Papua New Guinea Law Reform Commission
LAW REFORM COMMISSION
PAPUA NEW GUINEA
REPORT NO. 10
13th June, 1980.
The Honourable Paul Torato, M.P.,
Minister for Justice,
We make this report under our reference to review the criminal justice system in Papua New Guinea. A person charged with an indictable offence and placed in custody is seriously penalized by the delays which presently occur between the dates of his arrest, committal and trial.
This report recommends a two phase change to streamline procedures. First, in the short term, a system of "hand up" written briefs of prosecution witnesses' evidence should be introduced in respect of most indictable offences. On the basis of this information a magistrate would decide whether or not there is sufficient evidence for the accused to be placed on trial. Full committal proceedings should be continued in the meantime for the offences of murder, manslaughter and offences carrying the death sentence so that the accused may test the prosecution's evidence at an early stage. Secondly, in the longer term, we recommend that committal proceedings for indictable offences be abolished because of the overall benefits this will produce for the accused, magistrates, courts and police.
The Commission's Report No.8 - Indictable Offences Triable Summarily, recommended that a number of indictable offences, now tried by indictment in the National Court, should be tried summarily in the District Courts, in order to simplify criminal procedures and reduce delays in the hearing of criminal trials. We strongly believe that action should be taken as soon as possible to implement the recommendations contained in Report No.8 and in this present report.
WILLIAM KAPUTIN, CHAIRMAN
FRANCIS IRAMU, DEPUTY CHAIRMAN
Table of Contents
CHAPTER I – INTRODUCTION
In its reference from the Minister for Justice relating to the Review of the Criminal Justice System, the Law Reform Commission is required, among other things to report on criminal procedure.
Report No.8 published in August 1978 recommended that a number of indictable offences, which are now tried by indictment in the National Court, should be tried summarily in the District Courts by Senior Magistrates as part of the overall review of the criminal justice system and in order to simplify criminal procedures and speed up the hearings of criminal trials. The Commission has investigated the holding of preliminary hearings or committal proceedings when indictable offences are tried.
In considering this matter, the Commission has had to consider various factors such as the effect on the person charged, the availability of skilled prosecution staff, the work load of magistrates in the District Courts and of the judges in the National Court. From the responses obtained following the publication of Joint Working Paper No.2, and Working Paper No.13, and from the Commission's own investigations, it is apparent that change is needed. However there is a divergence of opinion as to whether the committal proceedings should be streamlined or should be abolished altogether.
In the Working Papers it was proposed that committal proceedings could be conducted by "hand up briefs" in which the evidence of prosecution witnesses is assembled in a series of written statements and these statements are made available to the accused and are read by the magistrate. It is on the basis of these statements that the magistrate decides whether or not there is sufficient evidence for the accused to be placed on trial in the National Court.
Comment has 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, it recognizes that such a dramatic change could create difficulties having regard to the resources of the courts, the police, the Public Prosecutor, the Public Solicitor and all persons involved in the administration of justice.
The Commission is however concerned at the present stage that where a defendant is charged with crimes of a very serious nature such
as murder, manslaughter and crimes for which the death penalty is prescribed, he should not be deprived of any possibility of raising
matters in defence, and that the prosecution should be required to establish its case and the defendant given an opportunity to test
the evidence of the prosecution if he so desires.
As a short term measure the Commission is recommending that a system of hand up briefs be adopted for most indictable offences, that full committal proceedings be continued in the meantime for the offences of murder, manslaughter and offences which carry the death sentence. In the longer term, the Commission recommends that preliminary hearings of indictable offences be abolished as is suggested in Chapter VI.
The Commission believes that action should be taken as soon as possible to implement the recommendations in this report and in Report No.8 - Indictable Offences Triable Summarily.
CHAPTER II - THE PRESENT PROCEDURES
Except as provided in the' Criminal Code (Part VI) where certain minor indictable offences may be tried summarily, there must be a committal proceeding (preliminary hearing) before an indictment can be brought against a defendant. At present, the prosecutor must assemble his witnesses who give evidence before the Magistrate. Having heard the evidence, the Magistrate must then decide, on the basis of the evidence before him (if the evidence was neither challenged nor contradicted), would a judge of the National Court convict the person charged. If he decides that there is sufficient evidence to support conviction, he must then ask the accused if he has anything to say and if he wishes to call evidence. In the light of the accuser’s statement and any evidence called by him or given on his behalf, the Magistrate must again decide whether or not a judge of the National Court would convict the accused person. If not, the accused is discharged. But if he considers there is sufficient evidence for a conviction the accused person is committed for trial to the National Court.
