N1433

PAPUA NEW GUINEA
[In the National Court of Justice]

APP. 199 of 1995

HAMI YAWARI
- (Appellant) -

v

TOLIMO ENGLISH
- (Respondent) -

MENDI: AKURAM, AJ
1996: 7th May

District Court - Appeal - Practice and Procedure - Committal hearing - documentary evidence - admission of - Section 35 (1) & (2) Evidence Act - comply - failure rendered inadmissible.

Appeal - Committal hearing - decision to indict based on committal hearing - Court not to enter arena of the duties and functions of the Public Prosecutor.

TAMUTAI for the Appellant.
KESAN for the Respondent.

7th May 1996

AKURAM, AJ. This is an appeal against the decision of the District Court magistrate committing the Appellant to stand trial in the National Court pursuant to section 100 (3) of the District Courts Act, Ch. 40.

It was put to the Counsel for the Appellant that this may be a wrong procedure as the proper procedure would be to apply for Judicial Review under Order 16, Rules 3 and 5 of the National Court Rules. The Counsel, Mr. Tamutai, then pointed out that the definition of "decision" in the interpretation section of the District Courts Act, includes "a committal for trial and admission to bail, and a conviction, order, order for dismissal or other determination". He submitted that that is wide enough to cover the Appeal provisions of section 219, 220, 221 and 222.

He also submitted that the National Court has an inherent power under section 155 (4) of the Constitution to deal with the matter.

I am of the view that the definition or interpretation of "decision" in section 1 of District Courts Act is wide enough to cover appeal under Part X1 of the District Courts Act, which deals with Appeals from Decisions of District Courts and especially Section 219 to 222 provisions. However I am not in agreement with the submission that Section 155 (4) of Constitution can operate when there is a provision in a statute which adequately provides for the procedure in question.

There are three grounds of Appeal:

1.	That the magistrate misdirected himself on considering evidence that was inadmissible in law to arrive at his decision - in allowing the Statement of John PEAWI which purported to be exhibit to Statement of TALIMO English.

2.	That the learned magistrate erred in finding that there was sufficient evidence to commit the appellant for trial.

3.	The whole of the decision is wrong in law.

The first two grounds of appeal were argued and not the third. As to the first ground, he submitted that the defence objected to the tendering of the said document as the maker of it did not give evidence on it to tender it but it was tendered through the Informant. The document is also a confessional statement of another co-accused which is not against the accused. He submitted also that the appellant in defence was not given notice of 5 clear days prior to hearing and the appellant was not able to consent or otherwise as required by Section 35 (1) & (2) of the Evidence Act, Ch. 48. This is also mandatory under Section 94 (1) (a) of the District Court Act.

The State conceded to this ground of appeal.

I therefore rule that this piece of evidence is (confessional statement of John PEAWI - a co-accused), was illegally tendered and was wrongly admitted into evidence. I therefore order that the said confessional statement not be admitted as evidence against the accused in this trial for which he is committed.

As to the second ground of appeal, I do not think it is proper for this court to enter into the arena of the Prosecutor to 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 may do any of the following:

(a)	he may not want to call all that evidence;

(b)	he may adduce fresh evidence through calling deponents of the statements tendered in Committal proceedings thus ignoring the said statements used during Committal hearing; or

(c)	he may file a nolle prosequi.

All those are matters which the Public Prosecutor is empowered to do. He may even indict when District Court did not commit for trial or sentence with an ex officio indictment. I therefore will not make any ruling on evidence. However, I have read the evidence and am also of the view that evidence touches on the legal issues and application of the evidence in relation to the charge and it would be unfair to pre-exempt whatever position the State wishes to take. I also say this because 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 Court).

_________________________

Lawyer for the Appellant: TAMUTAI LAWYERS
Lawyer for the Respondent: PUBLIC PROSECUTOR