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Indictable Offences Triable Summarily, Report 8 [1978] PGLawRComm 3 (1 August 1978)

LAW REFORM COMMISSION
OF
PAPUA NEW GUINEA

INDICTABLE OFFENCES TRIABLE SUMMARILY

(REPORT NO 8)

AUGUST 1978

The Law Reform Commission of Papua New Guinea was established by the Law Reform
Commission Act 1975 and began functioning in May 1975.

The Commissioners are -
William Kaputin, Chairman
Francis Iramu, Deputy Chairman
Anna Natera
Mek Taylor
Samuel Nuakona
John Nilkare
Samson Kaipu is the Acting Secretary to the Commission.

The Commission's Office is on the second floor of the Development Bank Building Waigani.

The postal address of the Commission is -
Law Reform Commission,
P.O. Wards Strip,
Papua New Guinea.
Telephone: 25-8755125-8941

15th August, 1978

The Honourable Delba Biri, M.P.,
Minister for Justice

Sir,

In the reference on the Review of the Criminal Justice System we were asked to enquire and report to you upon criminal procedure among other things.

As part of a continuing enquiry into the Criminal Justice System we recommend in this report that a number of indictable offences, now triable in the National Court be made triable summarily in District Courts.

Yours faithfully,
William Kaputin, Chairman
Francis Irarnu, Deputy Chairman
Anna Natera
Mek Taylor
Samuel Nuakona
John Nilkare

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SUMMARY

This report proposes an amendment to the law by which 68 indictable offences which must now be tried in the National Court, can be tried in the District Court. There would be no committal proceedings (preliminary hearing) for these 68 indictable offences. They would be disposed of summarily in the District Courts.

Only Senior Magistrates will be permitted to hear and determine these cases and they may apply the general provisions of the Criminal Code as to matters of law, punishment, justification, attempts and the other matter which are coincidental to the hearing of a criminal trial.

The District Court will have the power to refer difficult matters of law to the National Court for decision.

SIVARAI KWADOGINA

Taravatu ta idia haidaua lalonai kerere ahudia idauidau ib~unai 68 ia hedinaraia be do idia gaukara laia iseda National Kota dekenai, laloa danu idia karaia inai taravatu be do idia abia diho iseda District Kota dekanai gaukara laia totona.

Inai taravatu haidaua neganai be Kota maragidia be idia lasi badina be District Kota dekenai do idia kamonaia.

Magistrate badadia sibodia maoro do idia henia inai kota kamonai totona bona idia danu hegeregere taravatu ladana Criminal Code ena henuanai dekenai kerere haidia idia kamonaidia.

District Kota mai ena siahu hereva aukadia National Kota dekenai ia siaia kota anina hedinaraia totona.

SAMARI

Dispela ripot i toktok long senisim lo na mekim ol Distrik Kot i ken harim kot bilong 68 pela kain bikpela trabel em nau bikpela jas-kot tasol i save harim.

Bai ino gat komital prosiding o nambawan kot, bilong harim pastaim 01 kot i kamap long dispela ol 68 pela trabel. Distrik Kot bai i harim dispela ol samting olsem ol i liklik samting
tasol.

Bai ol senior majistret tasol bai ol i harim na stretim dispela ol wari na bai ol i ken bihainim ol lo i stap long kriminal kot long ol samting bilong ol, kalabus, o ol narapela samting em ol krirninal kot i save harim na stretim taim ol i harim kot bilong bikpela ol trabel.

Distrik Kot tu bai i gat pawa bilong salim igo antap long Nesenel Kot long kisim tingting bilong em long wanem ol samting bilong ol em Distrik Kot ino kilia long em.

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CHAPTER 1. INTRODUCTION

This report recommends that a number of indictable offences which are now tried upon indictment in the National Court, should be tried in the District Court by senior magistrates.

Concern has been expressed for some time that the National Court is unduly burdened by less serious criminal offences which could well be dealt with by senior magistrates. The delays apparent in the present procedures for committal of persons charged with indictable offences are also a cause of concern. It is not uncommon for a person charged with an indictable offence to wait four months or even longer for his case to be heard before the National Court and during this time he may be remanded in custody. The time involved in holding a preliminary hearing places a severe strain on the courts and is a very expensive procedure. It is obvious that changes in criminal procedure should be made to facilitate the disposal of criminal cases before the courts.

