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Chapter 13: Introduction to Court Procedure

 Table Of Contents 

[13.0] Introduction 

Section 54 of the Magistrates' Courts Act (Ch. 20) states: 

'Subject to the provisions of any other law for the time being in force, the jurisdiction vested in Magistrates' Courts shall be exercised (so far as regards practice and procedure) in the manner provided by this Act or by any other Act for the time being in force relating to criminal […] procedure, or by Rules of Court, and in default thereof, in substantial conformity with the law and practice for the time being observed in England in county courts, police courts and courts of summary jurisdiction.' (emphasis added) 

Section 3 of the Criminal Procedure Code (Ch. 7) states: 

'Subject to the express provisions of any other law for the time being in force, all offences shall be inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.' 

This Chapter will examine the law relating to the 'procedure' in a Magistrates' Court upon a defendant pleading 'not guilty'. The law relating to the entering of a 'plea' is examined in the Chapter titled 'Sentencing' commencing on page 918. 

The 'procedure' in the conduct of a 'summary trial', although not necessarily always in the following order, is as follows: 

[i] 'Formal Opening Of The Court', the law relating to which is examined on page 323; 

[ii] 'Plea Of Not Guilty', the law relating to which is examined commencing on page 323; 

[iii] 'Opening Addresses', the law relating to which is examined commencing on page 324; 

[iv] 'Formal Admissions', the law relating to which is examined commencing on page 325; 

[v] 'Examination Of Witnesses', the law relating to which is examined commencing on page 338; 

[vi] 'Amendments', the law relating to which is examined commencing on page 88; 

[vii] 'Submission Of No Case To Answer', the law relating to which is examined commencing on page 372; 

[viii] 'The Defence', the law relating to which is examined commencing on page 327; 

[ix] 'Re – opening', the law relating to which is examined commencing on page 368; 

[x] 'Final Addresses', the law relating to which is examined commencing on page 329; and 

[xi] 'Decision', the law relating to which is examined commencing on page 330.

During the course of a 'summary trial' the Court may: 

[i] take 'Judicial Notice' of a 'fact in issue'. 

The law in that regard is examined commencing on page 333; 

[ii] take a 'View of the Crime Scene'; 

The law in that regard is examined commencing on page 335; 

and / or 

[iii] call witnesses. 

The law in that regard is examined commencing on page 121. 

See also section 185 of the Criminal Procedure Code (Ch. 7) which provides for a second Magistrate to take over a trial whenever the former Magistrate ceases to exercise jurisdiction therein. 

As regards the 'procedure' in 'Juvenile Courts' refer to sections 9 and 10 of the Juvenile Offenders Act (Ch. 14). 

[13.1] Formal Opening Of Court 

There is a formal requirement in law for the hearing of the Court to be valid and for orders thus be enforceable. If challenged because for example the Court was not formally opened and therefore not in session, orders made by the Court in such circumstances may be set aside. 

It is therefore imperative for prosecutors to either: 

[i] formally open the Court upon the presiding Magistrate entering the Court; or 

[ii] advise the presiding Magistrate if the Court has not been formally opened. 

[13.2] Plea Of Not Guilty 

[13.2.1] Criminal Procedure Code 

Section 195 of the Criminal Procedure Code (Ch. 7) states (in part): 

'(1) The substance of the charge or complaint shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth of the charge. 

(2)               […] 

(3)               If the accused person does not admit the truth of the charge, the court shall proceed to hear the case as hereinafter provided. 

(4) If the accused person refuses to plead, the court shall order a plea of "not guilty" to be entered for him.' (emphasis added) 

Section 10(2)(e) of the Constitution states: 

'Every person who is charged with a criminal offence – 

[…] 

(e) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution.'

