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CHAPTER 11 – COMMITTAL PROCEEDINGS

11.1 CRIMINAL HEARINGS GENERALLY

Hearings within the criminal jurisdiction of the District Court are partially provided for in Pt V of the District Courts Act (DCA), but relevant provisions are to be found throughout the statute. In many respects, the same provisions apply to both criminal and civil matters. In this manual, hearings in general, and criminal cases in particular, are dealt with in Chapter 4. Such issues as the conduct of court matters, witnesses and representation are to be found in Chapter 3. The primary focus of this chapter is the committal procedure.

11.2 NATURE AND PURPOSE OF COMMITTAL PROCEEDINGS

11.2.1 Background

Because of the seriousness of presenting a person for trial before a Judge in the National Court, the law requires that a preliminary examination be conducted by a Magistrate to assess the strength of the accusation that the person has committed an indictable offence. It serves the interests of both the state and the citizen in seeking to prevent weak or misconceived prosecutions from proceeding to trial. The primary objective of a 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 offence).

11.2.2 Consequences of the committal hearing

A Magistrate who concludes that the evidence is insufficient to put the defendant on trial for an indictable offence must order that the defendant be discharged. However, if the Magistrate is of the opinion that the evidence presented is of sufficient weight, he or she must commit the defendant to stand trial, and must either remand the person in custody or grant bail until trial. The trial will be held in the National Court. If there is evidence sufficient to justify committal, a Magistrate cannot refuse to commit the person for trial because he or she regards the prosecution as oppressive or unjust. Committal proceedings are not a trial, and the Magistrate has no power to stop them, nor any proceedings which may follow, because of any concerns which the Magistrate might have about the case which is brought against the defendant.

11.2.3 A judicial act, but not an adjudication of the matter

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: see DCA, s 95. That measure of sufficiency is less than the trial standard of “proof beyond reasonable doubt”. Nor does the result of the proceeding bind the prosecution to either proceed with or to withdraw the charges. Whether the defendant is directed to stand trial or is discharged, the prosecutorial discretion not to proceed further or to continue by way of direct indictment remains intact.

Nevertheless, the Magistrate’s decision is a judicial act, requiring that proper consideration be given to the matters required by the statute.

11.2.4 Benefits to the accused and to the prosecution

Traditionally, the committal proceeding 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. The evidence provides an opportunity for the accused’s legal adviser to evaluate the merits of the evidence of the witnesses whose statements form part of the prosecution case. Any discrepancies between evidence on key issues sworn to in statements in the committal proceeding and evidence given later by the same witnesses at the trial can be used in an effort to discredit the prosecution case at a contested trial, or if a plea of guilty is to be entered, to set the foundations for a plea in mitigation.

The benefits to the prosecution are two-fold. The procedure allows for the public disposal of a weak case, saving the time and cost of a trial that will likely lead to an acquittal. Secondly, if the disclosed prosecution case is strong, it encourages the accused to plead guilty, thus saving the state the cost of a trial.

11.3 COMMITTAL JURISDICTION IN PAPUA NEW GUINEA

11.3.1 Procedural changes

Committal proceedings are conducted by a Magistrate in accordance with the procedures found in Pt VI of the District Courts Act. Changes were made to the procedures in 1980, the most significant of which was the change:

·        from proceedings in which prosecution witnesses were called to give oral testimony

·        to proceedings which rely primarily on written witness statements (often called “depositions”), other documentation and exhibits, in order to present the prosecution case.

If a committal order is made, the documents are passed to the National Court as a “hand-up brief”. It should be noted, however, that, although such “paper committals” largely remove the need for prosecution witnesses to be subjected to cross-examination on two occasions (both committal and trial), they also reduce the opportunity for defence counsel to test, by cross-examination, the quality of the witness evidence.

A further change in procedure has created a short-cut which, if the defendant is legally represented and waives the right to a committal hearing, permits the “brief” of depositions to be passed direct to the National Court without a hearing. This means that, if the police and prosecution do their work conscientiously and fairly, and if the Magistrate carries out the required testing of the written statements, the defence may permit the committal stage to be reduced to a formality.

11.3.2 Jurisdiction of the District Court under Pt VI of the District Courts Act

11.3.2.1 Responsibility for indictable committals

Generally speaking, this responsibility of the District Court for committals applies to indictable offences under the Criminal Code (CC) (offences punishable by imprisonment for more than 12 months). There is one important exception.

