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Papua New Guinea - Magistrates' Manual

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4.1.1 Sources of procedure

The procedure to be followed in a particular case depends upon the jurisdiction being exercised. Here is a rough guide to the sources to which District Court Magistrates may refer:

Guide to sources of procedure

Criminal cases


·         simple and summary offences

District Courts Act (DCA), Pts IV, V & VII
Summary Offences Act (SOA)
Criminal Code (CC)
Arrest Act (AA)
Search Act (SA)
Bail Act (BA)

·         indictable offences triable summarily by a Principal Magistrate


·         indictable committals


Civil cases

(i)       DCA, Pts IV, V & VIII

Matters involving children

(ii)         Child Welfare Act (CWA)

Matters involving deserted wives and children

(iii)        Deserted Wives and Children Act (DWCA)

Land mediation

(iv)        Land Disputes Settlement Act (LDSA)

Village Court matters

(v)         Village Court Act (VCA)

Inter-group fighting matters

(vi)        Inter-Group Fighting Act (I-GFA)

Coroner’s inquests

(vii)       Coroners’ Act

Elections: enrolment appeals and disputed returns

Organic Law on National and Local-level Government Elections

Motor vehicle compensation assessment

Motor Vehicles (Basic Protection Compensation) Act

4.1.2 Statutes and court rules

In every case where a statute provides for the procedure, that procedure must be followed. For example, criminal cases in the District Court are usually governed by the District Courts Act and the Criminal Code. However, some aspects of criminal procedure, such as the examination and cross-examination of witnesses, are not dealt with by statute, and the procedure of the National Court should be followed: DCA, s 131.

4.1.3 Natural justice in criminal and civil matters

The framework of statutory procedures for criminal and civil cases is constructed so as to give effect to the principles of natural justice, some of which are mentioned in the Constitution: see 2.6.2. There are gaps, as where the statute book fails to provide for a particular situation. More importantly, Magistrates frequently exercise discretions with regard to such matters as hearings, documentation, witnesses and issues to be tried. Where the statute does not provide a clear answer, the Magistrate is still bound by the same basic principles, as the following guide indicates.

Natural justice in a Magistrate's Court

·       Adequate notice of charge, complaint or allegation, with full details, should be given to the accused or defendant.

·       A civil complainant is entitled to details of the grounds of the defence.

·       Adequate notice of hearing and any adjourned hearing should be given to all parties.

·       The parties are entitled to a public hearing before an impartial Magistrate within a reasonable time.

·       Each party has the right to call witnesses, give evidence, cross-examine opposing witnesses and address the court – and also to be present in court throughout, either in person or through a lawyer.

·       A party has the right to appeal against the decision of the primary decision-maker.


The relevant statutes set out which jurisdiction is appropriate in criminal and civil cases, depending on the gravity of the offence alleged and the nature and amount of the remedy sought. These will determine the jurisdiction to be used (National, District or Village Court) and, in the District Courts, the status of the Magistrate who may preside over the case: see Chapter 6 for criminal jurisdiction and Chapter 14 for civil jurisdiction.

4.2.1 Concurrent jurisdiction

The National Court has concurrent jurisdiction with the District Court to hear and determine indictable offences punishable on summary conviction, being offences specified in Sch 2 of the Criminal Code: DCA, s 20. The District Court may transfer proceedings to the National Court, and the National Court has power to order District Court proceedings to be transferred to the National Court. The power to transfer proceedings between National and District Courts is dealt with under 4.2.3 below, as is the referral of a matter into or out of a Village Court. The situation is complicated by overlapping or concurrent jurisdictions and rules regarding venue. The District Courts have jurisdiction over all offences triable summarily and over civil actions at law or in equity.

4.2.2 Venue

The District Court must sit at one of the appointed places gazetted (DCA, s 17) within the province for which it is established. Rules for determining which courthouse should be used for a particular criminal matter within the province, and for other venues and circumstances, are set out in s 122 of the DCA, with power of adjournment to a different place in the province in s 123.As to the actual place where the court may sit, s 17 makes it clear that the court must use a courthouse unless:

·         there is no courthouse within a convenient distance; and

·         as much notice of the time and place of sitting as is practicable is given to members of the public likely to desire to attend.

Compliance with the above statutory provisions is mandatory.

As to the appropriate venue for the commencement and hearing of proceedings, see Chapter 6 for criminal proceedings and Chapter 14 for civil proceedings.