[13.2.2] General Principles 

In R v Paul Maenu'u & Augustine Tuita (Unrep. Criminal Appeal Case No. 11 of 1998) Lungole - Awich J stated at page 7: 

'A plea of guilty must still come from the accused himself otherwise what follows is void. A plea of not guilty must also come from the accused, but when a trial has proceeded as if accused had pleaded not guilty, and he in fact had intended to plea not guilty, failure to take the plea will not vitiate the trial if the plea of not guilty was vicariously offered, tacitly conveyed or waived or a formal arraignment was implied.' (emphasis added) 

A defendant must have a free choice of plea, see R v Turner [1970] 2 QB 321; [1970] 2 AllER 281; R v Brook [1970] CrimLR 600; R v Inns [1975] CrimLR 182 & R v Barnes (1970) 55 CrAppR 100. 

In R v Horseferry Road Magistrates' Court, Ex parte K [1996] 2 CrAppR 574 Forbes J, on behalf of the Divisional Court, commented on page 582: 

'It must be remembered that it is the plea of not guilty which puts the defendant's guilt in issue and creates the need for a "trial" in the narrow sense. In that respect, we take the view that a plea of not guilty can be said to initiate the process of determining guilt, ie., it is an essential and necessary introduction to the trial.' 

See also: R v Heyes [1951] 1 KB 29; [1950] 2 AllER 587 & R v Ellis (1973) 57 CrAppR 571.

[13.3] Opening Addresses 

[13.3.1] Criminal Procedure Code 

Section 200(1) of the Criminal Procedure Code (Ch. 7) states: 

'Subject to the provisions of subsection (2) the prosecutor shall be entitled to address the court at the commencement of his case, and the accused person or his advocate shall be entitled to address the court at the commencement and in conclusion of his case.' (emphasis added) 

However, subsection (2) of section 200 of the Criminal Procedure Code (Ch. 7) has no application.

[13.3.2] General Principles 

The purpose of an 'Opening Address' is to outline the case against the defendant so that the Court and the defendant can understand it. 

However, the prosecution is not bound by what is mentioned in an 'Opening Address', unless the Court has treated the opening as equivalent to the calling of the evidence, see R v Jackson (1953) 37 CrAppR 43 [[1953] 1 AllER 872; [1953] 1 WLR 591 at pages 46 – 47. 

An 'Opening Address' should: 

[i] be concise; 

[ii] entail, in the order in which the prosecutor intends to call the witnesses, simply reading the name of each witness followed briefly by what their evidence will be; and 

[iii] not include any submission in respect of the admissibility of any evidence, see R v Patel [1951] 2 AllER 29; (1951) 35 CrAppR 62.

Therefore, an 'Opening Address' must not: 

[i] include any argument as to the guilt of the defendant; and 

[ii] be used to question the credibility of the defendant or any potential witness/es to be called by the defence. 

As a matter of practice, an 'Opening Address' should only be provided in respect of 'complex and / or circumstantial' cases.

[13.4] Formal Admissions 

[13.4.1] Criminal Procedure Code 

Section 181 of the Criminal Procedure Code (Ch. 7) states: 

'(1) Subject to the provisions of this section, any fact of which oral evidence may be given in any proceedings to which this Code applies may be admitted by or on behalf of the prosecutor or accused person, and the admission by any party of any such fact under this section shall be conclusive evidence in those proceedings of the fact admitted. 

(2)               An admission made under this section – 

(a) may be made before or at the proceedings; 

(b) if made otherwise than in court shall be in writing and if made in court shall be entered in the court record; 

(c) if made in writing by an individual shall purport to be signed by the person making it and, if so made by a body corporate, shall purport to be signed by a director or manager, or the secretary or clerk, or some other similar officer of the body corporate; 

(d) if made on behalf of an accused person who is an individual and is represented, shall be made by his advocate; 

(e) if made at any stage before the trial by an accused person who is represented at the trial, must be approved by his advocate (whether at the time it was made or subsequently) before or at the proceedings in question: 

Provided always that where an admission is made by an accused person who is not represented – 

(i) the admission shall be made in writing or reduced to writing by the court; and 

(ii) shall be read in court to the accused person by the court or an officer of the court; and 

(iii) the effect of making the admission shall be explained to the accused person; and 

(iv) the accused person shall be asked if he wishes to make the admission; and 

(v) if the accused person appears to understand the admission and the effect thereof and states that he wishes to make it he shall be asked to put his signature thereto; and 

(vii) the admission so signed by the accused person shall only then be an admission for the purposes of this section. 

