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Papua New Guinea Constitutional and Law Reform Commission |
PAPUA NEW GUINEA
CONSTITUTIONAL & LAW REFORM COMMISSION
Review of
Committal Proceedings
REPORT
REPORT 1
August 2007
Published in Port Moresby by:
Constitutional and Law Reform Commission
Level 1, Bank South Pacific Building, Boroko
National Capital District
Telephone: (675) 325 2862
(675) 325 2840
Fax: (675) 325 3375
Email: lawrence.kalinoe@clrc.gov.pg
The Constitutional and Law Reform Commission is a successor to the Law Reform Commission and the Constitutional Development Commission. It was established in 2005 pursuant to provisions of the Constitutional and Law Reform Commission Act (No. 24 of 2004) that was enacted on 24th November, 2004 and proclaimed into force in March 2005.
ISBN: 9980-9900-1-5
© 2007 Government of Papua New Guinea
The text in this document (excluding the coat of arms) may be reproduced free of charge in any medium to the extent allowed under Copyright and Neighbouring Rights Act 2000. The material must be acknowledged as State copyright and the title of the document acknowledged.
INDEPENDENT STATE OF PAPUA NEW GUINEA
Date: 31st August, 2007
Reference:
Action Officer:
Designation:
P.O. BOX 3439
BOROKO
NATIONAL CAPITAL DISTRICT
PAPUA NEW GUINEA
OFFICE: L1 BSP BUILDING, BOROKO
TELEPHONE: (675) 3252840
(675) 325 2862
FACSIMILE: (675)325 3375
Constitutional and Law Reform Commission
The Hon. Dr. Allan Marat D.Phil., MP
Attorney-General & Minister for Justice
Dear Attorney-General and Minister;
CLRC REFERENCE NO. 1 COMMITTAL PROCEEDINGS
On 2nd November, 2006, your predecessor, Hon. Bire Kimisopa, issued this Reference to the Constitutional and Law Reform Commission (CLRC) pursuant to Section 12 of the Constitutional and Law Reform Commission Act to enquire into and report on the system of Committal Proceedings with appropriate recommendations.
On behalf of the CLRC Secretariat Staff and the members of the Working Committee who were involved in this Reference, we are happy to present to you the Final Report, Review of Committal Proceedings.
Yours sincerely,
HON. JOE MEK TEINE LLB MP
Chairman
GERHARD LINGE
Deputy Chairman
PROFESSOR BETTY LOVAI
Commissioner
TOM ANAYABERE
Commissioner
Terms of Reference
CLRC Reference No 1: Committal Proceedings
I, Bire Kimisopa, Minister for Justice, by virtue of the power conferred on me by Section 12 of the Constitutional and Law Reform Commission Act 2004 (the Act) refer and direct as follows.
(1) I refer to the Constitutional and Law Reform Commission (the Commission) for enquiry and report on their systematic development and reform, in accordance with s.12 of the Act:
(2) I direct that in undertaking the investigation and report, the Commission shall:
(3) The Commission shall report to me within 8 months of the date of publication of this reference in the Government Gazette.
(4) This reference shall be referred to as: CLRC Reference No. 1: Committal Proceedings
Dated this 2nd day of November 2006.
Hon. Bire Kimisopa MP
Contents
Chapter 1 – Introduction to the Inquiry
1.1 The Constitutional and Law Reform Commission
1.2 Background of this Inquiry
1.3 Objectives of this Reference: CLRC Reference No. 1: Committal Proceedings
1.4 Consultations
1.5 Purposes of this Report
1.6 Structure of this Report
2.1 Introduction
2.2 Essence and Nature of Committal Proceedings
2.3 Purpose and Functions of Committal Proceedings
2.4 Role of Committal Court Magistrates
2.5 Committal Proceedings in Papua New Guinea
3.1 Introduction
3.2 Indictable Offences and Committal Proceedings
3.3 Hand Up Brief
3.4 Commencement of Committal Proceedings
3.5 Duties, Roles and Responsibilities of the Committal Court Magistrate at Committal Proceedings
Submissions and Consultations
CLRC Views
3.6 Committal for Trial Without Consideration of the Evidence
Submissions and Consultations
CLRC View
3.7 Admission of Guilt by the Defendant at Committal
Submissions and Consultations
CLRC Views
4.1 Introduction
4.2 Should Committal Proceedings be abolished?
Submissions and Consultations
CLRC Views
4.3 Committals and Delays
Submission and Consultations
CLRC Views
4.4 Delays in Committals and Associated Costs
Submission and Consultations
CLRC Views
4.5 Modification of the Committal Proceedings
Submissions and Consultations
CLRC View
4.6 Involvement of Defence Lawyers at Committal Proceedings.
4.6.1 Pleas
4.6.2 Sitting days
4.6.3 Adjournments
4.6.4 Remand and Bail
4.6.5 Rulings
4.6.6 Total number of days in the disposal of the files
Submissions and Consultants
CLRC Views
Appendix 1 List of Persons and Organisations Consulted
Appendix 2 Proposed Draft Legislation
Appendix 3 List of Publications of the Commission
Executive Summary
Introduction
Committal proceedings are an essential and central feature of our criminal justice system. The role they play in our criminal justice system is so essential and central in the enforcement of criminal laws through criminal trials.
In the recent past there has been some concern that there were delays in the completion of committal proceedings resulting in the unfortunate flow on effect of overcrowding in the jails for remandees. It is against these background that the former Minister for Justice, Hon. Bire Kimisopa, issued this Terms of Reference to the newly constituted Constitutional and Law Reform Commission.
The primary purpose of this Executive Summary is to state the main features of the proposed law reform measures captured in this
Report and then discuss their implications in specific areas.
Primary Issues of this Reference
The primary issues which were referred to us to inquire into and report on in the reference were:
The above issues were then considered and presented in an Issues Paper and that was released on March, 30th 2007. Following the release of the Issues Paper, a national consultation was then undertaken in April 2007. Views, comments and submissions received on the Issues Paper were then captured in a Draft Report which was released in June, 2007. Upon the release of the Draft Report, further comments and submissions were also received particularly in response to the specific proposals made in the Draft Report. The views, comments, observations and recommendations made in this report represent the final recommendations on the issues which were referred to the CLRC in this Reference. Relevant draft legislation is also attached as Annexure 2 reflecting the position in these final recommendations.
Retention of Committal Proceedings
A large majority of people consulted, including judges, magistrates, lawyers, policemen and policewomen prosecutors and others spoke in support of the retention, rather than abolition of the current system of committal proceedings. The Public Prosecutor in particular was emphatic – he said that the committal proceedings system should not be abolished and he refuted the earlier report by the former Law Reform Commission in 1980 which recommended for the abolition of committal proceedings. The former Law Reform Commission in its 1980 report (Report No. 10) has recommended that since there has been so much delay in the processing of committals through the committal courts, committal proceedings should be abolished, and all completed police files should be submitted directly to the Public Prosecutor who should then administratively assess the evidence and then frame appropriate charges by way of an indictment in the National Court. The final report of the Court Re-structure Committee to the Chief Justice and the Chief Magistrate 1995 has also argued strongly against the 1980 Law Reform Commission report (Report No. 10) recommending abolition of the committal proceedings arguing that the alternative proposed isn’t one that is appropriate since independent judicial scrutiny will be lost to a more administrative process which would not be fair given the fact that it will be the Public Prosecutor who would then proceed to lay appropriate charges and decide on the sufficiency of evidence and then prosecute the matter. The inherently inbuilt processes of checks and judicial scrutiny under the existing committal system would be lost.
Accordingly, it is recommended that the existing system of committal proceedings be retained but appropriate modifications be made to Section 103 of the District Court Act to allow for a system to facilitate and fast track guilty pleas. Furthermore, the current Section 96 of the District Courts Act be repealed and replaced with a new provision that would only give an opportunity to the defendant to make a statement, if he or she wishes to without the right to call evidence because in our view, for all practical purposes, the committal proceedings had been completed at the Section 95 stage when the committal court had found that there were sufficient evidence to commit the defendant to stand trial.
Modifications to the Current System of Committal Proceedings
The main modifications which are recommended in this report are intended to inject efficiency into the conduct of committal proceedings. In this review, it was noted that the current Section 96 of the District Court Act is not only incongruent to the current paper based hand up brief system of committal proceedings, but in the words of Justice Mogish, it is also absolute in the sense that the committal court has already earlier in Section 95 found that there is sufficient evidence to commit the defendant, and it is both unnecessary and futile later at s.96 to ask the defendant to make a statement in this defence and also call evidence to defend himself/herself. As stated above, we are therefore recommending that Section 96 be repealed and replaced with a new provision that would:
The second major modification that is recommended in this report is to repeal the current Section 103 that is procedurally flawed to the extent that it purports to facilitate a system of committal for sentence by the National Court if the defendant admits guilt. In view of the major procedural difficulties associated with this current s.103 procedures, which have been fully canvassed in the body of the report, we recommend that the s.103 be repealed and replaced with a new provision that would only facilitate a system of identifying and fast tracking guilty pleas but only after the completion and submission of the police file so that the State’s case is not jeopardised should the defendant changes his plea in the National Court. The new Section 103 we recommend allows for committal on plea:
Committals and Delays
Delay in the completion of committal proceedings resulting in the system being clogged up with resultant flow on effect to the institutions, systems and processes in the law and justice sector are the underlying concerns behind this Reference. There have been at least two significant points at which delay has been experienced. The first is at the police investigations stage where police investigators are not able to complete their investigations and complete their files within the expected time resulting in the committals being prolonged. The second point is at the committal courts where the committal courts are not proactive and efficient enough to manage their processes with expediency resulting in committals being protracted. Particularly concerning Schedule 2 category offences – indictable offences triable summarily – there is yet a third point of delay involving time that the Public Prosecutor takes to make an election as to whether the matter should proceed by way of indictment in the National Court or be remitted to the Grade 5 Magistrate in the District Court to hear the matter summarily.
In view of these various and associated sources contributing to the problem of delay, an issue was raised as to whether a statutory time period should be imposed within which committal proceedings should be completed. The majority views, comments and submissions recommended against this – Principal Magistrate Marai Pupaka pertinently stating that we must not put a clock on the process of justice. We recommend against the imposition of strict statutory timeline because to do so may seriously compromise the standard and quality of justice – particularly so from the point of view of the State where the State’s ability and duty to effectively conduct criminal investigations and bring wrong doers/law breakers to justice may be seriously compromised. Rather than the imposition of statutory time lines, we recommend that:
Participants
The Commissioners of the Constitutional and Law Reform Commission (CLRC) are:
The Commissioners appointed Dr. Betty Lovai to supervise this reference. The CLRC then established a Working Committee comprising representatives from key organizations who are involved in the criminal justice system to guide and supervise the work in these two and related references on committal proceedings and indictable offences triable summarily. The Working Committee thus comprises:
absence of the Chairman
Magistrate
Magistrate
Magistrate
Corrections
Violence Action Committee as Civil
Society Representative
List of Recommendations
The relevant sections of the District Courts Act, amended consistently with the relevant recommendations are set out in full in Appendix 2.
3. Law and Practice on Committal Proceedings
3-1 Section 96 of the District Courts Act be repealed and replaced with a new provision that should only invite the defendant to make a statement if he/she wishes to. Any statement made by the defendant should now form part of the court depositions and be treated accordingly. The new s.96 we recommend must allow for the defendant to express an intention to enter a guilty plea if he/she desires to as provided for under s.103 of the District Courts Act.
3-2 Section 96(3) District Courts Act that currently prohibits the right of defendant to cross-examine any witness be retained but under a new provision.
3-3 Section 95(3) District Courts Act be appropriately amended to reflect the recommended changes in Proposal 3-1 above.
3-4 Appropriate consequential amendments be made to Section 100 of the District Courts Act to accommodate these recommended reforms.
3-5 That Section 103 of the District Courts Act be extensively amended to focus on a system of fast tracking pleas with the heading: “103 Committal on plea”.
4. Reform Recommendations
4.1 The Chief Magistrate issue appropriate Practice Directions stating the time lines by which all committal hearings in the District Court should be completed.
4.2 That the Police Commissioner issue Administrative Instructions to all Police Investigators and Prosecutors clearly stating time lines by which the police hand-up brief should be completed and served on the accused and submitted to the court.
4.3 That Section 103 of the District Courts Act be appropriately amended to institute a legal mechanism by which the accused/defendant can be given an opportunity to say whether or not he wishes to plead guilty in the National Court and the matter can then be fast tracked to go before the National Court upon immediate committal.
4.4 That a new clause be added to Section 103 of the District Courts Act when the recommended amendments under Proposal 4-3 (above) are effected, which will compel the committal court magistrate to inform or explain to the accused/defendant that if he/she pleads guilty at this stage and maintains that plea at the National Court hearings, then the National Court is likely to give him/her a discounted sentence. A further clause must then be added requiring the National Court to take this into account when deciding on the appropriate sentence.
4.5 That the Chief Magistrate issue appropriate Practice Directions to implement a system of committal mention date procedure to better manage committal proceedings in line with Recommendations 4-1 and 4-2 above.
4.6 The Chief Magistrate issue appropriate Practice Directions reminding committal court magistrates of their roles and responsibilities and then to run their courts efficiently by guarding against entertaining unnecessary and unproductive submissions from lawyers appearing for accused persons/defendants.
Chapter 1. Introduction to the Inquiry
Contents
1.1 The Constitutional and Law Reform Commission
The Constitutional and Law Reform Commission (CLRC) is an amalgam of the former Constitutional Development Commission (CDC) and the Law Reform Commission (LRC). It came into being on March, 4, 2005. It is established under the Constitutional and Law Reform Commission Act 2004. As stipulated under Section 12 of its enabling legislation, the CLRC:
1.2 Background of this Inquiry
About one month before Independence, on 21st August, 1975, the then Minister for Justice – now Sir Ebia Olewale, issued a reference to the then Law Reform Commission to review the criminal laws of Papua New Guinea. Pursuant to this reference, the Law Reform Commission then reviewed criminal law practice and procedure relating to committal proceedings and indictable offences and produced the following working papers and reports:
As a result of these reviews and reports, the following legislation were introduced:
Generally, these legislative reforms introduced the paper based committal proceedings system we now have where committal proceedings are now done through a police prepared witness file called a hand-up brief. These reforms also saw the introduction of the new Magistrate Grade 5 Courts with requisite jurisdiction to summarily hear and dispose of those group of criminal offences called Indictable Offences Triable Summarily –originally they were referred to as Schedule 2 1A Offences but now Schedule 2 Offences – referring to Schedule 2 of the Criminal Code Act where these offences are listed.
Generally this review did cause an improvement in the criminal justice system relating to committal proceedings and indictable offences triable summarily since its introduction in 1980. Twenty six years on, with increase in the work load of committal matters both for the committal courts and the police investigators and prosecutors, the committal process is now under stress. Hence, this reference.
