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Yarume v Euga [1996] PGNC 24; N1476 (6 September 1996)

Unreported National Court Decisions

N1476

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APP NO 366 OF 1995
BETWEEN
BACKLEY YARUME - APPELLANT
AND
SYLVESTER EUGA - RESPONDENT

Kundiawa

Akuram J
6 September 1996

DISTRICT COURT - Appeal - Practice and Procedure - Committal hearing - Section 94 of District Courts Act - inquiry - whether findings against weight of evidence - not an important aspect.

DISTRICT COURT - Appeal - Practice and Procedure - Section 35 of District Courts Act - requirement - not applicable - must be read in conjunction with other provisions of Section 94 District Courts Act.

In an appeal against magistrates rulings and findings on evidence in Committal hearing.

Held

1. That Committal hearing is only an inquiry and whether the findings of a magistrate is against the weight of evidence is not an important aspect. That is a matter to be decided in the trial proper at the National Court.

2. The purpose of Committal hearing is to gather evidence and assess them to see whether the evidence is sufficient to Commit the accused for trial or sentence in the National Court. This requires proper and reasonable assessment of the evidence with a view to see whether all the elements or ingredients of the offence is present before he can commit the accused. Sections 94B, 94C, 95 and 100 of Districts Courts Act, Ch 40 to be read together.

3. Dicision to indict by the Public Prosecutor after Committal hearing should not be interfered with by the Courts. That is the duty and function of the Public Prosecutor.

Counsel

DL O’Connor for the Appellant

F Kuvi for the Respondent

6 September 1996

AKURAM J: This is an appeal against an order made by the District Court Goroka whereby the Court on the 25th of October 1995 committed the Appellant to the National Court for trial on the information filed in that committal. The Notice of Appeal was filed within time on the 15th of November 1995.

There are four (4) grounds of appeal namely that:

(a) The Court erred in finding that the information sworn were properly laid in accordance with the provisions of the District Courts Act Chapter 40;

(b) The Court erred in accepting that the affidavit tendered by the prosecution on behalf of the prosecution complied with the provisions of the District Courts Act Chapter 40;

(c) The decision was against the weight of the evidence;

(d) The decision was wrong in law.

The Appellant’s Counsel argued aggressively on the first two grounds and on the third and fourth grounds he basically submitted that the decision is against the weight of the evidence which was tendered contrary to proper procedures set down in section 94 of the District Courts Act. All I can say of the third and fourth grounds is that committal hearing is only an inquiry stage and whether the findings of Magistrate is against the weight of evidence is not an important aspect. That is a matter to be decided in the trial proper at the National Court. I say this for two main reasons:

1. Section 94B of the District Courts Act which is set out below stipulates that if a legal representative for the accused is present and requests the Court to consider the evidence, the Court conducting the inquiry into the alleged offence may commit the accused after considering the evidence. But if there is a legal representative for the accused present and he does not ask the Court to consider evidence, the Court may commit without consideration of the evidence.

Section 94B reads:

94B. Committal for trial without consideration of the evidence

(1) Subject to Subsection (2), a Court inquiring into an offence may, if it is satisfied that all the evidence, whether for the prosecution or the defence, consists of written statements, with or without exhibits, tendered to the Court after service in accordance with section 94, commit the defendant for trial for the offence without consideration of the contents of the statements.

(2) Committal for trial in accordance with Subsection (1) shall not occur where:

(a) the defendant or one of the defendants does not have legal representation; or

(b) the legal representative of the defendant or one of the defendants, as the case may be, requests the Court to consider a submission that the statements referred to in Subsection (1) do not disclose sufficient evidence to put the defendant on trial for the offence.

(Added by No 31 of 1980, s. 3.)

However, this section if interpreted in this way may defeat the whole purpose of committal hearings. That purpose is to gather evidence and assess them to see whether the evidence is sufficient to commit the accused for trial or sentence in the National Court. This requires proper and reasonable assessment of the evidence with a view to see whether all the elements or ingredients of the offence is present before he can commit the accused. This is in fact what section 100 of the District Court says. Section 100 reads:

That is:

100. Discharge or committal of defendant

(1) When an examination under this Division is completed, the Court shall consider whether the evidence is sufficient to put the defendant on trial.

