepi’s income and expenses. It would be likely to conclude by making a finding of fact concerning whether or not Mr Hepi can afford to make a contribution to the support of his daughter.

Findings of credibility

As every experienced Magistrate knows, evidence often conflicts. It may be impossible to accept the evidence of everyone who gives evidence in a particular case. For instance, if the case concerns a car accident, and if four witnesses saw the accident, it is entirely possible to hear four inconsistent versions of what happened. However, this does not necessarily mean that somebody is lying. There are a number of factors that might account for the inconsistencies.

For example, in Magi Jack’s case, the Magistrate did not accept the evidence of Joe Hepi relating to his alleged imminent retrenchment. This was clearly explained by the Magistrate when dealing with the evidence. It does not mean that Joe was lying. He might have had a genuine concern about being laid off.

A witness’ memory of what he or she saw might be vague, and the evidence based on that memory might be inaccurate. A witness who was at the scene of a crime or some other relevant event might not have had an opportunity to get a good view of what was taking place. A witness might have bad vision. There are other reasons. Finally, a witness may be deliberately trying to deceive the court.

When giving reasons, it can be important to explain why a witness’ testimony is not being accepted. This is especially so where the evidence of a witness is rejected despite his or her honest attempt to tell the truth. If a Magistrate does not explain why a witness’s evidence is being rejected, that witness might go away thinking that the Magistrate thought he or she was deliberately lying. Here is an example of how a Magistrate might deal with this in his or her reasons:

“Although the plaintiff says that the defendant’s vehicle was travelling at 80 kilometres per hour, I find that the vehicle was travelling within the speed limit of 60 kilometres per hour. I do not think that the plaintiff deliberately lied to the court. However, he saw the vehicle for only a matter of one or two seconds before the accident. It is understandable that in the heat of the moment it would seem that the vehicle was travelling at a high rate of speed. An independent witness, Lola Mati, saw the vehicle from the time it turned the corner onto the street. She was not involved in the accident itself. She had a clear view. She says that the vehicle was travelling at a normal rate of speed. I accept this evidence.”

At other times, it might be appropriate for a Magistrate to come out and say clearly that he or she rejects the evidence of a witness because that witness is lying. This might be done in words similar to the following:

“The accused gave an explanation of his presence at the scene of the crime, which was incredible and which is fraught with inconsistencies that were brought out in cross-examination. (Here the Magistrate might itemise these inconsistencies). I find that the accused deliberately tried to mislead this court, and I do not accept his explanation.”

If a case is very long and if there are various versions of what happened, it might take a long time to sort out each bit of evidence into what is accepted and what is rejected. To do this would make the reasons for the decision long and tedious. It is sometimes necessary for a Magistrate to strike a balance. In doing so, it should be at least acknowledged that there are conflicting accounts in relation to the issue in question. It may be appropriate to mention only some of these accounts.

The facts

After dealing with the conflicting evidence and credibility, a Magistrate should ensure that it is clear to a listener or a reader which evidence is being accepted and what findings of facts are being made. Some of the facts may already be apparent from what has been said by the Magistrate in dealing with credibility.

Sometimes the facts that are found by a Magistrate do not match any version given by the witnesses. The following is an example of an instance where a Magistrate does not fully accept the evidence of any witness:

“I have listened carefully to the evidence of the complainant. She says that the defendant struck her repeatedly with a stick. Her evidence is that she was struck at least 20 times. The defendant, in his testimony, admitted that he had a stick and that he used it to strike the complainant. He says he hit the complainant only once. He says he did not use enough force to cause grievous bodily harm. I do not accept the evidence of the defendant. I find, after hearing all of the evidence, that he struck the complainant repeatedly with the stick, using a considerable amount of force. At the same time, I do not accept the evidence of the complainant that she was struck with the stick more than 20 times. It is understandable that she could easily think that she was struck that many times. However, after hearing all of the evidence, including that of the prosecution witness who heard the fight from the next room, I find as a fact that the defendant struck the complainant no more than10 times and that he used considerable force when doing so. The defendant did not tell the whole truth.”

The law

After dealing with the evidence and the findings of fact that are made as a result of hearing the evidence, a Magistrate should consider the law. In many cases the law is quite simple and not in dispute. The entire case may turn on the facts. However, even in these cases, it is advisable to refer to the applicable law in giving reasons. In the instance of Magi Jack and Joe Hepi’s case, the law is very straightforward. The Magistrate’s reasons for judgment in that case might continue as follows:

“The relevant statute sets out the law that applies in this case. [A citation of the relevant act and, if necessary, an explanation of what it means, should follow]. The law says that fathers of children are obliged to support their children where they are able to do so. The fact that Joe Hepi has admitted that he is the father eliminates the issue of paternity, and the case becomes a question of whether, in the circumstances of this case, the law requires Mr Hepi to pay, and if so, how much.”