The former Law Reform Commission in its report on committal Proceedings[1] expressed an opinion that ultimately, the holding of committal proceedings and preliminary hearings should be abolished and the Public Prosecutor should receive the completed police files and peruse the file and decide on whether or not to indict the accused to stand trial. However, the Law Reform Commission was evenly concerned that at that stage of the development of the courts and the training of lawyers, magistrates and police prosecutors and investigators, particularly the staff strengths of the office of the Public Prosecutor and the Public Solicitor, the proposal to abolish committal proceedings should be delayed. It is really as an interim measure that the Law Reform Commission recommended for the introduction of the Police hand-up brief system of committal proceedings which we now have.
In 1995, the Court Restructure Committee established by the Chief Justice and the Chief Magistrate headed by Justice Hinchliffe[2] considered the issue of abolition of committal proceedings and the recommendations of the Law Reform Commission for the Public Prosecutor to then receive the police file and then upon his perusal of the file and his satisfaction of the evidence, indict the accused and commence trial in the National Court. This report refuted the Law Reform Commission’s views on abolition of committal proceedings but instead recommended for the committal proceedings to be retained and made various recommendations to enhance efficiency and attack the dreaded problem of delay.
It is against this background that the Justice Minister, Hon. Bire Kimisopa, issued to us this reference.
1.3 Objectives of this Reference: CLRC Reference No. 1: Committal Proceedings
The primary objective of this Reference is to inquire into and review the system of committal proceedings of the criminal justice system and assess and determine:
1.4 Consultations
For purposes of achieving the above objectives, the CLRC has been directed to consult widely within the country and outside the country. Within the country, we have been directed to consult with the judges, magistrates, court clerks and other officials, police personnel, Public Prosecutor, Public Solicitor, Correctional Services and their jails, the PNG Law Society, Ombudsman Commission, the Department of Justice and Attorney General and the general public. Outside of the country, we have been directed to consider any relevant research or developments of comparative value to this inquiry.
After the issuance of the Issues Paper on 30th March, 2007, the CLRC with the support of Working Committee members conducted extensive national consultations in the month of April, 2007. Eight Teams of at least three persons were sent out to all major centres and those other district urban centres which had District Courts in those Districts. These Teams took with them the Issues Papers and Questionaries and discussed the issues raised in the Issues Papers and furthermore, administered questionnaires and inspected District Court registry files. In those provinces like Madang, Morobe, Eastern Highlands, Western Highlands and East New Britain where there are Public Prosecutor’s Office, those Teams who covered those areas also inspected the Public Prosecutor’s Election Registration files for those Schedule 2 Matters – indictable offences triable summarily.
After this consultation process, we then released a Draft Report which incorporated the views, comments and submissions we obtained from the consultations. Soon after the Draft Report was released, we then conducted a Seminar in collaboration with the PNG Law Society at which seminar, we discussed the various proposals for reform with a view to finalizing this report. A full list of persons and organizations we consulted with together with those from whom we received written submission is appended to this Report as Appendix 1.
1.5 Purposes of this Report
The primary purpose of this Report is to discuss the various reform proposals which we are recommending after considering the various submissions, both written and oral which we have received in response to the issues we raised in the Issues Paper and the Draft Report that we earlier released. In this Report we evaluate the various submissions and then make appropriate recommendations for reform.
1.6 Structure of this Report
This Report is structured as follows:
Chapter 2. Background
Contents
2.1 Introduction
In here we will first explain the nature and purpose of committal proceedings as background information and to put the issues and the discussions on the issues from the submissions we received into perspective.
2.2 Essence and Nature of Committal Proceedings
Essentially, committal proceedings are preliminary investigations conducted by a Committal Court to assess and determine the sufficiency of evidence before an accused person is made to stand trial in the National Court. Committal proceedings are required to be conducted under our laws when a person commits a crime that is known as an indictable offence. Generally most, if not all of the crimes under the Criminal Code Act Chapter 262 (Criminal Code) are indictable offences and therefore when a person is arrested and charged for any of the offences under the Criminal Code, it is most likely that committal proceedings will be conducted as a first step before the actual trial in the National Court. The offences under the Criminal Code are known as indictable offences because they are serious crimes and that eventually (after committal) they will be prosecuted by the Public Prosecutor in the National Court by way of an indictment.
Committal proceedings in their essence are rather administrative in nature than judicial. They are administrative because committal proceedings do not “determine whether the accused person is guilty or not”[3] but merely consider the evidence assembled by police in the completed police file and seek to ascertain the correctness, completeness and compliance of the various witness statements with applicable legal requirements and then upon being satisfied of the adequacy of the evidence and the other compliance issues, commits the accused to stand trial in the National Court.
In other words, committal proceedings enquire into the strengths and weakness of the charges brought by the State against the accused by scrutinizing the evidence available on the police file and considering those against the elements of the crime/offence for which the accused is charged under. The following observations by Ted Hill and Guy Powles is therefore pertinent:
“A committal proceeding is an investigation into the strength of the case being mounted by the prosecution, and it is not an act of adjudication. Its function is not to determine whether or not the person accused is guilty of the offence charged. The proceedings are of an investigatory, tentative and non-conclusive nature. The statutory test to be applied by the Magistrate asks whether the evidence is sufficient to put the defendant on trial for an indictable offence.”[4]
2.3 Purpose and Functions of Committal Proceedings
The primary purpose of conducting these preliminary examinations of the evidence against an accused person at committal proceedings stage is to determine the sufficiency and strength of the case against the accused before he/she is committed to stand trial. The purpose here therefore is to screen and filter weak, unjustified and unmeritorious charges and to ensure that only those criminal charges which are justified, meritorious and deserving are put to the process of criminal trial. The following often quoted statement by Lord Widgery C.J. in R –v- Epping and Horlow Justices; Ex parte Massaro (1973) Q.B. 433 at p.435 has been cited in this context for as stating the basic purpose of committals:
“For my part I think it is clear that the function of the committal proceedings is to ensure that no one shall stand his trial unless a prima facie case has been made out.”
Dawson J in Grassby –v- The Queen (1989) 168 CLR 1 at p.15 then emphaseses the importance of committal proceedings:
“The importance of the committal in the criminal process should not, however, be underrated. It enables the person charged to hear the evidence against him and to cross-examine the prosecution witness. It enables him to put forward his defence if he wishes to do so. It serves to marshal the evidence in depositions form. And, notwithstanding that it is not binding, the decision of a magistrate that a person should or should not stand trial has in practice considerable force so that the preliminary hearing operates effectively to filter out those prosecutions which, because there is insufficient evidence, should not be pursued.”
In the 1922 American State of Wisconsin case of Thies v State 178 Wis. 98, 103; 189 N.W. 593, 541 the purpose of committals is elaborated upon and further explained in these terms:
“The object or purpose of the preliminary investigation is to prevent hasty, malicious, improvident and oppressive prosecutions, to protect the person charged from open and public accusations of crime, to avoid both for the defendant and the public the expense of a public trial, and to save the defendant from the humiliation and anxiety involved in public prosecution, and to discover whether or not there are substantial grounds upon which a prosecution may be based.”
In the Papua New Guinean context, the following comments by Sheehan J. in the case of Robert Lak v Daisy Magaru (Presiding Magistrate at Waigani District (Grade V) Committal Court) and the State [1999] PNGLR 572 at p.576 aptly explain the purpose and function of the Committal Courts in our criminal justice system:
“Notwithstanding that committal proceedings do make determination effecting a person’s rights thus enabling courts to consider applications for review, the fact is that a committal nonetheless making no determination of liability or penalty. It is a preliminary process in the system of criminal justice where the prosecutor makes public disclosure to a committal court for trial of a charge. The National Court is where that evidence is to be tried, where it is to be tested”.
The Supreme Court in Supreme Court Review No. 34 of 2005, Review Pursuant to Constitution Section 155 (2)(b) by Herman Joseph Leahy (Unnumbered & Unreported judgment) explicitly articulates the purpose of committal proceedings at p.58:
“The purpose of the proceedings is to determine whether in the opinion of the presiding magistrate there is sufficient evidence for the defendant to be committed to trial. If the magistrate’s opinion is that the evidence is insufficient, there is no committal and the defendant, if he is in custody, is discharged from custody. That is the end of the matter unless there is an appeal under Section 219, initiated by the Secretary for Justice, or the Public Prosecutor invokes Section 256 of the Criminal Code and presents an indictment to the National Court.”
From these statements, we can restate the basic purposes of conducting preliminary examinations of a case against a person in committal proceedings being to:
Committal proceedings have become an important part of the criminal justice system in the common law jurisdictions for the processing of indictable offences. From the point of view of the accused, committal proceedings gives the accused an opportunity to challenge the State case on issues of sufficiency of evidence and the correctness of the form of the evidence such as witness statements and to obtain a discharge there and then.
To abrogate committal proceedings would be to abrogate that every opportunity available in our criminal justice system.[5]
To summarize this part of the discussions on the purposes and functions of committal proceedings, we refer to the commentary by Ted Hill and Guy Powel from their book Magistrates Manual of Papua New Guinea[6] where they first explain that because of the serious nature of criminal trials in the National Court for indictable offences, it is necessary that preliminary examinations be conducted at committal proceedings stage to assess the strength of the charges against the accused. That these preliminary investigations serves both the interest of the accused and the State in ensuring that “weak” or “misconceived” charges do not proceed to trial.
Therefore, the “primary objective of the committal proceeding is to determine whether there is sufficient evidence to warrant a person accused of an indictable crime being sent for trial before a judge for the offence charged (or any other indictable offences).”[7] This is best explained by Akuram AJ (as he then was) in Buckley Yarume v-Sylvester Euga (1996) (Unreported National Court Judgment) N1476 where his honor explains that the whole purpose of conducting committal proceedings in the District Courts, sitting as Committal Courts, is: “to gather evidence and assess it to see whether it is sufficient to commit the accused for trial... This requires proper and reasonable assessment of the evidence with a view to seeing whether all the elements or ingredients of the offence are present”.
2.4 Role of Committal Court Magistrates
As stated above, since committal proceedings are, by their very nature, preliminary investigations into the adequacy and strength of the evidence against an accused person relating to the charges which have been brought against him/her, the role that the Magistrate plays in committal proceedings is restricted to conducting an investigation into the adequacy of the evidence.[8] Therefore, in committal proceedings: “The duty and province of the Magistrate ... is to determine ... whether the case is one in which the accused ought to be put upon his trial. It is no part of his province to try the case.”[9]
In other words: “In substance, a Committal Magistrate determines nothing, except that in his opinion, a prima facie case has been made out for committing the accused for trial.” [1]
2.5 Committal Proceedings in Papua New Guinea
Any person who has been charged for any indictable offence either under the Criminal Code or other laws which have indictable offences prescribed in them[10] is first dealt with by a Committal Court. Committal Courts are District Courts exercising criminal jurisdiction and are presided over by Senior Magistrates Grade 4.
Since the enactment of the District Courts (Committal Proceedings in Cases of Indictable Offences) Act 1980 (No. 31 of 1980), committal proceedings in Papua New Guinea are now conducted through hand-up briefs. Hand-up briefs are essentially the complete files which the Police assemble on the alleged crime which the accused is alleged to have committed. The hand-up briefs or files contain the Information and Summons relating to the charge laid against the accused and all the relevant police witness statements. Under this system, State or Police witnesses are not required to appear at the committal courts and give oral evidence. Although the law does not expressly say it, in practice those State or Police witnesses who have given written witness statements are subject to cross examination by the accused at the committal proceedings.
Prior to the introduction of the police hand-up brief (or paper based committal) when committal proceedings were conducted by the courts, the State or Police witnesses appeared in open court and gave oral evidence and their statements were taken and transcribed and then considered by the committal court. The State or Police witnesses were subject to full cross-examination by the accused. Having heard the evidence, the committal magistrate was then required to commit or discharge the accused depending on the strength and weight of the evidence. If the magistrate found that the State or Police evidence was uncontradicted and hence strong, then he was bound to commit the accused to stand trial in the National Court. In a study conducted by the former Law Reform Commission and the Chief Magistrate in July 1977[11], it was found that because of the need to have State/Police witnesses appearing in person and giving evidence and being further subjected to cross examination, the system then was inefficient and time consuming resulting in long delays. The former Law Reform Commission then in its report in July 1980[11], recommended for the introduction of committal by hand-up brief and this resulted in the enactment of the relevant legislation in 1980 and the subsequent introduction of the current system of police hand-up brief. This system has now been in operation for a little over a quarter of a century and there has been some concerns raised that there are still delays. Hence this reference.
Chapter 3. Law and Practice on the Conduct of Committal Proceedings
Contents
3.1 Introduction
Committal proceedings are conducted by Magistrates Grade 4 and above in the District Courts sitting as Committal Courts. The law and procedure which these Committal Courts must follow when conducting these proceedings is set out under Part VI of the District Courts Act Chapter 40 (as amended). In here we set out the law, process and procedure, primarily to help us to inform ourselves better and enhance our understanding of how the current system operates.
3.2 Indictable Offences and Committal Proceedings
In the criminal justice system that Papua New Guinea has adopted, when a person is accused to have committed a serious crime falling in the category known as indictable offence, it is mandatory that upon arrest, the accused must be taken to the District Court sitting as a Committal Court. As stated above, committal proceedings are preliminary investigations conducted to assess and determine the sufficiency or strength of the evidence against the accused. If the committal court finds that there is evidence against the accused to warrant him or her to stand trial, then the accused is committed to stand trial in the National Court.
Speaking from the point of jurisdiction, it is the National Court that has exclusive jurisdiction to try a person who has committed an indictable offence (other than a Schedule 2 Offence). The role of the District Court sitting as a Committal Court is restricted to conducting a preliminary investigation to determine the sufficiency or strength of the evidence.
The committal proceeding are commenced in the District Court sitting as a Committal Court by summons and information issued pursuant to Sections 39 and 94 respectively under the District Courts Act. In this regard, Section 94 is significant. It says:
“(1) Subject to Subsection (6), where a person is charged with—
(a) an indictable offence that shall not be tried summarily; or
(b) an offence against Section 420 of the Criminal Code 1974 where the offence is not to be tried summarily,
the informant shall serve or caused to be served, in accordance with Subsection (3), on the defendant or his legal representative—
(c) a copy of the information; and
(d) a copy of each statement that the informant intends to tender at the committal hearing; and
(e) a list of documents and exhibits referred to in a statement referred to in Paragraph (d) that the informant intends to tender at the committal hearing; and
(f) a copy of each document referred to in Paragraph (e).
