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Papua New Guinea - Magistrates' Manual

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Magistrates sit mainly in the provincial District Courts which are part of Papua New Guinea’s National Judicial System as provided for by the Constitution of the independent state: s 155. The District Court is established by its own statute under the authority given to Parliament by s 172(1) of the Constitution. Other courts and inquiries usually presided over by Magistrates include the Local Land Court, the Provincial Land Court, the Children’s Court and Coroner’s hearings.

The Constitution vests “the judicial authority of the people” in the National Judicial System and requires that “in interpreting the law, the court shall give paramount consideration to the dispensation of justice”: s 158.


Unlike Judges of the Supreme and National Courts, Magistrates have no inherent authority and can act only in accordance with those powers which are expressly conferred on them by statute. For example, because the only power which Magistrates have to punish a person for contempt of court is provided in the statutes (see Chapter 3.1.3), a Magistrate must follow the wording of the section carefully and does not have the wider powers of a Judge.

2.2.1 The principal Act

The District Courts were established by the District Courts Act 1964, with both criminal and civil jurisdiction. Until repealed in April 2000, the Local Courts Act provided for a Local Court jurisdiction and junior Magistrates sat in Local Courts throughout Papua New Guinea. The reforms of 2000 rationalised the magistracy and the lower court system. The grading of Magistrates was abolished: see below. The jurisdictional powers of a District Court depend on whether the Magistrate who hears the case is a Principal Magistrate or a District Court Magistrate. For example, while District Court Magistrates may deal with summary offences, only Principal Magistrates may also try certain indictable offences which have been declared to be punishable on summary conviction: District Courts Act, s 20 and Criminal Code Act 1974, Sch 2.

2.2.2 Other legislation

Magistrates of the District Court also have powers and responsibilities under the Village Courts Act 1989. Magistrates may be called upon to decide whether to endorse certain Village Court orders (Village Courts Act, ss 68 and 75) and to hear appeals and conduct reviews (Village Courts Act, Div 11). In addition, Magistrates have powers and responsibilities under such statutes as the Land Disputes Settlement Act, the Coroners Act, the Deserted Wives and Children Act, the Inter-Group Fighting Act, the Organic Law on National and Local-level Government Elections and the Motor Vehicles (Basic Protection Compensation) Act.

2.2.3 Concurrent jurisdiction and transfer between courts

The proclamations establishing District Courts and Village Courts define the area within which each court may operate. Because of geographic overlap between the courts, parties may have some choice of court and the relevant statutes facilitate transfer of cases from one court to another of the same name or to a different court: District Courts Act, s 24 and Village Courts Act, s 97. See also further discussion of transfers and venues in Chapter 4.

2.2.4 Appointment, removal and conditions of service

Full-time Magistrates are appointed by a constitutional body, the Judicial and Legal Services Commission (Constitution, ss 172(3) and 175), and in accordance with the Magisterial Service Act. The Commission determines the qualifications for appointment as Magistrate and appoints the offices of Chief Magistrate, two Deputy Chief Magistrates, Principal Magistrates, a Senior Magistrate for each province and the District Court Magistrates: Magisterial Service Act, ss 5-7 and 8. The salaries and conditions of service are determined by the Commission after consultation with the head of the Department of Personnel Management: Magisterial Service Act, s 10. The judicial declaration made by Magistrates prior to taking office is set out in Chapter 1 of this manual.

Magistrates are members of the Magisterial Service (Constitution, s 173) headed by the Chief Magistrate who, subject to the direction of the Commission, is responsible for its “efficient functioning and operation” and has wide powers in relation to Magistrates’ postings and duties: Magisterial Service Act, s 2.

Full-time Magistrates may be removed from office only for “incapacity or misbehaviour (including, if applicable, misconduct in office)”: Constitution, s 172(3).


2.3.1 The Constitution

Since independence in 1975, the laws of Papua New Guinea are subject to the provisions of the Constitution, which, together with the organic laws, are the supreme laws of the nation. All acts (whether legislative, executive or judicial) that are inconsistent with these supreme laws are, to the extent of the inconsistency, invalid and ineffective: Constitution, s 11. The hierarchy of laws set out in s 9 of the Constitution reads:

(a)        Constitution;

(b)        Organic Laws;

(c)        Acts of National Parliament;

(c)        Emergency Regulations;

(d)        Laws made or adopted under the Constitution, including subordinate legislation; and

(e)        Underlying Law.

