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Papua New Guinea - Magistrates' Manual
CHAPTER 6 – CRIMINAL JURISDICTION: A GUIDE
Part 3 of the manual, which includes this chapter and Chapters 7–13, is concerned with the criminal jurisdiction of the Magistrates’ Courts. Part 1 of the manual has already described the Magistrates’ Court jurisdiction as a whole, and a great deal of what has been said in Part 1 applies to the criminal jurisdiction.
In Part 3, where a particular topic under consideration has already been covered in Part 1, there will be cross-references to that part.
This chapter can be used as a guide or checklist of matters which a Magistrate should consider before trying a criminal case.
6.2 PURPOSE OF THE CRIMINAL JUSTICE SYSTEM, JUDICIAL POWER AND CONSTITUTIONAL PRINCIPLES
The criminal justice system is a framework of laws and procedures designed to control social behaviour through the prevention and punishment of criminal activity. The courts are expected to ensure criminal justice within their jurisdictions. Parliament is responsible for passing the laws which declare what is illegal conduct and determine maximum penalties.
In circumstances where individuals and local communities understand the law and are willing to respect it, the work of the courts will be relatively smooth. Real difficulties for the courts arise in cases of ignorance of the law, and where local community attitudes do not accept that the particular offences or penalties as set out in the statute are appropriate for local conditions (such as situations in remote areas of the country, or where custom already provides for the situation).
In difficult cases the Magistrate should be aware of four primary obligations -
· To uphold the law
· To follow just procedures (natural justice)
· To take into account the particular circumstances of the defendant and local community attitudes – as far as possible within the law
· To ensure that the outcome is just (criminal justice)
6.2.2 Judicial power
Judges and Magistrates exercise the judicial power of government in matters concerning crime and penalties. In the case of Magistrates, that power is to be found in the Constitution and the statutes, as described in 2.1 and 2.2.
6.2.3 Constitutional principles
The Constitution and statutes also provide guidance as to the application of custom (see 18.104.22.168), the principles of natural justice (2.6.2 and 4.1.3) and the important fundamental rights referred to in 2.3-2.5. For the purpose of criminal law and procedure, the key provisions of the Constitution are ss 37 and 42-44. As a reminder, the provisions of s 37(3) and (4) are set out here.
Constitutional rights governing criminal matters
Protection of the law: Section 37 …
“(3) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.
(4) A person charged with an offence –
(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and
(b) shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged; and
(c) shall be given adequate time and facilities for the preparation of his defence; and
(d) shall be permitted to have without payment the assistance of an interpreter if he cannot understand or speak the language used at the trial of the charge; and
(e) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and
(f) shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution.”
<End Legislation Quotation>
6.3 NATURE AND TYPES OF OFFENCES AND THE STATUTORY JURISDICTION OF MAGISTRATES IN CRIMINAL CASES
6.3.1 What is an offence?
22.214.171.124 Written law
An offence is an act or omission that makes a person liable to imprisonment: Criminal Code, s 2. The Constitution requires that offences must be defined and penalties must be prescribed by a written law: s 37(2). This means two things:
1. No common law or unwritten offence is recognised in Papua New Guinea.
2. The query “what is an offence?” is answered in the statutes, and it is not a question of morals or beliefs – nor even a question of whether an act is good or bad, or fair or unfair. The only question is whether the act is legal/lawful or illegal/unlawful.
126.96.36.199 Time: when was the act/omission declared to be an offence?
If the act or omission complained of was not an offence under the law at the time it was committed, no person can be convicted of it. If an offence was committed but the maximum penalty for it has been changed since then, the offender must not be punished to a greater extent than was permitted under the law at the time of the offence, or is now permitted at the time of the conviction. He or she is entitled to the benefit of the lesser of the two maximum penalties: Constitution, s 37(7); Criminal Code, s 11.
6.3.2 National context
Although the National Court has unlimited criminal jurisdiction, it normally deals with indictable offences only. Committal proceedings leading to the National Court trial are held in the District Court, where committal on the documents (the “hand-up brief”) is a common alternative to committal following a preliminary hearing.