Although some cases, such as that of Magi Jack and Joe Hepi, turn on the facts, other cases may turn on the law. For example, in a contested case where the facts disclose that a child wandered near a car that a neighbour was backing out of the yard, and if the child was struck by the car and injured, a claim may be brought against the driver. The parties may be very much in agreement as to what happened. The main issue in this case would be whether what happened amounts to negligence on the part of the driver of the car. In giving reasons for judgment in such a case, most of the judgment will focus on the meaning of negligence (the law) and whether the facts, about which no one disagrees, fall within the definition. In this example, the issue of damages would also arise. It might turn more on the facts and less on the law than does the issue of negligence.

The disposition

The final step in most judgments is making the order that follows upon the reasons. As outlined above in the section of this chapter on recording decisions, it is important to include all the details that make the order complete and effective. In the case of Magi Jack and Joe Hepi, an order for payment of periodic maintenance might be made in the following words:

“On the basis of the evidence before me, I find that Mr Hepi is liable to contribute to the support of the child. I order that Joe Hepi pay the sum of K50 every fortnight to Magi Jack for the support of Juli Jack born on 1 July 1992. Payment is to be made to the clerk of the District Court at Port Moresby. I order that the first payment be made on Friday 1 December 1999. Subsequent payments will be made on the first day of each month in subsequent months. If the first day of any month falls on a weekend or public holiday, payment will be made on the first weekday that is not a public holiday following the first day of the month.”

The wording of this order may seem overly detailed, but it will have the effect of preventing Mr Hepi from trying to avoid making a payment due to a technical deficiency in the order.

The structure outlined above may not suit all cases. It is not intended to be an inflexible formula for all reasons in all cases. It is a useful guide. The structure makes formulating reasons easier. Many reasons are delivered orally from the bench without the luxury of time for quiet thought and reflection. It may be useful for a Magistrate to either memorise the headings, or have them available, so that even reasons that must be delivered immediately can be structured without difficulty.

25.6.3 What to leave in – what to leave out

Obiter dictum

Obiter dictum is a Latin expression (there does not seem to be a succinct English equivalent) that refers to an opinion contained in a judgment that is beyond what is necessary in order to reach a decision on the question before the court. Here is an example of obiter dictum that might have been included in the Magi Jack case:

“I find that the defendant, Joe Hepi, has a secure job and that he is unlikely to be retrenched. However, if he was going to be retrenched, there would be some time before that happens and he would likely receive some severance pay. I would be inclined to make an order that he pay some maintenance in those circumstances.”

It is easy to see how this obiter dictum could create confusion in the minds of the parties, and perhaps anger or resentment on the part of the defendant. There is no purpose for including it, as the decision is reached on other evidence. It should be left out.

As a general rule, all obiter dictum should be avoided. In giving reasons, Magistrates should confine themselves to the issues, and refrain from straying into areas where their opinions are not needed.

Self-reminders on evidentiary points

It is sometimes important for a Magistrate to include a specific reference to the rules of evidence. The rules relating to corroboration require that a jury be warned of the danger of convicting a defendant of a sexual offence without corroborative evidence. There is a similar need to warn about the danger of convicting solely on the basis of evidence of an accomplice. Where there is no jury (as is always the case in Papua New Guinea), the Judge or Magistrate is required to warn himself or herself of this danger: see Chapter 5. If a Magistrate fails to record this warning and if the defendant is convicted, the matter could be successfully appealed on the basis that the Magistrate failed to remind himself or herself. Magistrates should, therefore, be careful to include this warning to themselves in the memorandum or the decision and in the reasons for the decision.

It is also a good idea to include reference to the burden of proof and the standard of proof in the memorandum of a final decision and in the reasons that are given for it.

25.6.4 The Underlying Law Act

When writing a judgment or giving oral reasons for a decision, a Magistrate must apply relevant law to the facts of the particular case. In doing so, it is important for a Magistrate to be aware of the provisions of the Underlying Law Act. This Act took over the functions of Sch 2 of the Constitution in 2000.

If a decision requires only the application of a written law, a Magistrate will refer to the statute and the particular section or sections of the statute that are applicable in rendering a judgment. Section 23 of the Underlying Law Act provides that when interpreting a provision of any written law, a Magistrate shall give effect to any relevant customary practice, usage or perception recognised by the people to be affected as a result of the interpretation. In addition, a Magistrate may consider how courts in a foreign jurisdiction have interpreted identical provisions.

However, if either custom or the common law is relevant to the judgment in some way (either together with or separate from statutory provisions), a Magistrate must address these matters, even if they are not specifically applied in reaching the judgment. Section 4(4) of the Underlying Law Act states:

<Legislation Quotation>

“A Court which:

(a)        refuses to apply a principle or rule of customary law, shall give reasons for its refusal in terms of subsection (2)(a), (b), or (c), or

(b)        applies a principle rule of common law (sic), shall give its reasons for the application in terms of subsection (3)(a), (b), (c), (d) or (e).”

<End Legislation Quotation>

In other words, if a Magistrate does not apply a rule of customary law, he or she must justify why this has not been done. There is a reverse onus with respect to the common law. Where a Magistrate does apply a rule of the common law, this must be justified.

The various grounds upon which the exclusion of a custom may take place, as set out in s 4(2), are:

·           It is inconsistent with a written law.