2.3.2 Organic laws

These laws of National Parliament are made for limited purposes and amended by special procedures: Constitution, ss 12, 14 and 17. Organic laws have been passed on provincial governments, the electoral process, electoral boundaries and the Ombudsman Commission.

2.3.3 Acts of National Parliament

The legislative power of the people is vested in the National Parliament, which, subject to the Constitution, has unlimited powers of law-making and is responsible for making laws “for the peace, order and good government of Papua New Guinea and the welfare of the People”: Constitution, ss 99, 100 and 109.

2.3.4 Emergency regulations

The Head of State, on the advice of the National Executive Council, can declare a national emergency and make regulations which can override most laws of the country, including some, but not all, provisions of the Constitution: Constitution, ss 246-266.

2.3.5 Laws made by provincial legislatures

Certain areas of activity in the provinces are governed by laws of provincial governments, but, generally speaking, laws relating to the courts and justice and criminal offences are national statutes that apply throughout the country.

2.3.6 Adopted and subordinate legislation

On independence, all prior statutes in force, including a few from Australia and England, were adopted in Papua New Guinea and made subject to the Constitution. Subordinate legislation such as regulations and rules made under the authority of statutes is construed subject to those statutes as well as the Constitution.

2.3.7 Interpretation of written laws

The Underlying Law Act 2000 has placed two obligations on the courts when they are interpreting “any word, expression or proposition in the written law”, namely:

Custom: “the Court shall give effect to any relevant customary practice, usage or perception recognised by the people to be affected as a result of the interpretation”: s 23(1).

Foreign jurisdictions: “subject to subsection (1), the Courts may consider how the Courts in foreign jurisdictions have interpreted similar or identical provisions, words, expressions or propositions”: s 23(2).

2.3.8 Underlying law Constitutional requirements

The “underlying law” is the body of unwritten law, such as “custom” and “common law and equity”, which applies to any question on which there is no legislation. Under ss 20 and 21 of the Constitution, Parliament was required to declare the underlying law and provide for its development. In the meantime, the provisions of Sch 2 of the Constitution were to fulfil this function. The Underlying Law Act 2000

Progress with development of the underlying law should now occur in accordance with the Underlying Law Act 2000, which was passed in order to:

(a)        state the source of the underlying law;

(b)        provide for the formulation of rules of the underlying law; and

(c)        provide for the development of the underlying law: Underlying Law Act 2000, preamble.

The Underlying Law Act appears to replace most, if not all, of Sch 2 of the Constitution. When considering what is said about the Act, here and elsewhere in this manual, it should be borne in mind that any difficulties which there may be in interpreting and implementing the Act had not been considered by the courts at the time of writing the manual. Sources of underlying law and their application

The detailed provisions of the Underlying Law Act should be referred to, but they may be summarised briefly in the following manner:

1.         In every case, the court must apply the laws of Papua New Guinea in the following order:

(a)        written law;

(b)        the underlying law (if it has been formulated);

(c)        the customary law; and

(d)        the common law: see ss 6 and 7.

2.         The sources of underlying law are the customary law and the common law as defined in s 1 of the Act. They must to be adopted and applied to form part of the underlying law in accordance with the qualifications set out in s 4 of the Act.

3.         A court that refuses to apply a principle or rule of customary law, or decides to apply a principle or rule of common law, under s 4, must give reasons for its decision: s 4(4), and see Chapter 25.6.4.

4.         Rules for the ascertainment and application of customary law are set out in ss 16 and 17, and should be read with the Customs Recognition Act: see 2.4 below. Further responsibility for development of the underlying law

1.         It is the responsibility of the courts, especially the Supreme and National Courts, to ensure that the underlying law develops as a coherent system: Underlying Law Act, s 5.

2.         Where a court, other than the Supreme or National Court, has made a decision applying the underlying law, the customary law or the common law in the manner set out in s 7, it must forthwith send a copy of the decision to the Chief Justice and the Chairman of the Law Reform Commission, to be dealt with by either of these under ss 12, 13 and 14.

3.         The National Court and the Law Reform Commission have wide powers in relation to the review of decisions, as set out in ss 12, 13 and 14.

4.         Counsel appearing in a proceeding which raises a question of whether or not the customary law applies, is under a duty to assist the court by calling evidence and obtaining relevant information and opinion that would assist the court in determining:

(a)        the nature of the relevant rules of customary law; and

(b)        whether or not to apply those rules in the proceedings: ss 15 and 16.


