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Application of Oldham Matolik and In the Matter of Grade v Magistrate, Mt Hagen [1990] PGNC 44; N895 (30 July 1990)

Unreported National Court Decisions

N895

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 90 OF 1990
APPLICATION OF OLDHAM MATOLIK
AND IN THE MATTER OF GRADE
V
MAGISTRATE

Mount Hagen

Woods J
20 July 1990
30 July 1990

DISTRICT COURT - Summary Trial for Certain Indictable Offences - Criminal Code Sections 328, 420 and Schedule 2

Counsel

J. Everingham for the Applicant.

30 July 1990

WOODS J: This is an Applon for an o an order in the nature of Mandamus to Grade V Magistrate Wenge to proceed to sentence a defendant James Lasi following his conviction of the offenceangerous Driving Causing Death contrary to Criminal Code Acde Act Ch. 262 Section 328.

On 13th November 1989 the Applicant, a Constable of Police laid an information against James Lasi on the charge of Dangerous Driving Causing Death under section 328 of the Criminal Code Act. On 5th April 1990 the Public Prosecutor, pursuant to Section 4 of the Public Prosecutor (Office and Functions) Act 1977, elected to have this offence tried summarily in the District Court pursuant to Section 432 of the Criminal Code Act. It is quite clear that in the election form the Section 432 is an error and the election is effected under Section 420. It appears that the Public Prosecutor is still using pre 1977 forms as Section 420 used to be section 432 in the pre 1977 Criminal Code.

On 10th April 1990 Mr L Wenge Grade V Magistrate heard the case and convicted James Lasi.

On 12th April His Worship reserved sentence sine die stating that Section 328(5) of the Criminal Code Act ousted his jurisdiction to sentence the accused. He stated that Section 328 stipulated the need for an indictment before he could proceed to sentence.

The Public Prosecutor has therefore come to the Court with this Application.

The Magistrate’s concern is that Section 328 specifically provides in Subsection (2) for different sentencing if the offence of dangerous driving is dealt with summarily or on indictment and in subsection (5) makes clear reference to an indictment.

Section 328(5) &##60;& &60;20;82 thefoffenoffender causes the death of or grievous bodily harm to another person he is liable on conviction dictmo impment termexceefive years”.

However, the Mahe Magistrgistrate iate is cles clearly arly overloverlooking the wording of Section 420.

Section 420 &#8here son is n is chargeharged before a District Court constituted by a Magistrate Grade V with an offence specified in schedule 2 the Court may deal with the matter summarily according to the procedure set out in Section 421”.

Schedule 2 clearly makes reference to Section 328(5). If the position was as the Magistrate states then Section 420 and the Schedule 2 means nothing. Subdivision I of Part VI of the Criminal Code is clearly headed Summary y Trial for Certain Indictable Offences. The whole intention is that the offences listed in Schedule 2 which prior to this section could only be dealt with by indictment can now be dealt with summarily by information. And section 328(5) which whilst clearly referring to ‘on indictment’ to distinguish it from the summary procedure in a related offence in Section 328 (2) is now to be covered by the procedure specified in Section 420.

Section 420 therefore clearly enables Section 328(5) to be read that if an election is made by the Public Prosecutor then a Grave V Magistrate can deal with an accused on an information and duly sentence him.

I therefore order Mr L. Wenge Grade V Magistrate to proceed to sentence the convicted defendant James Lasi in accordance with Section 420 and Section 328 of the Criminal Code Act.

Lawyer for the Applicant: Public Prosecutor