Papua New Guinea Law Reports - 1967-68
[1967-68] PNGLR 511
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
REGINA
V.
WEWAK RESIDENT MAGISTRATE AND ANOTHER; EX PARTE DYER
Port Moresby
Minogue J
17 December 1968
24 December 1968
PREROGATIVE WRITS - Mandamus - Statutory order in lieu thereof - Width of relief available by order - Criminal law - Committal proceedings - Supreme Court cannot interfere with decision of magistrate not to commit for trial even if magistrate forms erroneous opinion - Basis on which accused should be committed for trial - Consideration of demeanour and credibility of witnesses by committing magistrate - District Courts Ordinance 1963-1965, ss. 21(1)*[dcxxxiii]1, 102.
Section 21(1) of the District Courts Ordinance 1963-1965 provides a cheaper and more summary remedy than proceedings for a writ of mandamus, but does not extend the limits of the writ. The remedy is appropriate when instead of exercising jurisdiction a magistrate has improperly declined it. Where therefore a magistrate has considered the evidence adduced by the prosecution in committal proceedings and has formed an opinion pursuant to s. 102(2) of the District Courts Ordinance 1963-1965 that the evidence is not sufficient to put the defendant on trial the Supreme Court cannot, in an application under s. 21(1), order the magistrate to commit the defendant for trial or to form a contrary opinion of the evidence. Section 21(1) cannot be used to set a magistrate right if he has come to a wrong conclusion on the facts before him.
R. v. Paynter (1857), 7 El. & Bl. 328, 335; 119 E.R. 1268 and R. v. Carden (1879), 5 Q.B.D. 1, referred to.
Where a magistrate is forming an opinion under s. 102 of the District Courts Ordinance 1963-1965 it is within his competence to consider the demeanour of the witnesses and the degree of credit to be accorded to them. If the magistrate considers that the prosecution evidence before him is clearly tainted or worthless he should discharge the defendant forthwith.
Cox v. Coleridge (1822), 1 B. & C. 37; 107 E.R. 15, referred to.
Ex Parte Summons.
The applicant sought an order under s. 21 of the District Courts Ordinance 1963-1965 calling upon the Resident Magistrate at Wewak and Mekmaison-Waikembek to show cause why the said magistrate should not consider whether the evidence offered in the District Court at Maprik on 29th and 30th October, 1968, on an information by the applicant charging Mekmaison with the unlawful killing of one Wikimbep-Maibo was sufficient to put Mekmaison upon his trial. At the conclusion of the evidence adduced by the applicant in the District Court the magistrate indicated that he did not believe the two witnesses who alone gave evidence implicating the defendant in the alleged offence and expressed his belief that their evidence was concocted. He noted the depositions as follows: “Case for the Prosecution ends. Evidence considered. The Court is of the opinion that the evidence is not sufficient to put the defendant upon his trial and it is therefore ordered that he be discharged as to the present information.” The relevant facts appear in the reasons hereafter.
Counsel:
Greville Smith, for the applicant.
Cur. adv. vult.
24 December 1968
MINOGUE J:  This is an application on behalf of Inspector Dyer the informant against Mekmaison-Waikembek upon an information charging the defendant with the unlawful killing of one Wikimbep-Maibo.
The applicant seeks an order under s. 21 of the District Courts Ordinance 1963-1965 calling upon R. M. Claridge, Esq., Resident Magistrate at Wewak and Mekmaison to show cause why the magistrate should not consider whether the evidence offered in the District Court at Maprik on 29th and 30th October, 1968, against Mekmaison is sufficient to put him upon his trial. Section 21(1) reads—
“(1)    Where a Magistrate refuses to do an act relating to the duties of his office as a Magistrate, the party requiring the act to be done may apply to the Supreme Court or a Judge, upon affidavit of the facts, for an order calling upon the Magistrate and the party to be affected by the act to show cause why the act should not be done, and if, after due service of the order, good cause is not shown against it, the Court or Judge may make the order absolute, with or without payment of costs.”