11.3.2.2 Schedule 2 offences and the Public Prosecutor’s election

The exception is the category of indictable offences listed in Sch 2 of the Criminal Code (known as “Schedule 2 offences”), which, under s 420 of the Criminal Code, may be tried summarily by a Principal Magistrate if the Public Prosecutor has elected to have the case dealt with summarily. Because the Public Prosecutor has the choice of whether:

·           a Schedule 2 offence should go through the committal stage like any other indictable matter; or

·           it should be tried summarily by a Principal Magistrate,

certain arrangements (“Schedule 2 arrangements”) have been made to permit the Public Prosecutor to make that election at the commencement of committal proceedings. These Schedule 2 arrangements were suggested by the Supreme Court in The State v The Principal Magistrate, District Court, Port Moresby: Ex parte The Public Prosecutor [1983] PNGLR 43. They overcome some inconsistencies between the District Courts Act and the Criminal Code, and give effect to s 4(ga) of the Public Prosecutor (Office and Functions) Act.

11.3.2.3 Schedule 2 arrangements

In the case of Schedule 2 offences, after the charge has been determined and before the information and documents are served on the defendant under s 94 of the District Courts Act (see 11.3.2), the Public Prosecutor must make the election whether or not to prosecute Schedule 2 indictable offences within the summary jurisdiction of the District Court under Pts IV, V and VII of the District Courts Act. It is expected that the Public Prosecutor should not delay, and should make the election within a reasonable time. If the Public Prosecutor fails to make an election in respect of a Schedule 2 offence, it will be treated as a Criminal Code indictable offence, and the committal provisions of Pt VI of the District Courts Act will apply. The service of the documents under s 94 will be deemed to be the commencement of the proceedings under Pt VI of the District Courts Act: see The State v The Principal Magistrate in 11.3.2.2 above.

If the Public Prosecutor elects to proceed summarily, the matter will be transferred to a Principal Magistrate’s Court and governed by Pts IV, V and VII of the District Courts Act, but the Public Prosecutor will retain the power to withdraw the information: Public Prosecutor (Office and Functions) Act, s 4(ga).

11.4 COMMENCEMENT OF COMMITTAL PROCEEDINGS GENERALLY

11.4.1 Information and summons or warrant

Where a person is charged with an indictable offence, an information may be laid (see Chapter 8) and that person may be summonsed to appear before the District Court – and a warrant for arrest may be issued if he or she fails to appear on the summons: DCA, s 93. More commonly, arrest will already have occurred with or without warrant: see Chapter 9. If the relevant statute requires that a warrant be issued, then the arrest of the defendant without a warrant is illegal and will render the subsequent committal proceedings invalid: see 9.4. Accordingly, it is the responsibility of the Magistrate in committal proceedings to check that the defendant has been brought before the court in accordance with the law: The State v Natpalan Tulong [1995] PNGLR 329.

11.4.2 Documents to be served

Having laid an information (and subject to 11.2.2.3 above), the informant must serve on the defendant or his or her legal representative:

(a)        a copy of the information;

(b)        a copy of each witness statement that the informant intends to tender at the committal hearing;

(c)        where a statement to be tendered at the hearing refers to documents and/or exhibits, a list of those documents and/or exhibits; and

(d)        a copy of each of the documents referred to in (c).

If an exhibit cannot be adequately copied or described, the defendant must be notified where it can be inspected. The court also has power, if it considers it to be expedient in a particular case, to waive service of a document or exhibit and allow the informant or defendant to call oral evidence at a committal hearing: DCA, s 94(6).

11.4.3 Certificate as to truth of statement

Every witness statement (referred to in 11.4.2(b) above) must contain a certificate, signed by the maker of the statement, which certifies its truth: see DCA, s 94(1A) for the compulsory wording of the certificate. The certificate contains a warning as to the consequences of stating false information (which is an offence carrying a term of up to three years imprisonment – s 94A), and the statement itself is deemed to be an affidavit for the purposes of the Evidence Act: DCA, s 94(1B).

11.4.4 Service

Service of the above documentation must be made on the defendant personally at least 14 days before the date fixed for the hearing: DCA, s 94(2). An affidavit of service must be made within seven days and sent to the Court Clerk at least 72 hours before the hearing. Failure to comply with the time limit for service may nullify the proceedings: The State v Rush; Ex parte Rush [1984] PNGLR 124.

11.5 COMMITTAL WITHOUT A HEARING

11.5.1 Without consideration of the contents of the statements

As indicated above (11.3.1), a speedier procedure has been introduced, which the prosecution can use if the legally represented defendant is willing to waive the right to the conventional form of committal proceeding. The essence of the procedure under s 94B of the District Courts Act is that, if certain strict requirements are satisfied, the Magistrate may transmit the witness's statements and documentation to the National Court without considering their contents. The defendant will be committed for trial in the National Court without the District Court having exercised any judicial function other than the collection of the witness statements and a formal order of committal.