(2) If, in the opinion of the Court, the evidence is not sufficient to put the defendant on trial, it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.

(3) Where:

(a) in the opinion of the Court, the evidence is sufficient to put the defendant on trial; or

(b) the Court commits the defendant for trial under section 94B (1),

the Court shall:

(c) by warrant commit the defendant to a corrective institution, police lock-up or other place of security to be kept there safely until the sitting of the National Court before which he is to be tried, or until he is delivered by due course of law; or

(d) admit him to bail in accordance with Division 2.

(Replaced by No 31 of 1981, s. 2.)

And also section 94C and 95 of the District Courts Act further amplifies this requirement and read as follows:

94C. Regard to Evidence, etc

(1) When conducting a committal hearing under this Part, the Court may, subject to Subsection (2), have regard to:

(a) the evidence contained in a written statement; and

(b) documents and exhibits,of which a copy has been served on the defendant under section 94 (1) or made available for inspection under section 94 (2).

(2) Before admitting a written statement, the Court shall 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 in a language that he understood.

(Added by No 31 of 1980, s. 3).

95. Court to consider whether prima facie case

(1) Where all the evidence offered the part of the prosecution has been heard or received, the Court shall consider whether it is sufficient to put the defendant on trial.

(Added by No 31 of 1980, s. 4).

(2) If the Court is of opinion that the evidence is not sufficient to put the defendant on trial for an indictable offence it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.

(3) If the Court is of opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall proceed with the examination in accordance with this Division.

This is not to say that the Public Prosecutor cannot use his own discretion whether to indict or not after committal. As I have said in Hami Yawari v The State, App. 199/95 dated 7th May 1995 N1433 that:

“As to the second ground of appeal, I do not think it is proper for this court to enter into the arena of the prosecutor to decide as to whether the accused should be tried for the offence he was committed to stand trial on. As the first ground is based on the issue of law, I can review that part of the evidence but not on the whole of the evidence. Whether the evidence is sufficient or insufficient, court must be mindful of the fact that the Prosecution does not rely solely on the evidence that is tendered during the Committal proceedings. The Public Prosecutor may do any of the following:

(a) he may not want to call all that evidence;

(b) he may adduce fresh evidence through calling deponents of the statements tendered in Committal proceedings thus ignoring the said statements used during Committal hearing; or

(c) he may file a nolle prosequi.

All those are matters which the Public Prosecutor is empowered to do. He may even indict when District Court did not commit for trial or sentence with an ex officio indictment. I therefore will not make any ruling on evidence. However, I have read the evidence and am also of the view that evidence touches on the legal issues and application of the evidence in relation to the charge and it would be unfair to pre-exempt whatever position the State wishes to take. I also say this because this is Papua New Guinea and people would like to see that justice is seen to be done and not only done (s. 59 of the Const.).”

So the Public Prosecutor still, after committal to National Court, decide on the evidence and indict a person. He may decide not to for various reasons stated above in Yawari’s case.

2. The second reason is that the purpose of Committal hearing is similar to a filtering process where a lot of accuseds are charged of indictable offences and brought to District Court where District Court magistrates will hear evidence, assess it and will only allow those supported by credible evidence to go through to the National Court via the Public Prosecutor’s Office. So the cases with no supporting evidence never go through to the National Court. This again requires proper assessment of the evidence but does not mean magistrate should go as far as deciding the guilt or innocence of the accused. This is because, sometimes the evidence produced by the Hand-Up-Brief file system may not establish the real evidence required to establish innocence or guilt. This is why the Public Prosecutor must be given the discretion, after its own inquiry, whether to indict an accused even though Committal evidence is falling short of sufficient evidence, the Prosecutor could still conduct its own investigation or inquiry of the material witnesses and have the accused indicted in the National Court.

I will therefore not enter the arena of the Public Prosecutor and decide whether decision of the Magistrate is against the weight of the evidence.

I will now discuss the first ground of appeal.

