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You are here: PacLII >> Papua New Guinea>> Magistrates' Manual
MAGISTERIAL SERVICE
OF
PAPUA NEW GUINEA
MAGISTRATES' MANUAL
OF
PAPUA NEW GUINEA
by
EDWARD R. HILL
(BA, LLB)
Lecturer in Law and Law Clinic Supervisor,
School of Law, University of the South Pacific
Barrister and Solicitor of the Supreme Court of British Columbia and the High
Court of Fiji
Formerly Lecturer, Faculty of Law, University of Papua New Guinea
and
GUY POWLES
(BA, LLM (Hons), PhD)
Fellow of the Faculty of Law, Monash University
Barrister and Solicitor of the Supreme Court of Victoria and of the High Court
of New Zealand
Formerly Judge of the Appellate Division of the Supreme Court of the Federated
States of Micronesia
and Magistrate in Samoa
May 2001
Index
Part 1 Judicial Independence, the Legal System, Conduct of Court Matters and Court Hearings
Chapter 1 Judicial Independence, Ethics and Conduct
1.1 Introduction
1.2 Rules of Conduct
1.3 Rule 1: A Magistrate shall Uphold the Integrity and Independence of the Judiciary
1.4 Rule 2: A Magistrate shall Avoid Impropriety and the Appearance of Impropriety in all of the Magistrate's Activities
1.5 Rule 3: A Magistrate shall perform the duties of Judicial Office Impartially and Diligently
1.6 Rule 4: A Magistrate shall Conduct the Magistrate's Extra-judicial Activities in such a way as to Minimise the Risk of Conflict with Judicial Obligations
1.7 A Magistrate shall Refrain from Political Activity
1.8 Protection of Magistrates from Liability
Chapter 2 - The Magistrates Court in Context
2.1 The National Judicial System
2.2 The Magistrate's Court as a Creature of Statute
2.3 Sources of Law
2.4 Custom
2.5 Common Law and Equity
2.6 Constitutional Guidance
2.7 Constitutional Rights
2.8 Case Law in the Magistrates' Courts
2.9 The Role of the Magistrate in Adversarial Proceedings
Chapter 3 Magistrates' Powers, Representation of Parties and the Conduct of Matters in Court
3.1 The Magistrate in Court
3.2 The Magistrate and Unrepresented Parties
3.3 The Representation of Parties
3.4 Legal Representation
3.5 Representation by Person Other than a Lawyer
3.6 Prosecutors
3.7 Witnesses in Court
3.8 Working With Interpreters
4.1 Procedure in Court
4.2 Choice of Jurisdiction, Venue of the Court and Transfer of Proceedings
4.3 Issues to be Determined and Roles of Parties
4.4 Ex parte Hearings
4.5 Joint Parties and Severance of Parties
4.6 Open Court
4.7 At the Beginning of a Day's Hearings
4.8 Order of Proceedings During the Hearing; Checklists
4.9 Adjournments
4.10 Change of Magistrates and Termination of Magistrate's Power
PART 2 - EVIDENCE
Chapter 5 Key Concepts in Evidence
5.1 Introduction
5.2 Admissions
5.3 Affidavits
5.4 Burden of Proof
5.5 Character Evidence
5.6 Circumstantial Evidence
5.7 Compellability
5.8 Competence
5.9 Confession
5.10 Corroboration
5.11 Credit
5.12 Cross-Examination
5.13 Custom
5.14 Direct Evidence
5.15 Documentary Evidence
5.16 Examination in Chief
5.17 Hearsay Rule
5.18 Hearsay Rule Exceptions
5.19 Hostile Witness
5.20 Illegally or Wrongfully Obtained Evidence
5.21 Judicial Note
5.22 Leading Questions
5.23 No Case Submission
5.24 Oaths and Affirmations
5.25 Opinion
5.26 Presumptions
5.27 Previous Consistent Statement
5.28 Previous Inconsistent Statement
5.29 Privilege
5.30 Real Evidence
5.31 Recent Complaint
5.32 Refreshing Memory
5.33 Relevance
5.34 Re-examination
5.35 Standard of Proof
5.36 Voir Dire
5.37 Weight
PART 3 - CRIMINAL CASES IN THE MAGISTRATES' COURT
Chapter 6 Criminal Jurisdiction: A Guide
6.1 Introduction