4.2.3 Transfer from one jurisdiction/court to another

The National Court may “reach down” and order the transfer of certain matters from the District Court to the National Court on certain terms: see DCA, s 24(2).

A Magistrate in a District Court may transfer proceedings out of his or her jurisdiction by means of:

·           transfer “upwards” from the District Court to the National Court (DCA, s 24(1)); or

·           transfer “outwards” from the District Court out to some other District Court (DCA, s 24(1)).

Transfer up to a more senior court is justified if the matter is particularly serious or raises major questions of legal principle or public policy. In other circumstances it is the duty of the Magistrate to endeavour to deal with the proceedings where they are instituted – to the best of his or her ability.

An unusual example of power to change the jurisdiction under which a case will be dealt with arises under s 425 of the Criminal Code, where a Magistrate can abstain from dealing with certain summary property offences (under ss 422-424) if he or she considers that they should be replaced with indictable offences. The Magistrate would then commit the defendant for trial in the National Court on the indictable offences.

Transfer outwards from one District Court to another may require an adjournment of the case. In civil proceedings the defendant can obtain an adjournment if he or she can satisfy the Magistrate that the complaint could “more conveniently and more properly” be heard before the other court: DCA, s 150. If the bringing of the action in the wrong court was “vexatious and oppressive”, the Magistrate may award compensation to the defendant: DCA, s 151.

The case of the Village Court is somewhat different: see 18.8.9. The test is whether the proceedings could “more appropriately” be dealt with by the Village Court or some other court having jurisdiction in the matter. Under s 97 of the Village Courts Act, a National or District Court may refer a matter to a Village Court, and, conversely, a Village Court may refer a matter to another court.

In all of these situations, the test of what is “appropriate” requires the Magistrate to consider whether or not the matter in hand would be better heard in a Village Court having regard to:

·         the special nature of the Village Court jurisdiction;

·         its personnel;

·         its focus on custom and land-related matters;

·         its powers and procedures, particularly with regard to peace-keeping, mediation and compensation, and

·         its appeal and review process.



4.3.1 Law and facts

The Magistrate is presiding over a court of law which, in the course of doing justice, is responsible for deciding issues of law and fact. It is always the duty of the Magistrate to find the law and apply it to the relevant facts. This is how the public generally see the function of the Magistrate, and the distinction between criminal proceedings and civil (and other non-criminal) proceedings is not widely understood. The picture is complicated by the power of the Magistrate in criminal proceedings to order monetary compensation to the party harmed by the accused’s actions.

This manual is structured to demonstrate the importance of the common functions and the basic duties of Magistrates (particularly Chapters 1-5 and 20-26) while also highlighting the difference between criminal and non-criminal proceedings (in Chapters 6-19).

4.3.2 Criminal jurisdiction

The issues arise between the parties in two stages - Determination of guilt

The guilt issue is not a choice between “guilt” or “innocence” – but whether the prosecution has established that the accused is guilty beyond reasonable doubt. The role of the prosecutor is to represent the interests of the informant, those harmed or aggrieved by the alleged offence and the wider public interest in dealing with crime. The members of the judiciary have no function in relation to decisions by the prosecution. A Magistrate cannot direct that a prosecution should be launched: see 3.6 above.

Private prosecutions may be brought for an indictable offence. In that situation, the interests of the private person alone are being pursued. Sections 616-618 of the Criminal Code require a private person to obtain the permission of the National Court and give security for costs before presenting an information.

If guilt is not proved, the accused is acquitted and discharged. The role of the accused is to test the evidence called against him or her and to present evidence if he or she wishes, but the accused is not obliged to give or call evidence. The accused may, at the outset, or at any time, enter a plea of guilty to the charge. A finding on the guilt issue ends the proceedings if it is an acquittal. A determination or plea of guilty leads to the second stage. Determination of sentence

At this stage the procedures and practices of the court are designed to assist the Magistrate to carry out an inquiry as to the appropriate sentence to be passed. The Magistrate has discretion to receive evidence needed to perform this task (Criminal Code, s 596(4)), and should ensure that both prosecution and defence co-operate with the court as discussed in Chapter 13. Unlike a contested criminal trial (see 2.9.2), this stage of the proceedings should be non-adversarial.