In its reference from the Minister for Justice relating to the Review of the Criminal Justice System, the Law Reform Commission is required, amongst other things, to report on criminal procedure. A comprehensive review of the lower courts is underway with the intention of combining District Courts and Local Courts into one system of Magistrates Courts. The procedures for committal proceedings are also under review with proposals of the Commission to be published shortly. Other criminal justice matters have been and are being dealt with by the Commission.

The Commission will also be undertaking a comprehensive review of the criminal law itself. Ideally these matters should all be dealt with in the one or at the most two reports, but because of the size of the task and the comparative urgency of some of the proposed amendments, a series of reports are being produced dealing with individual aspects of the overall problem.

The Commission is of the opinion that the subject matter of this report is sufficiently important for separate amending legislation to be introduced to lessen the present difficulties.

CHAPTER 2. THE PRESENT PROCEDURES

Apart from minor indictable offences which may be tried summarily by a Magistrate, all indictable offences must be tried by a judge of the National Court. This means that a person accused of committing an indictable offence must be brought before a District Court where he is charged with the offence. The defendant is usually remanded in custody, but may be released on bail until he is brought before the District Court again for a preliminary hearing (committal proceedings). At this hearing, prosecution witnesses are called and evidence given. All the evidence is recorded and the Magistrate must then consider whether or not the defendant has a case to answer. He must be satisfied that if no evidence was offered by the defence to cast doubt on the prosecution case during the trial in the National Court the judge would be likely to convict the defendant. If he is not convinced that the evidence is sufficient he must discharge the person and the proceedings go no further. If he is satisfied that the defendant may have committed the offence he commits him to trial. He orders him to stand trial in the National Court.

The defendant's case is then considered by the Public Prosecutor who reviews the evidence and decides whether or not the defendant should be proceeded against in the National Court and if so, under which provision of the Criminal Code he will be charged. A formal document called an indictment is drawn up and filed in the National Court. The defendant is brought before the court and asked to plead whether he is guilty or not guilty. If the defendant says he is not guilty, there is a trial held before a judge of the National Court to decide whether the defendant is guilty or not. If he pleads guilty or is found guilty then both he and his counsel can speak about the sentence that should be given.

The procedure which must at present be followed is very expensive and wasteful of peoples' time and effort. For example, if a man is caught after breaking into a house and stealing something small, he is subjected to the whole long procedure even if he wants to plead guilty. The present procedure is often completely foreign to the local community’s idea of justice. The accused is brought before a court where he finds that the court is only gathering all the evidence together. The actual trial to determine his guilt or innocence is to take place later in the National Court. The accused is entitled to the rapid and fair disposal of his case but the present procedure is expensive, confusing and often very time-consuming.

In 1975 a person charged with a less serious indictable offence could wait from two to four months £or the committal proceedings and another two to four months until the end of trial. In 1976 the average time delay between the first appearance in court and the end of committal proceedings was 46 days and the average time between committal proceedings and trial 84 days. The situation is more serious when one considers that 70% of people charged with the less serious offences were not released on bail, but held in custody from the time of arrest until the final disposal of the case. There is reason to believe that an improvement has occurred at least in Port Moresby in 1978 but there are still examples of delays in bringing persons to trial in other parts of the country.

CHAPTER 3. SOME COMMENTS AGAINST

Following the publication in February 1977 of the Commission Joint Working Paper No. 1, which was produced conjointly with the Acting Chief Magistrate, a number of persons submitted their views. The most frequent criticism of the present system and the proposal was the lack of legal representation in the District Court. Bearing in mind that the majority of the cases proposed to be tried summarily would normally have been dealt with by the National Court where legal representation would have been available, it should not be impossible to provide sufficient representation in the lower court to provide the same coverage. This would no doubt require close co-operation between the senior magistrates and the Public Solicitor and his staff.