The present procedures are based on the ideal that an accused person should not be required to stand trial on an indictable offence unless the prosecution can establish that it has sufficient evidence to obtain a conviction. Unfortunately these procedures produce delays. Frequently there is confusion in the minds of the persons involved about the exact nature of the preliminary hearing and the reason for its being held.
The holding of committal proceedings in a District Court is very time-consuming. If the proposals in Report No.8 Indictable Offences Triable Summarily are adopted and passed into law, those courts will be further involved in hearing summarily many indictable offences which are at present heard in the National Court.
The accused person suffers seriously by the delays. In 1975 a person charged with an indictable offence could wait from two to four months for the committal proceedings to take place and another two to four months until the end of the trial in the National Court. An improvement was noted in 1976 when the average time from charging to committal was 46 days but the average time between committal and National Court trial was 84 days.
In 1978 the average waiting time between the first court appearance and committal was 39 days and between the committal and trial was 65 days. In other words, the average person charged with an offence has to wait 3 months before he is found guilty or innocent.
When one considers that 70% of persons accused are in custody from the time of arrest until the case is finally disposed of, it is apparent that a person charged with an indictable offence is seriously penalised by the delays, whether he is eventually convicted or discharged.
CHAPTER III - THE CHANGING POSITION
All comments received on the present procedures agree that a change should be made to simplify the proceedings for the purposes of cutting down the time and work involved and also to provide a system where the interests of the accused person are protected so that he is given a fair trial as rapidly as may be both possible and practicable.
In Report No.8 - Indictable Offences Triable Summarily, the recommendation is that sixty-eight less serious offences be tried summarily. To quite a considerable degree, this will have the effect of reducing the number of committal proceedings to be held. However, the work of the District Courts and the Senior Magistrates will increase accordingly in dealing with this added work load.
It is most important that if committal proceedings are to be held, that they be conducted properly by magistrates who are sufficiently experienced to be able to determine whether or not the prosecution evidence is sufficient to place the defendant on trial. If the task of conducting these proceedings falls to the senior magistrates, then it should be as simple as possible having regard to the requirements of justice, evidential and procedural requirements.
Except in the case of the most serious offences, we believe that the procedure can be simplified by having the evidence of prosecution witnesses reduced to statement form and, instead of the witnesses being called to give evidence at the committal proceeding, the statements of the prosecution witnesses would be tendered to the court and the accused person. This would form the basis of the prosecution case and upon this, the magistrate would have to decide whether there was enough evidence to place the person upon trial.
The advantages we see in this proposition are that the evidence would be in written form, and witnesses would not need to be present in court. Considerable time would be saved through not having to have the evidence brought out by examination and recorded word for word. It would be up to the police to have the evidence properly prepared, and presented to the court. Not having to have the witnesses present in court will also help to speed up the proceedings. On many occasions hearings have had to be adjourned because of the failure of important witnesses to attend the hearing. There will be a considerable saving in time and trouble for witnesses also as they will only have to attend one court sitting for the trial.
No the least benefit will be for the accused person who generally has little understanding of the procedures and purposes of a committal hearing. The committal hearing will resemble less a trial. Many accused are confused at having to undergo what appear to them two trials, one before a magistrate and one in the National Court.
We therefore consider that by instituting a procedure whereby committal proceedings are conducted by a system of "hand up briefs" or written statements of prosecution witnesses, the criminal procedures will be speeded up to the advantage of all concerned.
CHAPTER IV - PRELIMINARY HEARING FOR SERIOUS OFFENCES
The Commission has some reservations as to whether the system of hand up briefs is appropriate in cases concerning murder or manslaughter or cases where a sentence of death is provided by the law. Under the Criminal Code, sentence of death still applies in cases of treason.
If a system of hand up briefs were to apply in these cases, quite serious injustice could be done in not allowing the defendant to thoroughly test the prosecution case, the witnesses and the making of submissions on matters of law and fact which could result in a defendant not being required to stand trial. In our opinion, for charges of a very serious nature the defendant should continue to have available to him all the legal and procedural advantages which might be obscured in a system of hand up briefs. In such cases justice must not only be done, it must be seen to be done.
While in no way denigrating the value of hand up briefs as an alternative to the present system in the case of the less serious indictable offences, the Commission recommends that full preliminary hearings be held in the very serious crimes already mentioned until such time as committal proceedings are entirely abolished. In such cases, the committal proceedings should be conducted by Grade III or preferably Grade IV Magistrates.
CHAPTER V - COMMITTAL BY HAND UP BRIEF
Normally preliminary hearings of indictable offences would be held before a magistrate who would read the written statements of witnesses rather than have them attend at court and give their evidence in person. This provision would save the time and expense of all parties involved in committal proceedings.