The act which it is said the magistrate refused to do was that commanded of him by s. 102 of the Ordinance, namely to consider whether the evidence offered by the prosecution in committal proceedings and heard by him was sufficient to put the defendant upon his trial.
On 29th and 30th October, 1968, the magistrate heard evidence on the information. From the depositions taken by him and exhibited to the affidavit in support of this application it appears that Wikimbep died from a head injury causing cerebral oedema and subdural haematoma. Wikimbep was a young boy of about eleven years. Such an injury as he had is usually caused by a fall and sometimes very little force is required to cause that injury. Although the medical practitioner who gave evidence of the cause of death stated that the injury causing death was consistent with the victim having been thrown forcibly to the ground he said that on examination approximately six hours after death there were no external wounds or external signs of violence and no broken bones.
The evidence showed that the father of Wikimbep (who was his first child) was dead and it was the custom in the area for such a child to be placed in the custody of the father’s relatives Wikimbep did not relish this custom and kept returning to his mother in her own village. Mekmaison who was the brother of Wikimbep’s father in turn kept retrieving him and was so doing once again when the incident upon which the information was based took place. ne direct evidence implicating Mekmaison may be summarised as follows:—
Five witnesses testified to the circumstances in which the child was injured. Three of these—the child’s mother and two members of the Pacific Islands Regiment who were on duty in the Dreikikir area at the time—described a struggle between the mother and Mekmaison for possession of the boy. In essence although differing in details this amounted to a story of Mekmaison’s clasping of the child close to his body with one arm whilst the mother was pulling on Wikimbep’s arm trying to gain possession of him. There was no evidence here of any blow or injury to the child’s head. The remaining evidence was that of a councillor named Wuserim and of a kinsman of the mother Wenimba, one Hapkas. The former deposed to the defendant’s twice throwing the boy so that his head and shoulder struck the ground, which was littered with stones. This he said was done in the presence of other people none of whom was called to give evidence. Hapkas deposed to the defendant’s throwing the child on to the ground “with a heaving motion like dumping him on to his shoulders and head”. No one he said was present when this happened. According to him, when the boy was thrown he was unable to stand again and the defendant moved off pulling the boy along the road with his legs dragging behind him. Hapkas followed and was able to keep the pair in view until the mother joined him near a Mission. Wuserim joined him near a store in the vicinity and accompanied him in his following of the defendant. Wuserim gave no evidence of this nature at all. Upon being questioned by the defendant as to why he did not stop this conduct when he saw him throwing the child to the ground Wuserim’s answer was that he wanted to but the defendant ran away and he was unable to catch him. Hapkas was questioned by the magistrate who was obviously puzzled by his failure to stop the defendant when the boy was unable to stand up and was being dragged along the road and by his reply that he did nothing to interfere as this was the defendant’s business, despite the fact that Hapkas and the mother were related and from the same village.
A statement of the defendant was put in evidence in which he denied having hit the boy and gave a version of events much the same as that of the three witnesses to whom I first referred above. The magistrate did not believe the witnesses Wuserim and Hapkas and expressed his belief that their evidence was concocted. On the Court Minute of Proceedings the magistrate made the concluding note: “Case for the Prosecution ends. Evidence considered. The Court is of the opinion that the evidence is not sufficient to put the defendant upon his trial and it is therefore ordered that he be discharged as to the present information.”
The duties of a District Court (which in this case was constituted by the magistrate of whose conduct complaint is made) in relation to proceedings in cases of indictable offences are set out in Pt VI of the Ordinance. By s. 102:
“(1)    Where all the evidence offered upon the part of the prosecution has been heard, the Court shall consider whether it is sufficient to put the defendant upon his trial.
(2)      If the Court is of opinion that the evidence is not sufficient to put the defendant upon his trial for an indictable offence, it shall forthwith order the defendant, if in custody, to be discharged as to the information then under inquiry.
