[1973] PNGLR 272

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

PORI KORENE

V

KINDAU GAPI

Rabaul
Kelly J

15 August 1972
18 August 1972

APPEAL - Jurisdiction of Local Court - Election to be tried summarily - Explanation of rights to elect - Whether required to form part of court record - Criminal Code (Queensland, adopted), s. 444[cccxiv]1 - Local Courts Ordinance 1963-1966, ss. 38 (c)[cccxv]2, 48[cccxvi]3.

CRIMINAL LAW - Election to be tried summarily - Explanation of rights to elect - Criminal Code (Queensland, adopted), s. 444[cccxvii]4 - Local Courts Ordinance 1963-1966 s. 38 (c)[cccxviii]5.

K. having been charged with larceny, was brought before the Local Court. In explaining to K. his rights to elect to have the matter dealt with either summarily or in the District Court or the Supreme Court, the magistrate stated in his reasons for decision that he said to K. in Pidgin, “You have three choices—the Local Court which is the lowest court, or then the District Court, or the Supreme Court which is the Big Court.” K. then said he wanted the Local Court magistrate to hear it. The case proceeded and K. was convicted.

K. appealed on the ground that the court did not have jurisdiction to hear the matter, the basis being that the court record made pursuant to s. 48 of the Local Courts Ordinance 1963-1966 did not show that the procedural requirements of s. 444 of the Criminal Code (Queensland, adopted) had been complied with.

Held

(1)      Having regard to the fact that the form prescribed pursuant to s. 48 of the Local Courts Ordinance 1963-1966 for the making of a court record makes no provision for recording the observance of the procedure set out in s. 444 of the Criminal Code (Queensland, adopted) in cases where it is adopted, the appeal court should not be limited to examining the record itself in order to determine whether the procedural requirements were observed. The appeal court is entitled to consider any other material properly before it, which bears on the question and in this case could have recourse to the reasons for decision supplied by the magistrate pursuant to rule 7 of the Appeal (Local Courts) Rules.

(2)      There is no objection to the election to be dealt with in other courts (provided for by s. 444 of the Criminal Code (Queensland, adopted) and by s. 38 (c) of the Local Courts Ordinance 1963-1966) being explained to the accused, as it was in this instance, by telling him in simple language that if he wishes he may have the matter dealt with by the Supreme Court or by the District Court and that he is not obliged to say anything in the Local Court about the charge and then to ask him whether or not he wishes the Local Court to hear the matter.

(3)      In any event, there had been no substantial miscarriage of justice.

(4)      The appeal should be dismissed.

Appeal

This was an appeal from a decision of the Local Court at Rabaul convicting the appellant of stealing two chickens valued at $4.00, and sentencing him to imprisonment with hard labour for one month. Other relevant facts and the grounds of appeal are set out in the reasons for judgment.

Counsel

E. C. F. Cowdery, for the appellant.
Pearce, for the respondent.
Cur. adv. vult.

18 August 1972

KELLY J: This is an appeal from the decision of the Local Court at Rabaul convicting the appellant of stealing two chickens valued at $4.00 and sentencing him to imprisonment with hard labour for one month. The ground of appeal is that the decision is wrong in law in that the court had no jurisdiction to hear and determine the matter. The basis of the appellant’s case is that the court record does not show that the procedural requirements of s. 444 of the Criminal Code (Queensland, adopted) were complied with, that compliance with these provisions is necessary in order to invest the court with jurisdiction to deal with this offence summarily and that it is necessary that the record should show on its face that the court had jurisdiction in the matter.

The offence with which the appellant was charged was one which could be dealt with summarily by reason of the provisions of s. 443 of the Code but before doing so compliance with s. 444 is necessary and if there were a failure to comply with the provisions of that section the court could not have exercised summary jurisdiction in the matter. For the present purpose the relevant provisions of s. 444 are contained in the first two paragraphs which are as follows:

“Before the accused person is asked to show cause why he should not be convicted, the justices are required to explain to him that he is entitled to be tried by a jury, and is not obliged to make any defence before them, and to ask him whether he objects to the charge being dealt with summarily.