The evidence of a witness would have been typed in the form of a declaration which would be formally declared as being true by the witness. The declarations which would basically form the evidence on which the prosecution relied would be assembled by the police prosecutor and presented to the magistrate in open court. The magistrate would read the declaration and decide if there was sufficient evidence to justify putting the defendant on trial in the National Court.
Although the committal proceedings would be retained, the form would be altered. Witnesses would no longer have to be present in court at the preliminary hearing.
One matter which should be considered is the grading of magistrates who conduct preliminary hearings. In the Commission's view only the more senior and experienced Magistrates should conduct such hearings.
It should be apparent that the standard of preparation of evidence will have to be good. It is for the prosecution to establish that it has sufficient evidence to justify the magistrate in deciding to commit the accused person for trial. Also even more than before, it is incumbent upon the prosecution not only to bring forward the best and most reliable evidence, but to present it in the best manner possible. This we believe will require specialist prosecutors to be trained in the new procedures so that the evidence may be fairly and effectively presented. We understand that a programme of training prosecutors is already being conducted by the police.
We believe that many of the nolle prosequis entered in the National Court have been the result of lack of or insufficient evidence and that the magistrates concerned should have found that the defendants had no case to answer at the time of the committal proceeding.
We do not consider that it is in any way incumbent upon a magistrate to decide in favour of the prosecution if evidence is poorly presented or if there is insufficient evidence. The Act requires the magistrate to make a decision on the evidence before him as to whether or not a Judge of the National Court would find the accused guilty if the evidence was presented before him. If there is insufficient evidence, then a finding of no case to answer must be made.
The legislative amendments required for committal proceedings by hand up brief while retaining the full preliminary hearing for serious cases are as follows -
LAW REFORM COMMISSION DRAFT
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
District Courts (Committal Proceedings) (Amendment) Act 1980
Being an Act to be incorporated and read with the District Courts Act 1963
(a) to make provision for committal proceedings in the case of indictable offences;
(b) amend the District Courts Act 1963; and
(c) 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. AMENDMENT TO PART VI OF THE DISTRICT COURTS ACT 1963.
Part V1 of the District Courts Act 1963 is amended by repealing Divisions l, 3 and 5 and substituting respectively the following Divisions -
"Division 1 - General"
100. DISOBEDIENCE TO SUMMONS
Where a person charged with an indictable offence against whom a summons has been issued does not appear before a court at the time and place specified in the summons, and it is made to appear to the court upon oath that the summons was duly served upon him a reasonable time before the time appointed for appearing to it, the court, upon oath being made before it substantiating the matter of the information to its satisfaction, may issue its warrant for the arrest of the defendant to bring him before a court to answer to the information and to be further dealt with according to law.
NOTE: This section is merely an enactment of the present section and allows the court to issue a warrant of arrest if a person fails to appear in court on summons.
101. - PERSON CHARGED WITH AN INDICTABLE OFFENCE
Where a person appears or is brought before a court charged with an indictable offence, the court before it proceeds to deal with or hear the matter shall -
(a) read the charge to the defendant;
(b) explain the nature of the charge to the defendant in a language understood by the defendant;
(c) inform the defendant -
(i) if the charge is in respect of an indictable offence specified in Schedule 5, that he will be tried by the court in which he appears, or
(ii) if the charge is in respect of an indictable offence which is not specified in Schedule 5 a preliminary investigation will be held by the court to determine whether there is sufficient evidence to put him on trial in the National Court.
102. DISPOSITION OF INDICTABLE OFFENCES
Where a defendant is charged with an indictable offence he shall be dealt with as follows-
(a) If the indictable offence charged is murder or manslaughter or is an offence for which the penalty is death the court shall deal with the charge under the provisions of Section 103.
(b) If the indictable offence charged is one of the offences specified in Schedule 5 or is otherwise triable summarily, the court shall deal with the charge as if it were a simple offence.
(c) In-any other case where a person is charged with an indictable offence the court shall deal with the charge under the provisions of Sections 104 to 110.
103. DEALING WITH SERIOUS OFFENCES
If the indictable offence is one of the type mentioned in paragraph (a) of Section 102, the following provisions shall apply:-
(a) (i) Where a person appears or is brought before a court charged with an indictable offence, the court, before it directs the defendant to be tried or admits him to bail for trial, shall, in the presence and hearing of the accused person, take the statements of those who know the facts and circumstances of the case.
(ii) The statement of a witness referred to in the last preceding subsection shall be taken down in writing and his deposition shall, in the presence and hearing of the defendant, be read over to the witness and signed by him and by the Magistrates constituting the court.