(1A) A statement referred to in Subsection (1)(d) shall contain the following warning to the maker of the statement and shall be signed by the maker of the statement:—
'I...certify that this statement is true to the best of my knowledge and belief. I make it knowing that if it is tendered in evidence I will be liable to prosecution if I have knowingly stated anything that is false or misleading in any particular.
Signed'.
(1B) A statement referred to in Subsection (1)(d) shall, for the purposes of Division III.2 of the Evidence Act 1975, be treated as an affidavit.”
Although Section 94(1) as quoted above implies that when the information is served on the accused, other documents such as all witness statements together with a list of documents and exhibits which the State intends to rely on as evidence on trial are required to be served on the accused simultaneously. What happens in practice now is that upon arrest and the laying of charges, it is the Information and the Summons Upon Information which are first served on the accused to compel the accused to appear in the Committal Court. All the relevant witness statements, exhibits and a full list of all the documents comprising the State evidence against the accused are then organized and assembled in a police file and served on the accused, usually two or three weeks after the first or second mention in the Committal Court. The police file that is served on the accused and the Committal Court is then used by the presiding Magistrate to scrutinize and assess the sufficiency and strength of the evidence against the accused.
3.3 Hand Up Brief
The police file that is completed by the police investigator (and the arresting officer) that is served on the accused and the court is also served on the police prosecutor. If the crime for which the accused is charged is an indictable offence triable summarily commonly referred to as Schedule 2 offences,[12] the Public Prosecutor is also served with a copy of the police file to enable him to make an election as to whether the matter should be sent to a Grade 5 District Court to be tried and disposed off summarily or proceed with committal in the District Court sitting as a Committal Court.[13] The completed police file that contains all the relevant witness statements appropriately taken and signed by the witness with the statutorily required notations together with a full list of documentary evidence and exhibits constitutes a police Hand-Up Brief. It is based on the strength of this hand-up brief that:
3.4 Commencement of Committal Proceedings
As stated above at Paragraph 3.2, committal proceedings are commenced in the District Court sitting as a Committal Court under a police Information and a Summons Upon Information. The Information and the Summons Upon Information are basic initiating legal documents required under the District Courts Act to commence any criminal proceedings, of course including committal proceedings.[14] The Information contains the charges which has been laid on the accused by the police together with brief facts upon which the charges are based. The Summons Upon Information is served on the accused together with the Information to compel the accused to answer the summons and appear in court.
In some instances, the particular provision of the Criminal Code or such other law which states the indictable offence for which the accused is charged may require that the accused be arrested and charged only on a warrant of arrest issued in the first instance by the District Court. An example of such an offence is unlawful wounding under Section 128 of the Criminal Code where Section 128(2) goes onto instruct that any person that is charged under this section for unlawful wounding “shall not be arrested without warrant.” In such a situation, the arrest of the accused without a warrant will render the committal proceedings illegal and therefore invalid. The National Court has made this clear in the cases of Bonga v The State [1988-89] PNGLR 360 and State v Natpalau Tulong [1995] PNGLR 329. Doherty J in the Natpalau Tulong case has made it clear that the Committal Court is duty bound to ensure that an accused person is lawfully arrested and charged and brought before the court.[15]
3.5 Duties, Roles and Responsibilities of the Committal Court Magistrate at Committal Proceedings
Pursuant to the various requirement under the District Courts Act and case law, the following are duties, roles and responsibilities which the law imposes on the Magistrate sitting in the Committal Court.
3.5.1 First, a Committal Court Magistrate must ensure that the police have properly served the information and summons upon information on the accused compelling the accused to appear in court. This is a requirement under s 94(1) of the District Courts Act. In satisfying himself or herself as to the requirements of service, the Magistrate must have regard to Sub-sections (3), (4) and (5) of Section 94 of the District Courts Act where these provisions require that service of the relevant court processes and documents must be effected as follows:
at least 14 days before the date fixed for the hearing. The person (usually a policeman) who carries out service on the persons as stated above is then required:
For purposes of the Committal Court, the affidavit of service then becomes a prima facie conclusive evidence of service on the accused.[20]
In the case of The State -v- Rush: Ex parte Rush [1984] PNGLR 124 the National Court has emphasized that where a person is charged with an indictable offence that cannot be tried summarily and the necessary documents relating to the charge have not been served on the accused within the time limits specified under Sections 94(3) (then s.101) of the District Courts Act as specified above, an order in the nature of certiorari should go to quash the committal of the accused. From this decision, it is important to point out that if committal court magistrates do not scrutinize and ensure that the compliance of the requirements of service as stated above, including the specified time limits for service, the entire committal proceedings stands to be quashed by the National Court on application by the accused.
3.5.2 The second matter for the committal magistrate to be satisfied with relates to the requirements of Section 35 which deals with two situation:[21]
Under the first situation (situation 1),[22] it is a requirement that the information must be in writing and on oath either by the informant or some other person. Under the second situation (situation 2),[23] neither the information need be in writing nor on oath. It however has been the practice and good practice too, that all information under this category have always been in writing and that should continue.[24] Apart from the specific requirements of these two situations, the following general requirements concerning the form of the information are also important considerations to which the committal court magistrate must be satisfied:
3.5.3 The third set of matters which the committal magistrate must consider and be satisfied with relates to the contents of the completed police file also known as the hand-up brief. Upon receiving the completed police file, the committal magistrate must peruse the file to ensure that the files do contain the following set of material:
All these evidentiary material must be relevant and go towards sustaining the charges laid against the accused. All the various witness statements which the police investigator(s) have obtained and which they intend to rely on to sustain the charge must be personally signed by the person who has made the statement and must contain the following statement:
“I ....................... certify that his statement is true to the best of my knowledge and belief. I make it knowing that if it is tendered in evidence I will be liable to prosecution if I have knowingly stated anything that is false or misleading in any particular.
Signed: ...............”
Such a statement is deemed to be an affidavit under Section 94(1B) of the District Courts Act.
3.5.4 The fourth task which the committal court magistrate must attend to is to conduct an inquiry into all the various witness statements including confessional statements if any, and record of interview statements from the accused and any other related documents and exhibits, and ensure that all such evidentiary material have been obtained lawfully. This is a requirement under Section 94C of the District Courts Act. The committal court magistrate is required to conduct this inquiry first before he or she can admit into evidence or reject the particular evidentiary material concerned. Hill and Powles (2001) explain that: “Here, the court’s task is to consider the witness statements, documents and exhibits which have been served on the defendant for the purpose of admitting then as evidence.”[27] For example if a confessional statement of a co-accused has been illegally obtained (in breach of Section 35 of the Evidence Act and Section 49(1)(a) of the District Courts Act) then the committal court must reject such evidence: Hami Yawari-v-Tolimo English [1996] PNGLR 446.
Apart from the general issues of lawfulness or otherwise of processes and procedures in obtaining witness statements or confessional statements, Section 94C(2) of the District Courts Act lays down the following mandatory test:
“Before admitting a written statement, the court shall be satisfied that the person who made the statement had read and understood it, or if unable to read, had had it read to him in a language that he understood”.
In The State -v- Kai Wabu [1994] PNGLR 498, Injia AJ (as he then was) came across a situation where when the accused was committed to stand trial in the National Court for one count of attempted rape by the Committal Court, the committal magistrate did not satisfy himself/herself that, the accused an illiterate villager, understood the statement because there was no evidence on the hand-up brief that some one has read to the accused in a language he understood the content of the written statements attributed to him. It is against this background, that His Honor laid down the following judge made law:
3.5.5 The fifth task which the court has is the onerous duty imposed by Section 95 of the District Courts Act where it must now after scrutinizing and admitting the evidence, consider the sufficiency of the evidence and decide whether or not a prima facie case has been established to commit the accused to stand trial or not:
- if the court is of the opinion that the evidence is not sufficient to put the accused on trial for an indictable offence, it shall immediately order the release (if in custody) and discharge the accused;
- if the court is of the opinion that the evidence is sufficient to put the accused upon his trial for an indictable offence, the court shall then proceed further with the committal proceedings.
3.5.6 The sixth responsibility that the committal court magistrate has after the s.95 consideration and upon deciding that there is sufficient evidence, then is to ask the accused whether he/she desires to give any evidence at this committal stage. This is a requirement imposed by Section 96 of the District Courts Act. It states:
“(1) Where a Court proceeds with the examination of a defendant in accordance with this Division, the Court shall read the charge to the accused and explain its nature in ordinary language and shall say to him these words, or words to the same effect—
"Having heard the evidence for the prosecution do you wish to be sworn and give evidence on your own behalf, or do you desire to say anything in answer to the charge? You are not obliged to be sworn and give evidence, nor are you required to say anything, unless you desire to do so; but whatever evidence you may give on oath, or anything you may say, will be taken down in writing, and may be given in evidence on your trial. You are clearly to understand that you have nothing to hope from any promise of favour, and nothing to fear from any threat, which may have been held out to you to induce you to make any admission or confession of your guilt; but whatever you now say may be given in evidence on your trial, notwithstanding any such promise or threat.".
(2) Anything that the defendant says in answer to a statement made in accordance with Subsection (1) shall be—
(a) taken down in writing in the English language and read to him; and
(b) signed by the Magistrates constituting the Court and by the defendant if he so desires; and
(c) kept with the depositions of the witnesses and transmitted with them to the Public Prosecutor.
(3) In an examination of a defendant in accordance with this Division neither the defendant nor his legal representative shall be permitted to subject any witness to cross-examination.”
Note that Section 96 of the District Courts Act (as cited above) gives the accused/defendant an opportunity to give evidence in his defence at this committal stage. The rationale behind this opportunity given by s.96 to the accused is that since the committal magistrate has found earlier under s.95 that there is sufficient evidence to put the accused on trial, the accused must now be given the opportunity to give evidence on his/her defence and spare himself or herself from the pending decision to commit. If the accused/defendant does give strong and convincing evidence in his/her own defence at this stage, then the committal court will have to reconsider its earlier decision taken under Section 95 and then discharge the defendant. Whilst this stands as a hope and promise to the accused/defendant, note however that any incriminating evidence given by the accused/defendant at this s.96 opportunity can be legitimately used by the State against him or her at trial in the National Court. At this Section 96 opportunity to respond to the State/police case presented in the hand-up brief, the defendant is given an opportunity to give either a sworn or unsworn statement. If he/she elects to give an unsworn statement, then he/she will not be subject to cross-examination by the police prosecutor and any self serving statements made by the defendant may be relied upon in his/her favour at trial.[28]
Conversely, if the defendant/accused elects to give a sworn statement, then he/she will be subject to cross examination by the police prosecutor and the State is entitled to rely on the defendant’s statement at trial.[29]
Realising the double edge sword nature of this s.96 opportunity statement, Kapi J (as he then was) in The State-v-Nagiri Topoma [1980] PNGLR 18 has issued the following caution and also a reminder to committal court magistrates:
“It will only do justice to defendants who are either uneducated or who are not represented by legal counsel, for the presiding magistrate to explain to the defendant the legal consequences of whether or not the defendant should say anything at all at this point or, if choosing to say anything, whether the defendant should make a sworn statement or an unsworn statement and make specific mention of the right of the police prosecutor to cross-examine if the choice is made to give sworn evidence. If the defendant is not advised of the legal consequences of the options, the National Court may, in its discretionary power, reject such statements if it feels that, in all the circumstances, it was unfair to admit answers in response to cross-examination.”
The above statement must now be read subject to Section 97 of the District Courts Act[30] which states:
“On the trial of a defendant for an offence for which he has been committed for trial or for any other offence arising out of the same transaction or set of circumstances as that offence, a statement made by him under Section 96 may be given in evidence without further proof, notwithstanding that the statement may be exculpatory or self-serving, if the statement purports to be signed by the Magistrates by or before whom it purports to have been taken, unless it is proved that it was not in fact signed by those Magistrates.”
Thus this provision now accommodates some of the concerns raised by judges in their comments as cited above. Particularly in relation to the concerns by Kapi J (as he then was) in the Nagiri Topoma judgment as cited above, Section 97 of the District Courts Act, now makes it clear that:
It is clear from the dictates of Section 97 of the District Courts Act that when a Section 96 statement is made by the accused/defendant, it must be taken and signed by the presiding magistrate if the statement is to be admitted as evidence at trial in the National Court. Failure to do that will render the s.96 statement inadmissible.
3.5.7 The seventh and ultimate responsibility that the Committal Magistrate has in these sequential flow of the committal proceedings process is to then eventually discharge or commit the defendant/accused to stand trial in the National Court pursuant to Section 100 of the District Courts Act. This provision accordingly directs:
“(1) When an examination [in these committal proceedings] is completed, the Court shall consider whether the evidence is sufficient to put the defendant on trial.
(2) If, in the opinion of the Court, the evidence is not sufficient to put the defendant on trial, it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.
(3) Where—
(a) in the opinion of the Court, the evidence is sufficient to put the defendant on trial; or
(b) the Court commits the defendant for trial under Section 94B(1)—
the Court shall—
(c) by warrant commit the defendant to a correctional institution, police lock-up or other place of security to be kept there safely until the sitting of the National Court before which he is to be tried, or until he is delivered by due course of law; or
(d) admit him to bail in accordance with Division 2.”
Pursuant to this provision, the matters which the Committal Court Magistrate must satisfy himself or herself on, before taking the decision to commit or discharge are:
The consideration that the Magistrate makes here in relation to the sufficiency of the evidence is same as that he/she has earlier had to when the stage of s.95 of the District Courts Act was reached – that of deciding whether there is sufficient evidence or a prima facie case for the defendant/accused to answer.
Submissions and Consultations
At the national consultations and a subsequent meeting with the Chief Magistrate and Deputy Chief Magistrate and all the serving Magistrates in National Capital District, most magistrates expressed the view that the procedure under Section 96 is unnecessary, if not dysfunctional to the purpose of committal proceedings. This is because the Section 96 procedure (as described above) is somewhat like an allocatus and then requiring the accused to give evidence in this defense as if he has been tried and found guilty and is about to be sentenced. This is clearly unnecessary and unwarranted because the committal magistrate has, when administering the Section 95 procedure (see paragraph 3.5.5 above) found that there is sufficient evidence to commit the accused. At that stage, the purpose for committal proceedings has been accomplished.
The majority of the magistrates, in their verbal submissions and consultations expressed the view that, in practice, the Section 96 procedure gives a somewhat false hope to the accused of sparing himself or herself from being committed because the magistrate has already at the Section 95 stage found that there is sufficient evidence to commit the defendant. Furthermore, the Section 96 procedure, somewhat turns the committal into a unnecessary mini trial which will not serve any real and useful purpose for the accused but more over may unnecessarily expose the defendant to the risk of giving incriminating testimony.
