Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Tougo v Thomas [1982] PGNC 15; N372(M) (19 March 1982)

N372(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL NO. 126 OF 1981

BETWEEN:

TOVUNE TOUGO
APPELLANT

AND:

CHRISTINE THOMAS
RESPONDENT

Rabaul & Waigani: Bredmeyer J
10 February 1982; 19 March 1982

APPEAL - The correct way for a magistrate to put a civil complaint to a defendant is to break it into parts and asks the defendant a question on each part.

COURTS - Local Court Act 1963, s.34 correct procedure in asking a defendant if he admits a complaint.

REASONS FOR DECISION

BREDMEYER J: This is an appeal against a decision of the Rabaul Local Court made by Magistrate Mr. Gabriel Buku on 9th June 1981. Christine Thomas laid a complaint against Tovune Tougo that he had fought her for nothing and had sworn at her "Yu meri bilong stil. Papa bilong yu lukim yu pinis. Fuckin bastard". The complainant sought K100 compensation. The defendant admitted the complaint and was ordered to pay K100 within two months by instalments of K25 per fortnight.

The appellant appeals on two grounds that the magistrate (1) failed to call or consider any evidence in defence, and (2) failed to consider the quantum of damages properly. The Local Court record shows that the defendant admitted the complaint and the magistrate’s written reasons confirm that. The appellant has not given evidence before me that this was not so. I must therefore conclude that the complaint was put properly to the defendant and that he admitted it in full. There was therefore no need for the magistrate to call upon the defendant to give evidence nor to hear evidence on quantum of compensation.

The Local Court in hearing a civil complaint must follow the procedure prescribed by s.34 of the Local Courts Act. By that section the complaint must be read out and explained to the defendant in a language which he understands and he asked if he does or does not admit the complaint. Defendants are often illiterate and have little or no knowledge of the substantive law and of court procedures. To allow for this it has long been the practice in Papua New Guinea in criminal cases for the magistrate to put each element of the charge to the defendant in the form of a question and get his answer to each element. See Tokoi v. Bryant^[1] per Frost SPJ. (as he then was) quoted in J. A. Griffin, Criminal Procedure in Papua New Guinea, p.67. I consider that magistrates should follow a similar practice in putting a civil complaint to a defendant. In the instant case the complaint could be put to the defendant in three questions:

1. The complainant says you fought her nothing. Is that true?
   
2. The complainant says that you swore at her by saying these words. "Yu meri bilong stil. Papa bilong yu lukim yu pinis. Fuckin bastard". Did you say those words to her?
   
3. For fighting her and for saying those words to her, the complainant claims K100 compensation. Do you agree to pay her K100 compensation?
   

To put a complaint in that form is scrupulously fair to the defendant. It allows him to admit the substance of the complaint, i.e. the fighting and the swearing, but to contest the amount of compensation sought.

If the defendant admits the substance of the complaint but contests the compensation one of two courses can be followed. One is for the defendant to offer a lesser sum and, if the complainant accepts that lesser sum, a consent order can be made for the lesser sum. The other course is for the magistrate to hear evidence and assess compensation.

In this case there is no evidence before me that the defendant did not fully admit the complaint. I can see no error by the magistrate. I dismiss the appeal and affirm the magistrate’s order.

Solicitor for Appellant: A. Amet, Public Solicitor
Counsel: F. Gubon
Solicitor for Respondent: Maraleu, Isana & Associates
Counsel: M. Maraleu

^[1] Unreported Pre-Independence Supreme Court Judgment No. 674 dated 21st March 1972