(3)      If the Court is of opinion that the evidence is sufficient to put the defendant upon his trial for an indictable offence, it shall proceed with the examination in accordance with this Division.”
The informant’s grievance is that the magistrate did not consider whether the evidence against Mekmaison was sufficient to put him upon his trial. But the magistrate specifically says that he did. It is clear enough that without the evidence of Wuserim and Hapkas there was not a prima facie case against the defendant, and even without the advantage to be gained by seeing and hearing these two witnesses each of their versions contains inherent improbabilities of sufficient magnitude to tax their credibility. I cannot see how the magistrate, who has had considerable experience in the field, can be said to have failed to consider the sufficiency of the evidence. When forming his opinion it must surely be within his competence to consider the demeanour of a witness and the degree of credit to be accorded him.
The language of the section is deceptively simple. Nothing is said in the Ordinance as to any matters which are to guide the court in its consideration of the evidence nor in its formation of its opinion. Both in Queensland and Victoria it is suggested that there should be a strong and probable presumption of guilt raised by the evidence to justify a committal (see Queensland The Justices Acts, 1886 to 1964, s. 109 and Victorian Justices Act 1958, s. 47). The expression “a strong and probable presumption of guilt” in relation to committal proceedings seems to have first found its way into legislation in s. 25 of the English Indictable Offences Act, 1848 (11 and 12 Vict. c. 42). In R. v. Governor of Brixton Prison[dcxxxiv]2 Swift J. in discussing the meaning of s. 5 of the English Fugitive Offenders Act of 1881 which directed a magistrate to commit the fugitive to prison if the evidence produced raised a strong and probable presumption of guilt, said:
“The language of section 5(1) however was not new in 1881, but is the same as that on which our Courts have been accustomed to act when committing persons for trial, at any rate since the passing of section 25 of the Indictable Offences Act, 1848. The section means that there must be such evidence that, if it be uncontradicted at the trial, a reasonably minded jury may convict upon it. If it is contradicted at the trial and the jury believe the contradiction then of course they will not convict”[dcxxxv]3.
No mention is made of this presumption in the District Courts Ordinance nor in the Justices Act 1921-1936, of South Australia, upon which the Territory provisions seem to be substantially based.
In Cox v. Coleridge[dcxxxvi]4, Bayley J. said:
“. . . I think that a magistrate is clearly bound in the exercise of a sound discretion not to commit anyone unless a prima facie case is made out against him by witnesses entitled to a reasonable degree of credit.” [italics mine].
These words have long been used to express the duty of a magistrate. Professor Nash in his 1965 edition of Paul’s Justices of the Peace has retained the late Sir William Irvine’s explanatory note to the predecessor of the present Victorian sec. 47 (Irvine’s Justices of the Peace 2nd ed., pp. 41-42). The note reads:
“This discretion of the justices in the matter is one the exercise of which involves questions of considerable difficulty. The dictum of Bailey J. in Cox v. Coleridge[dcxxxvii]5 (supra) has been quoted for many years as the guiding rule on the question, and, taken in its strict meaning, it appears to be unassailable. But it is capable of being easily construed into meaning that wherever a prima facie case is made out, the justice should commit. If this meaning be accepted as the rule, it would be useless to allow the prisoner to call witnesses; for supposing that even on very slender evidence a prima facie case was substantiated against the accused, the evidence of fifty or a hundred witnesses, of the most unimpeachable character, proving the strongest defence, should not, in that case, influence the justice. But this is evidently not the intention of the Legislature, which makes special provision for the calling of witnesses for the defence. Hence the discretion of the justice must rest on something else than a prima facie case. The statute itself supplies its own interpretation. ‘If the evidence raises a strong or probable presumption of the guilt of the accused’ the magistrate is to commit (ss. 47 and 50(5)). Here again, however, a new danger arises which must be pointed out in order that it may be avoided. The magistrate is to ask himself: Is there, on the evidence, a strong or probable presumption of guilt? This differs but little from the question: Do I think this man guilty? But that is evidently not the proper way to put it, for then the justice would be taking upon himself the function of the jury. He must not allow his mind to be influenced by considerations of whether the jury would probably convict the accused. ‘A strong or probable presumption of guilt” appears to be established by evidence of circumstances that point to the commission of a crime, and to the accused person as the criminal, which circumstances are not completely explained and cleared up by the evidence of the accused.”