As quoted above, the Section 96 (1) statement begins by inviting the defendant to respond in this manner: “Having heard the evidence for the prosecution do you wish to be sworn and given evidence on your own behalf, or do you desire to say anything in answer to the charge?” This is a clear invitation to the accused to lead evidence in his or her defense after the committal magistrate has earlier, under the Section 95 stage of the committal, found that there is sufficient evidence against the accused to warrant committal to stand trial. Bearing in mind the purpose of the committal proceedings as stated at paragraphs 2.3 above – that the primary function is to determine whether there is sufficient evidence to warrant the committal of the defendant to stand trial – the current Section 96 procedure of the committal proceedings is clearly unnecessary. If anything, the accused at that stage should only be given the opportunity to make a statement but not to be sworn and give evidence on this own behalf. To do so is simply a fultile exercise.
We note that the Final Report of the Court Restructure Committee to the Chief Justice and Chief Magistrate on Committal Proceedings 1995 has recommended that the right of the accused person to make a statement under s.96 of the District Courts Act be retained but does not elaborate. We further note that this same report has recommended for the abolition of any right of cross examination by the defendant. We point out that currently Section 96 (3) of the District Courts Act prohibits the defendant or his/her lawyers from cross examining any witnesses. We have quoted this provision above at paragraph 3.5.6.
CLRC Views
The CLRC is of the view that most part of the current Section 96 procedure is unnecessary and serves no real and useful purpose in the current system of committal proceedings that we now have, given the fact that the Committal Court has earlier at the Section 95 stage of the Committal Proceedings (see paragraph 3.5.5), found that there is sufficient evidence. The CLRC is firmly of the view that at the conclusion of the Section 95 stage of the committal proceedings, the purpose of conducting the committal proceedings has been accomplished when the court found under s.95 (3) that there is sufficient evidence.
Accordingly, the CLRC recommends that Section 96 of the District Courts Act be repealed in its entirety. This will then have consequential effect on the other related provisions, namely:
Recommendation 3-1. Section 96 of the District Courts Act be repealed in its entirety and replaced with a new provision that should only invite the defendant to make a statement if he/she wishes to. Any statement made by the defendant should now form part of the court depositions and be treated accordingly. The new s.96 we propose must also allow for the defendant to enter a plea if he/she desires to as provided for under s.103 of the District Courts Act.
Recommendation 3-2. Section 96 (3) of the District Courts Act that currently prohibits the right of defendant to cross-examine any witness be retained but under a new provision.
Recommendation 3-3. Section 95 (3) District Courts Act be appropriately amended to reflect the proposed change in Proposal 3-1 above;
Recommendation 3-4. Appropriate consequential amendments be made to Section 100 of the District Courts Act to accommodate these proposed reforms.
The submissions we received after we made the above proposals in the Draft Report strongly supported these recommendations. Hon. Justice Panuel Mogish was particularly critical and questioned the rationale behind placing the s.96 opportunity before the committal court found under s.95 that there is sufficient evidence to commit the accused to stand trial. Most of the lawyers who spoke after Justice Mogish at a seminar we organised with the PNG Law Society to discuss the draft report supported Justice Mogish and concurred with our recommendations as stated above.
3.6 Committal for Trial Without Consideration of the Evidence
With the primary intention to expedite the processing of committals and introduce a speedier procedure of committal proceedings and address the problem of delay, a procedure of committal without hearing was introduced in 1980 by the District Courts (Committal Proceedings in Cases of Indictable Offences) Act 1980 (No. 31 of 1980). This procedure is now contained in Section 94B of the District Courts Act. It states:
“(1) Subject to Subsection (2), a Court inquiring into an offence may, if it is satisfied that all the evidence, whether for the prosecution or the defence, consists of written statements, with or without exhibits, tendered to the Court after service in accordance with Section 94, commit the defendant for trial for the offence without consideration of the contents of the statements.
(2) Committal for trial in accordance with Subsection (1) shall not occur where—
(a) the defendant or one of the defendants does not have legal representation; or
(b) the legal representative of the defendant or one of the defendants, as the case may be, requests the Court to consider a submission that the statements referred to in Subsection (1) do not disclose sufficient evidence to put the defendant on trial for the offence.”
It is important to point out that the Section 94B committal procedure is available for invocation by the Committal Court only if the defendant is represented by a lawyer (ie. has legal representation at the committal court). When the defendant/accused is represented by counsel and if counsel at the outset upon receiving the completed police hand-up brief, forms an opinion that the evidence as presented to the court in the police hand-up brief does not disclose sufficient evidence to commit the defendant to stand trial and submits accordingly to the committal court, then the Section 94B procedure of committal without hearing must be vacated. In other words, under those circumstances, the Section 94B procedure is not available as that is precluded by Section 94B(2)(c) of the District Courts Act as cited above. When this happens, then the normal committal procedure as represented above in paragraph 3.5 applies.
Where the Section 94B procedure of committal without hearing is involved, the Committal Court Magistrate must still satisfy himself or herself of the matters stated above in Paragraphs 3.5.1 to 3.5.5. Briefly, that is to say that the Committal Court Magistrate must satisfy himself or herself that:
Submissions and Consultations
A large majority of the magistrates consulted both during the national consultation and subsequently at a meeting in the CLRC Office at Boroko, NCD, with all the NCD serving Magistrates, including the Chief Magistrate and his Deputy, expressed the view that this procedure was not widely used. Quite to the contrary, when defendants were represented by lawyers, the lawyers contested the evidence.
CLRC View
The CLRC is of the view that despite the lack of utilization of this procedure, it must be maintained and left as an option for anyone to take since this procedure was introduced with the expressed aim of expediting the committal proceedings but with adequate protection to the defendant through legal representation. Most of the submissions we received after we released the Draft Report were in support of this position.
3.7 Admission of Guilt by the Defendant at Committal
After the committal court has found that there is sufficient evidence to warrant the defendant/accused to be committed to stand trial as required under Section 95 of the District Courts Act, [31] the defendant is then asked if he/she wishes to make a statement in his or her defence in the terms prescribed by Section 96. If at this opportunity given by the Section 96 statement,[32] the defendant pleads guilty, the committal court magistrate is required to commit the defendant for sentencing by the National Court rather than for trial. This is a procedure provided for under Section 103 of the District Courts Act – which states:
“(1) If a defendant, on being asked in accordance with Section 96 whether he wishes to say anything in answer to the charge says that he is guilty of the charge, the Court shall further say to him these words, or words to the same effect—
“You will now be committed for sentence instead of being committed for trial.”
(2) The statement by the defendant in accordance with Subsection (1) shall be—
(a) taken down in writing and read to him; and
(b) signed by the Magistrate constituting the Court and by the defendant if he so desires; and
(c) held with the statements of the witnesses and transmitted with them to the Public Prosecutor.
(3) In a case referred to in Subsection (1), the Court, instead of committing the defendant for trial, shall order him to be committed for sentence before the National Court, and in the meantime, shall—
(a) by warrant commit him to a correctional institution, police lock-up or other place of security to be kept safely until the sittings of the National Court, or until he is delivered by due course of law; or
(b) admit him to bail to appear for sentence in accordance with Division 2.”
There are however inherent practical problems associated with this Section 103 procedure which have been pointed out to us by our Working Committee:
In the light of these problems, how best should we review and reform this procedure to achieve the intended result of expeditiating
plea matters from the Committal Court Stages?
The Final Report of the Court Restructure Committee to the Chief Justice and Chief Magistrate on Committal Proceedings 1995 has advocated for a system of identifying guilty pleas earlier in the committal system and then have the plea matters fast tracked to the National Court for the matter to be dealt with upon committal. Whilst Section 103 is mentioned in the report, there has been no consideration given as to the appropriateness of the current s.103 procedure of committal for sentence by the National Court.
The Public Prosecutor has, at paragraph 44 of his written submission, commented on the current s.103 procedure albeit mistakenly, thinking that it was a proposal rather than existing law – thus:
“... it is unclear whether what is being suggested here is that persons who plead guilty should be able to be sentenced and dealt with by the District Court. I would strongly object to such a course. It is pursuant to the Constitution, essential that the Public Prosecutor finalise the charge(s) and the bringing of matter to the National Court. It is also necessary that the National Court satisfy itself that it is able to accept a plea of guilty in any particular matter. Indictable Offences are serious (crimes) attracting heavy penalties and it is only proper that the [National] Court itself assess and decide whether or not to convict. In Papua New Guinea this requires the [National] Court to satisfy itself that the offence is made out on the depositions and that the accused understands what he is pleading to. Only then can the National Court [record] a conviction and go onto consider sentence. Again I note that many defendants are unrepresented at the committal stage.”
Perhaps owing to the misunderstanding that the current s.103 procedure as we have set it out under pp 34-36 of the Issues Papers (see also above) is a proposal, the Public Prosecutor did not use the opportunity to specifically comment on the inherent practical problems associated with the current s.103 procedure. We note however that the concerns raised by the Public Prosecutor as quoted above does relate to some of the inherent practical difficulties of the current s.103 procedure and we share those concerns as well.
In the national consultations, a large majority of the magistrates we consulted said that although they were aware of the existence
of this Section 103 procedure, they did not commit accuseds/defendants for sentencing in those instances where they were satisfied
that the matter was a plea matter. Instead, they usually generally committed the accused/defendant to stand trial in the National
Court.
CLRC Views
It is our view that there are inherent procedural difficulties associated with this current s.103 procedure, particularly, those relating to:
In view of these inherent procedural and practical difficulties, we recommend that Section 103 be appropriately amended to allow for
a mechanism of identifying plea matters at committal proceedings and then effecting committal there and then. This should happen
at any stage of the committal proceedings provided the police investigators have completed their investigations and submitted the
police hand up brief containing all the necessary evidence.
Recommendation 3-5
That Section 103 of the District Courts Act be extensively amended to focus on a system of fast tracking pleas with the heading reading:
“103 Committal on plea.”
(The relevant text of this proposed provision which we recommend accordingly is set out in Appendix 2)
The comments and submissions we received after the Draft Report was released were generally in support of this recommendation with the emphasis that any system to fast track committals must still await the completion of the police file (hand-up brief) so that the State’s case is not put in any jeopardy should the accused change his plea on indictment in the National Court. Note however that the Public Prosecutor still has the supervising role in checking the file upon committal and deciding on the appropriate offence to indict the defendant.
Chapter 4. Other Recommendations for Reform
Contents
There are a number of issues and concerns which have compelled the Minister for Justice to issue this Reference. Some of the issues
and concerns are generic whilst others are more pronounced or focused on the impact of the generic issues on particular law and justice
sector agencies. This was apparent from the preliminary consultations we have had with the sector agencies in National Capital District
and Central Province in February of 2007. We shall first look at those generic issues and shall then consider the other specific
issues.
4.2 Should Committal Proceedings be abolished?
In many ways, this is the central issue to be determined in this Reference. The Law Reform Commission report on Committal Proceedings (Report No. 10) published in July 1980,[33] advocated for the abolition of committal proceedings citing the issue of delay as the main reason. With the abolition of committal proceedings it was presumed that criminal trials would be expedited so that the accused person’s right to speedy trial as accorded under the Constitution can be realised.
In its report, the Law Reform Commission was critical of the effectiveness of committal proceedings saying that the system was inefficient and ineffective resulting in it not effectively functioning as a sound screening process. The following captures the gist of the former Law Reform Commission’s views:
“Comments have been divided fairly evenly between the two proposals and although the Commission is of the opinion that ultimately, the holding of committal or preliminary hearings should be abolished... As a short term measure the Commission is recommending that a system of hand up briefs be adopted for most indictable offences... In the longer term, the Commission recommends that preliminary hearings of indictable offences be abolished.”[34]
However writing 15 year later in 1995, the Court Restructure Committee appointed by the Chief Justice and Chief Magistrate headed by Justice Hinchliffe[35] strongly refuted the Law Reform Commission recommendations and pointed out that:
Available comparative literature in our region whilst on the one hand bemoan the issue of delay and costs to the State, strongly argue that committals play a useful role in the criminal justice system because:
Available comparative literate arguing for the abolition of committals argue that this pretrial assessment of the evidence for indictable offences should be handled by the Public Prosecutor because:
“Police Prosecutors are, in effect, only care takers of those briefs and have no real control over them since they are ultimately decided in a different jurisdiction. By handling these cases earlier, the Crown Prosecutor can engage in more meaningful negotiations and effectively sort out the guilty pleas, the nolle prosequis and the reduced charges and be allowed to concentrate on the cases which are really going to trial and which require some extra attention.”[37]
Those proponents for the abolition of committal proceedings, argue that the vital screening and filteration role which the committal process provides can still be played effectively by the Public Prosecutor/Crown Prosecutor administratively because:
The CLRC now seeks your views, comments or detailed written submissions on:
1. whether or not the current system of committal proceedings for indictable offences should be abolished or modified?;
2. if abolished, what should be the alternative to replace the committal system?;
3. if it is to be modified, how are we to modify it?
A large majority of judges, magistrates, lawyers and others we consulted with during the national consultations recorded strong support for the retention of the current system of committal proceedings but with relevant modifications to address the areas of concerns and to bring about greater efficiency. The Public Prosecutor made a strong written submission, recommending a retention of the current system of committal proceedings. So as not to miss the rigor of his submission, we quote in full, thus:
“At the outset I would like to say that I have given serious consideration to the issues of abolition and/or modification of committal proceedings, in consultation with my officers. I have been conscious of the fact that it is human nature perhaps to resist change, even where it is needed. And that lawyers are traditionally resistant to change, particularly in the area of criminal law, where there is often concern that any change may erode or diminish the traditional protections afforded to an accused person.
Nevertheless, it is my submission that committal proceedings in Papua New Guinea should not be abolished.
In this regard I support the comments by the Court Structure Committee in 1995, reproduced in the Issues Paper at page 38. in addition, I would like to emphasize or add the following comments.
Despite recommending in 1980 that committal proceedings be abolished, the Law Reform Commission was “concerned that at that stage of the development of the courts and the training of lawyers, magistrates and police prosecutors and investigators, particularly the staff strengths of the office of the Public Prosecutor and the Public Solicitor, the proposal to abolish committal proceedings should be delayed.
It is my submission that the Office of the Public Prosecutor is in no better position now than it was in 1980 to take on the additional burden of assessing all indictable matters following arrest or summons for the purpose of determining whether they should proceed to trial in the National Court.
As discussed above, while the Public Prosecutor is ultimately responsible for determining whether and on what charges a matter will proceed in the National Court, the committal court plays an important role in screening matters at an early stage.
Consequently requiring this Office to take on this task would increase its workload. This Office is already struggling to meet the demands of its current obligations, within which its workload continues to grow given the increase in the number and complexity of prosecution briefs, the large number of matters referred under the leadership code and its new obligations under the recently enacted Proceeds of Crimes, Mutual Assistance in Criminal Matters and Extradition Acts.