4.3.3 Civil jurisdiction

At the hearing of civil proceedings, the main issues are again two-fold. Determination of liability

A person seeking redress for harm or loss caused by the actions of another comes to the court as a complainant alleging a recognised cause of action and ready to prove facts on the balance of the probabilities. The first issue is whether the complainant can show that the facts of the case support a finding of civil liability against the defendant based on a cause of action known to law. If liability is not established, the defendant is entitled to judgment in the defendant’s favour. A finding in favour of the complainant leads to the second stage. Determination of nature and amount of remedy

Depending on the type of cause of action issued, the complainant may seek to prove entitlement to damages or the benefit of orders such as specific performance, restitution or injunction. Unlike the second (sentencing) stage of criminal proceedings, this second stage of civil proceedings requires evidentiary proof on the balance of the probabilities – to be brought to the court by the complainant in the same manner as the first stage. The proceedings are still adversarial. See Chapter 14 for further discussion.


“Ex parte” means that the court is asked to proceed in the absence of one party, usually the defendant, in criminal or civil cases. Sometimes preliminary orders as to the service of documents or interim injunctions are made ex parte, in order to speed up the process until the full hearing takes place. The absence of the defendant is an exception to the basic principle that the defendant is entitled to be present throughout his or her trial. This is a constitutional right: Constitution, s 37(5).

There are three constitutional exceptions applicable to the full hearing:

1.       The defendant can waive his or her right to be present, provided the Magistrate is satisfied that the defendant has been properly advised of this right, and clearly consents to the hearing proceeding in his or her absence.

2.       The court can order the defendant to be removed if his or her conduct is such as to make it impracticable to proceed.

3.       If the statute provides for an offence not punishable by imprisonment to be heard summarily and the defendant has been duly served with a summons, the hearing may proceed in his or her absence.

In the case of a defendant’s failure to attend court on a summons for a simple offence for which the maximum penalty does not include imprisonment, the Magistrate may proceed to hear the case ex parte: DCA, s 125. This means that the Magistrate must hear the evidence against the defendant and decide whether or not he or she is guilty. The prosecution evidence must be given in court on oath, otherwise the constitutional requirement that there be a “hearing” is breached. In 1982, the Supreme Court struck down s 132A(b) of the District Courts Act (then s 138A(1)(b)) and the corresponding provision of the Motor Traffic Act because those provisions purported to require the Magistrate to record a plea of guilty merely on proof of service of the summons and non-attendance at court on the day: Supreme Court Reference No 1A of 1981 [1982] PNGLR 124. See also Chapter 9.4.

If the defendant fails to attend on summons in the case of a simple offence involving imprisonment or an indictable offence triable summarily, the Magistrate may issue a warrant for arrest to have the defendant brought to court to answer the information: DCA, s 125.

If a case is adjourned and either or both of the parties or their representatives fails to attend at the adjourned date, the court may proceed in their absence, or, if the complainant does not attend, may dismiss the charges: DCA, s 130.

In relation to charges punishable by imprisonment, these sections in the District Courts Act should be read in light of the first and third constitutional exceptions above. They seem to require that, before a court can proceed to hear such a charge in the absence of the defendant, the defendant must have communicated his or her consent in a positive way, perhaps in writing or through a representative. The defendant’s failure to appear after having been served with a summons would not be enough. Mere proof of service of the summons on the defendant would not meet the constitutional requirements. In short, in such cases the defendant should be present voluntarily, by a representative, or brought to court by a bench warrant, at least for the opening stage of the hearing.

Court decisions made ex parte may be challenged later by the party who was absent. The court has discretion to set aside a conviction or other decision and to order a rehearing of the decision on terms the court considers to be just. The court should consider all the circumstances of the case and, in particular:

·        whether the defendant had a reasonable explanation for failing to attend;

·        whether the defendant appeared to have a good defence to the charge(s) and

·        the seriousness of the charge(s).

For the procedure to be followed in this situation, see s 25 of the District Courts Act.

In the civil jurisdiction, there is an important distinction between an ordinary complaint/summons and a default summons for a liquidated sum: see Chapters 14 and 15.


Courts are generally concerned to adjust rights and obligations and enforce the law between single parties. Sometimes the interests of justice may require that two or more parties, whose positions at law and on the facts are very similar, should be joined together so that their cases will be heard at the same time. For example, several complainants may join together in bringing a civil claim, and a complainant may sue several defendants who are alleged to have caused harm to the complainant in the same set of circumstances.

