N456(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

PETER KAPRENDAJANDA, WILLIAM KAPRENDAJANDA, KENNY DUJAMBI, 
JACKSON SENO, LEO KUNIGU, GABRIEL WALIKIN, ANTON KERMAN KIL, 
MITALIAN KAPRENJANDA, CHRIS KAPRENJANDA

V

ISAAC NGATIA

Kimbe
Pratt J

17 March 1984
20 March 1984

INFERIOR COURTS - Practice and procedure - Transfer of proceedings - Transfer from District Court to Local Court - Plea taken before District Court - No power to amend charge - Transferred charge to be dealt with afresh - Local Courts Act 1963, ss 41, 42.
INFERIOR COURTS - Practice and procedure - Information - Amendment of - Substitution of charge not amendment - Procedure where charge to be substituted - Amendment not permissible if plea of guilty taken - Summary Offences Act 1977, ss 7. 10(a).

The appellants were charged in the District Court with fighting in a manner that was likely to cause bodily injury to some other person contrary to s. 10(a) of the Summary Offences Act 1977 and after pleas of guilty were taken and two mentions in the District Court the matters were transferred to the Local Court pursuant to s. 41 of the Local Courts Act 1963, where on the application of the police prosecutor, the charges were altered to ones of breach of the peace contrary to s. 7(a) of the Summary Offences Act 1977 and pleas of guilty were then taken to those charges.

Held

(1) The alteration of the charge amounted to the substitution of one charge for another and was not such an amendment as is permitted by either the District Courts Act 1963 or the Local Courts Act 1963.

(2) Where one charge is to be substituted for another charge the appropriate procedure is to seek leave of the court to withdraw the original complaint and substitute a new complaint unless a plea of guilty has been entered.

(3) Where a plea of guilty has been entered before the District Court to a charge which is transferred to the Local Court, the Local Court is required under s. 42 of the Local Courts Act to start afresh with the matter transferred to it and to dispose of that matter.
Saimon Apelis v. Wirrenu Willy [1981] P.N.G.L.R. 510, followed.

(4) In the circumstances the plea of guilty before the District Court to a charge under s. 10(a) remained in existence because (a) it was not dealt with in the Local Court, and, (b) the alteration of the charge was not a permissible amendment but the substitution of a new charge and could not be effective whilst the plea of guilty to the original charge stood, and an appeal against conviction on the altered charge was null and void.

Cases Cited

Asia v. Eko (Unreported judgment No. SC708, 1972).
Kumaina v. Reade (Unreported judgment No. SC433 July 1969).
Saimon Apelis v. Wirrenu Willy [1981] P.N.G.L.R. 510.

Appeal

These were appeals against convictions on pleas of guilty before a Local Court magistrate.

Counsel

E. Batari, for the appellants.
M. Fitzsimmons, for the respondent.
Cur. adv. vult.

20 March 1984

PRATT J: The grounds of appeal against conviction basically centre on the submission that there was a lack of jurisdiction in the Local Court to determine the matter. An information was originally filed in the District Court at Kimbe, charging a breach of s. 10(a) of the Summary Offences Act 1977, namely, that each of the appellants were fighting in a manner that was likely to cause bodily injury to some other persons. I agree with learned counsel for the appellants, and indeed, Mr Fitzsimmons made no submission to the contrary, that the court papers disclose quite clearly that the charge I have just mentioned was put to each of the defendants and the matter was then, after two intervening mentions, adjourned to the Local Court, following the District Court magistrate’s realisation that he knew one of the defendants. It appears that the adjourned hearing came before the Local Court magistrate at Kimbe on 7 December 1983, and that on application by the police prosecutor, an alteration to the charge was permitted to take place, namely, from fighting under s. 10(a) to provoking a breach of the peace under s. 7(a) of the Summary Offences Act. I might add in passing that such an amendment is not contemplated by the amendment provisions of either the District Courts Act or the Local Courts Act. To substitute one charge for another is not an amendment. However, I shall refer to this aspect again from a different point of view shortly. Unfortunately, the point was not made the subject of a ground of appeal.

The transfer of the case is clearly covered, in my view, by s. 41 of the Local Courts Act 1963, particularly in a case of this nature, where it has gone from the District Court to the Local Court by s. 41(4) of that Act. I would therefore dismiss the ground of appeal challenging the legality of the transfer.

I pass now to what I regard as a point of much more substance. Section 42 of the Local Courts Act makes it clear that the proceedings must commence afresh before the new court to which the proceedings are transferred. The wording of the section is not something peculiar to our own jurisdiction and indeed a counterpart may be found in the District Courts Act 1963, s. 97. The requirement of a second magistrate to re-enter a plea of not guilty in the District Court was the subject of a judgment by Sir Alan Mann in July of 1967: Kumaina v. Reade (Unreported judgment No. SC433 July 1969). Although this case was not referred to by Kearney Dep. C.J., his Honour came to the same conclusion in Saimon Apelis v. Wirrenu Willy [1981] P.N.G.L.R. 510. A special notice in my view should be taken of the concluding words in s. 42 of the Local Courts Act 1963:

"... Court shall proceed to the trial or retrial of the case as though, in a criminal proceeding, a complaint of facts constituting the offence had been made to it or, ..."