The National Court also hears criminal appeals from the District Courts: see Chapter 26.
6.3.3 Categories of offences
There are four categories of criminal offences in Papua New Guinea:
1. Indictable offences (also called “crimes or misdemeanours” in the Criminal Code) which may be tried in the National Court. An indictable offence is one that is declared to be such, or any offence punishable by imprisonment for more than 12 months: Interpretation Act, s 21.
2. Approximately 80 indictable offences which may be tried summarily by a Principal Magistrate (see s 420 and Sch 2 of the Criminal Code) under Pt VII of the District Courts Act (DCA).
3. Summary offences (also called “simple offences” in the Criminal Code) under the Summary Offences Act and other legislation, which may be tried in the District Court. All offences that are not indictable offences are punishable on summary conviction: Interpretation Act, s 22. It should also be noted that the Magistrate has power under s 425 of the Criminal Code to abstain from dealing with certain summary offences relating to property (ss 422-424) if he or she considers that they should be replaced with indictable offences, in which case the Magistrate may commit the defendant for trial in the National Court on the indictable offences: see 4.2.3.
4. Offences affecting village life, as prescribed in reg 3 of the Village Court Regulations under s 41 of the Village Courts Act (VCA), which may be tried in the Village Court.
6.3.4 District Court
The Chief Magistrate, Deputy Chief Magistrate, Principal Magistrates and District Court Magistrates may sit in the District Court: see DCA, Pt II; Magisterial Services Act, s 5; and 2.2 of this manual. The District Court may be constituted by one or more Magistrates: DCA, s 16.
There are three types of matters over which District Courts have criminal jurisdiction:
1. All Magistrates have criminal jurisdiction over all non-indictable offences (summary or simple offences) which are punishable on summary conviction (category 1 in 6.3.3).
2. The Chief Magistrate, Deputy Chief Magistrate and Principal Magistrates may try the indictable offences referred to in category 2 in 6.3.3, provided that they are dealt with summarily.
3. Any District Court Magistrate may preside over the committal procedure (see Chapter 11).
The main limit on the sentencing power of the District Court is that which is imposed by statute in relation to each offence. However, in the case of the indictable offences triable summarily referred to in category 2, if the maximum penalty for the offence exceeds 10 years imprisonment, the maximum period which may be imposed by a Principal Magistrate is 10 years, subject to the power of the Magistrate to commit the offender to the National Court for sentence: Criminal Code, ss 420 and 421.
6.3.5 Village Court
Normally, the Village Court is constituted by no fewer than three Village Magistrates. In criminal cases, the Village Court may impose fines and may order the offender to perform community work. The court has no jurisdiction over motor traffic offences. Because of the particular powers of the Village Court in relation to preventive orders, mediation, compromise and compensation, the Village Court jurisdiction generally is discussed in more detail in Chapter 18.
District Court Magistrates should be fully conversant with the jurisdiction and procedures of the Village Courts, not least because of the endorsement, review and appeal responsibilities which they may be called upon to exercise from time to time.
6.4 GEOGRAPHICAL LIMITATIONS OF CRIMINAL JURISDICTION
6.4.1 District Court
The criminal jurisdiction of each Magistrates’ Court is limited to a geographical area which should be observed in every case – otherwise lawful jurisdiction will not exist to deal with the case: see 2.2. The place where a court should sit within that area may also be relevant: see 4.2.2.
Generally speaking, a District Court has been established for an area proclaimed in the National Gazette to be that of each Province of Papua New Guinea. Its criminal jurisdiction is defined in relation to summary (simple) offences. Informations for such offences must be heard within the Province (DCA, s 122):
· in which the alleged offence was committed, or, if outside the Province, within 33 kilometres of the provincial boundary;
· where the defendant usually resides; or
· where the defendant is at the time the information is laid.
6.4.2 Village Court
Notice in the National Gazette determines the area for which a Village Court is established. A Village Court has jurisdiction over offences committed within that area: see Chapter 18.