Section 25 of the Indictable Offences Act, 1848 was repealed by the Magistrates’ Courts Act, 1952. In its place there was enacted s. 7 of that Act by which it is provided:
“. . . . If a Magistrate’s Court enquiring into an offence as examining Justices is of opinion on consideration of the evidence and of any statement of the accused that there is sufficient evidence to put the accused upon trial by jury for any indictable offence the Court shall commit him for trial; and, if it is not of that opinion it shall if he is in custody for no other cause than the offence under enquiry, discharge him....”
I have been unable to discover any reason for the omission of the reference to a strong or probable presumption of guilt but it could be that if not considered otiose it was thought to be unduly restrictive of the magistrate’s discretion.
I can see nothing in the Ordinance or in the history of the legislation which fetters the magistrate in the formation of his opinion once he has considered the evidence. If he forms the view that the evidence called before him is clearly tainted or worthless to me it seems consonant with good sense and justice that he should discharge the defendant forthwith. From the community viewpoint the unnecessary expense of a trial is probably saved and from that of the defendant it is proper that he should not be in jeopardy if the magistrate is of opinion that no reasonable jury, or in this Territory no Judge of this Court, would convict. It is to be noted that if after having formed the opinion that the evidence is sufficient to put the defendant upon his trial the defendant then gives evidence himself or calls witnesses, the magistrate is directed to reconsider the matter and again form his opinion whether there is sufficient evidence to commit (s. 107). There have been and will be cases where this latter evidence must of necessity call upon a magistrate to consider questions of credibility. And whilst it is clearly to be understood that the function of the magistrate is not to try the case yet in the type of case where there is a plethora of unimpeachable witnesses referred to by Paul (supra) the magistrate must necessarily consider whether the evidence adduced by the prosecution is worthy of credence. And if he does form the view (even erroneously) that it is incredible and on that account considers the evidence insufficient to commit, in my opinion he is not subject to correction by this Court. There is nothing in the material before me to show that the magistrate has done other than he is directed to do and accordingly I dismiss the application.
However, I think I should go further and say that this application based as it is on s. 21 of the District Courts Ordinance is misconceived. The real complaint of the applicant and his advisers seems to me to be that there being some evidence which if believed would tend to prove the defendant’s guilt the magistrate should have committed for trial. What was really hoped for was an order directing him to so commit. I know of no procedure which can be used to so compel a magistrate where he has considered the evidence and formed an opinion. Magistrates of course can err in their assessment of evidence either as to its effect or credibility. In the Territory where there is an increasing number of untrained and inexperienced magistrates the possibility of error is ever-widening. In other jurisdictions errors of this nature are capable of rectification. In England (Administration of Justice (Miscellaneous Provisions) Act, 1933 s. 2(2)), in Queensland (The Criminal Code s. 561 and see R. v. Durnin[dcxxxviii]6), in New South Wales (Crimes Act s. 572 and see R. v. Baxter[dcxxxix]7), and in Victoria (Crimes Act, 1958 s. 353), a presentment or ex officio indictment may be filed by or on behalf of the Crown where magistrates refuse to commit. As was said by Darley C.J. in R. v. Baxter[dcxl]8 upholding the right of a crown prosecutor to file an information where a stipendiary magistrate had discharged a person on committal proceedings:
“A country Magistrate might erroneously think that no case had been made out against an accused, and refuse to commit, then, if Mr. Mack’s contention was right the accused would be at large without any means of bringing him to trial.”