In criminal proceedings, the prosecution may charge two or more accused with offences arising out of the same set of facts, or closely related facts, and they may be tried together: see, for example, Criminal Code, ss 7, 8 and 532(6)-(9). The question of several charges alleged in a single information is a difficult issue: see Chapter 8.

On a joint indictment, if one accused pleads guilty and the other not guilty, the sentencing of the first accused should not occur until after the trial of the other has finished. If a joint hearing would prejudice the defence of one of the accused, application may be made for separate trials: Criminal Code, s 568. The Magistrate should consider whether the joint nature of the trial raises the real possibility that one or more of the accused will not receive a fair trial. Generally, if an accused requests a separate trial, this should be granted.


The court is a public place subject to the authority of the Magistrate, whose responsibility it is to maintain the dignity of the court while at the same time ensuring that, as far as possible, the public can see that justice is being done. Parties are entitled to a public hearing, and the guarantee in the Constitution (s 37(12) and (13)) adds weight to s 57 of the District Courts Act which requires that the room or place in which the court sits shall be “an open and public court to which all persons may have access so far as the room or place can conveniently contain them”. “Open” means that the door must be open throughout the trial so that the public feel free to enter and leave as they please. Police should not stand near the door so as to block it.

Of course, the section also empowers the Magistrate to close the court or require that particular persons be excluded from it, if the Magistrate is of the opinion that the interests of public morality require it. The interests of justice may require that, during committal proceedings for an indictable offence, the taking of statements of the accused should not be in open court: DCA, s 58. Further, child welfare proceedings and charges against children should not be held in open court: see Chapter 16. The power to exclude does not extend to parties or their legal representatives.

As far as witnesses are concerned, it is usual for the parties to request the Magistrate (or for the Magistrate on his or her own initiative) to order witnesses to remain outside the court until they have been called. They can remain in court after giving evidence. If anyone’s behaviour in court interferes with the court’s ability to do justice, the Magistrate can exercise such powers as exclusion from the court and contempt of court, which are discussed in 3.1.3 and 3.1.4.


Before the Magistrate enters the courtroom, it is wise to check arrangements with the court clerk.

Pre-Court Checks

The Magistrate should ensure that:

·         all the relevant court files have been made available to the Magistrate to study;

·         any particular information about cases on the list, such as urgency or special difficulty or sensitivity, is made known to the Magistrate before the hearing begins (and see Chapter 22 in relation to administrative responsibilities);

·         in civil cases, the clerk has called out the names of parties to check who is present;

·         parties are in attendance for the first case – or at least one party is present at the front of the court;

·         the courtroom is open to the public;

·         the public inside are seated quietly;

·         the ventilation and lighting are in order;

·         the court staff are ready.

As the Magistrate enters the courtroom certain formalities are observed.

Court Announcements

The Magistrate should take, or arrange for, the following steps:

·         ask everyone to stand, people should bow and the Magistrate should return the courtesy; then everyone should remain standing until the Magistrate has sat down;

·         declare the court open;

·         call the names of the parties of the first case (the defendant in criminal cases).


Once the Magistrate has entered the courtroom and the first case has been called, the parties should be asked to identify themselves, and problems arising out of the absence of any parties (see 4.4 above) should be dealt with. From that point, the order of proceedings will depend on the type of case. Here are some checklists.


A. Criminal cases before the District Courts

Summary offences and indictable offences triable summarily (DCA, ss 57-92 and 124-132)

(Sections 525-578 of the Criminal Code also provide some guidance)


1.  Check the court is open (see 4.6).

2.  Examine the information form to check the offence is within jurisdiction.

3.  Consider whether jurisdiction is also vested in some other court and whether the case should be transferred.

4.  Call the defendant forward and check the language spoken, name, address and occupation.

5.  If necessary, swear or affirm an interpreter.

6.  Read the charge(s) to the defendant and ensure he/she understands it/them.

7.  Ask the defendant to plead “guilty” or “not guilty” and record the reply. If it is “not guilty”, proceed to trial.


Guilty plea

8.  If the defendant pleads guilty, note the plea provisionally.

9.  The prosecutor to give a brief statement of facts.

10. Ask the defendant if he/she wishes to say anything in answer to the charge.

11. If not, enter a plea of guilty.

12. If the defendant makes a statement which raises a possible defence, change the plea to not guilty and proceed to trial. If an adjournment is necessary to a fixed trial date, consider questions of bail and surety (see 4.9 below and Chapter 10).