11.5.2 Requirements of s 94B

In other words, if the defendant has legal representation, the onus is on the defence to decide whether to challenge the form and/or content of the prosecution evidence at the committal stage. Provided reasonable time is allowed to the defence to make its decision, the Magistrate may be entitled to rely on the fact that no request has been received from a legal representative that the court should consider the submission that the witness statements do not disclose sufficient evidence.

11.6 INQUIRY INTO THE DOCUMENTATION UNDER S 94C

Where the court has not committed the defendant for trial under s 94B of the District Courts Act, it will proceed to the first stage of the committal hearing process. Here, the court’s task is to consider the witness statements, documents and exhibits which have been served on the defendant (11.4 above) for the purpose of admitting them as evidence.

Before admitting a written statement, the court must 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 or her in a language that he or she understood. Section 94C(2) establishes this requirement as a statutory test.

This is an inquiry which is independent of the trial process and one which the court must conduct in the exercise of its judicial function. In short, the Magistrate must ensure that:

·           the statement was made by the maker of the statement whose name appears on the statement; and

·           the maker of the statement had full knowledge of not only the contents of the statement, but also the correctness and truth of the statement: The State v Kai Wabu [1994] PNGLR 498.

After conducting the inquiry into the making of the witness statements, the Magistrate has a discretion to admit or reject any statement depending on his or her conclusion as to whether it satisfies the statutory test. Failure to conduct such an inquiry and to record its findings may result in the subsequent committal being voided: The State v Kai Wabu. A statement improperly obtained may be ruled inadmissible on appeal: Hami Yawari v Tolimo English [1996] PNGLR 446.

The requirements of s 94C(2) of the District Courts Act place a duty on the police informant, or any other person who obtains and records a statement in writing, to ensure that the maker of the statement reads the statement before he or she signs it. If the person cannot read, the statement must be read back to him or her. If the statement is to be recorded in a language different from the one used by the maker of the statement, then it must be read and translated to the person before he or she signs it. The assistance of an interpreter will often be required, and an endorsement should be made on the written statement certifying that the statement has been interpreted to its maker. In The State v Kai Wabu [1994] PNGLR 498 at 501, Injia AJ suggested a form of certificate that should be signed by the interpreter.

Without certificates as to the reading of a statement and/or the interpreting of it, the statement cannot be accepted, despite the fact that the maker has signed it in accordance with s 94(1A). The only way that defects in such certification requirements can be overcome is by calling the person or persons concerned to give oral evidence: The State v Kai Wabu [1994] PNGLR 498.

While it is clearly the responsibility of the Magistrate to be satisfied as to matters under s 94C, it is less clear whether the defendant may be heard on questions that he or she may wish to raise relating to compliance with the section. The Act is silent on the point: see also 11.7.1 and 11.7.2.

11.7 CONSIDERATION OF THE EVIDENCE

11.7.1 Sufficient evidence

Where all the written statements and oral evidence offered on the part of the prosecution have been received and tested to the Magistrate’s satisfaction, the Magistrate moves on to consider, under s 95 of the District Courts Act, whether that evidence is sufficient to put the defendant on trial. The section heading of s 95 refers to a “prima facie case” and, in R v McEachern [1967-1968] PNGLR 48, the court held that the test is whether the Magistrate is of the opinion in good faith that there is a “sufficient prima facie case” against the defendant.

11.7.2 Witnesses

The Act is again silent as to whether witnesses may be called and questioned at this stage. As indicated in 11.6 above, a person who has made a written statement may have to be called in order to deal with otherwise fatal inadequacies in the statement, or the Magistrate may feel unable to understand the nature of the allegations made against the defendant without questioning one or two witnesses.

The Act is not clear as to the role of the defendant during this stage of the committal. On the one hand, the judgment of Woods J, in Philip Nagira v Besasparis [1986] PNGLR 199, refers to the constitutional right to examine the witnesses called by the prosecution, and to the fact that the defendant’s right to question witnesses is traditionally part of the committal process. The court upheld the defendant’s right to do so under the District Courts Act. On the other hand, there is the view that it is sufficient if the defendant’s rights in relation to the prosecution evidence are protected in the course of his or her trial in the National Court: Justin Wayne Tkatchenko v Dessy Magaru (4 May 2000, OS 235 of 1999).

Subsection (3) of s 96, which was added to the section in 2000, states:

<Legislation Quotation>

“In an examination of a defendant in accordance with this Division [Div 1 – General] neither the defendant nor his legal representative shall be permitted to subject any witness to cross-examination.”

<End Legislation Quotation>

This amending provision does not seem to determine the matter, because it appears to relate to the subsequent stage of the committal process, namely the examination of a defendant.

11.7.3 Outcome of decision

If the Magistrate decides that the evidence is insufficient, the Magistrate should discharge the defendant in accordance with s 95 of the District Courts Act. If the court is of the opinion that the evidence presented in accordance with ss 94 and 94C is sufficient to put the defendant on trial for an indictable offence, it then proceeds with the examination required by s 96: DCA, s 95(3).

