Saule v Soo [2007] PGDC 90; DC611 (6 August 2007)

DC611

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS GRADE FIVE CRIMINAL JURISDICTION]

GFCr 42 of 2007

BETWEEN

DAVID SAULE
Informant

AND

PETER PARK SUNGO SOO
Defendant

Goroka: M Gauli, PM
2007: August 06

CRIMINAL - Offence committed in another province – Indictable offence triable summarily – Jurisdiction of the District Court Constituted by a Principle Magistrate – Conduct the hearing at a place where Court considered it convenient.

Cases Cited
Nil

References
Nil

Counsel
For the Prosecution – Senior Sergeant Mark Yamuje,, Goroka Police Station
For the Defendant – Mr. M. Kadai of Paraka Lawyers

06 August 2007

COURT’S RULING

M Gauli, PM: This is the case transferred from Kundiawa District Court to Goroka District Court. The defendant is charged under Section 372 (1) of the Criminal Code Act for stealing properties valued K3, 131.82 at Banz station in the Western Highlands Province. He was charged by the police from Kundiawa Police Station. He first appeared before the District Court in Kundiawa on 31 July 2007. On the application of the counsel Mr. M. Kadai of the Paraka Lawyers, the Kundiawa District Court then transferred the case to Goroka District Court for listing on 06 August. I noted the Magistrate’s reasons for the transfer of the case was due to the defendants having two other charges pending before the District Court in Goroka. There was no objection by the prosecutor for the transfer.

2. I was not satisfied of the reasons for the transfer of the case to Goroka. And so when the matter first came before me, I inquired of both the prosecutor and the counsel Mr. M. Kadai for the reasons for the case been transferred to this Court. From my inquiry I am told by both the Prosecutor and the counsel, that the defendant had two summary offence charges, name an assault and resisting police arrest. These offences were committed in Goroka but the defendant was arrested and charged by Kundiawa police. Those charges were transferred from Kundiawa and are listed for trial today before another Magistrate here at Goroka District Court. The counsel submitted that it was for this reason, as a matter of convenience that this present charge against this defendant was also transferred to Goroka District Court. The counsel also informed this Court that the defendant is the resident of Goroka, he normally resides at Faniufa.

3. The prosecutor did not dispute the place of residence of the defendant. The Prosecutor however objected of this case been dealt with by Goroka District Court here for the reasons that the offence was committed at Banz in the Western Highlands Province and not here at Goroka, Eastern Highlands Province. All the witnesses are based in Banz. He further submitted that had the offence been committed outside the Eastern Highlands Province but within the 33 kilometres of the boundaries of the Eastern Highlands Province then this Court would have the jurisdiction. Prosecutor submitted that this Court lacks the jurisdiction therefore the case be transferred to Mt. Hagen District Court in the Western Highlands Province where the offence had been committed. Although the Prosecutor did not state the law he based his argument on, I take it that he was referring to Section 122 (2) of the District Courts Act. The counsel did not refer to any applicable laws in respect of this case.

4. I consider Sections 122 and 123 of the District Courts Act. The Subsection (1), (2) and (3) of Section 122 of the Act refers to the venues where the District Court can hearing the summary cases. Such cases shall be heard at the District Courts within the province where the offence is committed or at the place where the defendant usually resides or at the place where the information is been laid – as per Section 122 (1) of the Act. If the offence is committed outside the province but within 33 kilometres of the boundary of the province then the charge can be heard either in the province where the offence is committed or in the province which is closer to where the offence is committed – as per Section 122 (2) of the Act. If the offence is committed on a vessel within the territorial waters, the charge can be heard in any of the District Courts in the country – as per Section 122 (3) of the Act. If the offence, either a simple offence or an indictable offence triable summary, against a law relating to companies, the charge may be heard either in Port Moresby or in the province where the company’s office is situation – as per Section 122 (4) of the Act.

5. The Subsection (5) and (6) of Section 122 of the Act refers to the venue where an indictable offence triable summarily may be heard and determined by the Principle Magistrate. The Subsection (6) allows the Principle Magistrate to hear and determine such cases at a District Court as decided by the Court. The Subsection (6) of Section 122 of the Act gives the District Court constituted by a Principle Magistrate wider powers to hear and determine offences committed outside of its territorial boundary limits.

6. Under Section 123 of the District Courts Act, this Court has the jurisdiction to hear and determine the charge at any one of the three places where the Court considered it to be more convenient to conduct the hearing at that other place of holding Court sittings. The offence was committed in Banz in the Western Highlands Province. He was arrested and charged of the offence at Kundiawa by the Kundiawa Police in the Chimbu Province. But the usual place of residence of the defendant is at Faniufa in Goroka, Eastern Highlands Province. The Principle Magistrates of the District Court of one of these three provinces have a jurisdiction to deal with the charge. Since the defendant is the resident of Goroka, I consider that it is conveniently proper for this Court to hear and determine the case against the defendant in Goroka District Court. Prosecutions objection is refused.

7. Since the investigations are still continuing and that the defendant is released on bail of K1, 600.00, the case is further adjourned to 27 August 2007 for mention at 9:30 am with the bail extended.

For the Prosecution – Senior Sergeant Mark Yamuje, Goroka Police Station
For the Defendant – Mr. M. Kadai of Paraka Lawyers