(b) (i) Where all the evidence offered upon the part of the prosecution has been heard, the court shall consider whether it is sufficient to put the defendant upon his trial.
(ii) If the court is of the opinion that the evidence is not sufficient to put the defendant upon his trial for an indictable offence, it shall forthwith order the defendant, if in custody, to be discharged as to the information then under inquiry.
(iii) If the court is of the opinion that the evidence is sufficient to put the defendant upon his trial for an indictable offence, it shall proceed with the examination in accordance with this Section.
(c) (i) Where a court proceeds with the examination of a defendant in accordance with this Section, the court or the chairman of 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 upon oath, or anything you may say, will be taken down in writing, and may be given in evidence upon your trial. You are clearly to understand that you have nothing to hope from any promise or 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 upon your trial, notwithstanding any such promise or threat".
(ii) Anything which the defendant says in answer to a statement made in accordance with the last preceding subsection shall be taken down in writing in the English language and read to him, and shall be signed by the Magistrates constituting the court and also by the defendant and shall be kept with the depositions of the witnesses and transmitted with them to the Public Prosecutor.
(d) (i) Upon 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 the last preceding section may be given in evidence without further proof of the statement having been made thereof, if the statement purports to be signed by the Magistrates by or before whom it purports to have been taken, unless it be proved that it was not in fact signed by those Magistrates.
(e) (i) Nothing contained in this Act prevents the prosecutor from giving in evidence an admission or confession or other evidence against that person.
(f) (i) When a defendant has given evidence or made his statement, or has declined to do so, the court shall ask the defendant whether he desires to call a witness.
(ii) A witness whom the defendant desires to call shall then be called, and the statement of the witness relating to the facts and circumstances of the case, or tending to prove the innocence of the defendant, shall be taken in the manner provided in Subsection (2) of Section 101 of this Ordinance.
(g) (i) When an examination under this Division is completed, the court shall consider whether the evidence is sufficient to put the defendant upon his trial.
(ii) If, in the opinion of the court, the evidence is not sufficient to put the defendant upon his trial, it shall forthwith order the defendant, if in custody, to be discharged as to the information then under inquiry.
(iii) If, in the opinion of the court, the evidence is sufficient to put the defendant upon his trial, the court shall -
(a) by warrant commit the defendant to a corrective institution, police lockup or other place of security or other such safe custody, to be there safely kept until the sittings of the National Court before which he is to be tried, or until he is delivered by due course of law; or
(b) admit him to bail in accordance with Division 2 of this Part.
(h) (i) Subject to Section 34 of this Act a Magistrate may join in making an order of committal or dismissal although he has not been present during the whole time during which the examination has been made.
(i) The Magistrate or Clerk of the Court in which the committal proceedings are held shall, as soon as the committal proceedings are completed -
(i) Forward a notice of the committal to the National Court;
(ii) Forward the depositions, statements, a copy of the notice of committal and any other documents relating to the committal to the Public Prosecutor; and
(iii) Forward the exhibits, if any, to the Registrar of the National Court.
NOTE: This clause would re-enact sections 101 to 108 of the District Courts Act to provide a procedure for full preliminary hearings to be held in cases of serious indictable offences.
104. - PRELIMINARY PROCEDURE BY BRIEF
(1) Where a person is charged with an indictable offence to which section 102(c) relates the prosecutor shall, within a reasonable time before the date fixed for the hearing of the matter in the District Court, give to the defendant or his legal representative -
(a) a copy of the information; and
(b) a list of persons who have made written statements which the prosecutor proposes to tender at the hearing; and
(c) a copy of each of the statements referred to in paragraph (b); and
(d) a list of the documents and things (if any) referred to in those statements which the prosecutor intends to tender to the court
at the hearing; and
(e) a copy of each document referred to in the list; and
(f) where a thing, not being a document, cannot adequately be described in that list, a photograph of that thing.
(2) The documents referred to in Subsection (1) may be given to the defendant in any manner in which a summons issued in respect of any information is given and may be proved in the same manner as the service of a summons.
(3) The defendant shall be entitled to a copy of the notes of interview or a copy of the original statement from which a statement referred to in Subsection (l)(b) has been derived if he requests it.
NOTE: Prior to the preliminary hearing copies of all relevant documents must be given to the defendant. The defendant would be entitled to copies of the original notes of interview to ensure that there had been no "improvement" on the evidence in drawing up the statement.
105. ADMISSION OF WRITTEN STATEMENTS, ETC., IN EVIDENCE
(1) Subject to this section, the District Court at an examination conducted under this Part may admit a written statement a copy of which has been given to the defendant or his legally representative under Section 104 as evidence of the matters stated.
(2) A written statement shall not be admitted in evidence by the court unless before he signed it, the person who made it read the statement or had it read to him in a language understood by him.