13. Order witnesses to leave the court (s 63).

14. The prosecutor to open the case and call witnesses.

In the case of each witness:

·       swear/affirm an interpreter, if necessary;

·       swear/affirm the witness;

·       record the evidence at each stage of examination;

·       allow cross-examination by the defendant;

·       allow re-examination by the prosecutor only as to new matters raised in cross-examination;

·       put the court’s questions to the witness;

·       ask the witnesses to remain in court after giving evidence. (If the Magistrate thinks there will be no reason to recall a witness later, the Magistrate may excuse the witness from further attendance.)

15. The close of the prosecutor’s case.

16. Hear a “no-case” submission, if any. The defendant is always entitled to argue that the defence has no case to answer.

17. Decide whether the defendant has a prima facie case to answer. If necessary, adjourn briefly to consider the matter.

18. If no prima facie case, acquit the defendant and give reasons.

19. If there is a prima facie case, give reasons and explain rights and choices to the defendant, namely:

·       to remain silent if the defendant wishes;

(Explain that:

(viii) silence at this stage is the defendant’s right, because the burden of proof is on the prosecutor/complainant;

(ix) the issue at this stage is only whether the defendant is guilty, and, if he/she is found guilty, there will be a later opportunity to address the court on the question of penalty;

(x)  the defendant cannot be criticised for remaining silent); or

·       to make an unsworn statement (explain the significance of this); or

·       to give evidence on oath and/or, if the defendant wishes, to call witnesses. (Explain that all such evidence can be questioned by the prosecutor/complainant and by the court, and that the defendant must decide who the witnesses will be).

20. If the defendant makes an unsworn statement, record it and do not allow any questions.

21. If the defendant wishes to present evidence, follow the steps for the prosecutor’s witnesses under item 14 above.

22. Consider whether the court should recall a prosecution witness to answer any new matter raised by the defence which has taken the prosecution by surprise. Recall should follow immediately after the defence evidence.

23. The close of the defendant’s case. The defendant may sum up, followed by a reply by the prosecutor. If the defendant did not give evidence, the prosecutor may sum up first, and the defendant may reply.


Finding of guilty or not guilty

24. Consider all the evidence and decide from the facts before the court whether the defendant’s guilt has been established beyond reasonable doubt. Announce a finding that the defendant is guilty as charged, or is acquitted, and record the decision. On acquittal, the defendant is entitled to leave the courtroom immediately and unhindered, unless there are other charges on which he/she can be held lawfully in custody.


Consideration of disposition

25. Ask the prosecutor for details of any previous convictions or written report on the defendant’s behaviour which the court should be aware of. Ensure that these details are shown to the defendant, and ask the defendant whether the details are admitted. Record the details.

26. Ask the defendant whether he/she wishes to address the court or call character witnesses on the question of sentence. Record the main points.

27. Consider the appropriate disposal of the case (and adjourn, if necessary, to give the matter proper attention: see 4.9 below). Review sentencing requirements and options (see Chapter 6), including whether the matter should be disposed of without conviction (s 132).


Announcement of disposition

28. The appropriate sentence will be announced in open court to the defendant (who should be standing while the Magistrate speaks to him/her). Reasons should be given for the Magistrate’s decision.

29. If the defendant is sentenced to imprisonment, the police should take control of the defendant before the court rises.


The Court rises

30. When the court’s business is finished:

·       the Magistrate should make any appropriate final remarks (perhaps to acknowledge any special assistance from lawyers or particular members of the public);

·       the Magistrate or clerk should announce that the sitting of the court is adjourned to a fixed date, or until it is required (sine die);

·       the Magistrate or clerk should call everyone to stand; and

·       the Magistrate should rise, bow and leave the courtroom and go to a separate room or place.


Writing up the decision

31. The Magistrate is advised to take the time immediately to make notes of the decision and the reasons for sentence imposed, and to write them up without delay (see Chapter 25).

B. Civil Cases before District Courts

(DCA, ss 57-92 and 133-159)


·       Follow steps 1-3 under A above.

·       Call the parties forward and check language spoken and names.

·       If necessary, swear or affirm an interpreter.

·       Have the complaint read out and explained to the defendant.

·       Ask the defendant whether the complaint is admitted. If so, proceed to consider the amount to be ordered or other disposition of the case.



·       Deal with application(s), if any, for particulars of claim or defence (see Chapter 14).

·       If the defendant does not admit the complaint, hear the complainant followed by any witnesses called by the complainant. Follow the steps for calling and questioning witnesses set out in 14 under A above.

