Yarume v Euga [1996] PGNC 24; N1476 (6 September 1996)

Unreported National Court Decisions

N1476

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APP NO 366 OF 1995
BETWEEN
BACKLEY YARUME - APPELLANT
AND
SYLVESTER EUGA - RESPONDENT

Kundiawa

Akuram J
6 September 1996

DISTRICT COURT - Appeal - Practice and Procedure - Committal hearing - Section 94 of District Courts Act - inquiry - whether findings against weight of evidence - not an important aspect.

DISTRICT COURT - Appeal - Practice and Procedure - Section 35 of District Courts Act - requirement - not applicable - must be read in conjunction with other provisions of Section 94 District Courts Act.

In an appeal against magistrates rulings and findings on evidence in Committal hearing.

Held

1. ـ Toat Ctamittal hearing is g is only an inquiry and whether the findings of a magistrate is against the weight of eviden not portapect.; That is a matter to be decided in the trial proper at the Nthe Nationational Coal Court.

2. ټ The purpose of Comm Committal hearing is to gather evidence and assess them to see whether the evidence is sufficient to Comhe ac for or sce in the National Court. This res proper and reas reas reasonablonable asse assessmeessment of the evidence with a view to see whether all the elements or ingredients of the offence is present before he can commit the accused. Sections 94B, 94C, 95 and 100 of Districts Courts Act, Ch 40 to be read together.

3. Dicision to indict ey throc Prosecutor after Committal hearing should not be interfered with by the Courts. Tha; That i duty and functfunction of the Pubrosec

>Counb> t

F

F Kuvi for the Respondent

6 September 1996

This is s is an apagainst inst an order made by the District Court Goroka whereby the Court on the 25th of October 1995 committed the Appellant to the National Court for trial on the information filed in that committal. The Notice of Appeal iled iled within time on the 15th of November 1995.

There are four (4) grounds of appeal namely that:

(a) ҈& The Court errt erred in finding that the information sworn were properly laid iaid in accordance with the provisions of tstrict Courts Act Chapter 40;

(b) The Court err d in a inpticepting that the affidavit tendered by the prosecution on behalf of the prosecution complied with the provisions of the District Courts Act Chapter 40;

(c) &ـ&#1he decision was awas againsgainst thet the weight of the evidence;

(d) & The dece decision was wrong in law.

e Appellant’s Counsel argued aggressively on the first two grounds and on the third aird and fourth grounds he basically submithat tcisioagainst the weight of the evidence which wash was tend tendered ered contrary to proper procedures set down in section 94 of the District Courts Act. All I can say e third and and fourth grounds is that committal hearing is only an inquiry stage and whether the findings of Magistrate is against the weight of evidence is not an important aspect. That istter to be decided ided in the trial proper at the National Court. I say this for two main reasons:

1. ـ Snctiohef the District Cout Courts Act which is set out below stipulateslates that if a legal representative for the accused is present and requese Cou consthe evidenhe Court conducting the inquiinquiry inry into thto the alle alleged offence may commit the accused after considering the evidence. But if there is a legal representative for the accused present and he does not ask the Court to consider evidence, the Court may commit without consideration of the evidence.

Section 94B reads:

94B. ; Coml for trialtrial withowithout consideration of the evidence

(1) ctbje Sutoectisn (2), a Co a Court inquiring into an oe mayit is satisfied that all the evidence, whether foer for ther the prosecution or the defence, consists of written statements, with or ut exs, ted to the Court afrt after ster servicervice in accordance with section 94, commit the defendant for trial for the offence without consideration of the contents of the statements.

(2) ;&#16mmittal forl for trialtrial in accordance with Subsection (1) shall not occur where:

(a) ـ the defe defendant or one of the defendants does not have legal rentatir

b)&#160 &##10;  the legal reprasent of thef the defendant or one of the defendants, as the case may be, res thet to der a sr a submisubmission that the statements referred to in Subsection (1) do not disclossclose sufficient evidence to put the defendant on trial for the offence.

(Added by No 31 of 1980, s. 3.)

However, this section if interpreted in this way may defeat the whole purpose of committal hearings. That purpose is to gatvideevidence and assess them to see whether the evidence is sufficient to commit the accused for trial or sentence in the National Court. This requires proper easoneasonable assessment o evidence with a view to seto see whether all the elements or ingredients of the offence is present before he can commit the accused.; This is in fact what section 100 of the District Court sart says. Section 100 reads:

That is:

100. hargeommittal ofal of defendefendant

(1) Wnen amiexaionatnderuthis this Division is coed, turt sconsihether the evidence is sufficufficient to put the defendant on trial.

