Nagira v Besasparis; Re S60 District Courts Act, S94(6)(b) District Courts Act and S94B District Courts Act [1986] PGLawRp 358; [1986] PNGLR 199 (1 October 1986)

Papua New Guinea Law Reports - 1986

[1986] PNGLR 199 - Philip Nagira v BA Besasparis; Re S60 District Courts Act, S94(6)(b) District Courts Act and S94B District Courts Act 

[1986] PNGLR 199

N562

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF PHILIP NAGIRA

V

BESASPARIS

AND IN THE MATTER OF SECTIONS 60, 94(6)(B) AND 94B OF THE DISTRICT COURTS ACT

Waigani

Woods J

4 September 1986

1 October 1986

CRIMINAL LAW - Practice and procedure - Committal proceedings - Hand-up-brief procedure - Right to cross-examine witnesses on - District Courts Act (Ch No 40), Pt VI, ss 60, 94b, 94cc - Constitution, s 37(4)(f).

INFERIOR COURTS - District Courts - Practice and procedure - Committal proceedings - Hand-up-brief procedure - Right to cross- examine witnesses on - District Courts Act (Ch No 40), Pt VI, ss 60, 94b, 94c - Constitution, s 37(4)(f).

Held

That where affidavits have been tendered in committal proceedings (the hand-up-brief-procedure) pursuant to the District Courts Act (Ch No 40), Pt VI, the accused may cross-examine witnesses.

Cases Cited

Maddison v Goldrick [1976] 1 NSWLR 651.

R v Epping and Harlow Justices; Ex parte Massaro [1973] QB 433; [1973] 1 All ER 1011.

Judicial Review

This was an application for the judicial review of a ruling of a District Court magistrate refusing an accused in committal proceedings in which the hand-up-brief procedure under the District Courts Act (Ch No 40), Pt VI, had been adopted, the right to cross-examine affidavit witnesses.

Counsel

R Robinson, for the applicant.

F Damien, for the respondent.

Cur adv vult

1 October 1986

WOODS J: This is an application for the judicial review of a ruling by a District Court magistrate whereby the applicant was refused the right to cross-examine prosecution witnesses where affidavits were tendered in committal proceedings under Pt VI of the District Courts Act (Ch No 40). The applicant is seeking orders alternatively in certiorari or mandamus.

The brief facts leading to the application are that the applicant is a defendant to a charge of robbery with violence under s 386 of the Criminal Code (Ch No 262) and the respondent as the presiding Magistrate refused to allow the complainant in the matter to be cross-examined during the committal proceedings.

Part VI of the District Courts Act is entitled “Proceedings in Case of Indictable Offences”. Section 94b and s 94c under Pt VI provide for committals by the District Court to the National Court by way of a hand-up-brief in the form of written statements. The provisions go on and allow the Court to consider only written statements and documents and exhibits in making a decision whether to commit a defendant for trial. And under s 94b the Court need not even consider the documents presented to it before it makes the decision to commit the defendant. Section 94b reads as follows:

“Committal for trial without consideration of the evidence

N2>(1)      Subject to Subsection (2), a Court inquiring into an offence may, if it is satisfied that all the evidence, whether for the prosecution or the defence, consists of written statements, with or without exhibits, tendered to the Court after service in accordance with Section 94, commit the defendant for trial for the offence without consideration of the contents of the statements.

N2>(2)      Committal for trial in accordance with Subsection (1) shall not occur where:

(a)      the defendant or one of the defendants does not have legal representation; or

(b)      the legal representative of the defendant or one of the defendants, as the case may be, requests the Court to consider a submission that the statements referred to in Subsection (1) do not disclose sufficient evidence to put the defendant on trial for the offence.”

and s 94c reads as follows:

“Regard to Evidence, etc

N2>(1)      When conducting a committal hearing under this Part, the Court may, subject to Subsection (2), have regard to:

(a)      the evidence contained in a written statement; and

(b)      documents and exhibits,

of which a copy has been served on the defendant under Section 94(1) or made available for inspection under Section 94(2).

N2>(2)      Before admitting a written statement, the Court shall be satisfied that the person who made the statement had read and understood it, or if unable to read, had had it read to him in a language that he understood.”

Nowhere in Pt VI of the District Courts Act is there any reference to a right to cross-examine. However in Pt V of the District Courts Act there are provisions for the conduct of cases in the District Court and in particular s 60 of the Act states as follows:

“Conduct of Case, etc

N2>(1)      A complainant or defendant may himself or by his legal representative, conduct his case, and may examine or cross-examine, as the case requires, the witnesses giving evidence for or against him.