2.4.1 Custom: its nature

Custom is a system of rules, usually unwritten, intertwined with the way of life of the community, which people living in that community obey without the formal laws and courts of the state. In Papua New Guinea, under the constitutional definition, “custom” means:

<Legislation Quotation>

“the customs and usages of indigenous inhabitants of the country existing in relation to the matter in question at the time when and the place in relation to which the matter arises, regardless of whether or not the custom or usage has existed from time immemorial”: Constitution, Sch 1.2(1); Underlying Law Act 2000, s 1.

<End Legislation Quotation>

2.4.2 Custom: its application Custom as a source of law

Custom has wide effect outside the formal legal system but it is also one of the main sources of law which is recognised as having force in circumstances specified by statute: see 2.3.8 above. Custom may not be applied in the courts except as provided by the relevant statutes.

The main statutes are the Underlying Law Act, discussed above at 2.3.8, and the Customs Recognition Act, which deals with proof of custom (a topic discussed in Chapter 5 on Evidence) and its application generally. Where these two Acts are inconsistent, the usual rule of interpretation applies so that the later Act overrides the former.

Subject to the above two Acts, customary law must be applied by all courts. However, it may be rejected in a particular case if:


·           it is inconsistent with a written law (the Constitution or statute - see 2.3.1 above);

·           its application and enforcement would be contrary to the National Goals and Directive Principles and the Basic Social Obligations established by the Constitution; or

·           its application and enforcement would be contrary to the basic rights guaranteed by Div III.3 (Basic Rights) of the Constitution (Underlying Law Act, s 4). Custom in criminal matters

The main limitations on the application of custom are to be found in ss 4 and 5 of the Customs Recognition Act. In criminal matters, the state alone can punish people, and it can do so only for crimes defined by state law: Constitution, s 37(2). A person cannot be convicted for doing something which is an offence against custom unless it is also an offence under statute or regulation. Conversely, people may be guilty of breaking the state law while doing something which custom allows them to do.

The Act requires that courts are not to take custom into account in criminal cases except to determine:


·           whether a person had the state of mind required by law (see Chapters 7.4-7.6, 7.15 and 7.16);

·           where the law allows reasonableness to be relevant, whether an act or omission, or an excuse given by a person, was reasonable or unreasonable (see Chapters 7.13, 7.15 and 7.16);

·           in accordance with any other law, whether to proceed to the conviction of a guilty party; or

·           the penalty (if any) to be imposed on a guilty party,

or except where the court thinks that by not taking the custom into account injustice may be done to a person (see s 4). Custom in civil and other cases

Subject to the Underlying Law Act, the application of custom is also restricted in cases other than criminal cases.

Custom may be taken into account only in relation to the matters listed in s 5 of the Customs Recognition Act. To summarise the more important matters briefly, custom may be applied to determine:


·           the ownership of customary land, including any thing in or on it, or its produce, and rights of hunting or gathering;

·           the ownership of rights in the sea or reef, including the bed of the sea, a river or lake, and rights of fishing;

·           the ownership by custom of rights to water;

·           the devolution of interests in customary land;

·           trespass by animals;

·           marriage, divorce or the right to custody or guardianship of infants under a customary marriage;

·           a transaction that the parties intended, or justice requires, should be regulated wholly or partly by custom and not by law;

·           the reasonableness of an act, default or omission by a person;

·           the existence of a state of mind of a person,

or it may be applied where the court thinks that by not taking the custom into account injustice may be done to a person. In the case of guardianship and custody of infants and adoption, custom must always be taken fully into account in deciding questions before the court. Conflict between customs

Where a question arises as to which particular customary law should apply, the court must determine the matter in accordance with the rules set out in s 17 of the Underlying Law Act.

2.4.3 Custom in other recognised applications Customary law rules and procedures

In two jurisdictions, under the Village Courts Act and the Land Disputes Settlement Act, the courts are free to follow customary procedures in order to arrive at settlements or decisions in accordance with custom, even if that is inconsistent with other statutes or laws. Custom specifically recognised

Customary institutions are allowed to operate under statute in certain situations.

For example:

·           the Marriage Act recognises customary marriages;

·           the Wills, Probate and Administration Act preserves customary succession rules; and

·           the Business and Land Groups Incorporation Acts recognise customary groups as bodies which can do business or hold land for the purposes of state law.

2.4.4 The recording of custom

As a further means of developing the underlying law of Papua New Guinea, Magistrates in the District Courts and Land Courts are encouraged to record their findings as to what the custom is in particular cases (see Chapter 25), and are required to give reasons and send copies of their decisions to the Chief Justice and the Law Reform Commission in accordance with the Underlying Law Act (see 2.3.8 above).