(3)               An admission under this section for the purpose of proceedings relating to any matter shall be treated as an admission for the purpose of any subsequent criminal proceedings relating to that matter (including appeal or retrial). 

(4) An admission under this section may with the leave of the court be withdrawn in the proceedings for the purpose of which it is made or any subsequent proceedings relating to the same matter.' (emphasis added)

[13.4.2] General Principles 

'Formal admissions' may be made by both the prosecution and the defence. Such 'admissions' should be recorded by the Court, see R v Lennard [1973] 1 WLR 483; [1973] 2 AllER 831; [1973] RTR 252; (1973) 57 CrAppR 542; [1973] CrimLR 312. 

Upon a 'formal admission' being accepted by a Court, the party making the 'admission' is bound by it, until the Court has granted leave for it to be withdrawn. 

'Formal admissions' should not be withdrawn, unless the Court is satisfied that there was a misunderstanding or an error, see R v Rolten [2000] CrimLR 761. 

In R v Ben Tungale, Brown Beu, Nelson Oma, James Sala, Louis Lipa, Charles Meaio & John Teti (Unrep. Criminal Case No. 12 of 1997) Lungole - Awich J commented at page 3: 

'During the proceeding it became obvious that some relevant facts would not be contested. I asked Counsel for the Crown to consult with defence counsel and draw up admitted facts. […] I would like to draw attention to all practitioners to s.181 […]. The section authorizes admission of uncontested facts. In most criminal cases a lot of relevant facts are not contested. Much time will be saved if practitioners make more use of the section.' (emphasis added)

In R v Mitchell [1971] VR 46 the Court held per Winneke CJ at page 64: 

'[I]t is plain beyond doubt, in the result, proof according to the ordinary rules of evidence, and a vast amount of public time and expense, could have been avoided, by the use of [… formal admissions].' [words in brackets added] 

Ideally if either the prosecution or the defence wishes to make a 'formal admission', such 'admission' should be made prior to commencement of the trial because such 'admissions' may influence which witnesses need to be called. 

In R v Raabe [1985] 1 QdR 115 the defence tried to prevent the prosecutor from calling the complainant, although the 'formal admissions' made by the defendant did not cover all matters which the prosecution sought to raise. The prosecution determines whether it is necessary to call a witness, irrespective of whether 'formal admissions' have been made. 

The law relating to the 'Prosecution's Discretion To Call Witnesses' is examined commencing on page 120.

See also: R v Lewis (1971) 55 CrAppR 386; [1971] CrimLR 414; The State v Jeoff Ipata [1988] PNGLR 34; The State v Misari Warun [1988 – 89] PNGLR 327 at page 335 & The State v Peter Raima [1993] PNGLR 230 at page 239.

[13.5] The Defence 

Section 198 of the Criminal Procedure Code (Ch. 7) states: 

'(1) At the close of the evidence in support of the charge, if it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence, the court shall again explain the substance of the charge to the accused and shall inform him that he has a right to give evidence on oath from the witness box, and that, if he does so, he will be liable to cross – examination, or to make a statement not on oath from the dock, and shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence, and the court shall then hear the accused and his witnesses and other evidence (if any). 

(2) If the accused person states that he has witnesses to call but that they are not present in court, and the court is satisfied that the absence of such witnesses is not due to any fault or neglect of the accused person, and that there is a likelihood that they could, if present, give material evidence on behalf of the accused person, the court may adjourn the trial and issue process, or take other steps, to compel the attendance of such witnesses.' (emphasis added)

Section 141 of the Criminal Procedure Code (Ch. 7) states (in part): 

'Every person charged with an offence, and the wife or husband, as the case may be, of the person so charged shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person: 

Provided – 

[…] 

(g) every person called as a witness in pursuance of this section shall, unless otherwise ordered by the court, give his evidence from the witness box or other place from which the other witnesses have given their evidence; 

(h) nothing in this section shall effect the provisions of section 215 ['Preliminary Investigations / Inquiries'] or any right of the person charged to make a statement without being sworn.' (emphasis added) [words in brackets added]