In accordance with the legal authorities, the magistrate took a new plea to the amended charge from each man. The difficulty stems from the fact however that nothing was earlier or later done about the plea which had already been taken and was on the record in respect to the earlier charge. Mr Fitzsimmons has argued that the plea to the former charge must merge into the plea on the latter charge. There has therefore been no substantial miscarriage of justice. It is perhaps of some significance that the statement of facts was not altered in any way to meet the new charge and was in fact again read over to the appellants in the Local Court. They pleaded guilty to the amended complaint as they had to the earlier one before the District Court magistrate. The matter was not raised before me on this appeal, but I think it is quite clear on the authorities that an amendment which in fact alters one charge to a completely different charge is not a legitimate area for amendment at all. What should have been done was the withdrawal of the complaint by leave of the Local Court, and the substitution of a new complaint with any applications for adjournment and so forth dealt with by the court as a result of the complainant changing his tactics: see s. 27 and s. 28 of the Local Courts Act 1963, Kennedy Allen’s (3rd ed.) Justices Act at 131 ff. and Asia v. Eko (Unreported judgment No. SC708, 1972).

Although it is not necessary for me to decide that matter as a specific ground of appeal, and therefore I do not propose to say anything further upon the issue, the effect of endeavouring to bring about such an amendment by, in effect, substituting one charge for another, will have obvious implications on the ground of the appeal being argued before me and certainly will have an effect on the outcome of my decision.

Returning to the submissions of the respondent, I must say that I am unable to agree with Mr Fitzsimmons. The undeniable fact is, that what was transferred to the Local Court magistrate was a complaint to which a plea had been accepted but not acted upon. As is well acknowledged the magistrate must commence his proceedings anew. He must start, in my view, with the matter which was transferred to him before he does anything else. He cannot dispose of the matter transferred by taking a plea to an amended charge, when the defendants have already pleaded to the original charge. It is that earlier complaint which has been transferred to him, and it is that complaint which must be first disposed of. It would be quite improper to avoid the consequences of pleading to one count simply by means of transferring the proceedings on that complaint to another court. It is clear that once the plea was taken by the first magistrate, he would have to deal with it. The consequences of having to deal with the plea surely could not be avoided by the mere expedient of transferring the complaint to another court. What that court must do, is start afresh with the complaint transferred to it and dispose of that matter first and foremost. If the new plea is still guilty, then obviously no amendment can be made, for the court must deal with the plea then before it. If, on the other hand, a plea of not guilty was entered before a magistrate then there would be nothing to prevent an application for a legally permissible amendment being made to the complaint. For the position to be otherwise, would create all sorts of problems resulting from the fact that a defendant had pleaded guilty to a particular charge which had never been dealt with.

There are many reasons why a person may plead to one charge and not to another, albeit, the second charge may be quite similar in many respects to the first. The point is, a defendant is entitled to be dealt with on the charge to which he had pleaded, unless the circumstances are such for the court to form a view that it would be unsafe to proceed on a plea of guilty (for example where some statement of the defendant on some aspect of the material contained in the police statement of facts causes the magistrate to feel doubtful about the validity of such plea). Obviously it would not be proper for such a course to be followed merely to allow an amendment to be made by the prosecution. Nevertheless, if the magistrate’s decision to ensure the proper administration of justice is observed in his court, the matter does go to trial, and it would be quite proper for him then to deal with any application for amendment. The end result is, of course, that the information as transferred to him has been fully dealt with, either by the entry of a fresh plea of guilty or by the recording of a plea of not guilty, and the subsequent dealing with the matter whether it be by trial simpliciter or whether it be by some form of amendment followed by trial.

In the present circumstances, the plea of guilty to the charge of fighting is still in existence. And it is in existence for two reasons: firstly, because it has never been dealt with by the second magistrate, and secondly, because the law does not permit the type of amendment which the learned magistrate purported to make in his court, that is, substituting one charge for another. The plea of guilty, even though before another magistrate precluded the new magistrate from amending the charge quite apart from anything else. He was bound to proceed on the matter transferred to him. The alteration of a charge and the taking of a plea thereto before the original charge is disposed of must be a nullity. The amended charge was prevented from emerging by the existence of the plea before the first magistrate. Before any amendment was requested in the second court, the magistrate there should have dealt with the information as transferred to him, and asked each defendant anew how did he plead to that charge. He has not done so. The subsequent proceedings are therefore null and void. The matter must be returned to the Local Court magistrate for determination in pursuance of the District Court order of transfer made on 7 December 1983. Consequently, I uphold the appeal and quash the convictions and order that the complaint charging the appellants under s. 10(a) as laid in the information of 5 December 1983 be put to each of them and the normal procedures followed thereafter.

In the circumstances it is not necessary for me to deal with the final ground of appeal which was based on the submission that the statement of facts did not support any claim that a breach of the peace had taken place. For what it is worth I would point out that any charge which does involve an allegation of breach of the peace can create certain difficulties for the prosecution. There are a number of technical requirements which accompany this particular charge and it is not uncommon for the prosecution to fail in one or other of these requirements. It is certainly a charge which is best avoided where the circumstances are such that a more simple charge can meet the case.

Appeal allowed.

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Lawyer for the appellants: N. Kirriwom, Public Solicitor.
Lawyer for the respondent: L. Gavara-Nanu, Public Prosecutor.