In support of this ground, it is submitted that the court erred in finding that the information sworn was properly laid in accordance with section 35 of the District Courts Act. The Appellant relied on sections 94 (1) (c) and 35 of the District Courts Act.

Firstly, section 35 of the District Courts Act says:

35. Form of Information

(1) Where it is intended to issue a warrant in the first instance against the party charged, the information shall be in writing and on oath either by the informant or some other person.

(2) Where it is intended to issue a summons instead of a warrant in the first instance, the information need not be in writing or on oath, but may be verbal only and without oath, whether the law under which the information is laid requires it to be in writing or not.

Section 35 (1) is used where a warrant of arrest is to be issued in the first instance against an accused and it is only than that the information shall be both in writing and shall be on oath by the informant or some other person. Section 35 (2) is where a summons is to be issued instead of a warrant in the first instance. In the present case the accused was not arrested by warrant nor summoned to appear in court. He was informed verbally to accompany the police investigator to the police station where he was interviewed and charged as stated by the investigator on page 143 - 145 of the appeal book at paragraph eleven (11) to seventeen (17), especially paragraph 15 where he was formally informed of his arrest and charged on the two counts. It was then a mere formality to lay the information in the District Court which need not be sworn. This is a different situation to section 35. It is in fact in accordance with section 94 (1) of the District Courts Act. In fact section 94 (1) does not say expressly whether an information should merely be laid or sworn and laid in the District Court. The usual practice is that they are merely signed by an informant and then laid in the District Court for the usual committal proceedings to take place. They only other relevant section is section 29 (Information to be for one matter only), but it does not require that an information shall be sworn and laid or merely laid in the District Court. I set out both section 94 (1) and 29 below respectively:

94. Copy of information, etc, to be served

(1) Subject to Subsection (6), where a person is charged with:

(a) an indictable offence that shall not be tried summarily; or

(b) an offence against Section 420 of the Criminal Code where the offence is not to be tried summarily, the informant shall serve or caused to be served, in accordance with Subsection (3), on the defendant or his legal representative;

(c) a copy of the information; and a copy of each statement that the informant intends to tender at the committal hearing; and

(Amended by No 45 of 1986, s. 2 (a)).

(e) a list of documents and exhibits referred to in a statement referred to in Paragraph (d) that the informant intends to tender at the committal hearing; and

(f) a copy of each document referred to in Paragraph (e).

29. Information to be for one matter only

An information shall be for one matter only, except that:

(a) in the case of indictable offences, if the matters of the information are such that they may be charged in one indictment; and

(b) in other cases, if the matters of the information are substantially of the same act or omission on the part of the defendant, those matters may be joined in the same information.

I therefore find that the magistrate did not err in ruling as he did.

The second and more substantial ground of appeal is that section 94 (1A) is in mandatory terms in that a Statement referred to in section 94 (1) (d) shall, for the purposes of Division 111.2 of the Evidence Act be treated as an Affidavit and also that such a statement shall contain a certified warning under Section 94 (IA). Section 94 (IA) has been discussed by his Honour, Injia J in The State v Tambun Benone where he rightly pointed out that the committal court must comply with the mandatory requirement of Section 94 C (2). That is:

(2) Before admitting a written statement, the court shall be satisfied that the person who made the statement had read and understood it, or if unable to read, had it read to him in a language that he understood.” (emphasis mine).

May I also add that this also applies to affidavit evidence and Records of Interviews where there is an interpretation clause for those witnesses who do not know how to read nor write. I therefore adopt the views expressed by his Honour in the above case to this present case.

In the final analysis I find that there is no error in the way the magistrate ruled as section 94 (IA) should not be treated in isolation but together with section 94C. In this regard, it does not matter really whether it is a statement nor an affidavit. As his Honour Injia J said in above case that the reasons for bringing in the signed statement in place of oral evidence or affidavit is not because it will replace them but to assist in the speedy processing of the Committal hearings.

I therefore dismiss this ground of appeal also.

This appeal is therefore dismissed.

Lawyer for the Appellant: DL O’Connor Lawyers

Lawyer for the Respondent: Public Prosecutor