IN THE SUPREME COURT OF
THE TERRITORY OF PAPUA
AND NEW GUINEA

IN THE MATTER of the Motor Traffic Ordinance 1950-1965

And

IN THE MATTER of an Appeal from the District Court at Port Moresby

ROBIN-KUMAINA
Appellant

And

BARRINGTON GERALD READE
Respondent

Munro for the Appellant
Hogan for the Respondent

Port Moresby
3rd and 7th July
1967.

Coram: MANN C.J.

JUDGMENT

This is an appeal against severity of sentence to which a further ground of appeal against conviction was, by leave, added.

The appellant contends that the proceedings were defective and invalid by reason of the fact that the Magistrate, who first dealt with the case and took a plea of "Not Guilty" and then adjourned the hearing, did not continue and complete the hearing at a later date. Instead the Magistrate was posted to a different place and in the meantime another Stipendiary Magistrate dealt with the case in the course of several adjournments, and then completed the hearing, convicted the appellant and imposed sentence upon him. The sentence included disqualification from holding or obtaining any licence under the Motor Traffic Ordinance for a period of two years six months. The appellant contends that in this aspect the sentence was unreasonable and excessive.

The appeal against the validity of the conviction is not put forward as a matter having anything to do with the merits of the case. The appellant simply raises the question as a matter of validity which could not be cured by consent or otherwise.

The appeal was well argued, and a considerable number of the most important cases were cited in support of argument. I do not think that it would serve any useful purpose for me to canvass all these cases in, because the subtle differences revealed in some do not apply in the Territory by virtue of the express statutory provisions requiring the Magistrate to act a particular way.

I think the principles applicable in the Territory are:

(1) The District Court has no jurisdiction which is not expressly conferred by Statute, and no jurisdiction that would be inconsistent with express statutory conditions upon which jurisdiction is conferred.

(2) Breach of any condition of jurisdiction invalidates the proceedings and any Order pronounced thereon.

(3) When acting within jurisdiction mere procedural difficulties may be waived by conduct. Waiver requires no more than appearing and participating in a case and so treating the proceedings as valid without raising any objection. Unless such a procedural irregularity causes a breach of some fundamental rule of justice, it is not available as a ground of appeal.

(4) Although it is usual to define jurisdiction by reference to matters of substance largely for the benefit of the parties, the Statute creating jurisdiction not infrequently also grants jurisdiction on express conditions that certain procedures should be observed. This course is usually taken in the public interest, for reasons which might not occur to the parties to the case. Where this happens, the failure to follow imperative procedure does invalidate the decision.

It is a well established principle of the general law that a Magistrate who starts a case should himself finish it. If this is not possible, it is recognised that in a criminal jurisdiction another Magistrate may complete the hearing, but if he does he must go back to the beginning of the case and hear the whole of it de novo. Usually there are provisions in the Statute, (particularly with reference to committal proceedings), to the effect that when a Magistrate decides to convert the committal proceedings into summary proceedings, he must commence de novo. He must also comply, for the purpose of the summary proceedings, with any statutory condition attached to the jurisdiction.

In the case of Todhunter v. Zacka(), it was held that in the absence of the usual express statutory provision the conversion of committal proceedings into summary proceedings did not invalidate the ultimate decision, notwithstanding that the Magistrate failed to commence the summary proceedings de novo; for, being merely procedural, and making no difference to the parties, the difficulty could be waived, and no substantial miscarriage of justice took place.

The other cases showed the converse position, when the irregularity, whether it is a matter of procedure or one of substance, breaches the express conditions upon which the statutory jurisdiction is conferred.

In the present case, the proceedings were taken under the provisions of the District Courts Ordinance, 1964. Section 97 imposes a mandatory procedure to be followed in the situation that arose in this case. Briefly, and so far as the procedures apply to the instant case, there are three course open:

(a) A Magistrate who was not presiding when the case was commenced must withdraw from the remainder of the hearing, or

(b) All of the Magistrates present when the hearing resumes, may preside at the further hearing of the case, but must do so as if it had not been commenced, that is they must hear it de novo, or

(c) If the available Magistrate do not include any Magistrate who was not present during he earlier part of the hearing, then they may continue with the hearing, without going back to the beginning. 

In the present case the first Magistrate only took a plea of "Not Guilty" and then adjourned the case. When the second Magistrate, a considerable time later, resumed the hearing, the plea was on the record before him and he evidently overlooked the need to put the charge again and take a plea. These are essential steps to be taken at the commencement of the hearing in the exercise of summary jurisdiction, notwithstanding that the case was heard fully on its merits on the footing that the defendant was pleading "Guilty". The question for me is whether this failure constituted a merely procedural slip or whether it was a breach of condition of the exercise of jurisdiction so as to invalidate the decision.

I think that it is particularly clear in the District Courts Ordinance that the legislature intended to lay down strict and compulsory procedures, leaving the Magistrate no discretion in relation to a number of matters. Section 97 is, in its own terms, a typical example. Many other examples appear in part VII of the Ordinance where there are specific requirements as to procedure applicable in certain events and depending on whether parties appear or do not appear. Section 134 specifically requires the Magistrate to conduct the hearing in a certain way when the defendant appears. There is a departure from the language normally used in such a case, no doubt to avoid any difficulties which might arise if the defendant were required to say "Guilty" or "Not Guilty". The Magistrate is expressly required to state to the defendant the substance of the information, and then ask him if he has cause to show why he should not be convicted, and so on. It is clear from Section 134 that these steps are part of the hearing and must be taken at the commencement of the hearing.

I have pointed out in previous cases that it is wrong to use the expression "Guilty" or "Not Guilty" in Court records as a matter of course. The language of the section should be employed in a context where the requirements are so strict, for otherwise invalidity might be the result in a large number of cases.

In my view I have no choice in the matter, the second Magistrate did not hear the case de novo, as he was expressly required to do, and I could not have regard to the plea taken by the first Magistrate because that would not satisfy the requirements of the sections cited.
I hold that the case does involve a substantial miscarriage of justice for the purposes of this appeal, not because of any substantial differences that the omission caused to the parties during the hearing, but because it is always a substantial miscarriage of justice when a Magistrate who is, in fact, without jurisdiction, wrongly records a conviction and imposes a sentence, and especially a substantial sentence.

I also allow the appeal in relation to the question of sentence because I think that this matter should be re-considered. Evidence before me was not available to the Magistrate, and it carries a good deal of weight when considering a disqualification fox so long a period. I do not think that it is proper for me to decide what the sentence should have been, because this kind of question involves local considerations, which could be better handled by an experienced Magistrate with a thorough knowledge of local conditions. The question of sentence should have been referred back to the Magistrate for determination, but since I have allowed the appeal on the first ground, there now appears to be no reason or justification for doing so.

ORDER: Appeal allowed. Conviction quashed and sentence set aside.

Solicitor for the Appellant: P. Munro, Esq.

Solicitor for the Respondent: S. H. Johnson, Crown Solicitor