Not only would the number of staff have to be significantly increased, in my estimate at least one third, it would also be necessary
to have staff permanently located in every place in the country where committals are currently heard.”
CLRC Views
The CLRC concurs with the views of the Court Restructure Committee – particularly that if committal proceedings are to be abolished,
currently there are no viable and suitable alternative replacement systems to perform the all too important task of filtration of
meritorious and unmeritorious or strong and weak charges against defendants. The inherent protections available to the accused under
the current system of committals administered by the District Courts would be lost. As the Public Prosecutor candidly says in his
submission, his office is not in a position, in terms of staff strength and other resources, to take on this enormous responsibility.
The problems associated with delay in the current system are largely related to logistics and resourcing and therefore, these are
administrative problems - not legal problems. In our view, the issue of delay alone should not be cited as a reason to abolish
the current system. We must first explore available options and perhaps modify the system and cause improvements and avoid large
scale experimentation. The committal proceedings system that we now have is central and pivotal to our criminal justice system and
therefore the stakes are far too high to take a risk on experimentation. We are confident that the reform measures which we recommend
in this report will address most of the areas of concern.
4.3 Committals and Delays.
A major criticism against committal proceedings is that they represent a productive source of delay in the efficient and effective disposal of criminal cases and thereby cause strain on the entire criminal justice system. The Court Restructure Committee appointed by the Chief Justice and the Chief Magistrate and chaired by Justice Hinchliffe,[39] found that in the period from 1992 to 1994, on average it took about 3 months from the laying of information to completion of the committal proceedings. Most magistrates and court officials reported that there were indeed delays in the completion of committal proceedings and cited the following as the main cause of delays:
In the preliminary inquiries we conducted through our consultations with the Waigani Committal Court and Central Province Committal
Court Magistrates and court officials, similar views were also raised as the cause for delays in the committal court process.
What should be done to address the issue of delay in committals, should there be a statutory period imposed by which committal proceedings
should be completed?
The Public Prosecutor made a strong submission on the issue of delay associated with committal proceedings, pointing out that the main argument in favour of abolition of committal proceedings is that committal proceedings are a productive source of delay in the delivery of criminal justice and that immediately assumes that if we abolish committal proceedings, then we would expeditiously deliver criminal justice. This assumption however overlooks the other instances, and sources of delay in the criminal justice system such as resourcing issues and delay between committal and trial in the National Court. The Public Prosecutor then goes onto state that the issue of delay should be addressed in total by looking at causing improvement to the various phases of the system. The Public Prosecutor however cautions that absolute statutory deadlines requiring police investigators to complete police hand up briefs or even to complete committal proceedings should not be fixed by laws because there are numerous and various other factors which can be outside of control by the police or even the committal courts. At a meeting with the Chief Magistrate, Deputy Chief Magistrate and serving magistrates in the National Capital District, a consensus was reached that a statutory time limit should not be fixed for either completion and submission of the police hand up brief from arrest of the accused or even for completion of the committal proceedings by the committal court from first mention. The magistrates pointed out that a statutorily fixed “reasonable time” may not have a fair universal application given the current great divergence in resource strength and sheer geographical unevenness and difficulties which police face in investigating crimes throughout the country. There were also similar concerns over divergence in resources and strengths of the committal courts through out the country. We may therefore run the risk of setting accused person’s free simply because of our inability to meet the statutorily fixed time lines and thus may be failing in our overall duty to the nation in enforcing law and order and securing peace in our communities.
In the national consultations we conducted, there was nearly a even split between those who supported the notion of statutorily fixed time lines for completion of the police investigations and the submission of the police hand up brief from arrest and the completion of the committal proceedings and those who were not in favour. A very senior Supreme Court judge was adamant that strict statutory periods be imposed so that the police investigators and the committal courts understand the clear time limits they need to work under. If they see that they are running out of time, then provisions must be made for the committal court to hear an application for extension of time. Police Prosecutors should be allowed to apply to the committal court to obtain extension of time, either for completion of the police hand up brief or the committal proceedings.
In the meeting we had with the Chief Magistrate, Deputy Chief Magistrate and all the serving magistrates in NCD, the Chief Magistrates
took a middle ground. He was of the opinion that rather than imposing statutory time lines, particularly, for the completion of
committal proceedings, the Chief Magistrate should issue specific practice directions, taking into account the perculiar circumstances
of District Courts. That a practice direction issued for the Waigani Committal Court setting three (3) months as the period to
complete the committal in full consideration of the resource strength of that particular committal court, may not be applicable to
a remote committal court in Maprik or Vanimo or Bulolo. Therefore, the Chief Magistrate, in consultation with the Senior Provincial
Magistrates (SPM) of the respective provinces should be allowed to issue Practice Directions relative to and reflective of the provincial
situation. The Chief Magistrate, will of course make every effort to standardize as much as possible so that we do not create too
much confusion or uncertainty in District Court Practice and Procedure on committal proceedings.
CLRC Views
Our view is guided by the following principle, adopted from the wise counsel of Justice Felix Frankfurther: “... mere speed is not a test of justice, deliberate speed is. Deliberate speed takes time. But it is time well spent.”[40] It is our view therefore that whatever reform measure that we propose, must not compromise the quality of justice that we accord to the accused as well as to the State encapsulating the people whose laws and peace the accused has broken. In other words, the accused person’s right to a speedy trial must not be to the deteriment of the interest of the society at large to effectively conduct criminal investigations and properly bring such accused person to justice. Indeed, it would be a travesty of justice from the point of view of the State if an accused person who has been charged for a serious criminal offence got of simply because the police did not complete the police hand up brief within a fixed time line or that the committal proceedings were not completed within the fixed time line.
We point out that if statutory time lines are set and provisions are made for applications for extension of time by the police, either to complete the police hand up brief and/or committal proceedings, such new process will cause further delay to the committal process since it is highly likely that the accused will strongly contest such an application. We note that in the Australian State of Victoria the Magistrates’ Court Act 1999 that came into effect on July, 1st 1999 through amendment caused to Schedule 5 of the Act, introduced various changes to their committal proceedings system including certain time lines for the following types of offences or processes:
Writing in 2000, Justice Mark Weinberg former Commonwealth Director of Public Prosecutions and current Federal Court judge, after discussing the above amendments introduced to the Victorian legislation observes:
“Schedule 5 in its present form has been in operation for only a few months. Regretably, the early feed back from both side of the profession is not encouraging. That is scarcely surprising. The process of preparing for a committal proceeding, which was once reasonably straight forward, has now been converted into a complex exercise requiring the preparation of a significant number of important documents all of which must be completed within strict time limits. Some practitioners complain that the new procedures require frequent and unnecessary court appearances. These appearances are often lengthy, and add to delay and cost.”[41]
We share these concerns and would therefore advise against the temptation to statutorily impose timelines against which either the police hand up brief or the committal proceedings should be completed. If we impose a statutory time line and particularly if the time lines are on the shorter side, that will put a lot of pressure on the police and the committal courts and no doubt, that will in turn affect the quality and standard of justice. A speedier process may not necessarily deliver a fair and just criminal justice system. If any thing, we run the serious risk of compromising the quality and standard of justice.
However, we recommend that for purposes of completion of the committal proceedings, the Chief Magistrate, in consultation with the
respective SPMs, should issue Practice Directions. Like wise, the Police Commissioner, in consultation with the OIC Police Prosecutions
and the respective Provincial Police Commanders, should be encouraged to issue administrative standing instructions, directing Police
Investigators to complete their investigations and compile and submit the police hand up briefs within whatever time lines they set.
In this regard, we note that the Chief Magistrate has indicated his willingness to raise this matter with the Police Commissioner
and we encourage that.
Recommendation 4-1
The Chief Magistrate issue appropriate Practice Direction stating the time lines by which all committal hearings in the District Court
should be completed.
Recommendation 4-2
That the Police Commissioner issue Administrative Instructions to all Police Investigators and Prosecutors clearly stating time lines
by which the police hand up brief should be completed.
Comments and submissions we received on these recommendations after we released the Draft Report have been positive. Hence, we recommend accordingly.
4.4 Delays in Committals and Associated Costs
For some sectors of the criminal justice system who are impacted by the delays in the completion of committal proceedings, they are concerned with the costs to them. The Correctional Service, in many ways carries huge costs in keeping remandees in its jails and has expressed concerns that their services are intended for prisoners and not remandees but huge numbers of remandees in their jails, diverts their attention and costs somewhat unnecessarily. It was therefore suggested that remandees should not be sent to and kept in jails but should be kept in police lock ups. In this way, there will be pressure on the police to expedite the completion of the police hand-up brief and their speedy disposal of committal matters. This will also make it convenient for the police investigators and police prosecutors to access accused persons for purposes of expeditiating the completion of the police hand up brief.
The rationale behind this argument by the Correctional Services is that if remandees are kept by police in police lock ups, they
will be in the face of police and this will cause police to make every effort to dispose off the committal in the quickest time possible.
From the point of view of management of police, they would be concerned about the costs to them in keeping the remandees and therefore
they will insist on their officers to complete the committals in the quickest time possible. As it is now since Correctional Services
is carrying the costs of maintaining remandees, the issue of costs does not appear to be a concern to police.
Do you think remandees should be kept by police in police cells or lock ups until their files are completed or for the full length
of the committal proceedings period?
A great majority of persons we consulted during the national consultations, whilst on the one hand sympathized with the Correctional Services, they were adamant that the Correctional Services is the only institution of government, properly equipped to keep remandees for longer periods. The concerns expressed by Correction Services are concerns over resource allocations. They should therefore use this situation as a leverage for seeking an increase in resources to them so that they can properly and effectively handle the large number of remandees who are in their care.
The Public Prosecutor has made a strong written submission objecting to any moves to keep remandees in police cells or lock ups, and points out that “police lock ups are not intended to house prisoners for any length of time. They do not have the appropriate facilities. It is not appropriate for one State Department to use remandees, ie., persons who are innocent until proven guilty, as a means to put pressure on another State department... if Correction feels that it has inadequate or limited facilities, it should seek funding to adequately deal with the needs of inmates.” The Public Prosecutor then correctly points out that under Section 7(1) (a) of the Correctional Services Act 1995, the Correction Services is required to:
“... take custody and control of all persons committed to –
(i) correctional institutions upon warrant or order of a court; or
(ii) the custody of the Service by any other competent authority under any law in force in the country...”.
It is therefore clear by this provisions that the Correctional Services is legally obliged by its own legislation to take custody, control and care of remandees. It is therefore the designated State institution to keep and look after remandees. Accordingly, it is required to plan for and accommodate remandees as well as prisoners.
We concur with the strong and legally sound and unchallengable submission by the Public Prosecutor as stated above.
4.5 Modification of the Committal Proceedings
The Court Restructure Committee established by the Chief Justice and the Chief Magistrate[42] have recommended that the committal proceedings system be modified to enhance efficiency in the following manner:
The CLRC is seeking your views and comments on:
1. the above recommendations;
2. how best we can modify and improve the committal court system.
The Final Report of the Court Restructure Committee to the Chief Justice and Chief Magistrate on Committal Proceedings 1995 has strongly expressed the view that a legal mechanism must be provided in the District Courts Act to expedite early pleas of guilty to the National Court. That Committee was of the view that the opportunity that is currently available under s.103 of the District Courts Act for the defendant to plead guilty and be committed for sentencing only is rather too late in the current committal process. Instead, that Committee was advocating for an opportunity for guilty pleas to be made available much earlier – at the mention stage where a preliminary inquiry could be conducted largely based on the allegations of facts endorsed on the back of the Information as Statement of Facts. That apart from reading out the charge and the alleged statement of facts and explaining the charge to the accused/defendant, the Court Restructure Committee recommended that the Committal Magistrate must:
The Court Restructure Committee further stated that if at any time before or at commencement of trial upon arraignment by the National Court the accused changes his mind and pleads not guilty, his or her case will be fixed for trial at a later date through the pre-trial listing process. The State will then be at liberty to conduct further investigations and call any witnesses of its choice to prove its case.
The Public Prosecutor has, in his written submission to the Issues Paper we released, generally supported the proposal by the Courts Restructure Committee to find a legal mechanism for fast tracking guilty pleas but has not expressed any opinion on the stage at which such a mechanism could be built into. The Public Prosecutor has however gone onto express the following view at paragraph 42 of his written submission – that:
“... the current provisions, particularly Section 96 and 103 provide a useful process whereby a Magistrate must be satisfied that there is sufficient evidence on which to commit, even on a guilty plea. This is important bearing in mind that most defendants are unrepresented at committal stage... it is obviously important that a brief be prepared to prove the elements of the offence so that the National Court can be satisfied of guilt.”
It appears then that the Public Prosecutor is impliedly expressing a reservation on the proposal by the Court Restructure Committee which have recommended an earlier preliminary process on commencement of the committal proceedings rather than later at the current Section 96 and 103 stages.
During the national consultations a great majority of the judges, magistrates, lawyers and police officers whom we consulted were
supportive of a process of fast tracking committals for accuseds/defendants who desired to plead guilty. None of these persons however
expressed any opinion on the stage at which early pleas can be identified and sent to the National Court through committal for sentence.
CLRC View
The CLRC shares the reservations expressed by the Public Prosecutor, mainly on the basis that if an accused is committed for sentencing only at the very early stage of the committal proceedings, as proposed by the Court Restructure Committee without a complete hand up brief and then subsequently on arraignment by the National Court or before commencement of proceedings in the National Court, the accused changes his position and pleads not guilty, then the State case will be seriously jeopardized or compromised. Further police investigations are most likely to be in serious jeopardy given the loss of time. It is therefore important that in whatever system we propose to identify and fast track guilty pleas, the police hand up brief must first be completed and submitted. Only based on that, then the Committal Court can then identify a guilty plea and commit to the National Court with sufficient degree of certainty. Even if the accused/defendant decides otherwise and pleads not guilty on arraignment by the National Court, all the necessary evidence would have been obtained and compiled into the police hand up brief. The State case would not be put in jeopardy. Accordingly, it is our view that the earliest possible opportunity at which the accused/defendant can be given to indicate to the court that he or she wants to plead guilty would be at the current Section 95 stage of the committal proceedings (see paragraph 3.5.5).
Recommendation 4-3.
That Section 103 of the District Courts Act be appropriately amended to institute a legal mechanism by which the accused/defendant
can be given an opportunity to say whether or not he wishes to plead guilty in the National Court and the matter can then be fast
tracked to go before the National Court upon immediate committal.
(The relevant text of this proposed new Section 103 which we recommend accordingly is set out in Appendix 2).
This proposal was prominently addressed at a seminar we organised with the PNG Law Society to discuss the Draft Report. There was majority consensus with Justice Mogish in the lead that the current s.103 is rather obsolete and therefore it should be replaced with a new provision that would allow for facilitating and fast tracking pleas. Hence our recommendation received strong support. Thus, we recommend accordingly.