If the accused person, or, in a case where the age of the accused person at the time of the alleged commission of the offence did not, in the opinion of the justices, exceed sixteen years, his parent or guardian, does not object to the justices dealing with the charge summarily, the justices are required to reduce the charge to writing and to read it to the accused person, and then to ask him whether he is guilty or not guilty of the offence; and if he says that he is guilty they are to convict him of the offence, but if he says that he is not guilty they are required to hear his defence, and then deal with the charge summarily.”

The court record contains no reference to the procedure set out in s. 444. The only reference to procedure contained in the record is the following: “The matters prescribed by s. 38 (c) were explained to the complainant and the defendant. (Consented to the jurisdiction of the Local Court)” and the words which immediately followed, namely, “(elected to be tried by a District Court)” are struck out.

Section 38 (c) of the Local Courts Ordinance 1963-1966 to which reference is there made is in the following terms: “at the commencement of the trial, the nature and particulars of the complaint shall be explained to the defendant in a language which, in the opinion of the court, he understands and the court shall, in the case of a proceeding referred to in section 15 of this Ordinance, explain to him that he is entitled to have the matter dealt with by a District Court and is not obliged to make any defence before the Local Court and shall ask him whether he so elects;”.

In compliance with rule 7 of the Appeal (Local Courts) Rules the magistrate has supplied “a short statement ... of the reasons upon which the decision was, in fact, based”. This document is headed “Supplementary Reason for Decision” and the first paragraph reads “When I gave to the defendant an election as to which court he wanted to hear the case, I said in Pidgin, ‘You have three choices—the Local Court which is the lowest court, or then the District Court, or the Supreme Court which is the Big Court’. He said he wanted me to hear it”. Then follows a heading “Reasons” and the magistrate proceeds to deal with the charge itself.

Section 48 of the Local Courts Ordinance 1963-1966 provides, inter alia, as follows:

“(1)    A record of each case instituted, tried or retried before or transferred to a Local Court shall be entered in a Court Record to be kept by that court.

(2)      The Court Record shall be in such form and contain such particulars as are prescribed.”

The form prescribed by the Local Courts Regulations 1965 as amended in 1967 is that in fact used in the present case, and it makes no provision for recording the observance of the procedure set out in s. 444 in cases where it is adopted. That being so I fail to see why this court should be limited to examining the record itself in order to determine whether the procedural requirements upon which the jurisdiction of the Local Court depends were in fact observed. In my view the court is entitled to consider any other material properly before it which bears on the question of whether the appropriate procedure was carried out. In this instance I consider that I am entitled to have recourse to the document supplied by the magistrate, including the opening paragraph relating to procedure, as being part of the reasons on which the decision was in fact based in that it sets out the basis of the court’s jurisdiction to deal with the matter at all.

It would seem, however, that consideration might well be given to making provision in the prescribed form of court record for cases where an indictable offence is dealt with summarily under the provisions of the Criminal Code.

The question then is whether the material before me shows that the proper procedure was followed so as to give the Local Court jurisdiction. The first paragraph of s. 444 cannot be applied literally as in the Territory of New Guinea, as is also the case in the Territory of Papua, an accused person charged with an indictable offence is not entitled to be tried by a jury and furthermore in the procedure set out in s. 38 of the Local Courts Ordinance to be followed in criminal cases there is no provision for the accused person to be asked to show cause why he should not be convicted as there is, for example, in s. 134 of the District Courts Ordinance in cases of simple offences and as there was in s. 145 of the Justices Act of 1886 of Queensland which was the operative legislation in Queensland for the prosecution of offences in order to their summary conviction at the time of the enactment of the Criminal Code in that State (see The King v. Walters, Kidd and Byrne, Ex parte Drager[cccxix]6).