(3) Where a person makes an oral statement that is taken down in his presence and signed by him it shall, where the person gives his statement in Melanesian Pidgin or Hiri Motu or in his own language, be taken down in that language and, if he is unable to read, it shall be read over to him.
(4) Where any objection is made to any part of a written statement tendered in evidence the court shall note the objection raised.
NOTE: By this section the Court in which a preliminary hearing is being held will be allowed to accept, subject to certain safeguards, written statements as being evidence of the matters contained in them.
106. COURT TO CONSIDER WHETHER PRIMA FACIE CASE MADE
(1) The court conducting an examination under this section shall, as soon as possible after the prosecutor has offered all his evidence, consider whether the evidence is such that, if not refuted at the trial for an offence, a Judge could convict the defendant.
(2) If the court is of the opinion that the evidence is not sufficient to put the defendant upon his trial upon indictment, it shall forthwith order the defendant, if in custody, to be discharged as to the information then under inquiry.
(3) If the court is of the opinion that the evidence is sufficient to put the defendant upon his trial for an indictable offence, it shall proceed with the examination in accordance with this Division.
NOTE: This section requires the court to consider at the close of the prosecution case whether there is sufficient evidence to place the defendant on trial. The provision is the same as that in the present Act. If the Court considers that no prima facie case is established, it must discharge the defendant.
107. ACCUSED TO BE ASKED WHETHER HE DESIRES TO GIVE EVIDENCE
(1) Where a court proceeds with the examination of a defendant in accordance with this Division, the court shall again read the charge to the defendant and explain its nature in ordinary language and shall say to him these words or words to the same effect -
'I have heard the talk of the police and their witnesses and I have decided that your case should be heard by the National Court. Now it is your turn to say something if you want to. But you don't have to say anything at all in this court if you don't want to. You can save your talk for the National Court. If you do say something your words will be written down and may be read out later when your case is heard by the National Court'.
(2) Anything which the defendant says in answer to a statement made in accordance with Subsection (1) shall be taken down in writing and read to him, and shall be signed by the Magistrates constituting the court and by the defendant, and shall be kept with the statements admitted in evidence and transmitted with them to the Public Prosecutor.
NOTE: This section allows the defendant to make a statement in answer to the charge or in rebuttal of any of the statements put to the Court as evidence if he wishes to.
108. - DEFENDANT MAY CALL EVIDENCE
(1) When a defendant has given evidence or made his statement or has declined to do so the court shall ask the defendant whether he desires to call a witness.
(2) A witness whom the defendant desires to call shall be called, and the statement of the witness relating to the facts and circumstances of the case or tending to prove the innocence of the defendant shall be taken down in writing and his deposition shall be read over to him and signed by him and the presiding magistrate.
(3) Notwithstanding the provisions of sub-section (2) the defendant may, instead of calling a witness personally, produce to the court a written statement declared in accordance with the Oaths Affirmations and Statutory Declarations Act 1962 and containing a statement of the witness relating to the facts and circumstances of the case or tending to prove the innocence of the defendant.
(4) Where any written statement is produced to the court under Sub-section (3) it shall be read in the hearing of the defendant in open court and a copy shall be given to the prosecution.
NOTE: By this Section the defendant is enabled to call evidence on his behalf, either by personal appearance of witnesses or by written statement.
109. DISCHARGE OR COMMITTAL OF DEFENDANT
(1) When an examination under this Division is completed, the court shall consider whether the evidence is such that, if not refuted at the trial for the offence, a Judge would acquit the defendant.
(2) If, in the opinion of the court, the evidence is not sufficient to put the defendant upon his trial it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.
(3) If, in the opinion of the court, the evidence is such that, if not refuted at the trial for the offence, a Judge could convict the defendant the court shall release the defendant on bail in accordance with this part on or by warrant commit the defendant to a corrective institution, police lock-up or other place of security or other such safe custody, to be there safely kept until or to appear at the sittings of the National Court before which he is to be tried, or until he is delivered by due course of law.
NOTE: Once again the court is required to determine whether the evidence is sufficient to place the defendant on trial. If it is sufficient he is committed to the National Court for trial. If not, the defendant is discharged.
110. STATEMENT SHALL BE PUT IN EVIDENCE AT TRIAL
On the trial of a defendant for an offence in 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 107 or any statement made under section 108 shall be admitted in evidence without further proof of it having been made notwithstanding that it is exculpatory or self-serving.
NOTE: This section allows the National Court to accept in evidence, statements tendered in the lower court hearings.
Nothing contained in this Act prevents the prosecutor from giving in, evidence an admission or confession or other statement of the defendant, which by law would be admissible as evidence against that person.