11.8 EXAMINATION OF THE DEFENDANT

11.8.1 Explanation to the accused

Section 96 of the District Courts Act sets out the explanation which the Magistrate must give to the defendant after deciding that there is sufficient evidence to put the defendant on trial. Omission to give the explanation means that the subsequent proceedings are invalid and of no effect.

Because the words in the section contain so much condensed information which might be confusing, it is recommended that the Magistrate should prepare and use his or her own words. The Magistrate should be able to explain the defendant’s position more clearly, in his or her own words, “to the same effect” as the words of s 96.

11.8.2 The Magistrate’s duty to the unrepresented accused

It is accepted principle that the Magistrate’s obligation to ensure that the hearing is conducted fairly, and in accordance with law, means that the Magistrate must explain to an unrepresented accused the rights and choices available to him or her in relation to the various matters which arise in court proceedings. On the other hand, the Magistrate is not obliged to recommend to the accused how to exercise those rights or what choices to make: see 3.2.2 above, for further discussion of the unrepresented accused.

The information that should be given to the accused, and the decisions the accused must make, are complex – and necessary in the interests of justice. However, if the accused is unrepresented, the warning required by s 96 of the District Courts Act does not seem to be enough on its own. Certainly the words of s 96 contain several explanations, some of which do inform the accused of his or her rights.

In The State v Nagari Topoma [1980] PNGLR 18, the court felt that if the defendant is not advised of the legal consequences of his or her options, the National Court may, in its discretionary power, reject the record of answers given by the defendant in response to cross-examination. Of course, it would only do so if it considered that, in all the circumstances, it was unfair to admit the answers.

11.8.3 Statement of the defendant

The explanation in s 96 of the District Courts Act contains a warning that any evidence that the defendant gives, or anything he or she may say in an unsworn statement, will be taken down in writing in accordance with s 96(2), read to him or her and then signed by the Magistrate. This statement of the defendant will be kept with the statements of the witnesses and transmitted to the Public Prosecutor.

It should further be noted that, if a defendant is committed for trial, a statement made by him or her under s 96 may be given in evidence without further proof at the trial, provided the statement purports to be signed by the Magistrate before whom it was made: DCA, s 97.

11.9 DISCHARGE OR COMMITTAL OF THE DEFENDANT

When the evidence (if any) tendered by the defendant has been considered, the court must decide whether the totality of the prosecution and defence evidence is sufficient to put the defendant on trial: DCA, s 100. As Akuram J said in Backley Yarume v Sylvester Euga (1996) N1476, the whole purpose of committal hearings is:

<Case Quotation>

“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”.

<End Case Quotation>

This test of the sufficiency of the evidence is the same as the test required under s 95 of the District Courts Act: see 11.7.1 above. It is appropriate for the Magistrate to modify the earlier opinion formed under s 95 for the purpose of the decision under s 100: R v McEachern [1967-1968] PNGLR 48. See also R v Wewak Resident Magistrate, Ex parte Dyer [1967-1968] PNGLR 511 and Arthur Gilbert Smedley v The State [1980] PNGLR 379.

11.10 DEFENDANT’S ADMISSION OF GUILT

If a defendant, on being asked in accordance with s 96 of the District Courts Act whether he or she has anything to say in answer to the charge, says that he or she is guilty of the charge, the Magistrate is required to commit the defendant to the National Court for sentence: DCA, s 103. Before announcing committal for sentence, the Magistrate should consider carefully whether the defendant has understood the information and explanations given under s 96, and, if necessary, question the defendant further as to his or her understanding of the significance of pleading guilty. Once satisfied, the Magistrate should announce the committal for sentence and ensure that the defendant’s statement embodying the admission of guilt is taken down in writing. The statement must be signed by the Magistrate and, if he or she desires, by the defendant. As above, the defendant will be committed on warrant or released on bail.

11.11 WITNESS STATEMENTS MAY BE RELIED ON AS EVIDENCE AT TRIAL

When a person has been committed for trial or sentence, all statements tendered in evidence to the Magistrate may, with the consent of the National Court, be taken as evidence at the defendant’s contested trial or sentence hearing in that court. No further proof of the statements is needed, provided that the prosecution can prove that they have been served on the defendant or his or her legal representative. This may be done by producing a certificate signed by the Magistrate to whom the statement was tendered, or by calling a witness to testify to service: DCA, s 102(b).

Furthermore, if at the trial a witness can be proved to have died, be insane, so ill as not to be able to travel, or “kept out of the way” by or on behalf of the defendant, the statement of that witness can be taken in evidence at the trial without further proof: DCA, s 102(a).