PNG Law Reports 1996
[1996] PNGLR 446
N1433
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
HAMI YAWARI
V
TOLIMO ENGLISH
Mendi
Akuram AJ
7 May 1996
INFERIOR COURTS - District Court - Appeal - Practice and Procedure - Committal hearing - Documentary evidence - Admission of - Section 35 (1) & (2) Evidence Act Ch 48 - Failure to comply with - Effect of.
WORDS AND PHRASES - Meaning of “decision” under District Courts Act Ch 40.
Facts
Where the appellant appeals against the decision of the District Court to commit the appellant to stand trial in the National Court on the grounds that:
1.       The magistrate misdirected himself by admitting otherwise inadmissible evidence; and
2.       That the magistrate erred in finding that there was sufficient evidence to commit the appellant to stand trial.
Held
1.       The confessional statement of the co-accused, John Peawi was improperly obtained being contrary to the mandatory requirements of s 35(1) & (2) of the Evidence Act Ch 48 and s 49(1)(a) of the District Court Act Ch 40. Accordingly that piece of evidence was illegally obtained and therefore wrongfully admitted into evidence. Hence, such evidence should not be admitted into evidence against the accused/appellant at the trial for which he stands committed.
2.       “As to the second ground of appeal, I do not think it is proper for this court to enter into the arena of the Public Prosecutor to decide as to whether the accused should be tried for the offence he was committed to stand trial on.”
3.       Accordingly, appeal dismissed.
4.       Under the District Courts Act Ch 40, the term “decision” is defined as to include “a committal for trial and admission to bail, and a conviction, order, order for dismissal or other determination”. This is wide enough to cover a decision of the committal court to commit the appellant to stand trial.
Counsel
Tamutai, for the appellant.
Kesan, for the respondent.
7 May 1996
AKURAM AJ: This is an appeal against the decision of the District Court magistrate committing the appellant to stand trial in the National Court pursuant to s 100 (3) of the District Courts Act, Ch. 40.
It was put to the Counsel for the appellant that this may be a wrong procedure as the proper procedure would be to apply for Judicial Review under Order 16, rr 3 and 5 of the National Court Rules. Counsel pointed out that the definition of “decision” in the interpretation section of the District Courts Act, includes “a committal for trial and admission to bail, and a conviction, order, order for dismissal or other determination”. He submitted that the definition is wide enough to cover the appeal provisions of sections 219, 220, 221 and 222.
He also submitted that the National Court has an inherent power under s 155 (4) of the Constitution to deal with the matter.
I am of the view that the interpretation of “decision” in s 1 of District Courts Act is wide enough to cover appeal under Part X1 of the District Courts Act, which deals with appeals from decisions of District Courts and especially sections 219 to 222 provisions. However I am not in agreement with the submission that s 155 (4) of Constitution can operate when there is a provision in a statute which adequately provides for the procedure in question.
There are three grounds of appeal:
1.       That the magistrate misdirected himself in considering evidence that was inadmissible in law to arrive at his decision - in allowing the statement of John Peawi which purported to be an exhibit to statement of Talimo English.
2.       That the learned magistrate erred in finding that there was sufficient evidence to commit the appellant for trial.
3.       The whole of the decision is wrong in law.
The first two grounds of appeal were argued and not the third. As to the first ground, Counsel submitted that the appellant objected to the tendering of the said document as the author did not give permission for it to be tendered but it was tendered through the informant. The document is also a confessional statement of another co-accused which is not against the appellant. He submitted also that the appellant was not given 5 clear days notice prior to hearing and the appellant was not able to consent or otherwise as required by s 35 (1) & (2) of the Evidence Act, Ch 48. This is also mandatory under s 94 (1) (a) of the District Court Act.
The State conceded to this ground of appeal.
I therefore rule that this piece of evidence is (confessional statement of John Peawi - a co-accused), was illegally tendered and was wrongly admitted into evidence. I therefore order that the said confessional statement not be admitted as evidence against the appellant in this trial for which he is committed.
As to the second ground of appeal, I do not think it is proper for this court to enter into the arena of the Public Prosecutor to decide as to whether the accused should be tried for the offence he was committed to stand trial on. As the first ground is based on the issue of law, I can review that part of the evidence but not on the whole of the evidence. Whether the evidence is sufficient or insufficient, court must be mindful of the fact that the Prosecution does not rely solely on the evidence that is tendered during the committal proceedings. The Public Prosecutor may do any of the following:
(a)      he may not want to call all of the evidence; or
(b)      he may adduce fresh evidence through calling deponents of the statements tendered in committal proceedings thus ignoring the said statements used during committal hearing; or
(c)      he may file a nolle prosequi.
All those are matters which the Public Prosecutor is empowered to do. He may even indict when District Court refuse to commit for trial or sentence by instituting an ex officio indictment. I have read the evidence and am of the view that the evidence touches on the legal issues and application of the evidence in relation to the charge and it would be unfair to pre-empt whatever position the State wishes to take. 
Lawyer for the appellant: Tamutai Lawyers.
Lawyer for the respondent: Public Prosecutor.