NOTE: By this section the prosecution is able to produce in evidence admissions and confessions lawfully obtained.
110B. DEPOSITIONS OF DEAD WITNESSES ETC.
Where a person has been committed for trial for an offence, the written statement or deposition of a person admitted or taken before the examining court and purporting to be signed by the Magistrates constituting the court before which it was taken may, with the consent of the National Court, be read without further proof as evidence on the trial of that first-mentioned person, whether for that offence or for any other arising out of the same transaction or set of circumstances as that offence upon proof -
(a) that the witness is -
(i) dead or insane;
(ii) so ill as not to be able to travel;
(iii) kept .out of the way by means of the procurement of the accused or on his behalf; or
(iv) a person registered under the Medical Services Act 1965; and
(b) either by a certificate purporting to be signed by the court by one of the Magistrates before which or whom the deposition purports to have been taken, or by the oath of a credible witness, that the deposition was taken in the presence of the accused and that the accused or his counsel or solicitor or other person authorized by law to appear for him had full opportunity of cross-examining the witness.
NOTE: By this section the evidence of witnesses admitted or taken in the lower court may be admitted in the National Court if the witness dies, or is for some other reason unable to attend the trial.
"Division 3 - Bond of Witnesses to Appear on Trial"
118. BONDS OF WITNESSES, ETC.
(1) Where the statement of a witness has been admitted into evidence under Division 1 and the examining court or Judge is of the opinion that it contains evidence in any way material to a case or tending to prove the guilt or innocence of an accused person the court or Judge, as the case may be, may at any time order the witness to appear before the court and bind the witness by bond whether orally or in writing to appear at the court at which the defendant is to be tried, then and there to give evidence at the trial of the defendant.
(2) A bond under Subsection (1) shall particularly specify the profession, trade or calling of each who enters into it, together with his full name or names, and the place of his residence.
119. EXECUTION OF BONDS
(1) A bond under Section 111 shall be duly acknowledged by every person who enters into it, and shall be signed by the Magistrates or Judge before whom it is acknowledged and a notice of the bond signed by the Magistrates or Judge, as the case may be, shall at the same time be given to every person so bound.
(2) The bond of all or any two or more persons who are bound in the same sum or penalty may be included in one form of document, and the bond is as valid and effectual in respect of every such person as if it has been entered into by a separate form or document.
NOTE: Sections 118 & 119 provide that a witness may be required to enter into a bond to secure his attendance at the trial.
"Division 5 - Miscellaneous"
When a defendant is committed for trial the examining court after the completion of the preliminary examination or review shall -
(a) immediately send a Notice of Committal to the Registrar of the National Court; and
(b) as soon as practicable transmit to the Public Prosecutor and to the Public Solicitor copies of the statements and other documents admitted in evidence by the court.
NOTE: This provision requires the National Court to be notified of the committal and for the copies of relevant documents to be forwarded both to the Public Prosecutor and the Public Solicitor.
126. HOW DEALT WITH AFTER TRANSMISSION
(1) After the transmission of the statements and documents under section 125 and before the day of the trial, the Public Prosecutor is subject to the same duties and liabilities with respect to the documents upon a certiorari directed to him or upon a rule directed to him instead of that writ as the court would have had and been subject to upon certiorari to it if the documents had not been so transmitted.
(2) The Public Prosecutor, or the lawyer prosecuting a case in the National Court shall, where at the trial an accused has pleaded guilty to the offence with which he is charged, deliver to the proper officer of the court the documents admitted in evidence at the preliminary examination or any of them to cause them to be so delivered, if the presiding Judge so directs.
(1) Where a person charged with an indictable offence is directed by a Court to be tried, the court shall retain custody of all exhibits tendered during the preliminary examination under this Part, and -
(a) if the person charged is indicted or his committal for trial is to be reviewed by a Judge - they shall be delivered to the proper officer of the National Court in accordance with the Rules of the Court; and
(b) if -
(i) the Public Prosecutor declines to present an indictment; OR
(ii) a nolle prosequi is entered; OR
(iii) another person charged is otherwise discharged
they may be returned to the person who tendered them or to another person entitled to possession of them.
(2) Where exhibits are in the custody of the court under subsection (1) the person charged, his legal representative and the prosecutor are each entitled to inspect them either by himself or by a person authorized by him for the purpose but only in the presence of a Registrar or a Magistrate or a District Court Clerk.
NOTE: Both sections 126 and 127 are of a technical nature to ensure that court documents are dealt with in a manner to facilitate the holding of the trial and that exhibits are properly held and returned.