We however concur with the Court Restructure Committee that at any stage at which the accused/defendant intends to plead guilty and notify the committal court accordingly, the committal court should be legally obliged to inform or explain to the accused/defendant that if he pleads guilty at this very early stage and maintains that position at the National Court, then he/she is likely to get a discounted sentence on a guilty plea in the National Court. Furthermore, we agree with the Court Restructure Committee recommendation that if the accused/defendant is unrepresented at this stage of the committal proceedings, the committal court should offer him/her the opportunity to consult with a lawyer if he/she wishes to.
Recommendation 4-4
That a new clause be added to Section 103 of the District Courts Act when the proposed amendments under Proposal 4-3 (above) are effected,
which will compel the committal court magistrate to inform or explain to the accused/defendant that if he/she pleads guilty at this
stage and maintains that plea at the National Court hearings, then the National Court is likely to give him/her a discounted sentence.
A further clause must then be added requiring the National Court to take this into account when deciding on the appropriate sentence.
(The relevant text of this proposed amendment we recommend is set out in full in Appendix 3).
This recommendation was extensively discussed at the seminar we organised with the PNG Law Society to discuss the proposals as we put those forward in the Draft Report. There were two issues which emerged from this recommendation. One was concerning the recommendation for the presiding committal court magistrate to explain and inform the accused that is proposing to plead guilty that if he maintained his/her guilty plea in the National Court, then it is likely that he/she will receive a discounted sentence. Some lawyers who spoke at the seminar felt that such a clause was not necessary because it is already a matter of practice where guilty pleas are rewarded with a lower sentence. Other lawyers expressed the opinion that although it was currently a matter of practice, it was necessary to write it into law so that it was not left to the discretion of the courts. Furthermore, it was necessary to write this down in law so that the accused person that is pleading guilty is entitled by law rather then by discretion of the court and this will be a strong assurance being a matter of law that he/she will receive a lower sentence should he/she maintain the guilty plea in the National Court.
In the end, a consensus was reached that it was in the interest of the accused that a system of fast tracking pleas did offer strong protection and attraction to the accused. This necessarily implies that an assurance of a discounted sentence should be put down as a matter of law and not at the discretion of the courts. In other words, an assurance cannot be left to discretion since such is not an assurance at all. Accordingly, the first leg of our recommendation was supported.
The second issue that emerged is in relation to the second leg of our recommendation in Recommendation 4-4 – which proposed for a further clause to be added to require the National Court to, as a matter of law, take the guilty plea as a mitigation factor and impose a discounted sentence. Again there was division of opinion. One group of lawyers voiced caution that we should not be taking judicial discretion away from the courts by inserting such a clause, and added that this was already happening and it is settled law in sentencing. The other group of lawyers acknowledged that indeed it was already settled law and to do so would be to take away judicial discretion in sentencing as allowed to them under Section 19 of the Criminal Code. Nevertheless, since one of the primary purpose of this proposal is to give assurance to the accused/defendant that he/she would receive a discounted sentence, we cannot leave this to judicial discretion – we must make it a matter of legal entitlement and write it into law so that it does become an assurance to the accused/defendant. The CLRC supports this view and we therefore recommend accordingly.
Finally, in relation to the other recommendations of the Court Restructure Committee concerning the right of the accused/defendant to cross-examine police witnesses and a system of committal mention date procedure, we point out that:
Recommendation 4-5
That the Chief Magistrate issue appropriate Practice Directions to implement a system of committal mention date procedure to better
manage committal proceedings in line with Recommendations 4-1 and 4-2 above.
This recommendation was well received after we released the Draft Report. We therefore recommend accordingly.
4.6 Involvement of Defence Lawyers at Committal Proceedings.
As stated in discussions on the essence and nature of committal proceedings at paragraph 2.2 and the purpose and functions of committal proceedings at paragraph 2.3 above, committal proceedings are administrative preliminary hearings to verify and quantify the evidence by going through a check list as stipulated in the District Courts Act which we have detailed at paragraph 3.5 above. Committal hearings are not trials. Therefore, there is an argument that since committals are not trials but mere administrative preliminary hearings, defence counsel should not be involved at these early stages. The accused persons’ rights are adequately protected under the Constitution to seek redress should his or her rights be infringed at these early stages. The involvement of defence lawyers at these early stages has been identified in our preliminary consultations within the NCD and Central Province as one of the sources of delay in the expeditious discharge of the committal matters.
According to court files review we conducted on the first 100 files from the NCD and Central Committal Courts between 2004, 2005 and 2006, fifty four (54) legal representations were noted to have been made for various defendants.
The charges laid against the defendants in these cases involved:
| Table 1: Charges defended by lawyers | |
| Charge | Occurrences |
| Aiding a prisoner | 1 |
| Arm robbery | 6 |
| Arson | 3 |
| Attempt to kill | 2 |
| Bodily harm | 2 |
| Break, enter and stealing | 1 |
| Carnal knowledge | 1 |
| Conspiracy | 3 |
| Dangerous driving causing death | 3 |
| Dishonest application | 4 |
| Escaping from lawful custody | 1 |
| False accounting | 1 |
| False declaration | 1 |
| False pretence | 2 |
| Harbouring a prisoner | 1 |
| Have in premises under siezed Bech de Mer | 1 |
| Indecent act | 1 |
| Murder | 4 |
| Receipt of motor vehicle by indecent means | 1 |
| Received stolen property | 2 |
| Sexual penetration | 3 |
| Stealing | 5 |
| Storage of bech de mer without license | 1 |
| Unlawful and willful damage to properties | 2 |
| Unlawful assault causing bodily harm | 1 |
| Unlawful deprivation | 1 |
| Unlawful use of motor vehicle | 6 |
| Unlawfully wounding | 2 |
| Willful murder | 1 |
Note: Some of the defendants have been charged with a multiple offences.
4.6.1 Pleas
In all the cases, the defendants have taken a ‘not guilty’ plea, thereby resulting in serious and prolonged attempts by
the defence lawyers to discredit the information provided by the State witnesses.
4.6.2 Sitting days
The number of court sitting days were also assessed, and it was found that with the involvement of defence lawyers in the cases studied,
the sitting days ranged between (3) three and twenty seven (27), twenty two (22) of which were above ten (10) sitting days.
4.6.3 Adjournments
Our examination of the adjournments suggests there were varying reasons why adjournments were sought. Some have been requested by
the defence counsels for them to have time to study the files; prepare and make ‘no case’ submissions; further adjournments
for further preparations; and the unavailability of counsels. Other reasons for adjournments are covered under our other assessments
of the prosecutions and defendants categories.
4.6.4 Remand and Bail
Twenty (20) successful applications have been made by defence counsels for their clients to be on bail while the other defendants
have been remanded in custody awaiting rulings on their cases.
4.6.5 Rulings
Out of the fifty four (54) files where defence lawyers were engaged to represent defendants during committal proceedings, the rulings of the committal magistrates have been distributed in the following manner:
| Table 2. Rulings of the committal magistrates in cases where defence lawyers have been involved | |
| Rulings | No. of cases |
| Committed to stand trial in the National Court | 15 |
| Dismissed | 13 |
| Struck out | 12 |
| Transferred to other courts | 5 |
| Withdrawn | 3 |
| Convicted and sentenced to imprisonment | 3 |
| Convicted and fined | 2 |
4.6.6 Total number of days in the disposal of the files
With the involvement of defence lawyers, we note an extremely high number of days spent in the disposal of cases, the highest of which was five hundred and four (504) days or about sixteen (16) months. The graph below explains in the hundreds, the number of days taken to dispose the cases studied.
When applying the three months or an approximation of one hundred days considered the fair and just number of days to dispose office cases, a total of fourty two (42) files out of fifty four (54) have exceeded this requisite. This is about seventy nine percent (79 %) of the total cases that involved defence lawyers.
The following chart represents the length of committal trials when defence lawyers are involved.
Now having identified this as a source of delay, should lawyers be allowed to represent defendants at committal hearings?
In the national consultations, there was strong support, particularly amongst police personnel and members of the public that since committal proceedings are preliminary hearings only to determine the sufficiency of the evidence, it was not necessary for lawyers to appear for accused persons at this early stage. Some police personnel pointed out that the appearance of lawyers at this early preliminary stage creates the impression that the lawyers are appearing at the committal court to “defend” the accused when in actual fact there was not much for the lawyer to defend. The lawyers themselves at these preliminary stages are already in “defence” mode and they then go unnecessarily into great lengths and make submissions on substantive matters of law and facts which are really in the province of a trial proper. The Police Prosecutors in particular pointed out that many, if not all lawyers, when they appear for accuseds persons at committal proceedings, they make unnecessarily long and winding no-case to answer submissions as if they are making those submissions at the close of the State case during trials. Unfortunately, magistrates are inadvertently sucked in by these submissions, and in turn the committal courts then put unnecessary pressure on the police prosecutor to respond to those rather unnecessary submissions. The prosecutors then remarked that magistrates should take better control of their committal courts and keep lawyers who appear at committal proceedings in check.
The Chief Magistrate, Mr John Numapo, and Principal Magistrate (Grade V), Mr Marai Pupaka made strong submissions that the accused is entitled to legal representation at all times once charged with an offence under Section 37(4) of the Constitution, or if he/she is deprived of his/her liberty, under Section 42 of the Constitution. Therefore, the proposal to abolish legal representation at committal proceedings runs the serious risk of being unconstitutional. They then pointed out that appearance of counsels at committal proceedings does bring benefits to this phase of the criminal justice system as lawyers do, through their involvement and submissions, offer guidance to the committal courts.
The Public Prosecutor has submitted that it would not be appropriate to disallow lawyers to represent defendants at committal proceedings.
He then points to one of the benefit of having lawyers representing defendants – that it does greatly assist in testing the
police case and in some cases, identifying early pleas whilst in others, identifying the issues for trial upon committal. This does
then bring benefits to the criminal justice system ultimately reducing the time or any subsequent trial or even perhaps helps to
promote the chances of a subsequent plea, particularly so when the strength of the police case is known and assessed by the lawyer
representing the accused.
CLRC Views
The CLRC acknowledge that the involvement of lawyers at committal proceedings does contribute to some delay in the disposal of committal matters. We however re-iterate our view that mere speed is not a test of justice in itself but deliberate and calculate speed is. If some time is lost whilst pursuing justice then that is time well spent. Whilst we agree that if we disallow lawyers from appearing in committal proceedings and sometimes then unnecessarily contesting issues of evidence and substantive law and then drawing on the committal proceedings, we are likely to reduce delay. But the non-appearance of lawyers does raise many serious issues and concerns as pointed by the Chief Magistrate and the Public Prosecutor above. We are convinced the issue of delay caused by lawyers through the making of unnecessary submission, etc., is a matter that can be effectively handled by the committal court magistrate by being proactive in ensuring that committal courts abide by their mandate and do not function like trial courts. Committal Court Magistrates must take full charge of their courts and must not allow lawyers appearing for defendants to dictate to them in terms of how they run their courts.
Apart from the above general issues, we also agree with the views of the Chief Magistrate and Principal Magistrate Pupaka that the proposal to legally disallow lawyers from appearing for accused persons does raise serious issues of constitutionally accorded rights of accused persons. In this regard, we note that any person that is charged with any criminal offence is entitled to the full protection of the law under Section 37 of the Constitution. Particularly under s. 37(4) that person is presumed innocent and is entitled to defend himself or by a lawyer of his choice. This, in our view implies that even at the preliminary hearing stages, ie., committal proceedings, the accused is entitled to have legal representation because he is, for purposes of Section 37 of the Constitution, a person “charged with an offence”.
Rather than disallowing lawyers and in recognition of the existence of the problem and the need to reduce unproductive delays, we
recommend that the Chief Magistrate should issue appropriate Practice Directions to all Committal Courts, first reminding them of
their purpose, roles and responsibilities as committal courts and then instructing them to be proactive in ensuring that the committal
courts are not subjected to unnecessary and unproductive submissions by lawyers appearing for accuseds.
Recommendation 4-6
The Chief Magistrate issue appropriate Practice Directions reminding committal court magistrates of their roles and responsibilities
and then to run their courts efficiently by guarding against entertaining unnecessary and unproductive submissions from lawyers appearing
for accused persons/defendants.
This recommendation has been well accepted and supported from the views and comments we received after the Draft Report was released. We therefore recommend accordingly.
Appendices
Appendix 1 List of Persons and Organisations Consulted
NORTH SOLOMONS PROVINCE
Mr. David Maliku Senior Provincial Magistrate, Buka District Court
Mr. Bruce Tasikul Magistrate, Buka District Court
Ms. Ruth Nangoi Clerk of Court, Buka District Court
Ms. Carol Pio CID, Police
Mr. Thomas Ratavi OIC Prosecutions, Police
Mr. Chris Siriosi Legal Advisor, ABG
Mr. Edward Latu Lawyer, Latu Lawyers
Mr. Martin Tisivua Corrections Officer, CBC
Mr. Sylvester Luga OIC, Correction Services
Mr. Reuben Kueng Police Prosecutor
Mr. Thomas Raban Businessman, Business Representative
Mrs. Elizabeth Tinap Prosecutor, Committal Court
Mr. Benjamin Mangkeju OIC Prosecution
Mr. Narral Kadamai Police Prosecutor
EAST NEW BRITAIN PROVINCE
Akuila Tubal Provincial Administrator
Ben Mangeju OIC Prosecution, Police
Boas Binuali Grade 5 Prosecutor, Police
Narral Kadamai Committal Court Prosecutor, Police
Kevin Bulu Investigator, Police
Elizabeth Munap Committal Prosecutor, Police
Philip Kaluwin Lawyer, Public Solicitor’s Office
Dessie Magaru Senior Magistrate
Suzie Vuvut Senior Community Correction Officer
Magdelene Kivu Senior Associate
Oplen Kaluwin Welfare Officer
Clement Irasua Deputy Provincial Administrator
Lasiel Tovue Councilor
David Paul CCRO
John Poris Acting Provincial Police Commander
Ponameh John Kerevat CS - Reception Clerk
Nerrie Wilson Women's Representative
Eriel Kaure Manager, Correctional Services
Ephreddie Jubilee Legal Officer
NEW IRELAND PROVINCE
Mr Aquilah Tokanini Provincial Police Commander
Sergant Andrew Tunuma Police Prosecutor
Aiyofa Faregere Police CID
Greg Toxie Seth Town Mayor
Mathew Asio Town Law Inspector
Orim Karapo Senior Magistrate
Thomas Vogusang Magistrate
Joram Boram Probation Officer – CBC
Jerum Melim Probation Officer – CBC
Esmah Daniel Probation Officer – CBC
Samuel Tabairua District Administrator – Namatanai
Meksen Darius Provincial Legal Officer
Francis Gahuye Gaol Commander, Correctional Services
Margaret Boskuru S/SGT – OIC Prosecution
Sergeant Wilson Sogang CID – Police
Senior Const. Steven Lassingan CID – Police
Constable Tosinel Waton CID – Police
PWC Cathy Bongut Police Prosecutor
PWC Janet Ezekiel Police Prosecutor
Mr. Zacchaeus Malingan Magistrate
Mr. Matus Gugu Ignatius Namatanai Town Manager
Mr. Elias Talom Ex Magistrate (Businessman)
MANUS PROVINCE
Inspector Alex NDrasal Provincial Police Commanger, Manus
Inspector Gabriel NDrihin Police Station Commander, Lorengau
Lawrence Sanais OIC – Prosecution, Police
Andrew Sweli Police Prosecutor
Lynnette Watah OIC – CID, Police
Robert Pondikou CID, Police
Margaret Kumasi CID, Police
Gami Madu Senior Provincial Magistrate
Lucy Mutanbeck Clerk of Court
Niachalau Posakei Deputy Clerk of Court
Charlie Pokambut Registry Clerk
Randolph Scottie Acting Commander, Correctional Services
Mr Pomat P Paliau Provincial Legal Officer
PW Sgt. Lynne Watah OIC - CID
Sergeant Lawrence Sanae OIC Prosecutions
WEST SEPIK PROVINCE
Mr. Joseph Sungi Provincial Administrator
Mr. Tobias Welly Deputy Province Administrator
Mrs. Julie Kai Director for Community Development
Mr Paul N’Dranoh District Court Magistrate
EAST SEPIK PROVINCE
Mr. Thomas Morabang Senior Provincial Magistrate
Mr Leo Kabilo Provincial Police Commander
Mr. David Susame Senior Magistrate
Mrs. Christine Anawe Senior Magistrate.