The principles and rules of common law in force in England immediately before 16 September 1975 are declared to be a source of, and must be adopted and applied as part of, the underlying law of Papua New Guinea, provided the common law in question is:

·           consistent with written law;

·           applicable and appropriate to the circumstances of the country;

·           consistent with customary law applied under the Underlying Law Act;


·           its application and enforcement would not be contrary to the National Goals and Directive Principles and the Basic Social Obligations established by the Constitution; and

·           its application and enforcement would not be contrary to the basic rights guaranteed by Div III.3 (Basic Rights) of the Constitution: Underlying Law Act, s 4.

Because statutes and custom do not cover all aspects of commercial, administrative and private law, the courts are constantly applying common law and equity: see 2.8.1 below.

An exception is the Village Court jurisdiction where case law is seldom referred to. If custom does not apply, the court is required to decide all matters before it in accordance with “substantial justice”: Village Courts Act, s 58. It is helpful to think of “substantial justice” as the justice of the decision itself – the outcome of the case – while “natural justice”, discussed below, relates to the process or procedures leading to the decision.


2.6.1 National Goals and Directive Principles

The statements of National Goals and Directive Principles and of Basic Rights and Social Obligations which appear in the preamble to the Constitution are not law to be applied directly, but they are able to provide guidance in the administration of justice. The Constitution says that where any law or power can reasonably be understood, applied or enforced in such a way as to give effect to the National Goals and Directive Principles, it should be understood, applied or enforced in that way. Of course, the intentions of the Constitution and Parliament are always paramount: Constitution, s 25.

The preamble contains several statements which may be useful to the courts in explaining the reasons behind existing laws and the ways in which they should be applied. For example, the statements emphasise the equality of all citizens; their rights of equal access to government and the courts; rights to participation in the consideration of matters affecting their interests; the value of the family unit, equality of partnership and responsible parenthood; preservation of natural resources; and the protection of culture, language and traditional villages.

2.6.2 Natural justice

The principles of natural justice have been developed by the English common law and recognised in the drafting of the Constitution.

Good examples of what natural justice requires are:

·         the rights of a person charged with an offence, as listed in s 37(4); and

·         the rights of parties in civil disputes specified in s 37(11)-(13).

It is intended that the principles of natural justice should be part of the rules of the “underlying law”. Section 59(2) adds:

<Legislation Quotation>

“The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.”

<End Legislation Quotation>

Although the Underlying Law Act has replaced Sch 2 of the Constitution dealing with development of the underlying law (referred to in s 60 of the Constitution), s 59 read with s 24(1) of the Underlying Law Act seems to keep alive the high status of the principles of natural justice in Papua New Guinea.

Natural justice is not merely an abstract concept. Every time a magistrate has a discretion as to a matter that affects the process of a case (for example, decisions whether to adjourn a case and for how long) natural justice considerations are relevant. In the Village Courts, the Magistrate’s powers and procedures must be exercised “in accordance with the principles of natural justice”: Village Courts Act, s 59(2). Just how natural justice should be applied depends on the nature of the case, and a useful summary is set out in Chapter 4.1.3.


The Constitution guarantees certain rights which must be respected and applied in the courts. This summary is only a set of signposts to assist the reader to find the law relevant to the case in hand.

2.7.1 Types of rights Fundamental rights

·        Right to Freedom – This makes it clear that:

·           every person has the legal right to do anything that does not injure or interfere with the rights and freedoms of others, and is not prohibited by law; and

·           no person is obliged to do anything that is not required by law: Constitution, s 32.

·        Right to Life (s 35) and Freedom from Inhuman Treatment (s 36)

·        Right to Protection of the Law – Every Magistrate should be familiar with these detailed provisions for the protection of the accused, including, for example, the right to a fair hearing within a reasonable time by an independent and impartial court: s 37. A full summary of these rights as applicable to criminal cases is set out below in Chapter 6. As to civil cases, see Chapter 14. Qualified rights

The following rights may be restricted by statute on certain grounds, and to the extent that is reasonably justifiable in a democratic society (ss 38-40):

·        Liberty of the Person – These rights, concerning arrest and detention, as well as the next two, are also particularly relevant for the criminal jurisdiction (see Chapter 6): s 42;

·        Freedom from Forced Labour: s 43;

·        Freedom from Arbitrary Search and Entry: s 44;