6.5 CONCURRENT JURISDICTION AND TRANSFER OF PROCEEDINGS
The statutory requirements governing concurrent jurisdiction and transfer from one jurisdiction/court to another have been dealt with under 4.2, because most of them apply to both criminal and civil cases.
6.6 TIME OF OFFENCES
One of the duties of a Magistrate is to check informations to determine whether they have been laid within the time prescribed by statute. In the District Court, unless a statute provides otherwise, an information for a summary (simple) offence must be laid within six months after the time when the matter of the information arose. No such limitation applies to indictable offences, including those triable summarily: DCA, s 36.
The Summary Offences Act also imposes an absolute limitation of six months on the laying of charges for offences prescribed under that Act: Summary Offences Act, s 69.
6.7 DISTRICT COURT JURISDICTION IN RELATION TO CHILDREN
The age of a young offender should be checked. When a Children’s Court has been established for an area, it has exclusive jurisdiction to hear charges against children under the age of 16 for all summary offences (and also all indictable offences except those punishable by death or life imprisonment) committed within that area: Child Welfare Act (CWA), ss 32(1) and 33(1). See also Chapter 16.
There is an important exception to this. If a District Court Magistrate is satisfied that circumstances prevent the Children’s Court Magistrate from dealing with the matter, and that it is in the interests of justice for the District Court Magistrate to deal with it, he or she may do so. In that case, he or she will exercise the powers of a Children’s Court Magistrate: CWA, s 29(5). The same exercise of powers by a District Court Magistrate may occur if there is no Children’s Court established for that area: CWA, s 33(3).
It should also be noted that the Criminal Code provides for the lack of criminal responsibility on the part of younger children: see 7.12.
6.8 TYPES OF SENTENCES AND ORDERS
The statutory jurisdiction and sentencing limits of Magistrates have been dealt with in 6.3 above. Sentencing principles are considered in Chapter 13. In this section it is useful to review the different types of sentences and orders available to the Magistrate.
6.8.1 Penalties generally
The only penalties which a Magistrate can impose are those prescribed by statute, and then only after the defendant has been found guilty of the offence. For the Magistrates Courts, the statutes prescribe the penalties of:
· compensation; and
· finding security to keep the peace and/or be of good behaviour.
A fine may be imposed in addition to or instead of imprisonment. Imprisonment may be imposed for non-payment of a fine: see, for example, DCA, ss 167, 168 and 201. Under the Motor Traffic Act the court may suspend or otherwise deal with a person’s driving licence: see, for example, s 18. The Village Court may impose a fine in terms of goods or money: VCA, s 42.
Unless otherwise specified, the statutes are concerned to prescribe maximum penalties only, and a Magistrate may impose a lesser penalty (see Criminal Code, s 19) in accordance with the “sentencing principles” and “matters which must be considered” which are discussed in 13.4 and 13.5.
6.8.2 Compensation must be considered
The Criminal Law (Compensation) Act 1991 makes it compulsory for the court to consider compensation every time sentence is to be passed. The prosecutor must provide sufficient evidence on which compensation can be considered and calculated, in order to assist the Magistrate. The Magistrate should insist that the prosecutor is ready with the information, or should allow a short adjournment for the information to be obtained and presented to the court. The Magistrate is required to consider the several factors set out in s 3 of the Act, and is not bound by the technical rules of evidence in examining these factors. In this way, the Magistrate is making a significant contribution to the resolution of the problem that has arisen out of the offence, and to bringing about some finality between the “offender” and the “victim”. An order of compensation may be regarded as a punishment, in addition to other forms of punishment which may be imposed: s 2. Because consideration of compensation is compulsory, the Magistrate should always make a note of considering it in his or her record of the sentence.
In addition to the provisions of the above Act, the criminal justice system seeks, wherever appropriate, to provide civil compensation to a person injured or aggrieved by the commission of an offence. The District Court appears to have power to order compensation: see DCA, ss 132 and 165. The Summary Offences Act empowers Magistrates to order compensation, in addition to penalties, for several offences, such as “damaging property”: s 47. When a Village Court is dealing with an offence, it can, at the same time, make orders for compensation or damages in favour of the victim, for an amount up to K1,000: VCA, s 45.