6.2 Purpose of the Criminal Justice System, Judicial Power and Constitutional Principles
6.3 Nature and Types of Offences and the Statutory Jurisdiction of Magistrates in Criminal Cases
6.4 Geographical Limitations of Criminal Jurisdiction
6.5 Concurrent Jurisdiction and Transfer of Proceedings
6.6 Time of Offences
6.7 District Court Jurisdiction in Relation to Children
6.8 Types of Sentences and Orders
Chapter 7 Criminal Responsibility and General Defences
7.1 Offences and the Criminal Code
7.2 Parties to Offences: Accomplices
7.3 Attempts to Commit Offences
7.4 Proof of Criminal Responsibility: Intention
7.5 Intention and Automatism
7.6 Honest and Reasonable Mistake of Fact
7.7 Ignorance of the Law and Honest Claim of Right
7.8 Prior Conviction / Acquittal / Sentence
7.9 Extraordinary Emergency
7.10 Insanity
7.11 Intoxication
7.12 Immature Age
7.13 Justification and Excuse
7.14 Defence of Self or Property
7.15 Provocation
7.16 Custom
8.1 Commencement of Criminal Proceedings
8.2 Form
8.3 Essential Ingredients
8.4 Particulars
8.5 Consideration by the Magistrate
8.6 Amendment
8.7 Duplicity and Uncertainty
8.8 Joint Accused
Chapter 9 Summons and Warrants
9.1 Bringing the Defendant to Court
9.2 Summonses
9.3 Arrest Generally
9.4 Arrest Without Warrant, and Police Powers and Duties
9.5 Arrest Warrants Issued by the Courts
9.6 Other Occasions for Arrest Warrants
9.7 Attendance of Witnesses
9.8 Search Warrants
10.1 The Presumption of the Right to Bail
10.2 Jurisdiction to Grant Bail
10.3 Applications in District Courts
10.4 Issues Relating to the Exercise of Discretion
10.5 Procedure at a Bail Hearing
10.6 The Bail Certificate
10.7 Conditions Attaching to Bail
10.8 Variation and Revocation
Chapter 11 Committal Proceedings
11.1 Criminal Hearings Generally
11.2 Nature and Purpose of Committal Proceedings
11.3 Committal Jurisdiction in Papua New Guinea
11.4 Commencement of Committal Proceedings Generally
11.5 Committal Without a Hearing
11.6 Inquiry into the Documentation Under Section 94C
11.7 Consideration of the Evidence
11.8 Examination of the Defendant
11.9 Discharge or Committal of the Defendant
11.10 Defendant's Admission of Guilt
11.11 Witness Statements May be Relied on as Evidence at Trial
12.1 What Constitutes a Guilty Pleas
12.2 Summary of Procedure
12.3 Significance of Guilty Plea
12.4 Safeguards in the Law and Practice
12.5 Plea-Bargaining
12.6 Procedure Following a Plea of Guilty
13.1 Purpose
13.2 The Sentencing Hearing
13.3 Sentencing Facts
13.4 Sentencing Principles
13.5 Matters Which Must be Considered
13.6 Sentencing Options
13.7 Preventive Orders
PART 4 CIVIL, FAMILY AND OTHER JURISDICTIONS
Chapter 14 General Matters Relating to Civil Litigation
14.1 Introduction
14.2 Considerations Relating to Jurisdiction in the District Court
14.3 Parties
14.4 Complaints and Defences
14.5 Civil Hearings in the District Court
14.6 Disposition Without Contested Hearing
14.7 Orders
Chapter 15 Key Concepts in Some Civil Matters
15.1 Contracts and Their Elements
15.2 Other Contractual Terms
15.3 Parties to the Contract
15.4 Defects in Contracts and Elements that Make Contracts Invalid (Vitiating Elements)
15.5 Remedies for Breach of Contract
15.6 Torts
15.7 Statutory Sources of Liability for Fault
15.8 Remedies for Tortious Wrongs
Chapter 16 Family and Children's Matters in Magistrate's Courts
16.1 Introduction
16.2 Determination of Paternity: Child Welfare Act
16.3 Orders for Maintenance: Deserted Wives and Children Act
16.4 Child Custody Under the Deserted Wives and Children Act