The difficulties which would arise in providing the accused with an election as to whether he would be tried in the National Court or summarily in the District Court, as was proposed in the Joint Working Paper, have led the Commission to the conclusion that there should be no election, and that all the offences should be dealt with summarily. It is believed that the possible advantages resulting from election would not balance the confusion and uncertainty which would arise from the choice of courts and their parallel jurisdiction. However, in some circumstances the National Court will hold the trial where, for example the lesser charge is joined with a more serious offence which is not triable summarily, or where the National Court exercises its power to stay proceedings in the District Court and to have them transferred to the National Court.

The matter of magistrates having less training and experience than National Court judges has been raised. Grade IV Magistrates and only Grade V Magistrates who have been specifically gazetted will hear the indictable offences which are to be tried summarily. The senior magistrates are now required to have legal qualifications so that the extra responsibility of hearing more serious cases will fall on the more senior, better qualified and more experienced men. If a magistrate is confronted with a difficult question of law, he will be able to refer it by way of a case stated to the National Court for an answer.

The power given to magistrates to be able to impose sentences for longer periods of imprisonment should be exercised responsibly. Some of the punishments available under the Criminal Code seem completely disproportionate to the seriousness of the crime, for example, stealing a will can attract a sentence of imprisonment for life. These anomalies will be rectified in the review of the Criminal Code but until that is completed the Commission is of the opinion that a magistrate should not be able to impose a sentence of imprisonment in excess of 4 years. If in the opinion of the Magistrate, the offence is sufficiently serious to attract a greater penalty (if this is allowed under the Code) he will be able to commit the convicted person to the National Court for sentence, whereupon the judge may impose any sentence allowed by the Code for the particular offence.

Consistency of sentencing by magistrates should develop in a fairly short time. No doubt as with the National Court, sentencing practices will develop, and all cases of sentencing by magistrates would be reviewable on appeal in the National Court if excessive sentences were being imposed. There was some criticism of the proposal in Joint Working Paper No. 1 that some serious offences such as robbery, attempted robbery, demanding property with menaces would be tried summarily. Also, the offences relating to false pretences and forgery can involve technical considerations which may be of great complexity. It is not now proposed to include those offences amongst those triable summarily. Jurisdiction will remain with the National Court. On the other hand it is now felt that dangerous driving causing death could be dealt with by a magistrate. Sections 336 of the Criminal Code "Dangerous Driving of a Motor Vehicle" is included among the indictable offences to be "brought down" to the District Court.

CHAPTER 4. THE PROPOSED BILL

The proposed Bill provides for a relatively simple amendment to the District Courts Act 1963 by which jurisdiction will be given to Magistrates Grade IV and Magistrates Grade V (who have specifically been Gazetted) to hear indictable offences which are triable summarily. Although the National Court will retain a concurrent jurisdiction, the procedures are so arranged that the indictable offences triable summarily will be heard by the District Court except in cases where a lesser offence is joined with a more serious offence which is triable on indictment in the National Court. In these cases both charges would be heard in the National Court.

The present power of the National Court to stay proceedings in the District Court and have them transferred to the National Court will be retained but the District Court will not be able to transfer criminal proceedings for hearing in the National Court. The powers contained in Chapter LIX of the Criminal Code by which a court is able to enter a conviction in respect of an indictable offence, which is other then the offence charged (provided the evidence discloses such an offence), will remain available for the court to use without having to concern itself with change of jurisdiction.

Several minor provisions are included in the draft Bill which are necessary to tidy up matters such as redefining the term "magistrate" to bring it in line with the present definition of a magistrate. The main provision is the inclusion of a new Schedule Five in the District Courts Act which will list the specific offences in the Criminal Code which will be triable summarily in the District Court. These offences which are itemised in the schedule divide into the following categories:

1. Offences relating to letters, telegrams etc.
2. Indecent dealings and assaults on women and girls
3. Pornography and gambling offences
4. Assaults up to and including assaults occasioning bodily harm
5. Stealing money or other things
6. Breaking and entering offences
7. Lesser forms of arson
8. Health and quarantine offences
9. Miscellaneous offences such as unlawful assembly, unlawfully using a motor vehicle and dangerous driving causing death
10. Attempts to commit any of these offences
11. Conspiring to commit the offences
12. Accessories in respect of the offences
    

The offences specified in the schedule have been determined, first by joint meetings of the Chief Magistrate and the Law Reform Commission, by a committee comprising representatives of the Public Solicitors Office, the Public Prosecutors Office and the Magisterial Service together with the Commission, by consultation with other interested persons and finally by the Commission itself.