MADANG PROVINCE
Justice Sir Kubulon Los Senior Judge
Mr. Mark Selekariu Senior Provincial Magistrate
Mr. Tanga Kuri Magistrate
Mr. Jacob Sare Magistrate
Mr. Paul Kig Clerk of Court
Mr. Jim Wala Senior State Prosecutor
MOROBE PROVINCE
Mr. Iova Geita Senior Provincial Magistrate
Mr. Sasa Ikung Magistrate – Juvenile Court
Mr. Cosmos Magistrate
Mr. Caspo Koi Magistate
Mrs. Oiti Malala Clerk of Court, Committal Court
Mr. Nicholas Miviri Senior State Prosecutor
Mr. Melchoir Gawi OIC – Prosecution
Mr. Hove Genderiso OIC – Prosecution
Mr. Robert Numbos Prosecutor, Committal Court
Mr. Galus Gumbia Police Prosecutor
Mr. Sakarias Albert Police Prosecutor
Mr. Francis Tommy OIC – Reception/Discharge
Mr. Samson N. Jaro Chief Superintendent – DCS Commanding Officer
Mr. Simon Lakeng Superintendent – Manager, Operations
Mrs. Judy Tara Superintendent – Manager, Administration
Serg. Major Mr. Jack B. Teana Station-In-Charge
EASTERN HIGHLANDS PROVINCE
Mr Mekeo Gauli Senior Provincial Magistrate
Mr Ignatius Kurei District Court Magistrate
Inspector John Haua Police Station Commander
Chief Inspector Timbi Kugula Gaol Commander
Inspector Peter Marl Acting Gaol Commander
Mr Frank Manue Coroner Magistrate
Mr Gerald Vetunawa Juvenile Court Magistrate
Mr Martin Ipang Local Land Court Magistrate
Mr Munare Uyassi Provincial Administrator
Mr John Gimiseve Deputy Administrator
Dr Musawe sinebare Deputy Administrator
Mr Ignatius Kurei Senior Magistrate
SIMBU PROVINCE
Mr Martin Loi Senior Provincial Magistrate
Mr Anthony Gomia Senior Magistrate
Mr Jeffery Senior Magistrate
Sup. Jimmy Onopia Puieke Provincial Police Commander
Superintendent Simon Sobaim Gaol Commander
SOUTHERN HIGHLANDS PROVINCE
Peter Warea Correctional Services
Moses Loko Correctional Services
Gulae Kirape Correctional Services
Samson Tandakali Magistrate
Jerry Kani Police Prosecutor
Samson Peter Senior Committal Court Clerk
Stephen Pangai Police Prosecutor
Tolimo English CID Mendi
Vincent Erali District Court Magistrate
Morgan Opi Police Sergeant
WESTERN HIGHLANDS PROVINCE
Paul Urangaian Police Prosecutor
Emma Koss Police Prosecutor
Kerrie Duma Police Prosecutor
Betty Kup Jacobs Magistrate
Patrick Baiwan Senior Provincial Magistrate
Bruce Izane Clerk of Court, Grade 5 Court
Jimmy Peakep Police Prosecutor
Garumu Giwoso Police Prosecutor
Martin Kigare Police Prosecutor
Micheal Kigare Police Prosecutor
Peter Micheal Police Prosecutor
Peter Kumo Lawyer, State Solicitor’s Office
George Korei Lawyer, Public Solicitor’s Office
Alex Tipiri Correctional Services
Sabina Roika Correctional Services
ENGA PROVINCE
Mr. Bartho Kawa Magistrate Wapenamanda District Court.
Steven T. Clerk of Court, Wapenamanda District Court.
Kaivi H Police Prosecutor
Vincent K Clerk of Committal Court
David S Police Prosecutor
Felix H Police Prosecutor
Agapi Tim Police Prosecutor
Sam Kausel Village Elder
NORTHERN (ORO) PROVINCE
Mr. Monty Derari Provincial Administrator
Mr. Paulinus Awai Senior Community Corrections Officer
Mr. David Seboda Village Courts Coordinator
Mr. Alex Boniepe Executive Officer - Provincial Administrator
Mr. Damuri Tale Advisor – Provincial Administrator
Mr. Lawrence Pagere Advisor Welfare – Provincial Administration
Mrs. Kathy Magioudi Welfare Officer – Provincial Administration
Mr. Kewei Kawi’iu Senior Provincial Magistrate
Mrs. Jeanne Mao Clerk of Court
Mr. Teddy Biega Jail Commander
Mr. Noah Baniara OIC – Detainee Registry
Sgt. Ben Waimona OIC – Prosecutions
Sgt. Kenari Begola OIC – CID
D/Sgt. Noroya Zozowa Station Commander
Mr. Malchus Tatai Principal – Martyrs Memorial Secondary School
MILNE BAY PROVINCE
Mr. Henry Bailasi Provincial Administrator
Mrs. Sisi Jonathan Senior Community Corrections Officer
Mr. Edward Dermot Education Advisor
Mr. Nimrod Mark Director – Div. of Law & Order
Mrs. Elaine E/O to the Provincial Administrator
Mrs. Florence Peter Coordinator, Social Welfare
Mrs. Sunema Bagita Principal Advisor – Comm. Dev. Office
Mr Michael Kape Principal Advisor – LLG Affairs
Mr. Thomas Pilai District Administrator
Mrs. Ibonigu Kapigeno Senior Magistrate
Mrs. Miriam Jack Clerk of Court
Mr. Joe Samson Station Commander
Mr. Natapu OIC/CID
Mr. Mang OIC – Prosecutions
Mr. Steven Mati Community Policing
Mr. Bamua Kubu Jail Commander
Mr. Kosia Ban Senior Inspector
Mr. Uliowa Sulo Correctional Officer
Ms. Eve Ngen Correctional Officer
Mr. Liwonei Donald Correctional Officer
Mr. Apilom Alunkalu Correctional Officer
Mrs. Josephine Onesi Correctional Officer
Mr. Saulas Lauis Correctional Officer
Mr. Nansen Deilala Correctional Officer
Mr. Philip Dotana Correctional Officer
Hon. Ila Paku MPA Mayor
Mr. Sanori Elliot Manager
Mr. Amos Mangoson D/Manager
The Principal & Teaching Staff Cameron Secondary School
WESTERN PROVINCE
Sergeant Aliba Kawaki Police Prosecutor
Sergeant Akimot Police CID
Inspector John Timothy CS Officer
Paul Asaki Community Based Corrections
Sergeant John Taka Police Prosecutor
Constable Haga Police CID
James Temop Magistrate
Sen. Insp. Dickson Kakoyan CS Officer
Const. Paul Irie & Stella Warmanai Police Prosecutors
Patrick Monouluk Senior Magistrate
Constable Kepo Undi Police CID
Mary Anne Nongkas Community Based Corrections
GULF PROVINCE
Chief Sergeant Michael Takyei Police CID
Alva Arua Magistrate
THE FOLLOWING PERSONS OR ORGANISATIONS MADE WRITTEN SUBMISSION:
Mr Jack Pambel, Acting Public Prosecutor of Papua New Guinea
Hon. Justice (retired) Maurice Sheehan
Mr Laurence Newell
Mrs Dessie Magaru
Supt. Jimmy P Inopia
PNG Law Society
Principal Magistrates
Appendix 2 Proposed Draft Legislation
THE INDEDPENDENT STATE OF PAPUA NEW GUINEA
A BILL
for
AN ACT
Entitled
District Courts (Committal Proceedings Amendment of Procedure) Bill 2007
BEING an Act to amend the District Courts Act Chapter 40 (as amended) to institute appropriate changes to Part VI of the Act dealing with committal proceedings and related purposes.
MADE by the National Parliament to come into operation in accordance with a notice in the National Gazette by the Head of State, acting with, and in accordance with the advise of the Minister.
1. REPEAL AND REPLACEMENT OF SECTION 96
Section 96 of the Act is repealed and substituted with the following:
“96 ACCUSED TO BE ASKED WHETHER HE DESIRES TO MAKE A STATEMENT.
(1) Where upon a Court finds that there is sufficient evidence to put the defendant on trial under Section 95(1) of the Act, the Court shall read the charge to the accused and explain its nature in ordinary language and shall say to him these words, or words to the same effect -
“Having heard the evidence for the prosecution, do you wish to make any statement or give any explanation concerning the charge(s) against you? You are not obliged to be sworn and give evidence, nor are you required to say anything; but whatever you say shall be taken down in writing, and may be given in evidence on your trial. You are clearly to understand that you have nothing to hope from any promise or favours, and nothing to fear from any threats, which may have been held out to you to induce you to make any admission or confession of your guilt; but whatever you now say may be given in evidence on your trial, notwithstanding any such promise or threats.”
(2) If the defendant, pursuant to the opportunity given under Subsection (1) expresses a desire to plead guilty to the charges against him at his trial in the National Court:-
(a) the Court shall explain the advantages and disadvantages of pleading guilty; particularly that he is likely to get a discounted sentence on a plea of guilty in the National Court;
(b) the Court shall then proceed to record the intention of the defendant to plead guilty and;
(i) take his statement down in writing in the English language and read to him; and
(ii) the Magistrate constituting the Court, and the defendant, if he so wishes, shall sign the statement; and
(iii) the statement shall form part of the court depositions and shall then be transmitted to the Public Prosecutor upon committal;
(iv) the defendant shall then be committed to plead in the National Court.
(3) Pursuant to Subsection (2), if the defendant pleads guilty in the National Court, on sentence, the National Court shall take the defendant’s guilty plea as a strong mitigating factor.
(4) Either at this stage or at any stage prior to or later this, neither the defendant nor his legal representative shall not be permitted to subject any witnesses to cross-examination.
2. AMENDMENT TO SECTION 95(3)
Section 95(3) of the Act is amended as follows:
“3 If the Court is of the opinión that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall:
(a) first allow the defendant to make a statement pursuant to Section 96 of the Act; and
(b) then commit the defendant to either:
(i) stand trial in the National Court; or
(ii) enter a guilty plea in the National Court pursuant to Section 96(2) of the Act.
3. AMENDMENT TO SECTION 100
(1) Subsections (1) and (2) of Section 100 of the Act are repealed.
(2) The Subsection (3) of Section 100 remains in force but now exists without the prefix “(3)”
4. REPEAL AND REPLACEMENT OF SECTION 103
Section 103 of the Act is repealed and substituted with the following:
“103 COMMITTAL ON PLEA.”
(1) At any stage of the committal proceedings prior to the opportunity given to the defendant under Section 96 of the Act, but after the completion and service on the defendant and submission to the Court of the police hand-up brief, if the defendant expresses a desire to the Court to plead guilty to the offence the subject of the committal proceedings, the Court shall:
(a) explain the advantages and disadvantages of pleading guilty; particularly that he is likely to get a discounted sentence on a guilty plea in the National Court;
(b) the court shall then proceed to record the intention of the defendant to plead guilty in a statement form – and:
(i) the Magistrate constituting the court, and the defendant if he so wishes, shall sign the statement; and
(ii) the defendant shall then be committed to plead in National Court.
(2) If on arraignment by the National Court the defendant pleads guilty to the offence or related offence the subject for which he was committed to the National Court by the Committal Court, the National Court shall when considering sentence, take the defendant’s guilty plea as a strong mitigating factor.