N2>(2)      A complainant or defendant may give evidence himself.”

Thus s 60 therefore raises the questions whether a committal hearing is a case, and are the provisions of s 37(4)(f) of the Constitution applicable at committal proceedings. What therefore is a committal hearing; is it a judicial or an administrative matter. In the case R v Epping and Harlow Justices; Ex parte Massaro [1973] 1 All ER 1011, Lord Widgery CJ in his decision on whether the court had acted incorrectly in a committal by not calling the main witness at the committal hearing, raised the question (at 1012):

“... what is the function of the committal proceedings for this purpose? Is it, as the prosecution might contend simply a safeguard for the citizen to ensure that he cannot be made to stand his trial without a prima facie case being shown; or is it, as counsel for the applicant would contend, a rehearsal proceeding so that the defence may try out their cross-examination on the prosecution witnesses with a view to using the results to their advantage in the Crown Court at a later stage.”

His Honour then went on to say “for my part I think it is clear that the function of the committal proceedings is to ensure that no one should stand his trial unless a prima facie case has been made out”.

This statement by Lord Widgery has been seen as being too restrictive. Of course one must look at the statement in the context of the question involved in the case in which that statement was made. In a New South Wales case in 1976 the New South Wales Supreme Court, in Maddison v Goldrick [1976] 1 NSWLR 651, went into the question of what is the purpose of committal proceedings. Of course in New South Wales at the time the procedure laid down for such a preliminary examination was quite clearly specified in s 36 of the Justices Act 1902 (NSW):

“The defendant may himself, or by his counsel or attorney, make full answer and defence, and may give evidence himself, and may examine and cross-examine the witnesses giving evidence for or against him respectively.”

As Samuels JA said (at 658):

“It follows that this procedure confers upon the defendant the right to make ‘full answer and defence’ and specifically includes the right to cross-examine the witnesses giving evidence against him,... that a magistrate’s duties in relation to a preliminary examination or committal proceedings are executive and not judicial, does not to my mind, limit the meaning to be given to the terms of s 36(3)... [which] confers upon the defendant the same right to cross-examination which he has at a trial, or in any other proceedings in which the rules of evidence are applied.”

His Honour went on further in the case saying (at 667):

“It is quite true that the preliminary examination is not a trial. But a committal may well have the most severe consequences, including, of course, loss of liberty pending trial. Any procedures which deprived a defendant of the opportunity to pursue a proper and often fruitful course in cross-examination would be, in my view, seriously defective.”

I would agree with the comments of his Honour in that case and I would note that any right to cross-examine has not been specifically taken away by any amending legislation providing for the hand-up-brief. The right to cross-examination clearly existed in the old procedures for committals in the District Court. The new amendments to Pt VI providing for what is called the hand-up-brief include no express repeal of any right to cross-examine therefore one must assume that it still exists.

Further an accused is charged at a committal hearing, therefore he must be entitled to the protection of s 37(4)(f) of the constitution which reads as follows:

“A person charged with an offence — 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.”

It is not as though any right to cross-examine in hand-up-brief situations completely nullifies the effect of these amendments providing for such a hand-up-brief. It is quite clear that Parliament wanted to enact a simple procedure in committal matters and I refer here to the word “may”. This procedure is a valuable one; however it does not necessarily mean that all other rights are abrogated and as I have already said there is no express provision saying that there is no right to cross-examine.

It is not as though, as submitted by the State, therefore that the hand-up-brief procedure is unworkable. That is not the point, the procedure is there and it can be used. However a defendant must still be entitled to cross-examine if he wishes and if he exercises that right the witnesses should be called and the matter should then proceed as in the previous procedure for oral evidence to be given at a committal proceeding. I see no suggestion anywhere in the legislation that there was an intention to take away this right. Of course whether there should be provisions for notice to be given is a matter for the legislature.

I therefore order that the decision of the respondent magistrate in refusing the applicant the right to cross-examine the prosecution witnesses where affidavits have been tendered in committal proceedings under Pt VI of the District Courts Act be quashed. I further order that the respondent magistrate allow the applicant or his legal representative to cross-examine the prosecution witnesses in the committal proceedings.

Orders accordingly

Lawyer for the applicant: Public Solicitor.

Lawyer for the respondent: Public Prosecutor.