The Criminal Code is based on the Queensland Criminal Code which, although considerably amended, is basically the same as when it was first enacted in 1899. With the passage of time, changes in social attitudes and the difference in life style and cultural development, what may have been relevant in Queensland at the turn of the century may be inappropriate in Papua New Guinea today.

We believe that there is a need for an overall review of the Criminal Code having regard to the needs of the country and the orderly conduct of society and this is required of the Commission and is being undertaken by the Commission. However, because the Criminal Code is the present law, the selection of offences to be heard summarily may reveal some anomalies. Some of the offences selected may appear very serious, or conversely, of so little importance as not to merit consideration. But the structure of the Criminal Code itself poses some limitations and until the review of the Criminal Code is completed, difficulties will remain.

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THE INDEPENDENT STATE OF PAPUA NEW GUINEA

A BILL

For

AN ACT

Entitled

District Courts (Indictable Offences) Act 1978

BEING an Act to amend the District Courts Act 1963 to allow for the summary trial in District Courts of certain indictable offences, and for related purposes.

MADE by the National Parliament to come into operation in accordance with a notice published in the National Gazette by the Head of State acting with and in accordance with the advice of the Minister.

1. DEFINITION
   

Section 5 of the Principal Act is amended by repealing the definition of the term "Magistrate" and substituting the following definition -

"Magistrate" means a magistrate appointed under Section 6 of the Magisterial Services Act 1975."

Explanation: Clause 1

The definition of magistrate is altered to include only magistrates appointed under the Magisterial Services Act 1975.

2. CRIMINAL JURISDICTION

Section 28 of the Principal Act is repealed and substituted by the following section –

"28. CRIMINAL JURISDICTION

(1) Where, by a law of Papua New Guinea -

(a) an offence is punishable upon summary conviction; or

(b) a person is made liable to a penalty or punishment or to pay a sum of money by way of a fine or otherwise for an offence or an illegal act or omission -

the matter may be heard and determined by a District Court only if -

(c) the offence, act or omission is a simple offence; or

(d) the offence is an indictable offence to which the provisions of Part VIA apply; or

(e) the offence is an indictable offence which may be dealt with summarily under the Criminal Code.

(2) Where, by a law of Papua New Guinea, jurisdiction is conferred upon one or more Magistrates to hear and determine proceedings in respect of an offence, or to do an act or exercise a power, subject to Subsection (3), that jurisdiction may be exercised by a court.

(3) Proceedings under Part VIA may not be heard and determined by a court unless the court is comprised of a Magistrate Grade IV or, subject to Subsection (5), a Magistrate of Grade V.

(4) A court hearing and determining an offence under the provisions of Part VIA in respect of any of the offences specified in Schedule 5 shall have no power to impose a sentence of imprisonment in excess of four years for any such offence.

(5) The Chief Magistrate may, by notice in the National Gazette, generally authorise a Magistrate Grade III to hear and determine proceedings under Part VIA, and unless so authorised a Magistrate Class III shall not be competent to hear and determine any such proceedings.

(6) Any authorisation made under Subsection (5) may be cancelled in writing by the Chief Magistrate at any time."

Explanation: Clause 2

Provides the jurisdiction for matters to be heard by the District Court and for senior magistrates to hear and determine the indictable offences in Schedule 5. The power of a magistrate to impose imprisonment is limited to a maximum of four years.

3. PROCEEDINGS OF COURT IN RESPECT OF CERTAIN CASES

The Principal Act is amended by repealing Section 31 and substituting the following section -

"31. PROCEEDINGS OF COURT IN RESPECT OF CERTAIN CASES

(1) Where a complaint is made to a court under this Act with respect to a claim for debt or damages, if the court is of the opinion that in all the circumstances of the case the matter is a fit subject for determination by the National Court the court shall abstain from adjudication thereon.

(2) Where proceedings are brought before the court in which a person is charged with an indictable offence which is triable in the National Court together with an indictable offence which is triable summarily under the provisions of Part VIA, the court shall refrain from adjudicating thereon and the matters shall proceed on indictment to the National Court to be dealt with under its concurrent jurisdiction.