·        Freedom of Conscience, Thought and Religion: s 45;

·        Freedom of Expression: s 46;

·        Freedom of Assembly and Association: s 47;

·        Freedom of Employment: s 48;

·        Right to Privacy: s 49. Citizen-only rights

While all persons in Papua New Guinea possess the above rights, those that follow are granted only to citizens:

·        Right to Vote and Stand for Public Office: s 50;

·        Right to Freedom of Information: s 51;

·        Right to Freedom of Movement: s 52;

·        Protection from Unjust Deprivation of Property: s 53;

·        Right to Equality of all Citizens – regardless of race, tribe, place of origin, political opinion, colour, creed, religion or sex: s 55;

·        Rights to Vote and Acquire Freehold Land: s 56.

2.7.2 Enforcement of rights

The above rights or freedoms may be enforced in the Supreme or National Court. If Magistrates, on their own initiative or at the request of a party or person interested, think there has been an infringement of a right or freedom, or there is reasonable probability of infringement, they may adjourn the proceedings before them in order to allow the question to be decided by the superior court. Damages may be awarded for infringement: ss 57 and 58.

2.7.3 Group rights and responsibilities

Some of the statements of the National Goals and Directive Principles and of the Basic Rights and Social Obligations include recognition of the importance of families and wider groups in Papua New Guinea. They stress reciprocal rights and obligations. In keeping with these values, a Village Court may recognise a group as if it were a natural person and make orders for or against it: Village Courts Act, ss 98-100. Under other legislation also, such as the Land Disputes Settlement Act and the Inter-Group Fighting Act, the Magistrate may be required to consider the rights and responsibilities of traditional tribes, clans, customary kinship groups and communities. In these situations, the group becomes a party, and its interests may take priority over the interests of an individual member.


2.8.1 Case law

Whenever a court interprets a statute or applies a rule of common law and equity, or a rule of customary law, it is making “case law” in the sense that its decision will help another court decide a similar case in the future. When the reasons for a judgment are written down they are an example or “precedent” which others may follow. Over the years, and from precedent to precedent, a body of law is built up in this way and continues to grow (for example, the Papua New Guinea Law Reports). Now it is useful to look at what a precedent is, and when it is binding.

2.8.2 The ratio of the case

A decision alone, such as a finding of “guilty”, is not a precedent, because you need to know the facts of the case and the legal reasons for the decision before it is of any help in the future. So the findings of fact and the court’s opinion of the law and legal consequences together make up the “ratio decidendi” or precedent. Sometimes a judge will express opinions which are not necessary for the actual decision in the case, and these are not part of the precedent and are called “obiter dicta”. Also, if judges in a case do not agree, it is only the ratio of the judgments of the majority view which are the precedent.

2.8.3 Binding precedent

The rule is that a court must follow the precedents set by the decisions of those courts that have power over it. A court will normally follow its own previous decisions in later cases, but it is not bound to do so. Decisions of the Supreme and National Courts are binding on all other courts: Underlying Law Act, s 19. Sections 20-22 of the Underlying Law Act set out rules for dealing with conflict between precedents, considering decisions of foreign and pre-independence courts, and the overruling of decisions, so that in special cases new decisions may be prospective in operation only.

It is helpful for Magistrates to collect decisions of the District Court as guidance, and to try to produce, as far as possible, a consistent set of decisions and a body of law in the areas with which the Magistrates are frequently dealing. The importance of good reasoning in decisions is discussed below in Chapter 25.


2.9.1 Procedural rules

The District Courts Act does not say much about how Magistrates should run their courts and conduct cases. The importance of impartiality and professional bearing has been stressed in Chapter 1. Some rules of procedure and evidence are laid down in the Act, and others appear in the Evidence Act and the Criminal Code, but the rules do not deal fully with such issues as:

·        what Magistrates should actually say to parties, lawyers and witnesses throughout a case;

·        precisely who may speak in court, and when;

·        how much control Magistrates should exercise over these people – for example, as to how long a witness may have to speak, and how long the witness may be cross-examined, what sorts of things people may say and, more importantly, what they should not say in the hearing;

·        when and for what reasons Magistrates should interrupt or intervene in what is happening.

The answers to these questions, and many others that arise during a hearing, come from written and unwritten rules that govern courts generally in the “common law” world. Some guidance in relation to these issues will be found in this manual. Of course, a lot depends on whether a party has a legal representative: see Chapter 3.2-3.5. Here is a brief explanation of the Magistrate’s role.