·       Ask the defendant if he/she wishes to give evidence. If the defendant does not give or call evidence, he/she may address the court and the complainant may reply.

·       If the defendant does not adduce evidence, consider whether the complainant has established the necessary facts and has the necessary legal basis for an order, and, if so, enter a finding in favour of the complainant and consider the amount to be ordered or other disposition of the case.

·       Enter judgment in favour of the complainant or the defendant, as the case may be, and announce the decision in open court, with reasons.

·       If the defendant wishes to give or call evidence, follow the same steps for calling and questioning witnesses.

·       At the conclusion of all the evidence, ask the complainant to address the court, followed by the defendant.

·       Consider whether the complainant has established his/her case, enter judgment and deal with the matter in the manner described above.


Writing up the decision

·       The Magistrate is advised to take the time immediately to make notes of the decision and reasons, and to write them up without delay (see Chapter 25).


A frequent judicial act performed by Magistrates concerns adjournments. Proceedings may be adjourned when a defendant is brought into court on a warrant.

Cases may be adjourned at these stages:

·         when they are first called

·         on application to set aside an ex parte order (DCA, s 75)

·         after or part-way through the taking of evidence

·         between the evidentiary stage and the decision

·         between conviction and penalty or between a decision on civil liability and the fixing of compensation

·         when a case is transferred to another court, and

·         in diverse circumstances, such as when the Magistrate, the prosecutor, one of the parties or a lawyer falls ill or is otherwise unable to proceed on a hearing day.

The Magistrate has a general discretion as to whether to order an adjournment and, if so, for how long. See, for example, ss 88-92 and 123 of the District Courts Act. In every situation, the Magistrate should exercise the discretion judicially.

The Magistrate should consider:

·         whether an adjournment is necessary in order to allow time to prepare the case and/or secure the attendance of witnesses – this is a fundamental principle of natural justice (see Chapter 2.6.2)

·         whether the adjournment would have the opposite effect, namely to prolong the process of the case, in breach of the constitutional guarantee of “reasonable time” (see Chapter 3.1.7)

·         whether the defendant is being held in custody and whether bail should be granted (see Chapter 10)

·         if the adjournment is due to pressure of work in the District Court, whether the court staff are giving the case adequate priority for a hearing

·         whether the court’s policy on case-flow management requires the Magistrate to take a firm stand on adjournments (see Chapter 23), which may include limiting the period and refusing to grant adjournments sine die (without fixed date)

·         the cost and inconvenience of an adjournment to one or both of the parties

·         whether an order for costs should be made against the party who has caused the adjournment (see s 260(1)(e) and Chapter 21)

·         whether the need to adjourn the case to another jurisdiction or venue was the fault of one party, who should therefore pay costs (see 4.2.3)

·         the reason for an adjournment requested by a party, and whether it is a genuine reason or whether the request arises from the applicant’s own fault or carelessness

·         whether the adjournment application is being used to cause delay or to wear down the opponent (see 3.1.7 and 3.4.3)


4.10.1 Change

When a Magistrate is unable to finish the hearing and final disposal of a case, it may be transferred to another court (see 4.2 above) or it may be heard in the same court by a different Magistrate. In both situations the case must be re-started; it must be called again and the hearing procedure must begin afresh. Preliminary matters, such as the issue of a summons or warrant, need not be repeated but, in a criminal case for example, a defendant who has pleaded not guilty must be taken through that process again by the new Magistrate.

4.10.2 Termination of power

The Magistrate exercises powers under statutory procedures. When a particular power has been exercised and finalised, the Magistrate cannot go back and exercise the same power or part of it again. This means that the Magistrate’s power is exhausted (functus officio).

To give some examples, once the Magistrate has found a defendant guilty on the evidence, he or she cannot re-open the case and hear more evidence. (The defendant may have a right of appeal on the ground of fresh evidence.) The same applies to the entry of a conviction. Similarly, once the Magistrate has passed sentence, the sentencing power is exhausted and no subsequent change can be made. The only exception to the above rule occurs when there has been an obvious mistake or defect in form but not substance – which merely requires the correction of the record. There is further provision for amendment by the National Court under s 163 of the District Courts Act.

The importance of this “termination rule” means that if the Magistrate has any doubt as to the appropriate finding or sentence, the Magistrate should take more time for consideration or, if necessary, stand the case down or adjourn it for a short period.

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