CHAPTER VI - THE ABOLITION OF COMMITTAL PROCEEDINGS
As has been mentioned earlier in this report there has been a considerable amount of support for the proposal that committal proceedings or preliminary hearings for indictable offences be abolished.
In most Commonwealth countries, trials of indictable offences were formerly dealt with by having a preliminary hearing either before a grand jury or before a lower court at which the evidence of the prosecution was presented and the jury or lower court decided whether there was enough evidence to place the defendant on trial for the offence.
To a greater and greater degree the number of offences triable on indictment has been cut down as more and more offences become triable summarily in the lower courts. This same change has been observed in Papua New Guinea where offences which are created by statute, and some of them quite serious, are dealt with under the summary jurisdiction of the lower courts. There is also the recommendation in Report No.8 - Indictable Offences Triable Summarily that sixty-eight offences which are now tried on indictment in the National Court be dealt with summarily in the District Court. Many of these offences relate to crimes which are regarded very seriously by the courts and the public, but there has been no opposition to the proposal.
In determining what are the advantages sought from the abolition of committal proceedings and what are the disadvantages the Commission is concerned to see that the best use is made of present resources while at the same time the person charged is not greatly disadvantaged and hopefully may benefit from the change.
ARE COMMITTAL PROCEEDINGS EFFECTIVE?
In committal proceedings, the initial preparation is done by the Police, who having arrested a person bring him before a court to be charged with an offence where he is remanded usually in custody but sometimes on bail for the committal proceedings. During this time evidence is assembled and witnesses are prepared and some 5 or 6 weeks later (on average) the committal proceedings are held. At these proceedings the evidence of the prosecution witnesses is given and laboriously recorded in long hand, a very time consuming procedure. It is interesting to note that in the year ended 31 July 1977, 606 cases heard in District Courts resulted in committal to the National Court while 132 cases were discharged. To this extent it seems that the committal proceedings are working but as noted in Working Paper No. 13 more than 18% of the cases heard in the National Court resulted in discharge or nolle prosequi being entered. The figure for the year ended 31 July 1979 shows that 17.7% of cases tried in the National Court resulted in a discharge or nolle prosequi, a slight improvement over the previous year. We still believe there is room for a great amount of improvement if the committal proceedings are to function effectively as a screening device.
We believe that there are two basic reasons for this situation. Firstly, the preparation of the prosecution case at the stage of the preliminary hearing is frequently of an insufficient standard for the Magistrate to decide whether a case exists or not. He may be confronted with a charge of dangerous driving causing death, the accused may have been involved but it is not clear to what extent and the victim may well be blamed for the situation. However, because of community pressure he may decide to commit leaving it to the National Court to decide the matter. This first situation arises we believe through lack of prosecution skill and training in the presentation of evidence. Secondly we believe that there is a tendency for some magistrates to avoid discharging an accused person on the grounds of no case to answer, because he knows that further evidence will be called at the trial and considers that a definitive finding of guilt or innocence in the National Court will be more satisfactory than a discharge on the ground of no prima facie case being established.
The Commission believes that the holding of committal proceedings does not necessarily answer the question as to whether the prosecution has sufficient evidence to place the defendant on trial.
With the inclusion of the 68 more offences to be tried summarily, and having regard to the limited resources and manpower, the Commission believes that eventually police prosecution training should emphasize the handling and presentation of cases triable summarily rather than involvement in committal proceedings. We are reinforced in this view because, after the committal proceeding, the matter is taken over by the Public Prosecutor who must decide whether an indictment is to be proceeded with and what offence is to be the subject of the indictment.
The prosecution case for the trial must be prepared virtually from ground level. We believe that where an offence is sufficiently serious to warrant trial on indictment, the Public Prosecutor should become involved very early in the proceedings.
It should also be considered that if the senior magistrates are to be required to hear 68 more offences summarily, time must be made available if further delays in court proceedings are to be avoided.
The situation of the accused must be considered.
Firstly, all seem to be agreed that committal proceedings are productive of delays. An accused person is surely entitled to have his guilt or innocence decided as soon as may be practicable having regard to the interests of justice.
One of the objections raised to the abolition of committal proceedings is that the defendant should be fully and fairly informed of the nature of the case against him. We believe that this right can and should be protected by statute and we would see such a provision as being a necessary part of any proposed legislation. A further objection is that the prosecution must establish that it has sufficient evidence to place the defendant on trial. As mentioned above, we do not believe that this is necessarily the position under the present system, nor are we convinced that it will necessarily be the case under our proposal for hand up briefs. The defendant always has the opportunity at the close of the prosecution case in the trial to submit that there is no case to answer.