Section 142 of the Criminal Procedure Code (Ch. 7) states: 

'Where the only witness to the facts of the case [ie., not 'Character Evidence' or 'Opinion Evidence'] called by the defence is the person charged, he shall be called as a witness immediately after the close of the evidence for the prosecution.' (emphasis added) [words in brackets added] 

It does not help to support the evidence of the defendant to know that he/she has frequently told other persons what his/her defence is, see Fox v General Medical Council [1960] 1 WLR 1017; [1960] 3 AllER 225; R v Roberts (1943) 28 CrAppR 102 & R v Islam [1999] 1 CrAppR 22. 

Evidence based on such information would be 'hearsay' and therefore, inadmissible. 

A Court may in its discretion direct that a defendant refrain from giving irrelevant evidence, such as political views, see R v King (1973) 57 CrAppR 696; [1973] CrimLR 380. 

See also: R v Brown (Milton) [1998] 2 CrAppR 364; R v Graham (1922) 16 CrAppR 40; R v Villars (1927) 20 CrAppR 150; R v Smith [1968] 2 AllER 115; [1968] 1 WLR 636; (1968) 52 CrAppR 224 & R v Carter (1960) 44 CrAppR 225. 

The law relating to: 

·                     the admissibility of 'Hearsay Evidence' is examined commencing on page 176; 

·                     the 'Right To Silence' is examined commencing on page 218; 

·                     the 'Order Of Witnesses Called By The Defence' is examined on page 275; 

·                     the 'Competency of Spouses Called By The Defence' is examined on page 284; 

·                     'Opinion Evidence' is examined commencing on page 202; and 

·                     'Character Evidence' is examined commencing on page 207. 

[13.6] Final Addresses 

[13.6.1] Timing 

The defence has the right to make a final address or closing speech after that of the prosecution.

[13.6.2] Prosecution 

Section 200(2) of the Criminal Procedure Code (Ch. 7) states: 

'If the accused person, or any of one of several accused persons, adduces any evidence, the prosecutor shall, subject to the provisions of section 143, be entitled to address the court at the close of the evidence for the defence and before the closing speech (if any) by or on behalf of the accused person or any one of several accused persons.' (emphasis added) 

Section 143 states: 

'In cases where the right of reply depends upon the question whether evidence has been called for the defence, the fact that the person charged has been called as a witness shall not of itself confer on the prosecution the right of reply.' (emphasis added) 

Therefore, prosecutors are only entitled to address the Court at the close of the evidence for the defence if the defence has called evidence from a witness, other than the defendant. 

See: R v Mondon (1968) 52 CrAppR 695; [1968] CrimLR 630; R v Pink [1970] 3 WLR 903; [1970] 3 AllER 897; [1971] 1 QB 508; (1971) 55 CrAppR 16 & R v Bryant & Oxley [1978] 2 WLR 589; [1978] 2 AllER 689; [1979] QB 108; (1978) 67 CrAppR 157; [1978] CrimLR 307. 

When making a 'Final Address' it is expected that a prosecutor will: 

[i] remind the Court that the onus is on the prosecution to prove each and every element of the charge/s 'beyond reasonable doubt'. The law relating to 'Proof Of Issues' is examined commencing on page 68; 

[ii] remind the Court the law relating to the onus on the defence in respect of any defence raised; 

[iii] remind the Court that the onus is on the prosecution to negative any defence raised 'beyond reasonable doubt'; 

[iv] systematically and thoroughly outline the evidence which addresses each and every element of the charge/s. The procedure relating to 'Elementising Charges' is examined on page 73. 

Whilst a prosecutor may comment on the evidence of a defendant, if he/she has given evidence, see R v Gardner [1899] 1 QB 150, a prosecutor may not comment on the fact that a defendant did not give evidence, including providing an 'unsworn statement'. 

The law relating to: 

[a] the 'Right To Testify' is examined commencing on page 164; and 

[b] 'Unsworn Statements' is examined commencing on page 166. 

[v] systematically and thoroughly submit the applicable statute and common law; and 

[vi] systematically and thoroughly explain how that law applies to the evidence. 