16.5 Awards of Compensation for Adultery and Enticement
16.6 Certifying the Dissolution of Customary Marriages
16.7 Enforcement of Maintenance Orders: Maintenance Orders Enforcement Act
16.8 Enforcement of Maintenance Orders: Child Welfare Act
16.9 Enforcement of Maintenance Orders: Deserted Wives and Children Act
17.1 Introduction
17.2 Mediation
17.3 Local Land Courts
17.4 Provincial Land Courts
17.5 Inspections
Chapter 18 The Village Courts
18.1 Introduction
18.2 Unique Characteristics if Village Courts
18.3 Village Court Orders
18.4 Relationship of Magistrates with the Village Courts
18.5 Endorsement of Village Court Orders Fines and Orders for Execution
18.6 Enforcement of Fines and Orders for Execution
18.7 Appeals and Reviews
18.8 Supervision of Village Courts
Chapter 19 Coroners, Elections and Other Jurisdictions
19A Coroners' Inquests
19A.1 The Coroner's Jurisdiction
19A.2 Stage I Initial Investigations
19A.3 Stage II Inquests
19B Elections
19B.1 Enrolment Appeals (National and Local-Level Elections)
19B.2 Petitions: Disputed Elections or Returns (Local Level)
19B.3 References: Disputed Qualifications or Vacancies (Local-Level)
19C Surety of the Peace and Good Behaviour
19C.1 Part X of the District Courts Act
19C.2 Grounds for Invoking the Court's Jurisdiction
19C.3 The Procedure
19C.4 Evidence
19C.5 Recognisance
19C.6 Forfeiture of Recognisance
19D Motor Vehicle Deaths Compensation
19D.1 The Motor Vehicles (Third Party Insurance) Basic Protection Compensation) Act
19D.2 The Inquiry
19D.3 Determinations
19D.4 Award and Enforcement
PART 5 - ENFORCEMENT AND COSTS
20.1 Introduction
20.2 Enforcement of Civil Judgments
20.3 Third-Party Claims Against Property
20.4 Attachment of Debts
20.5 Deliberate Non-payment of Judgment Debts
20.6 Enforcement of Fines
20.7 Contempt
Chapter 21 Costs, Fees and Expenses
21.1 Types of Costs in General
21.2 Orders for Costs
21.3 Costs Under the District Courts Act
21.4 Costs in Criminal Matters
21.5 Costs in Civil Matters
21.6 Adjournments
21.7 Witnesses
21.8 Lawyers' and Agents' Costs
21.9 Costs on Appeal
PART 6 - MAGISTRATES' CIVIL LIABILITY AND CASE MANAGEMENT
Chapter 22 Civil Liability and Protection of Magistrates
22.1 Principle of Liability
22.2 Principle of Immunity
22.3 Liability and Protection of Magistrates and Clerks
22.4 Scheme of Part XII of the District Courts Act
22.5 Other Jurisdictions
23.1 Introduction
23.2 The Importance of Case-Flow Management
23.3 Objectives
23.4 General Principles
23.5 Methods of Managing Case-Flow
23.6 Development of a Case-Flow Policy
PART 7 - SETTLEMENT, DECISIONS AND APPEALS
Chapter 24 Out-of-Court Settlements and Alternative Dispute Resolution
24.1 Introduction
24.2 Advantages of Out-of-Court Settlement
24.3 Negotiation the Most Common Means of Resolving Cases Out of Court
24.4 What is Alternative Dispute Resolution?
24.5 More About Mediation
24.6 When is Mediation Appropriate (or Inappropriate)?
24.7 The Stages of Mediation
24.8 The Duties of Magistrates in Relation to Mediation
24.9 Formalising an Out-of-Court Settlement
Chapter 25 Decisions and Reasons
25.1 Introduction
25.2 Formalities of Recording Judgments
25.3 Interim Decisions and Orders
25.4 Reasons for Decisions
25.5 Communicating Reasons for a Decision
25.6 The Qualities of a Good Judgment
Chapter 26 Appeals from the District Court
26.1 Introduction
26.2 What may be Appealed
26.3 Minimising the Chances of an Appeal
26.4 How an Appeal is Made
26.5 Duties of a Magistrate When an Appeal is Commenced
26.6 After the Appeal
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