Kilo v Selesta [2010] PGDC 62; DC1093 (20 August 2010)

DC1093

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]
V/CT 19/2010

TIMOTHY KILO
Appellant

V

JOHN SELESTA
Respondent

MADANG: J KAUMI
2010:25th June 2nd, 9th, 22nd July 6th, 20th August

APPEAL

VILLAGE COURTS ACT- Appeal to District Court from decision of Village Court by Juvenile- The mandates of Section 69 of Village Courts Act to be adhered to- Court sitting as a District Court does not have jurisdiction where functioning Juvenile Court in place
A juvenile appealed against an order made against him by a Village Court.

Held:
(1) Section 69 of the Village Courts Act stipulates three things and they are as follows:-

(i) that the defendant must have been convicted by a Village Court;

(ii) that the defendant must be younger than 18 years (as amended by section 66 (2) (a) of the Juvenile Courts Act 1991);

(iii) the District Court being satisfied that the above pre requisites have been met must then refer the defendant to the Juvenile Court (as amended by section 66 (2) (b) of the Juvenile Courts Act 1991) to be dealt with.

(2) In the immediate matter I am satisfied upon perusal of the Appellant's affidavit that:-

(i) he was convicted by the Wagi V.Ct; and

(ii) that he is fourteen (14) years old; and

(iii) that there is a Juvenile Court functioning in Madang with a duly appointed Juvenile Magistrate ( section 6 of the Juvenile Courts Act 1991) administering it and as a result I do not have the jurisdiction to deal with the matter sitting as a District Court.

(3) The matter is now referred to the Madang Juvenile Court to be dealt with pursuant to section 69 of the Village Courts Act 1989.

Cases cited:
The following cases are cited in the judgment:

Wali vs Wali [2006] N3051 (20th /04/06)

Legislation

Village Courts Act 1989
Juvenile Courts Act 1991

Abbreviations:
The following abbreviations appear in the judgment:
J Justice
N National Court judgment
No number
Vs Versus
V.CT Village Court

APPEAL

This was an appeal against an order of a Village Court..

Representation:
Appellants in person
Respondents, in person

INTRODUCTION

1. Kaumi. M This is a judgment on an appeal against an Order issued by the Wagi Village Court here in Madang.

2. At the outset I adopt as a matter of practice parts of the outline only of a judgment by Cannings J in Wali vs Wali ^[1]. This is for a want of a suitable precedent in our jurisdiction.

BACKGROUND

3. The appellant, Timothy Kilo and the respondent Selesta John are both from Amron village, Madang. The matter giving rise to the said village court proceedings was an alleged assault by the appellant on the respondent on 19/04/10 when he grabbed hold of her hand at a garden.

VILLAGE COURT PROCEEDINGS

4. The appellant was summoned by Selesta's father John Selesta to appear on 28/04/10 before the Wagi V.Ct for this alleged assault. On 05th May 2010, both parties were present and the Wagi Village Court made an order against the defendant that is the subject of this appeal. The order was that the appellant and his mother give one pig to his uncle John Selesta and apologize to him, that he does not repeat this again and that he was given one month to do this.

APPEAL TO DISTRICT COURT

5. On 16th June 2010 the appellant filed a notice of appeal, stating the following grounds:

a. The Court hearing by the magistrate was biased as the magistrate was a relative of the complainant;

b. The story given by the parents was not true.

c. The defendant was underage and therefore the village court lacked jurisdiction.

SUBMISSIONS

6.The strict application of the rules of evidence and of the acceptance of documents into evidence are relaxed when a decision of a V.Ct is under appeal or review by the District Court and this mandated by the operation of Sections 89 (5) and 59 (1) of the Village Courts Act. This court can therefore admit and consider documents which would otherwise be not admissible and I make these comments at this juncture as the documents submitted by both parties are of such a nature.

APPELLANT'S SUBMISSIONS

7. The appellant's submission was contained in one document titled Affidavit which was unsigned and undated in English.

8. The undated affidavit covers what happened at the material time and he denies any wrongdoing but what is important is that it provides his date and place of birth which is 25th September 1996 which makes him fourteen (14) years old at the time of the V.Ct hearing on the 28/04/10.

RESPONDENT'S SUBMISSION

9. The respondent's submission was contained in one document titled Affidavit signed and dated 14/07/10 and it covers the alleged altercation between the two and states that Selesta is also fourteen (14) years old and provides a copy of a page of her baby clinic book which shows that she was born on 5/01/96.

ISSUES

10. After a closer scrutiny of the documents that have been submitted by both parties the issue that arises at this juncture of proceeding is, whether or not this matter should be transferred to the Juvenile Court as a consequence of the Appellant's age of 14years pursuant to Section 69 of the Village Courts Act.

RELEVANT LEGISLATION

11. This relevant provision provides as follows:-

Village Courts Act 1989

Section 69. WHERE CONVICTED PERSON IS UNDER 17 YEARS.

(1). Subject to Subsections (2) and (3), where–

(a) an order is presented to a Magistrate for endorsement under Section 68 (2) and

(b) the Magistrate is satisfied that the person is under the age of 17 years,

the Magistrate shall not endorse the order but shall refer the order and the person to a Children's Court to be dealt with by that court.

DELIBERATION OF ISSUE

12. Section 69 stipulates three things and they are as follows:-

(i) the defendant must have been convicted by a Village Court;

(ii) the defendant must be younger than 18 years (as amended by section 66 (2) (a) of the Juvenile Courts Act 1991);

(iii) the District Court being satisfied that the two above requirements have been met must then refer the defendant to the Juvenile Court (as amended by section 66 (2) (b) of the Juvenile Courts Act 1991) to be dealt with.

13. In the immediate matter I am satisfied upon perusal of the Appellant's affidavit that

(i). he was convicted by the Wagi V.Ct; and

(ii). that he is fourteen (14) years old; and

(iii). that there is a Juvenile Court functioning in Madang with a duly appointed Juvenile Magistrate ( section 6 of the Juvenile Courts Act 1991) and as a result I do not have the jurisdiction to deal with the matter sitting as a District Court.

DETERMINATION

14. The matter is now referred to the Madang Juvenile Court to be dealt with pursuant to section 69 of the Village Courts Act 1989.

Appellant in person
Respondent in person

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^[1] (2006) N 3051 (20th /04/06)