(2)&>(2) n , iiotin C tee evidence ence is e is not snot sufficufficient to put the defendant on trial, it shall immediately order the defendant, if in custody, to be diged athe iation undeuiry.

(3)&#13) < &#160 &#160 Wher Where:

(a); in theiopinf t o Couet, tht, the evidence is sufficient to put the defendant on trial; or

(b) ټ tue Coomt commits tits the deft forl undction 94B (1),

the Court shall:

(c)p>(c)&#160 &##10;  by warrant comhit tfendantndant to a corrective instin, polock- other ther placeplace of s of security to be kept there safely until the sitting of the National Court before which he is to be tried, orl he liver due coue course urse of laof law; or

(d) ҈ hmitto m to bail iail in accordance with Division 2.

(Replaced by No 31 of 1981, s. 2.)

And also section 94C and 95 of the District Courts Act further amplifies this requir and as fo:

94Cp>94C.&#16. ҈ Regard to Evidence,ence, etc

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

(a) ҈ cedened ined writtarittatement; and

(b)&#160  &< doc; documents and exhibits,of which a copy has been served on efendnder on 94 (1) or made available for inspectspection uion under nder section 94 (2).

(2) e forittdmg a nristate thee the Court shall hall be sabe satisfied that the person who made the statement had read and understood it, or if unable to read, had t reahim ianguaat herstood.

(Add>(Added byed by No 3 No 31 of 1 of 1980,1980, s. 3).

95. & Courcons der wder whetherether prima facie case

(1) &##160;e aer thel the evideevidence offered the part of the prosecution has been her rec, thet shall consider whether it is sufficieficient tont to put put the defendant on trial.

(Added by No 31 of 1980, s. 4).

(2) ـ If the the Court is of opinion that the evidence is not sufficient to put the defendant on trial for an indictabfence it shall immediately order the defendant, if in custody, to be discharged as to the ithe information then under inquiry.

(3) If the Court is of opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall proceed with the examination in accordance with this Division.

This is not to say that the Public Prosecutor cannot use his own discretion whether to indict or not after committal. Aave said in Hami Yawari vari v The State, App. 199/95 dated 7th May 1995 N1433 that:

“As to the second ground of appeal, I do not think it is proper for this court to enter into tena of the prosecutor to deto decide as to whether the accused should be tried for the offence he was committed to stand trial on. As the first ground is based on the issue of law, I can review that part of the evidence but not on the whole of the evidence. Whether the evidence is sufficient or insufficient, court must be mindful of the fact that the Prosecution does not rely solely on the evidence that is tendered during the Committal proceedings. The Public Prosecutor maando any of the following:

(a) h maywaot to t ll aal thal that evidence;

(b) he may a fresh evidence through calling deponents of the statementsments tendered in Committal proceedings thus ignoring the said statements used during Committal hea or(c)&ـ҈ he may file a le a nollenolle pros prosequi.equi.

All those are matters which the Public Prosecutor is empowered to do. He may even indict whetricstrict Court did not commit for trial or sentence with an ex officio indictment. I thereforl not make any rany ruling on evidence. However, I have read thdenvidence and am also of the view that evidence touches onlegal issues and application of the evidence in relation to the charge and it would be unfa unfair to pre-exempt whatever position thte wishes to take. I 0; I also his because thse this is Papua New Guinea and people would like to see that justice is seen to be done and not only done (s. 59 of the Const.).”

So the Public Prosecutor still, after committal to National Court, decide on the evidence and indict a person. He may decide not r variouarious reasons stated above in Yawari’s case.

2. &#T60; ece s rendon is that that the purpose of Committal hearing is similar to a filtering ps where a lot of accuseds aeds are charged of indictable offences and brought to District Court where District Court magistrates will hear evidence, assess it and will only allow those supported by credible evidence to go through to the National Court via the Public Prosecutor’s Office. So the cases with pportingrting evidence never go through to the National Court. again requires proper asse assessment of the evidence but does not mean magistrate should go as far as deciding the guilt or innocence of the accused. Thibecauometimes the evideevidence produced by the Hand-Up-Brip-Brief file system may not establish the real evidence required to establnnocence or guilt. This is why ublic Prosecutsecutor must be given the discretion, afn, after its own inquiry, whether to indict an accused even though Committal evidence is falling short of sufficient evidence, the Prosecutor could still conduct its own investigation or inquiry of the material witnesses and have the accused indicted in the National Court.

I will therefore not enter the arena of the Public Prosecutor and decide whether decision of the Magistrate is against the weight of the evidence.