[13.6.3] Defence 

The 'final address' by the defence may include remarks as to the evidence and any other issue considered relevant, see R v Wainwright (1895) 13 CoxCC 171. 

[13.7] Decision 

[13.7.1] Introduction 

A defendant may be convicted of: 

[i] the offence for which he/she has been charged; 

[ii] a lesser offence than that for which he/she has been charged, subject to section 159 of the Criminal Procedure Code (Ch. 7); or 

[iii] having 'attempted to commit the offence' for which he/she has been charged, even though he/she may not have been charged with the 'attempt', see section 160 of the Criminal Procedure Code (Ch. 7). 

The law relating to 'Attempts To Commit Offences' is examined commencing on page 398. 

Section 159 states: 

'(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence although he was not charged with it. 

(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it.' (emphasis added) 

Section 160 states: 

'When a person is charged with an offence, he may be convicted of having attempted to commit that offence, although he was not charged with the attempt.' (emphasis added) 

Section 203 of the Criminal Procedure Code (Ch. 7) states: 

'The court having heard both the prosecutor and the accused person and their witnesses and evidence shall either convict the accused and pass sentence upon or make an order against him according to law or shall acquit him or may, pursuant to the provisions of section 35 of the Penal Code, without proceeding to conviction, if it is of opinion that it is not expedient to inflict any punishment notwithstanding that it thinks the charge against the accused is proved, make an order dismissing the charge either absolutely or conditionally.' (emphasis added) 

[13.7.2] Evaluation Of Evidence 

A Court is entitled to put what 'weight', ie., 'importance', it wishes to the evidence of each witness. 

In Samuel Dalu v R (Unrep. Criminal Case No. 43 of 1992) Palmer J stated at pages 1 - 3: 

'It is trite law that matters on weight of evidence are matters for the Magistrate (as judge of both law and fact) to decide upon. Questions on the weight of evidence are not determined by arbitrary rules, but by common sense, logic and experience. (See Phipson on Evidence 10th Edition, paragraph 2011) 

In the same paragraph the statement of Birch J in the case of R v Madhub Chunder (1874) 21 WRCr 13 at p.19 were quoted by the learned author as follows: 

"For weighing evidence and drawing inferences from it, there can be no cannon. Each case presents its own peculiarities and in each common sense and shrewdness must be brought to bear upon the facts elicited. 

[…] 

In Phipson on Evidence, (ibid) paragraph 2012, the learned author makes the following pertinent comments: 

"The principal purpose of the observation of witnesses is to ascertain or test their truthfulness, but it would be a dangerous thing to fill in gaps in the proof merely from observation. If the evidence is weak or non – existent then what is lacking in the evidence cannot be supplied by observation of the witnesses."' (emphasis added) 

In assessing the evidence of witnesses a court should take into consideration the relationships of the witnesses with other witnesses and the deceased, if applicable, see R v Michael Talu (Unrep. Criminal Case No. 21 of 2000; Palmer J; at page 9). 

In Attorney – General of Hong Kong v Wong Muk – ping [1987] 2 AllER 488; (1987) 85 CrAppR 167 Lord Bridge of Harwich whilst delivering the judgment of the Judicial Committee of Privy Council commented at pages 493 and 173 respectively: 

'It is common place of judicial experience that a witness who makes a poor impression in the witness box may be found at the end of the day, when his evidence is considered in the light of all the other evidence bearing upon the issue, to have been both truthful and accurate. Conversely, the evidence of a witness who at first seemed impressive and reliable may at the end of the day have to be rejected. Such experience suggests that it is dangerous to assess the credibility of the evidence given by any witness in isolation from other evidence in the case which is capable of throwing light on its reliability […].' 

In that regard a Court may partly accept and partly reject some of the evidence given by a witness, see The Director of Public Prosecutions v John Jackson (Unrep. Criminal Appeal No. 5 of 1991; Court of Appeal, at page 2) & Director of Public Prosecutions v John Fufue & Nelson Fafeloa v R (Unrep. Criminal Appeal Nos. 3 & 4 of 1988; Court of Appeal; Connolly P at page 5; Savage JA at page 9 & Kapi JA at page 7). 