Magistrates are responsible for administering justice, under the District Courts Act and other statutes, in the matters that are brought to the courts by the police, other government authorities or members of the community. The courts must decide matters if the parties are unable to resolve them or settle the disputes between themselves: see Chapter 24 on settlement. Court proceedings will be commenced by the prosecution (where an offence is alleged) or by the aggrieved person in civil and other matters. The courts in Papua New Guinea have inherited the English and United States “common law” system in which the Judge or Magistrate has no power to begin proceedings. The court cannot conduct its own inquiry, and, even after a case has been started, it cannot call for people to be brought to the court as witnesses unless a party requests it. Powers of inquiry under the Coroner’s Act, the Deserted Wives and Children Act, the Inter-Group Fighting Act and the Motor Vehicles (Basic Protection Compensation) Act are exceptions.

The role of a Magistrate who is acting as mediator in civil matters is very different: District Courts Act, ss 22B-22D. Also, different rules apply to a Magistrate who is exercising the jurisdiction of a Village Court. The technical rules of evidence do not apply (Village Courts Act, s 38) and the Village Court has primary responsibilities with regard to keeping the peace, mediation and resolution of disputes and the application of custom: Village Courts Act, ss 43, 51, 53 and 57.

2.9.2 Reasons for the adversarial system

Under the “common law” system, the court is the place where the parties present and defend their arguments as to fact and law, and it is up to the parties to decide how to run their side of the case. This applies to criminal as well as all other types of cases. The theory is that the best way to test the truthfulness of a witness’s evidence and “how good is the party’s case?” is to allow the other side to attack it. The proceedings are called “adversarial” because the opposing parties are pitted against each other. They may refuse to disclose documents or call evidence unless the rules of evidence require it. The parties may use strategies to try to outwit the opponent. Only the prosecution side in criminal cases has a duty actively to assist the opponent (the accused) by giving him or her details of evidence to be called. The result of the contest may not give the court the whole truth, but, if the procedural rules have been followed and the principles of natural justice have been observed, we usually say “justice has been done”.

2.9.3 Disadvantages of the system

A result of the existence of these procedural rules is that the adversarial contest is often uneven – one side is usually stronger than the other. The duty of disclosure on the prosecutor recognises that the prosecution has the power of the state behind it. The strength of a party might come from high status (chief or official), wealth (businessman), large physique (a husband) or from being able to have a lawyer in court. The field of battle is seldom level. Also, unfortunately, witnesses may lie, parties may try to avoid the rules of evidence by concealing documents or evidence, and parties and lawyers may try to mislead the other side and the court in many ways.

2.9.4 The role of the Magistrate

The responsibility of the Magistrate is to ensure that:

·         the Magistrate does not hear a case where the Magistrate might be seen to be biased (for example, as the relative of a party) (see the discussion of impartiality in Chapter 1.5);

·         if there are prospects of settlement (civil) or agreement as to plea (criminal) the parties are given reasonable opportunities to avoid a contest in court;

·         the parties will follow the rules governing the order of giving evidence and making submissions so that the rules of evidence as to burden of proof can be observed (except that the technical rules of evidence do not apply in the Village Court);

·         the trial or hearing is fair to all parties, for example, by giving them time to be heard, stopping unfair questioning and remarks, dealing firmly with attempts to mislead the court (see the discussion of natural justice above and in Chapter 4.1.3);

·         where a party is obviously weaker than the opponent (perhaps because the party needs, but cannot afford, a lawyer), that party is allowed more time to present the case and is given necessary assistance (see Chapter 3.2);

·         the Magistrate limits his or her questioning from the bench unless the circumstances of the case clearly require it, or questioning by parties or counsel is unsatisfactory (see Chapter 1.5.1);

·         whenever it seems appropriate, people in court are reminded that the purpose of the hearing is to do justice;

·         the friendly atmosphere of the court (including the Magistrate and staff) encourages all parties and witnesses to come forward and participate willingly; and

·         apart from ensuring fairness in the above manner, the Magistrate does not interfere in the conduct of the case (see the discussion of “professional bearing” in Chapter 1.5.1).


Finally, the Magistrate must give a decision based only upon:

·         the legal issue or matter which the prosecution or aggrieved party has brought to the court; and

·         the evidence presented in the trial or hearing.

This is the way in which the Constitution intends that the court should dispense justice: see s 158 (referred to in 2.1 above) and also s 59 on natural justice (in 2.6.2).

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