I will now discuss the first ground of appeal.

In support of this ground, it is submitted that the court erred in finding that the information sworn was properly laid in accordance with section 35 of the District Courts Act. The Appellant d on sectionctions 94 (1) (c) and 35 of the District Courts Act.

Firstly, section 35 of the District Courts Act says:

5. Form of Information

<&>(1) Whe; Witre inisndedeto isto issue a warrant in the first instance against the party charged, the information shall be in writing and on oath either by the informant or some other person.

<ـ҈ Where it isit is inte inte intended to issue a summons instead of a warrant in the first instance, the information need not be in wr or on oath, but may be verbal only and without oath, whether the law under which the inforinformation is laid requires it to be in writing or not.

Section 35 (1) is used where a warrant of arrest is to be issued in the first instance against an accused and it is only than that the information shall be both in writing and shall be on oath by the informant or some other person. Section 35 (2) is where a summons is to be issued instead of a warrant in the first instance. In the present case the accused was not arrested by warrant nor summoned to appear in court. He was informed verbally to accompany the police investigao the police station where he was interviewed and charged as stated by the investigator on r on page 143 - 145 of the appeal book at raph eleven (11) to seventeen (17), especially paragraph 15ph 15 where he was formally informed of his arrest and charged on the two counts. It was then a mereality toty to lay the information in the District Court which need not be sworn. This is a diff situation tion to section 35. in fact in accordance wite with section 94 (1) of the District Courts Act. In fact sn 94 (1) dot say say expressly whether an information should merely be laid or sworn and land laid in the District Court. The usualtice at they are are merely signed by an informant and then laid in the District Court fort for the usual committal proceedings to tlace. They only other relevant oection is section 29 (Information to be for one mattematter only), but it does not require that an information shall be sworn and laid or merely laid in the District Court. I set out both se 94 (1) a(1) and 29 below respectively:

94. & Copynforiationation, etc, etc, to be served

(1) ; Subje Subsect6on (6), whe, where a person is charged with:

(a)p>(a) &##160; an indi indictable cffenat that shall not be tried summarir

b)҈& an offegainat Snst Sest Sest Sectionction 420 420 of the Criminal Code where the offence is not to be tried summarily, the iant sserveaused to be o be served, in accordance with Subsection (3), on the defendant or his leis legal rgal representative;

(c) ;ټ a copy copy of thef the information; and a copy of each statement that the informant intends to tender at the committaling; p>

(Amended by No 45 of 1986, s. 2 (a)).

(e) ҈ a60; a60; a l; a list of documents and exhibits referred to in a statement referred to in Paragraph (d) that the informant intends to tender at the committal hearing; and

(f);ټ&##160; a60; a copy copy of each document referred to in Para Paragraph (e).

29. ټ Iation tion to be f be for one matter only

An information shall be for one matter only, except that:

(a) ټ&#in the the of inbf inble offences, if the matters of the information aion are sure such that they may be charged in one indictment; and

(b) &##160;;&#16 other cases, ies, if the matters of the infe informatormation are substantially of the same act or omission on the part of the dant, those matters may be joined in the same information.

I therefore find that thet the magistrate did not err in ruling as he did.

The second and more substantial ground of appeal is that section 94 (1A) is in mandatory terms in that a Statement referred to in section 94 (1) (d) shall, for the purposes of Division 111.2 of the Evidence Act be treated as an Affidavit and also that such a statement shall contain a certified warning under Section 94 (IA). Secti (IA) has been discusiscussed by his Honour, Injia J in The State v Tambun Benone where he rightly pointed out that the committal court must comply with the many requirement of Section 94 C (2). That is:

(2

(2) ҈ Before fore admitting a wnitten statement, the court shall be satisfied that the person who made the statement had read and understood it, or if unable to read, had it re him languhat he underunderstood.” (emphmine).

May I also add that this also applies to affidavit evidence and Records of Interviews where there is an interpretation clause for those witnesses who do not know how to read nor write. I therefoopt the views exps expressed by his Honour in the above case to this present case.

In the final analysis I find that therno error in the way the magistrate ruled as section 94 (IA) should not be treated in isolatsolation but together with section 94C. In this regard, it does not matter really whether it is a statement nor an affidavit. As hiour Injia J said in a in above case that the reasons for bringing in the signed statement in place of oral evidence or affidavit is not because it will replace but to assist in the speedy processing of the Committal heal hearings.

I therefore dismiss this ground of appeal also.

This appeal is therefore dismissed.

Lawyer for the Appellant: DL O’Connor Lawyers

Lawyer for the Respondent: Public Prosecutor