Kapi JA in Director of Public Prosecutions v John Fufue & Nelson Fafeloa v R (supra) commented that: 

'A trial Judge must use his common sense and good judgment in coming to conclusions of fact.' 

See also: DPP v Hester [1972] 2 WLR 910; [1972] 3 AllER 440; (1973) 57 CrAppR 212; [1973] AC 296. 

The law relating to the 'Weight' to be given to evidence is examined commencing on page 173. 

[13.7.3] Judgments

 Section 150 of the Criminal Procedure Code (Ch. 7) states (in part): 

'(1) The judgment in every trial in any criminal court in the exercise of its original jurisdiction shall be pronounced, or the substance of such judgment shall be explained, in open court either immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties and their advocates, if any: 

Provided that the whole judgment shall be read out by the presiding Judge or Magistrate if he is requested so to do either by the prosecution or the defence. 

(2)               [This subsection deals with the appearance of the defendant]; 

(3) [This subsection provides that be deemed invalid by reason only of the absence of any party on the day that the 'judgment' was delivered.]' (emphasis added) [words in brackets added] 

In Sau v R [1982] SILR 65 Daly CJ held at page 67: 

'This subsection [, referring to section 150(1) of the Criminal Procedure Code (Ch. 7),] clearly contemplates that a short form of decision may be given followed by a full judgment given even subsequent to the termination of the trial.' [words in brackets added] 

In respect of trials, the 'judgments' of such courts 'shall contain the point or points for determination, the decision thereon and the reasons for the decision', see section 151 of the Criminal Procedure Code (Ch. 7). (emphasis added) 

Such 'judgments' should make clear exactly the charge the Court found proved, see R v Stanley Bade [1988 – 89] SILR 121 at page 124. 

See also: Kenneth Charles Ferris v R [1988 – 89] SILR 128 at page 130; Dickson Kwaifanabo & Sale Kwatebeo v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 16 of 1984; Ward CJ) & David Kio v R (Unrep. Criminal Appeal Case No. 20 of 1977). 

The law relating to 'Sentencing' is examined commencing on page 918. 

Section 177 of the Criminal Procedure Code (Ch 7) states: 

'If on any trial for misdemeanour the facts proved in evidence amount to a felony, the accused shall not be therefore acquitted of such misdemeanour; and no person tried for such misdemeanour shall be liable afterwards to be prosecuted for felony on the same facts, unless the court shall think fit, in its discretion, to refrain from giving a verdict and to direct such person to be prosecuted for felony, whereupon such person may be dealt with as if not previously put on trial for misdemeanour.' 

Whilst a defendant is entitled to a copy of the judgment upon application by virtue of section 10(3) of the Constitution and section 153 of the Criminal Procedure Code (Ch. 7), 

'[n]o person shall be entitled, as of right, at any time or for any purpose, to inspection of the record of evidence given in any case before any Magistrate's Court, or to a copy of the notes of such Court, save as may be expressly provided by any Rules of Court, or, in the absence of such Rules, unless the leave of a Magistrate to make such inspection or receive such copy, has been first had and obtained', see section 68 of the Magistrates' Courts Act (Ch. 20). 

Section 283(2) of the Criminal Procedure Code (Ch. 7) states: 

'When a person convicted on trial by a Magistrates' Court is not represented by an advocate he shall be informed by the Magistrate of his right of appeal at the time when sentence is passed.' 

The law relating to 'Appeals' is examined commencing on page 14. 

[13.7.4] Related Issues 

As regards the 'recording of evidence', see section 182 of the Criminal Procedure Code (Ch. 7) & section 69 of the Magistrates' Courts Act (Ch. 20). 

See also: sections 152 ['Copy of the judgment to be given to the defendant on application']; 153 ['Costs against defendants']; 154 ['Order to pay costs appealable']; 155 ['Compensation in case of frivolous or vexatious charge']; 156 ['Power of courts to award expenses or compensation out of fine'] & 207 ['Power to stop summary trial and hold preliminary inquiry in lieu'] of the Criminal Procedure Code (Ch. 7). 