Appendix 3 List of Publications of the Commission
ANNUAL REPORTS
PNGLRC Annual Report 1975
PNGLRC Annual Report 1976
PNGLRC Annual Report 1977
PNGLRC Annual Report 1978
PNGLRC Annual Report 1979
PNGLRC Annual Report 1980
* PNGLRC Annual Report 1981
PNGLRC Annual Report 1982
PNGLRC Annual Report 1983
PNGLRC Annual Report (not published) 1984-86
PNGLRC Annual Report 1987
* PNGLRC Annual Report 1988
PNGLRC Annual Report 1989
PNGLRC Annual Report (not published) 1990
PNGLRC Annual Report 1991
PNGLRC Annual Report (not published) 1992-93
PNGLRC Annual Report 1994
PNGLRC Annual Report 1995
PNGLRC Annual Report 1996/97
PNGLRC Annual Report (not published) 1998-1999
PNGLRC Annual Report (not published) 2000
PNGLRC Annual Report (not published) 2001-2002
PNGLRC Annual Report (not published) 2003-2004
PNGLRC Annual Report 2005
PNGLRC Annual Report 2006
ISSUES PAPERS PNG OVERSEAS
1. Committal Proceedings 2007
2. Indictable Offences Triable Summarily 2007
DRAFT REPORTS
1. Committal Proceedings 2007
2. Indictable Offences Triable Summarily 2007
5. Incorporated Land Groups and
Design of a System of Voluntary
Customary land Registration 2007
REPORTS
1. Summary Offences 1975 K5.00 K10.00
2. Abolition of Native Regulations 1975 K5.00 K10.00
3. Punishment for Wilful Murder 1975 K5.00 K10.00
4. Arrest, Search & Bail 1976 K5.00 K10.00
5. Adultery 1977 K5.00 K10.00
6. Fairness of Transaction 1977 K5.00 K10.00
7. The Role of Customary Law in the
Legal System 1977 K5.00 K10.00
8. Indictable Offences Triable Summarily 1978 K5.00 K10.00
9. Young Persons in Conflict with the Law 1980 K5.00 K10.00
10. Committal Proceedings 1980 K5.00 K10.00
11. Customary Compensation 1980 K5.00 K10.00
12. Transfer Pricing Manipulation 1981 K5.00 K10.00
13. Bribery and Corruption 1988 K5.00 K10.00
14. Final Report on Domestic Violence 1992 K10.00 K20.00
WORKING PAPERS
1. Abolition of Native Regulations 1975 K5.00 K10.00
2. Adultery 1975 K5.00 K10.00
3. Detention for Interrogation & Confessions 1976 K5.00 K10.00
4. Declaration & Development of the
Underlying Law 1976 K5.00 K10.00
5. Fairness of Transactions 1976 K5.00 K10.00
6. Criminal Responsibility: Taking
Customs, Perceptions & Beliefs
into Account 1977 K5.00 K10.00
7. Judiciary 1978 K5.00 K10.00
8. A Second Review of the Motor
Vehicles (Third Party Insurance)
(Basic Protection Compensation)
Act 1974 1978 K5.00 K10.00
9. Family Law 1978 K5.00 K10.00
10. The Legal Profession in PNG 1978 K5.00 K10.00
11. Detention for Interrogation and
Confessions 1978 K5.00 K10.00
12. Law of Succession 1978 K5.00 K10.00
*13.Committal Proceedings 1979 K5.00 K10.00
14. Young Persons in Conflict with the
Law 1979 K5.00 K10.00
15.Reorganisation of the Lower Courts 1980 K5.00 K10.00
16. Seminar on Legal Reorganisation of
the Local & District Courts 1980 K5.00 K10.00
17. Consumer Protection 1981 K5.00 K10.00
18. Seminar on Legal Profession Act
for PNG 1982 K5.00 K10.00
19. Corruption and Bribery 1982 K5.00 K10.00
*20.A Fourth Review – Motor Vehicles
(Third Party Insurance) (Basic
Protection Compensation) Act 1983 K5.00 K10.00
*21.Interim Report on Domestic Violence 1987 K5.00 K10.00
22. Custody Jurisdiction in PNG 1987 K5.00 K10.00
23. The Law on Maintenance in PNG 1989 K5.00 K10.00
24. Political Refugees & The Proposed 1989 K5.00 K10.00
Report on the Laws Relating to Gillnet
& Driftnet Fishing in PNG 1989 K5.00 K10.00
Critique of the World Bank’s Tropical Forestry
Action Plan for PNG 1989 K5.00 K10.00
Attitudes towards Land Compensation
and Development in PNG 1997 K10.00 K20.00
JOINT WORKING PAPERS
1. Indictable offences triable summarily 1977 K5.00 K10.00
2. Committal proceedings (preliminary
examinations) 1977 K5.00 K10.00
OCCASSIONAL PAPERS
1. The Punishment for Wilful Murder 1976 K5.00 K10.00
2. Review of the Motor Vehicles (Third
Party Insurance) (Basic Protection
Compensation) Act 1974 1977 K5.00 K10.00
3. Customary Rules of Succession 1977 K5.00 K10.00
4. Sorcery 1977 K5.00 K10.00
5. Customary Marriage & Divorce in
Selected Areas of PNG 1977 K5.00 K10.00
6. Law Information Center 1977 K5.00 K10.00
7. The System of Selecting in PNG 1978 K5.00 K10.00
*8. Sorcery among the Tolai 1978 K5.00 K10.00
9. The Legal Profession in PNG 1978 K5.00 K10.00
*10.Sorcery among the East Sepiks 1978 K5.00 K10.00
The Effect of Sorcery in Kilenge, WNBP 1978 K5.00 K10.00
Transfer Pricing Manipulation in PNG 1980 K5.00 K10.00
Forms & Functions of Business in PNG 1980 K5.00 K10.00
14. A Third Review of the Basic
Protection Compensation Act 1981 K5.00 K10.00
15. Corporate Social Responsibility in PNG 1981 K5.00 K10.00
16. Constitutional Review Jurisdiction 1981 K5.00 K10.00
*17.Review of Consumer Protection
Legislation Part 1 1981 K5.00 K10.00
18. Marriage & Domestic Violence
in Rural PNG 1986 K10.00 K20.00
19. Domestic Violence in Urban in PNG 1986 K10.00 K20.00
20. New Directions in Resource
Management in PNG 1990 K5.00 K10.00
*21.Ol Kalabus Meri – A Study of
Female Prisoners 1992 K5.00 K10.00
MONOGRAPH SERIES
1. Homicide Compensation in Papua
New Guinea – Problems & Prospects 1981 K10.00 K20.00
2. Customary Law: A Melanesian View 1983 K10.00 K20.00
3. Domestic Violence in Papua New Guinea 1986 K10.00 K20.00
4. Marriage in Papua New Guinea 1986 K10.00 K20.00
5. Land Law and Policy in Papua
New Guinea 1986 K10.00 K20.00
6. Compensation for Resource Development
in Papua New Guinea 1997 K20.00 (NCD)
K25.00 (PNG)
K30.00 (Overseas)
* Out of Stock
[1] Law Reform Commission (1980) Committal Proceedings (Report No. 10) (Port Moresby: Law Reform Commission).
[2] Final Report of the Court Restructure Committee to the Chief Justice and Chief Magistrate on Committal Proceedings (Unpublished) (copy available on file) 24 pp. We are grateful to Justice Panuel Mogish for alerting us of the existence of this report and then making available to us a copy.
[3] Per Jordan C.J. in Ex Parte Cousens: Re Blacket and Another (1946) 47 S.R. (N.S.W) 145 at 146 where his honor said: “In relation to charges of offences which they (the Magistrates) have no jurisdiction to try and dispose of, their authority is not judicial; they do not determine whether the accused is guilty of not guilty; they consider the evidence adduced against him, and if they think that there is enough to justify putting him upon his trial, they direct that he be held, or bailed, for trial by a court which has jurisdiction to try him. This is essentially an executive and not a judicial function”.
Note however that the District Court Magistrate sitting as Committal Court in Committal Proceedings, to the extent they bring with them their judicial approaches and minds inherent to them as judicial officers; they do exercise some judicial power then they take a decision on the sufficiency of evidence and correctness of the witness statements. See Royal Acquorium and Summer and Winter Gordon Society v Parkinson (1892) 1.Q.B. 431 at p.452, “The word “judicial” has two meanings. It may refer to the discharge of duties exercisable by a judge or by justices in court, or to administrative duties which need not be performed in court, but in respect of which it is necessary to bring to bear a judicial mind that is a mind to dertmine what is fair and just in respect of the matters under consideration."
2. Hill T and G Powles (2001) Magistrates Manual of Papua New Guinea (Sydney: Law Book Company) at p. 193-19[4].
[4] “... committal proceedings gives the accused person an opportunity to obtain more precise details of the charges laid and the supporting evidence. It compels the pre-trial disclosure or discovery of the essence of the case for the prosecution. This assists in the formulation of defence strategy for those committed to stand trial”.: Supra n.2 at p. 194.
[5] “It is now accepted in England and Australia that Committal Proceedings are an important element in our system of Criminal Justice. They constitute such an important element in the protection of the accused that a trial held without antecedent Committal Proceedings, unless justified on strong and powerful grounds, must necessarily be considered unfair.. To deny an accused the benefit of a Committal Proceedings is to deprive him of a valuable protection uniformly available to other accused persons which is of great advantage to him, whether in terminating the proceedings before trial or at trial”. Per Gibbs ACJ & Mason J, Atkin J concurring in Barton v R [1980] HCA 48; (1980) 147 CLR 75 at p. 100.
[6] Hill T and G. Powel (2001) Magistrates Manual of Papua New Guinea (Sydney: Law Book Company) at p. 193.
[7] Ibid
[8] “A Magistrate ... does not act as a Court of Justice; he is only an officer deputed by the law to enter into a preliminary inquiry”: Cox v.Coleridge [1823] EngR 132; (1822) 107 E.R. 15, 20.
[9] R v.Carden (1879) 5 Q.B.D. 1, 6.
9. Ex Parte Cousens; Re Blacket and Another ([1]946) 47 S.R. (N.S.W) 145 at p. 147.
[10] For example, the crime of mutiny under Section 55 of the Defence Act Ch No. 74 and the case of the The State -v-Captain Bola Renagi & Others [2000] PNGLR 34.
[11] Law Reform Commission and Chief Magistrate Committal Proceedings (Preliminary Examinations) Joint Working Paper No. 2 July, 1977.
[11] Law Reform Commission (1980) Committal Proceedings Report No. 10 (Port Moresby: Government Printer).
[12] See Schedule 2 of the Criminal Code Act Chapter 262. Indictable Offences Triable Summarily or Schedule 2 Offences as they are commonly referred to, are serious indictable offences in the Criminal Code but a Grade 5 Magistrate sitting in the District Court has been given jurisdiction or power to hear them and determine the guilt or innocence of the accused and respectively sentence or a acquit the accused. But in order to enable the Grade 5 District Court to have jurisdiction, it is mandatory that the Public Prosecutor must also be served with the completed police file and on the basis of what is on the Police file, make an election either to refer the matter to the Grade 5 Court to be tried and disposed of summarily or for the matter to proceed through committal and then, if committed, for trial in the National Court. This topic is separately considered as a separate reference in our Reference No. 2 – Reference on Indictable Offences Triable Summarily.
[13] The Public Prosecutor is given these powers to make an election under Section 4(1) (ga) of the Public Prosecutor (Office and Functions) Act Chapter 338.
[14] In relation to commencement of proceedings in the District Court, Section 28 of the District Courts Act says that criminal proceedings shall commence by Information. Section 29 of the District Courts Act then goes onto say that:
“An information shall be for one matter only, except that –
in the case of indictable offences, if the matters of the information are such that they may be charged in one indictment; and
in other cases, if the matters of the information are substantially of the same act or omission on the part of the defendant”.
Note also the requirements of Section 35 of the District Courts Act which instructs:
“(1) Where it is intended to issue a warrant in the first instance against the party charged, the information shall be in writing and on oath either by the informant or some other person.
(2) Where it is intended to issue a summons instead of a warrant in the first instance, the information need not be in writing or on oath, but may be verbal only and without oath, whether the law under which the information is laid requires it to be in writing or not.”
[15] In this case, the accused was committed to stand trial in the National Court by the Committal Court on a charge for unlawful wounding under Section 128 of the Criminal Code. At the commencement of his trial Doherty J found that when he was arrested and charged he was arrested without a warrant of arrest inspite of the clear terms of Section 128(2) which stated that “a person shall not be arrested without a warrant” for an offence under s.182(1). Therefore the failure to obtain a warrant before the arrest rendered the arrest unlawful. Accordingly, at commencement of trial, Doherty J refused to accept the indictment present by the State Prosecutor and discharged the accused.
[16] See s.94(3)(a) District Courts Act.
[17] See s.94(3)(b) District Courts Act.
[18] See s.94(3)(c) District Courts Act.
[19] See s.94(4) District Courts Act.
[20] See s.94(5) District Courts Act.
[21] “35. Form of Information.
(1) where it is intended to issue a warrant in the first instance against the party charged, the information shall be in writing and on oath either by the informant or some other person.”
(2) where it is intended to issue a summons instead of a warrant in the first instance, the information need not be in writing or on oath, but may be verbal only and without oath, whether the law under which the information is laid requires it to be in writing or not.”
[22] See s.35(1) District Courts Act as cited above in n.10.
[23] See s.35(2) District Courts Act as cited above in n.10.
[24] Akuram J in Backley Yarume -v- Sylvester Euga (1996) N1476 (unreported) National Court Judgment of September 6, 1996 generally considered these matters at p.10 of his judgement.
[25] Generally, see Hill T and G Powles (2001) Magistrates Manual of Papua New Guinea (Sydney: Law Book Company) pp.155-156.
[26] These are set out under Section 94(1) of the District Courts Act. Note Section 94 (2) which says: “Where an exhibit.... cannot be copied or adequately described, the defendant shall be notified of the place nominated by the informant where the exhibit may be inspected.”
[27] See n.14 at p.198.
[28] “Facts, including self-serving statements related by an accused in a signed statement to the police put in evidence the Crown and in a statement ... and subjected to cross-examination, are evidence in favour of the accused but must be considered along with all other evidence in the trial....” R v Joseph Haihai Sarufa [1974] PNGLR 173.
[29] “Where an accused chooses to give sworn evidence, such evidence ... is subject to cross-examination by the police prosecutor and any questions by the magistrate, and answers to such cross-examination are available as evidence at trial.”: per Kapi J (as he then was) in The State v Nagiri Topoma [1980] PNGLR 18.
[30] Introduced by District Courts (Committal Proceedings in Cases of Indictable Offences) Act 1980.
[31] See paragraph 3.5.5 above.
[32] See paragraph 3.5.6 above.
[33] Law Reform Commission of Papua New Guinea (1980) Committal Proceedings (Report No. 10) (Port Moresby Law Reform Commission).
[34] Supra at p.1. See also pp.13-14 generally on the views of the Law Reform Commission.
[35] Final Report of the Court Restructure Committee to the Chief Justice and Chief Magistrate on Committal Proceedings (Unpublished).
[36] See Brereton D and Wills J. “Evaluating Committals”; Weinberg M, “The Criminal Trial Process and the Problem of Delay”; and Coldrey J QC “Committal Proceedings; the Victorian Perspective” in Vernon J ed. (1991) The Future of Committals (Canberra: Australian Institute of Criminology) respectively pp.5; 139; 57.
[37] Murray J “Committals – Time for Change” in Vernon J ed. (1991) The Future of Committals (Canberra: Australian Institute of Criminology) p. 151.
[38] “The Crown Prosecutor can still decide not to prosecute or to prosecute on different charges. The same irony applies where the Crown Prosecutor decides to indict ex officio where there has been no case to answer”; Ibid.
[39] Final Report of the Court Restructure Committee to the Chief Justice and Chief Magistrate on Committal Proceedings (Unpublished) 1995 at pp.8-9.
[40] First Iowa Coop v Power Commission [1946] USSC 84; 328 US 152 (1946) at 188 as cited by Weinberg M “The Criminal Trial Process and the Problem of Delay” http://www.aija.org.au/ctr/WEINBERG.HTM
[41] Weinberg M (2000) “The Committal Trial Process and the Problem of Delay” http://www.aija.org.au/ctr/WEINBERG.HTM
[42] Ibid at pp.19-20.
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