Section 421 of the Criminal Code empowers the District Court, when dealing with indictable offences summarily, to order the defendant to make restitution of any property in respect of which the offence has been committed – with a scale of periods of imprisonment in default of payment of amounts awarded.
6.8.3 Restriction of movement must be considered
The Magistrate may consider that restriction of movement of an offender would be in the best interests of the community generally, or of the victim of the offence or of the offender’s rehabilitation in particular. The offender may be required to stay away from a part of the country, or to return to his or her home. Parliament has approached this by inserting s 205B in the District Courts Act. In addition to any other punishment, the Magistrate may impose restriction of movement. It is compulsory for the Magistrate to consider whether such restriction is an appropriate punishment in the circumstances of every case before passing sentence. A note of his or her consideration of the matter must be recorded in the court file.
The relevant sections set out the requirements of an order and define the offender’s “home” in a number of different ways, so as to give the Magistrate considerable discretion. However, it should be remembered that the Constitution guarantees the “right to freedom of movement” subject only to statutes which deal with persons convicted of offences: s 52. Any order of the court which is not strictly authorised by the relevant sections will be unconstitutional.
6.8.4 Probation order
In circumstances where supervision by a probation officer is available, the options open to the sentencing Magistrate are greatly extended.
In a probation order under s 16 of the Probation Act, a Magistrate who is dealing with an offence punishable by imprisonment may:
· impose sentence but suspend committing the offender to prison; or
· defer sentencing the offender to imprisonment and release him or her on probation for a specified period, between six months and five years.
A probation order must contain certain statutory requirements (s 17) together with further conditions which the Magistrate may select (s 16). The purpose of the probation service is the social rehabilitation of offenders: s 12.
188.8.131.52 “to be of good behaviour”
The District Court has, as part of its general sentencing jurisdiction, the power to discharge an offender without conviction but on condition that he or she enters into a recognisance (agreement or bond) “to be of good behaviour” and to appear for conviction and sentence when called upon within three years. The required factors and possible conditions of such an order in terms of s 132 of the District Courts Act should be looked at carefully.
184.108.40.206 “to keep the peace and/or be of good behaviour”
In appropriate circumstances, the District Court has jurisdiction to make a specific type of “restraining order”. The court may exercise statutory power to have a person brought before it on the grounds that he or she has threatened harm and caused fear: DCA, ss 209-213. The Magistrate may require the defendant to enter into a bond “to keep the peace and/or be of good behaviour” or, in default, to serve up to six months imprisonment. The court may also require the defendant to find sureties: DCA, s 214. This power is discussed further in Chapter 19C.
6.8.6 Community work
The District Court has the power to order a convicted defendant to perform specific work for community purposes approved by the Minister by notice in the National Gazette. This order may be in addition to or instead of a fine or imprisonment. The time limits prescribed by s 199A of the District Courts Act must be strictly adhered to, otherwise the order will be unconstitutional as a violation of the “freedom from forced labour” provision: Constitution, s 43. Community work may be ordered by a Village Court instead of a fine, for defined periods and subject to such conditions as may be specified: VCA, s 42(2). As in the case of probation, this important sentencing option is of no value to the court unless a Probation Officer and appropriate resources are available to arrange and supervise the court’s order.
6.8.7 Dismissal or conditional discharge
The ultimate discretion of the Magistrate is, in appropriate circumstances, to decide whether or not to dismiss a proven charge or to release an offender without punishment on conditions. This is an essential judicial power which enables the Magistrate to do justice in every case.
In the District Court, the Magistrate has wide powers of disposal of simple offences and indictable offences triable summarily where the charge is proved but the Magistrate is of the opinion that, having regard to certain factors, it is “inexpedient” to impose punishment. A conviction need not be entered, and the Magistrate may dismiss the charge or discharge the offender conditionally on a bond after considering carefully the provisions of s 132 of the District Courts Act: see also 220.127.116.11 above.
Orders as to costs in the disposition of criminal cases are discussed in Chapter 21.
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