·           Its application and enforcement would be contrary to the National Goals and Directive Principles and the Basic Social Obligations established by the Constitution.

·           Its application would be contrary to the basic rights guaranteed by the Constitution.

If the common law is applied in a judgment, this must be justified in accordance with s 4(3). The bases upon which common law may be applied are:

·           It is consistent with a statute.

·           It is applicable and appropriate to the circumstances of the country.

·           It is consistent with the customary law as applied under s 4(2).

·           Its application and enforcement would not be contrary to the National Goals and Directive Principles and basic rights guaranteed by the Constitution.

The Underlying Law Act, at s 16, also deals with the ascertainment of customary law, and, at s 17, the resolution of conflicts between different customary laws that apply to the parties or subject matter of a dispute.

A Magistrate should take care that a judgment explicitly covers the requirements of the Underlying Law Act: see also 2.3.8, 2.4 and 5.13.

Finally, where a court, other than the Supreme Court or National Court, has made a decision applying the underlying law, the customary law or the common law, in the manner set out in s 7 of the Act, it must forthwith send a copy of the decision to the Chief Justice and the Chairman of the Law Reform Commission, to be dealt with by either of these under ss 12, 13 and 14: Underlying Law Act, s 8.

25.6.5 Dealing with submissions when giving reasons

In some cases, particularly where counsel represents one or more of the parties, submissions may be made to the Magistrate after the evidence has been called and before the Magistrate gives reasons. In giving reasons, a Magistrate should respond to the major points raised by counsel in argument. If counsel’s submission relates to issues of evidence and credibility, the submissions should be dealt with in that part of the judgment. If part of the submission deals with the law, this should be dealt with in that part of the judgment.

25.6.6 Other factors relating to decisions and reasons

Delivery in open court

If a Magistrate decides to give oral reasons, those reasons are always given in open court, either at the conclusion of the hearing or after an adjournment.

If a Magistrate decides to write reasons for a decision, either interim or final, then, at the conclusion of the evidence and submissions, the matter will have to be adjourned in order for the Magistrate to write reasons. The case should be adjourned to a specific date. This exerts some discipline on the Magistrate to make sure reasons are available by that date. It also avoids the extra work that is required in having the registry contact the parties or their counsel to notify them of when the reasons will be handed down. When the court reconvenes, the Magistrate should read the written reasons from the bench. They should be read word for word in order to prevent the impression that there are two sets of reasons, one oral and one written.

It is bad practice to simply provide the written reasons to the registry and have the registry see that it gets into the hands of the parties. In addition, giving decisions and reasons in open court avoids confusion and the possibility that one or both parties will be unaware that a decision has been made.

Neutrality

It is of great importance that a Magistrate retains not only a real sense of neutrality, but also an outward appearance of neutrality. This is particularly important when making orders and giving reasons for them. Although there is no formula for neutrality, it is probably sufficient if a Magistrate simply reminds himself or herself of this requirement at the time of formulating reasons and when delivering them.

Emotions

In either a civil or a criminal hearing, emotions can run high. This is particularly so at the time that an order is made or reasons for an order are given. Some of the adverse emotion can be minimised if the reasons that accompany an order make it clear that the matter was considered fully and fairly.

A Magistrate should never allow himself or herself to display emotions in voice, gesture, or in the wording of the order or reasons that are given. It is helpful for a Magistrate to recognise that the office places the Magistrate in a position where he or she is, in a very real way, speaking for the community or the people of Papua New Guinea in making orders and giving reasons for them. A dispassionate measured tone of voice is essential, even if the Magistrate inwardly feels emotional about the matter at hand.

Security

Because some matters in Magistrates’ Courts can be very contentious, there may be occasions when a Magistrate senses that communicating a decision or giving reasons will create emotions that could potentially erupt into violence. A Magistrate may feel vulnerable in this regard, or may recognise that one of the parties is vulnerable. In such circumstances, it is sensible for the Magistrate to adjourn the court and have the registry secure the attendance of one or more members of the police to be present in court when the order or decision is given. This is one occasion when it is best not to give reasons for the adjournment, as it could inflame an already volatile situation.

Timing

Some Judges and Magistrates who adjourn cases to formulate either written or oral reasons, allow other matters to take priority over this task. The result is that the matter is delayed. This only makes the task more difficult. Personal memory of the case fades, and a Magistrate is forced to rely more heavily on the notes taken during the hearing. Even if these notes are complete enough to piece together what the evidence was, it is difficult to regain impressions and findings of credibility without a clear memory of the proceedings. As time passes, the notes become less of a trigger to stimulate the memory and more of a substitute for memory. When this happens, a psychological block can develop which makes it even more difficult to arrive at a decision and formulate reasons. Not only does this make more work for a Magistrate, but the parties are left in suspense. The quality of justice suffers. The timely delivery of judgments is an ethical responsibility of a Magistrate: see 1.5.8.

It is very important, therefore, that Magistrates do not allow more time than is necessary to elapse between adjourning a case and giving the decision and reasons. One way of preventing this from happening is to adjourn the case for only as long as is reasonably necessary to arrive at a decision and formulate reasons.