[13.8] Judicial Notice 

[13.8.1] Introduction 

If a court takes 'judicial notice' of something there is no need to call evidence in that regard, see R v Simpson [1983] 3 AllER 789; [1983] 1 WLR 1494; (1984) 78 CrAppR 115; [1984] CrimLR 39. 

[13.8.2] Interpretation & General Provisions Act 

Section 4 of the Interpretation & General Provisions Act (Ch. 85) states: 

'Every Act is a public Act and shall be judicially noticed as such.' (emphasis added) 

Section 39(4) of that Act states: 

'All courts, Judges and persons acting judicially shall take judicial notice of the seal of a body corporate constituted by an Act affixed to a document and shall presume that it was duly affixed.' (emphasis added) 

[13.8.3] General Principles

 In Carolus Ketsimur v Joe Morerei [1987] PNGLR 325 King AJ, sitting alone, stated at page 328: 

'[I]t is convenient to call to mind shortly what the nature of a fact must be before a court can take judicial notice of it without it being strictly proved. The concept is simple. A fact of which judicial notice may be taken must be "notorious" in the sense of being of a class so generally known as to give rise to the presumption that all persons are aware of it: Holland v Jones (1971) 23 CLR 149 at 153; D Byrne, J d Heydon, Cross on Evidence (3rd Aust. Ed., 1986) at 112. The reference to "all persons" need not literally mean "everybody"; in an appropriate case it can mean all persons in a particular area or locality, or all persons of a particular background, calling or profession: Cross (supra) at 101.' (emphasis added)

 In Mullen v Hackney London Borough Council [1997] 1 WLR 1103; [1997] 2 AllER 906 it was held by the Court of Appeal that Courts may take 'judicial notice' of matters which are so notorious, or clearly established, or susceptible of demonstration by reference to a readily obtainable and authoritative source that evidence of their existence is unnecessary'. 

In Mesulam Tomalana v Drug House of Papua New Guinea [1991] PNGLR 65 Ellis J, sitting alone, stated at page 69: 

'Judicial notice is a term used to describe a situation where a fact is so generally well – known and / or obviously correct that the court "notices" it, thereby removing the need for its proof. An obvious example is the proposition that the sun rises in the east or […] that Christmas Day is celebrated on 25 December. What is judicially noticed will clearly vary from place to place. For example, a court in Rabaul might take judicial notice of the fact that Kokopo is more than 1 km from Rabaul yet a court in Goroka might not, with the consequence that evidence would need to be led on that point in the latter court. Hence, what will be judicially noticed depends upon such factors as the time and place as well as the nature of topic in question. It is as if the proposition in question, if put to any reasonable person in that locality at that time, would bring an answer "of course" or "obviously that is correct". However, judicial notice may be taken if the matter in question relates to people residing in a particular locality […] or to matters notorious within a particular trade or profession […]. The consequences of taking judicial notice of a matter is that evidence is not required to be led in order to prove the matter. Although the principles are easily explained, they can be difficult to apply […].' (emphasis added) 

See also: R v Ben Tofola (Unrep. Criminal Case No. 20 of 1992; Palmer J; at page 9 ['Medical Report']; R v William Erieri (Unrep. Criminal Case No. 3 of 1993; Palmer J; at page 6 ['Structure of Neck']; The State v Anthony Sim [1980] PNGLR 424 ['Source & Distribution of Electrical Power'] & McCourt (1993) 69 ACrimR 151. 

Prosecutors should, if the prosecution wishes to rely on 'judicial notice' enquire with the Court at the commencement of their case whether the Court will take 'judicial notice' of a fact in issue, if applicable. Otherwise, evidence will have to be called. 

In R v Tobani (Unrep. Criminal Case No. 39 of 1990) Ward CJ expressed doubt as to whether a Court could take 'judicial notice' of the process of arrest, charge and bail. 

[13.8.4] Meaning Of Ordinary Words 

A Court may take 'judicial notice' of the meaning of 'ordinary words', see Bendixen v Coleman (1943) 68 CLR 451. 