(3) Nothing in this Act shall affect any of the provisions of -

(a) Chapter LIX of the Criminal Code whereby persons may be convicted of a crime or offence other than the crime or offence with which he is charged; or

(b) Section 337 of the Criminal Code which empowers a court to enter a conviction in respect of the dangerous driving of a vehicle if such offence is established by the evidence."

Explanation: Clause 3

This clause retains the power of a District Court to refer a civil matter to the National Court for determination in certain circumstances. Where an indictable offence triable summarily is joined with an offence triable in the National Court Subsection (2) allows both offences to be tried in the National Court and Subsection (3) allows a District Court to bring in a conviction for a crime other than the ove charged, if the evidence discloses such a crime.

4. TAKING OF EVIDENCE FOR PROSECUTION

Section 101 of the Principal Act is amended by inserting in Subsection (1) after the word "offence." The following words -

"to which the provisions of Part VIA do not apply."

Explanation: Clause 4

Makes it clear that the procedures for District Courts to hold preliminary investigations (committal proceedings) shall only apply to indictable offences other than those included in the Schedule 5 which may be tried summarily.

5. NEW PART VIA

The Principal Act is amended by inserting after section 127A the following part.

"PART VIA PROCEEDINGS IN CASE OF INDICTABLE OFFENCES TRIABLE SUMMARILY

127B PROCEDURE FOR OFFENCES TO WHICH THIS PART APPLIES

(1) Subject to this Act, where a person has been charged with an offence against any of the provisions of the Criminal Code specified in Schedule 5 the court shall deal with the charge summarily according to the procedures laid down in this Act for dealing with simple offences.

(2) Unless the provisions of this Act or the Criminal Code otherwise require, the following provisions of the Criminal Code shall apply in respect of a charge dealt with summarily under this part –

127C. DEALING WITH DIFFICULT QUESTIONS OF LAW

Where a question arises on a point of law in any proceedings in respect of any of the offences of the Criminal Code specified in Schedule 5, then at any time during the proceeding, before the matter is finally determined, a court may -

(a) on its own motion; or

(b) on application by defendant or his legal representative,

state a case on a point of law to the National Court and adjourn the proceedings until the case stated is dealt with the National Court.

127D. COMMITTAL TO NATIONAL COURT FOR SENTENCE

(1) Where a person is convicted of an offence specified in Schedule 5 for which a maximum penalty in excess of four years imprisonment is provided and the court is of the opinion that –

(a) in the interests of justice a penalty greater than four years imprisonment should be imposed; or

(b) the criminal history of the convicted person is such that imprisonment for a term in excess of four years is warranted; or

(c) the circumstances surrounding and the manner in which the offence was committed are sufficiently serious to warrant a term of imprisonment in excess of four years -

The court may commit the convicted person to the National. Court for sentence.

(2) In a case referred to in Subsection (1) of this section a court, instead of sentencing the defendant, shall order him to be committed for sentence before the National Court, and in the meantime shall, by its warrant, commit him to a corrective institution, police lock-up or other place of security or other such safe custody, to be there safely kept until the sittings of the National Court, or until he is delivered by due course of law, or admit him to bail to appear for sentence in accordance with Division 2 of Part VI."

Explanation: Clause 5

Inserts a new Part VIA into the Act and allows the indictable offences to be tried summarily in the District Court. Clause 127(B) enables the Court to use the provisions of the Criminal Code relating to evidence, punishments, attempts, conspiracy, accessories and other matters including presumptions and justification which are contained in the Code and are necessarily part of the criminal trial. Clause 127C allows a case to be stated to the National Court where a difficult question of law has to be decided. The National Court would then rule on the question and refer it back to the District Court.

Clause 127D recognises that in some circumstances a maximum term of 4 years imprisonment, which a Magistrate may impose under Clause 28 (3), may be insufficient in the circumstances, where a more severe punishment may be ordered under the Code. The clause will allow the Magistrate to commit the person to the National Court for sentence.

6. NEW SCHEDULE 5

The Principal Act is amended by inserting after Schedule 4, the following Schedule.

"SCHEDULE 5

Section 127B

INDICTABLE OFFENCES TRIABLE SUMMARILY

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