However, having regard to ss. 13 and 17 of the Laws Repeal and Adopting Ordinance 1921-1952 I would consider that s. 444 is to be applied in the Local Court by the magistrate explaining to the accused that he is entitled to be tried in the Supreme Court and that he need not say anything in the Local Court about the charge. In order to give an accused brought before a Local Court the election provided for by s. 444 which relates only to the charge being dealt with summarily as opposed to its being prosecuted by indictment in the Supreme Court and also to give him the election provided for by s. 38 (c) of the Local Courts Ordinance as to having the matter dealt with by a District Court, I can see no objection to an explanation being given to the accused in simple language that if he wishes he may have the matter dealt with by the Supreme Court or by the District Court and that he is not obliged to say anything in the Local Court about the charge and then to ask him whether or not he wishes the Local Court to hear the matter. This explanation should be given to the accused after the nature and particulars of the complaint have been explained to him as, unless he knows what the charge is, he is scarcely in a position to decide whether he wants the matter dealt with in the Local Court or whether he wants it to go to the District Court or to the Supreme Court. I appreciate that in the case of many accused persons who are unrepresented when they come before the Local Court the explanation given to them as to the various courts by which they may be tried may not convey a great deal, but the magistrate can only do his best.

After this has been done and upon the accused indicating that he wishes the Local Court to deal with the matter, the accused is then asked whether he admits or denies the complaint, this being in accordance with the second paragraph of s. 444 of the Code and also s. 38 (d) of the Local Courts Ordinance. The charge must by this time have been reduced to writing but this would have been necessary in any event under s. 22 of the Local Courts Ordinance which provides “Subject to this Ordinance, all matters in a Local Court shall be commenced by a complaint which may be made either orally or in writing, but if made orally shall be reduced to writing by or on behalf of the complainant before the hearing commences”. It is not necessary that the charge if already in writing be again written out by the magistrate after the accused has made his election to be dealt with by the Local Court and there is a satisfactory compliance with the requirements of s. 444 in this regard if the charge is expressed in writing (see R. v. Arkell[cccxx]7). However before being asked whether he admits or denies the complaint it would seem that even though the nature and particulars of the complaint have already been explained to him prior to his making his election, s. 444 requires that the magistrate again do so immediately before calling upon the accused to plead.

In the present case the document furnished by the magistrate sets out what he said to the accused and it shows that the accused was given an election as to whether he wished the matter to be heard by the Supreme Court, the District Court or the Local Court and he elected to have it dealt with in the Local Court. The document also shows that the nature and particulars of the complaint were explained to the accused and he admitted the complaint. I accept the statements in this document as setting out what was said, although it is not clear whether or not the nature of the complaint was explained to the accused before he was called upon to elect. However it does appear that before he was called upon to plead it was explained to the accused that he could if he wished have the matter dealt with by the Supreme Court or by the District Court, he indicated that he did not object to the Local Court dealing with it, the charge was expressed in writing and the nature and particulars of the charge were explained to him. I would consider that what was done constituted a sufficient compliance with the requirements of s. 444 of the Code and also of s. 38 (c) of the Local Courts Ordinance to invest the Local Court with jurisdiction to deal with the offence summarily. Certainly in this case it could not be said that there has been a substantial miscarriage of justice.

The appeal is therefore dismissed and the decision of the Local Court upheld.

Appeal dismissed.

Solicitor for the appellant: W. A. Lalor, Public Solicitor.
Solicitor for the respondent: P. J. Clay, Crown Solicitor.

[cccxiv]The relevant provisions of s. 444 are set out at p. 273.
[cccxv]Infra p. 274.
[cccxvi]The relevant provisions of s. 48 are set out at p. 274.
[cccxvii]The relevant provisions of s. 444 are set out at p. 273.
[cccxviii]Infra p. 274.
[cccxix][1945] St.R.Qd. 154, at p. 160.
[cccxx][1949] St.R.Qd. 165, at p. 175.