[13.8.5] Local Knowledge 

A Court may take 'judicial notice' of issues within their 'local knowledge' such as well – known geographical features, see Mullen v Hackney London Borough Council [1997] 1 WLR 1103; [1997] 2 AllER 906; Mersulam Tomalana v Drug House of Papua New Guinea [1991] PNGLR 65; Pope v Ewendt (1971) SASR 45, R v Dodd [1985] 2 QdR 277; Bowman v Director of Public Prosecutions (1990) 154 JPR 524 & Weatherall v Harrison [1976] 1 QB 773. 

However, a Court should advise the prosecution and the defence, if it is doing so, see Bowman v Director of Public Prosecutions [1990] CrimLR 600; [1991] RTR 263. 

[13.8.6] Age Of A Witness 

A Court may take 'judicial notice' of the 'age' of a witness in 'obvious cases', see Dwyer v Bridges, Ex parte Bridge & Dwyer v Brough, Ex parte Brough [1951] StRQd 90. 

[13.9] View Of Crime Scenes 

[13.9.1] Magistrates' Courts Act 

Section 67 of the Magistrates' Courts Act (Ch. 20) states: 

'In any cause or matter, a Magistrate may make such order for inspection by the Court, parties or witnesses of any real or personal property, the inspection of which may be material to the determination of the matter in dispute, and may give such directions with regard to such inspection as to the Court may seem fit.' (emphasis added) 

[13.9.2] General Principles 

In R v Philip Tahea & two others (Unrep. Criminal Case No. 14 of 1995) Palmer J held at pages 1 - 2: 

'The law does not condemn a private view of the scene of the crime in the absence of a judge and witnesses, but it does say that it would be wrong for a view to take place with witnesses in the absence of a judge, and is a defect which would vitiate a trial (Tameshwar and Another v R [1957] AC 476 [(1957) 41 CrAppR 161]). 

The actions taken by the learned DPP on the face of it, would not be wrong. This is on the basis that it was a private view and that no witnesses accompanied him or that those persons who accompanied him are not called as witnesses. The distinction to be made here is not so much the fact that a private view had been made, but that as a result of that, the impression is given on matters clearly in dispute that fresh evidence or further evidence is being introduced by the learned Director under the guise of cross – examination, and further giving the wrong impression that other witnesses could be called to contradict defence witnesses in what they have said by raising the possibility that actions for perjury could be instituted at a later stage. These bold assertions were made directly as a result of that private visit. That with respect, does give the impression of an unfair advantage to prosecution against the defence and in the interest of justice, appropriate remedial actions should be taken to remove such impressions at this stage. 

[…] 

A better approach in my view would be to have a view of the locus in quo conducted at this point of time, but in the presence of Legal Counsels and the court only; witnesses are to be excluded. Also I would suggest that Legal Counsels agree on certain specific sites or spots which you would want the court to take note of, apart from a general view of the locus in quo. I stress that no communication about the results of that visit should be made by counsels to their witnesses or anyone going on that view. 

There should preferably be someone independent or objective who knows the place and who can assist with identifying the sites.' (emphasis added) [citation in brackets added] 

In R v Hunter (1985) 81 CrAppR 40 [[1985] 1 WLR 613; [1985] 2 AllER 173; [1985] CrimLR 309] Boreham J, delivering the judgment of the Court, held at page 44: 

'The judge should be present at every stage of the trial. A view is a stage of the trial. Whether or not a witness is present, in our judgment the judge should always be present.' 

A defendant should attend at the view, in the absence of exceptional circumstances, see R v Ely JJ, Ex parte Burgess [1992] CrimLR 888. 

A witness who has already given evidence may attend a view, provided that he/she is available to be recalled to be further cross – examined, if necessary, see Karamat v R [1956] 2 WLR 412; [1956] AC 256; [1956] 1 AllER 415; [1956] 40 CrAppR 13. 

See also: R v Nelson Funifaka & others (Unrep. Criminal Case No. 33 of 1996; Palmer J; at page 6) & R v Parry v Boyle [1987] 1 RTR 282; (1986) 83 CrAppR 310; [1986] CrimLR 551.