Mr. Mack in that case for the prisoner had argued that a crown prosecutor had no power to file an indictment until there had been a committal and the depositions were before him in the usual way. I adhere to the view I expressed in R. v. Ebulya[dcxli]9 that s. 561 of The Criminal Code adopted into these Territories is apt for such a purpose. But due principally to the tangled skein of legislation there is a division of opinion in this Court, and I repeat what I said in that case that I think it desirable that the position with regard to indictments be clarified by legislation.
In my opinion s. 21 cannot be used to set a magistrate right if he has come to a wrong conclusion on the facts before him. This section had its genesis in the Justices Protection Act, 1848 (11 and 12 Vict. c. 44, s. 5) and as far as I am able to check within the limited and unsatisfactory library resources available to this Court it appears in the Justices Act throughout the Australian states. It is generally side-noted ‘Order in Lieu of Mandamus” and is available only where mandamus would lie. As was said by Coleridge J. in The Queen v. Paynter[dcxlii]10:
“It constantly happened that we had to call on a party to indemnify the magistrate before we would issue a mandamus. That was thought unjust; and the Act was introduced, in order that, where magistrates, from a well-grounded doubt, refused to act, we might order them to act and they might be protected.”
In that case it was contended that where the magistrate had made up his mind the Court was to compel him to act contrary to the opinion he had formed after going into the law and the facts. This the Court of Queen’s Bench refused to do. It is not without relevance to note that Crompton J.[dcxliii]11 had this to say:
“The course suggested would even go further than making this a court of appeal: it would be making this [Court] a court of advice in all cases where magistrates have to act, as, for instance, in questions whether a party should be committed for trial.”
The section does no more than give a cheaper and more summary remedy than proceedings for a writ of mandamus and does not extend the limits of the writ. The remedy is appropriate where instead of exercising jurisdiction a magistrate has improperly declined it. It is easy to see that should a magistrate refuse to hear the evidence offered on the part of the prosecution an order under this section might lie (see R. v. Carden[dcxliv]12). For in such a case a magistrate would have refused to do an act enjoined upon him. No case has been cited to me nor in my opinion could there be any such in which a magistrate having formed an opinion on committal proceedings a superior court has attempted to compel him to form a contrary opinion.
Application refused.
Solicitor for the Applicant: S. H. Johnson, Crown Solicitor.

[dcxxxiii]* Section 21(1) of the District Courts Ordinance 1963-1965 provides:
“(1)       Where a Magistrate refuses to do an act relating to the duties of his office as a Magistrate, the party requiring the act to be done may apply to the Supreme Court or a Judge, upon affidavit of the facts, for an order calling upon the Magistrate and the party to be affected by the act to show cause why the act should not be done, and if, after due service of the order, good cause is not shown against it, the Court or Judge may make the order absolute, with or without payment of costs.”
[dcxxxiv][1937] 1 K.B. 305.
[dcxxxv][1937] 1 K.B. at p. 314.
[dcxxxvi](1822) 1 B. & C. 37, at pp. 50, 51; 107 E.R. 15, at p. 20.
[dcxxxvii](1822) 1 B. & C. 37, at pp. 50, 51; 107 E.R. 15, at p. 20.
[dcxxxviii][1945] Q.W.N. 35.
[dcxxxix](1905) 5 S.R. (N.S.W.) 134.
[dcxl](1905) 5 S.R. (N.S.W.) 134.
[dcxli][1964] P. & N.G.L.R. 200.
[dcxlii](1857) 7 El. & Bl. 328, at p. 334; 119 E.R. 1268, at p. 1271.
[dcxliii](1857) 7 El. & Bl., at p. 335; 119 E.R., at p. 1271.
[dcxliv](1879) 5 Q.B.D. 1, p. 5.