We do not consider that the defendant would suffer to any significant extent by the abolition of committal proceedings but that in many ways it will be to his advantage. There should be a considerable saving in time between the time of charging and the completion of trial. The defendant would be subject only to one trial, not the confusing situation to him of apparently being tried twice and, not the least important, the prosecution case prepared for the indictment would be prepared by skilled and qualified lawyers and not be a rehash of evidence which may have been ineptly prepared and presented. We also believe that where a prosecution should not be proceeded with, the Public Prosecutor will be in a position to decide not to proceed shortly after the defendant is charged. This would prevent the defendant having to wait for the committal proceedings to be held before discharge by the court or, even later for a nolle prosequi to be entered by the Public Prosecutor.
An additional benefit in overall time saved should benefit the Correctional Services. We would expect that the time persons are held in custody on remand would be greatly reduced.
Although the Commission is convinced that eventually greater benefit will result for the accused, the magistrates, the courts and the police by the abolition of committal proceedings, we are concerned that at this stage of the development of the courts, of the training of magistrates and national lawyers and the necessary reorganisation of procedures involved, that the abolition of committal proceedings should be delayed until it can be smoothly and effectively introduced with the least disruption to the administration of justice.
The legislative amendments required for implementing the proposal to abolish committal proceedings would be relatively simple.
Part V of the District Courts Act 1963 which relates to committal proceedings would be repealed and replaced with provisions to allow a defendant to be charged in a District Court, and if the offence was an indictable offence not triable summarily, allow the defendant to be remanded, either on bail or in custody, to appear in the National Court for trial. Provision would be made to provide for procedures to enable the papers to be transmitted to the National Court and the prosecution and defence.
Amendments to the Criminal Code would also be required. The main amendments would be the repeal of Sections 537 and 538 of the Code and their replacement by the following provisions -
537. PROCEDURE FOR INDICTMENT.
Every trial before the National Court shall be on an indictment brought in the name of the State by the Public Prosecutor.
538. INDICTMENT TO BE FORWARDED TO NATIONAL COURT
(1) The indictment shall be forwarded by the Public Prosecutor to the National Court to be filed in that Court.
(2) The fact that the indictment has been so forwarded and filed shall be the equivalent to a statement that all conditions required by law to constitute the offence charged and to give the court jurisdiction have been fulfilled in the particular case.
538A. DUTY OF JUDGE UPON RECEIPT OF INDICTMENT.
A judge of the National Court upon receipt of the indictment shall -
(a) determine a time and place for the holding of the trial of the defendant; and
(b) cause a copy of the indictment together with an order requiring the defendant to appear or be brought before the National Court at the time and place stated in the order to be served upon -
(i) The defendant or his legal representative; and
(ii) The Superintendent of Police in the province in which the trial is to be held.
538B. WITNESSES EVIDENCE AND STATEMENTS.
(1) The Public Prosecutor shall within a reasonable time before the date fixed for the trial give to the defendant or his legal representative:
(a) a list of witnesses the prosecution intends to call at the trial;
(b) a list of documents and things intended to be produced at the trial;
(c) a copy of the statements, if any, made by the accused and the person against whom or in respect of whom the offence is alleged to have been committed; and
(d) a copy of each statement made by any person who is intended to be called as a witness.
(2) The documents referred to in Subsection (l) shall not form part of the indictment.
(3) Nothing in Subsection (1) shall be construed as preventing the prosecution, after reasonable notice to the accused, from calling any further witness or producing any document or thing not listed with the indictment.
The basic amendments required to the District Courts Act 1963 would be as follows:
AMENDMENT TO DISTRICT COURTS ACT 1963
Part VI of the District Courts Act is amended by repealing Sections 101 to 110 inclusive and substituting the following sections -
(a) read the charge to the defendant in a language that he understands either directly or through an interpreter;
(b) advise the defendant that he will be remanded to the National Court for trial and either -
(i) admitted to bail; or
(ii) committed to a corrective institution, police lockup, or other place of security.
102. DEFENDANT TO BE REMANDED FOR TRIAL.
Without taking a plea of guilty or not guilty the court shall remand the defendant on bail or in custody to appear in the National Court under the provisions of Division 2.
103. - INFORMATION TO BE FORWARDED TO PUBLIC PROSECUTOR.
Where the defendant has been released on bail or remanded in custody to appear in the National Court, the magistrate shall forward to the Public Prosecutor the following information:-
(a) a copy of the information forming the basis of the charge;
(b) the court and date on which the charge was preferred;
(c) details of bail (if any) to which the defendant was admitted including the names and addresses of any sureties.
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
Samson Kaipu is Secretary to the Commission.
The Research Staff are -
Edward F. Graziano
The Legislative Drafting Staff are -
The Administrative Staff are -