State v JJ (A Juvenile) [2019] PGNC 303; N7978 (15 August 2019)

N7978

PAPUA NEW GUINEA
[ IN THE NATIONAL COURT OF JUSTICE]

CR NO. 64 OF 2019

THE STATE

V

JJ, A JUVENILE

Kainantu: Yagi J
2019: 14^th& 15^thAugust

CRIMINAL LAW – JUVENILE OFFENDER – whether the National Court has jurisdiction to hear and determine an allegation against a juvenile committed to stand trial on allegation of sexual touch in gender s. 229B(1(a) of the Criminal Code.

Cases Cited:

Nil

Counsel:

K. Umpake, for the State
V. Agusave, for the Juvenile

15^th August, 2019

RULING

1. YAGI J: This is a matter which concerns a male juvenile. For obvious reasons under the Juvenile Justice Act 2014(the Act) and in particular ss. 69 and 112, the name of the juvenile will be suppressed in this ruling. For the present purpose he will only be referred to as the “juvenile”.
   
2. According to court file records the juvenile is aged about 16 years. He resides with his parents at Aiyura valley, Obura Wonenara District. His father is employed. His mother is a house wife. The juvenile attends Professor Schindler Primary School in Aiyura and is in grade 8 this year. No doubt he will be sitting for his grade 8 final national examinations in about 2 months' time.
   
3. The juvenile is accused of sexually touching a young female child which is an offence under s. 229B(1)(a) of the Criminal Code Act. The female victim is of the same age group as the juvenile. At the time of the alleged offence the victim was aged 13 years. She would be aged about 14 years this year. Both are residing in the same neighborhood and known to each other.
   
4. The juvenile was committed by the Goroka District Court on 29 November 2018 to stand trial in the National Court. At the time of his committal the District Court extended bail. He made his first appearance before the National Court in Goroka on 22 February 2019. The Court having noted the locality of the offence transferred the case to the Kainantu list for hearing in Kainantu.
   
5. During the crimes sitting in Kainantu on 21 June 2019 his bail was reviewed by the National Court and extended. The National Court sittings in Kainantu commenced on 07 August 2019 and his case was listed for trial yesterday, 14 August 2019.
   
6. At the commencement of trial, the Court raised with the State Prosecutor and the Defense Counsel the issue of the Court’s jurisdiction under the Act in dealing with the juvenile. A short adjournment was granted to allow both counsels to peruse the provisions of the Act and address the Court accordingly.
   
7. I have heard the submission from Mr. Umpake, counsel for the State. He submits that the National Court does not have jurisdiction to deal with the juvenile because the Juvenile Court has exclusive jurisdiction under s. 17 of the Act. The National Court’s jurisdiction is limited by operation of s. 20 of the Act and only in circumstances where a juvenile is alleged to have committed homicide, rape or other offences punishable by death or imprisonment for life. Mr. Agusave, counsel for the juvenile, did not address the court, however, tacitly agreed with the essence of the submission by Mr. Umpake.
   
8. Section 17 of the Act provides:
   

“17. GENERAL JURISDICTION OF JUVENILE COURTS

(1) A Juvenile Court has exclusive jurisdiction in the area for which it is established in respect of a juvenile -

(a) to hear and determine summarily an offence punishable on summary conviction and otherwise triable in a District Court; and

(b) subject to Subsection (2) and (3), if the juvenile is charged with an indictable offence, to hear and determine the charge summarily in accordance with the provisions of this Act.

(2) Subsection (1)(b) does not apply to homicide, rape or other offence punishable by death or imprisonment for life.

(3) Proceedings for an offence under Section (1)(b) must be heard and determined by a Juvenile Court constituted by a Juvenile Court Magistrate.

(4) To avoid any doubt, and despite any other Act or law, a Juvenile Court has exclusive jurisdiction to hear and determine summarily, proceedings for an offence under Subsection (1)(b) by way of information, without the need for election by the prosecuting authority.”
[Emphasis supplied]

9. Section 20 of the Act provides for the jurisdiction of the National Court and it is stated in these terms:
   

“20. EXERCISE OF JURISDICTION BY THE NATIONAL COURT.

(1) If a juvenile is charged with homicide, rape or other offence punishable by death or imprisonment for life -

(a) the Juvenile Court shall deal with the committal proceedings; and

(b) the National Court shall hear and determine the trial.

(2) If proceedings are brought in respect of two indictable offences of which -

(a) one offence is an indictable offence to which Subsection (1) applies; and

(b) the other offence is an indictable offence to which Subsection (1) does not apply,

both offences shall proceed on indictment, and the National Court shall hear and determine both offences together.”
[Emphasis supplied]

10. It is clear, in my view, from the scheme of the Act that jurisdictions pertaining to juveniles who are alleged to have committed any offences, both summary and indictable, a special court is established and conferred special jurisdiction to deal with a special group of offenders. The only exceptions are cases which are gravely serious in nature which attract very severe penalties or ultimate punishment such as death or life imprisonment. The category of offences is limited to offences such as homicide and rape cases.
    
11. The language and tenor of the Act are expressed in strict mandatory terms to the extent that any attempt to construe and interpret the provisions otherwise would almost lead to absurdity and meaningless.
    
12. This appears to be consistent with the overall objective of the legislation which is stipulated in s. 5 of the Act. Subsections (a) and (b)of s. 5 states, amongst others, the objectives of the Act are “to establish the basis for the administration of a comprehensive and separate juvenile justice system” and “to establish a code for dealing with juvenile charged with or alleged to have committed an offence”.
    
13. In the circumstances I am satisfied that this Court is devoid of jurisdiction to “hear and determine” the allegation against the juvenile in this case.
    

14. The question therefore becomes what is or are the proper and appropriate orders to make in the circumstances.

15. The juvenile has taken a position denying the allegation against him. The matter therefore needs to be heard and determined by a Juvenile Court.

16. I am not aware whether a Juvenile Court Magistrate has been appointed to hear cases in Kainantu. I am equally uncertain whether a Juvenile Court Magistrate has been duly appointed to hear juvenile cases in Goroka. The appointing authority is the Chief Magistrate (see s. 15 of the Act). Be that as it may s. 19 of the Act provides that in the absence of a duly appointed Juvenile Court Magistrate, a court of summary jurisdiction, and in my view that means a Magistrate or Principal Magistrate of a District Court, may assume and exercise the jurisdiction. This provision states:

“19. EXERCISE OF JURISDICTION BY COURTS OF SUMMARY JURISDICTION.

(1) If -

(a) a Juvenile Court has not been established in an area; or

(b) a Juvenile Court has been established in that area, but a Juvenile Court Magistrate has not been appointed or is absent from duty; or

(c) it is impracticable for a juvenile to be brought before a Juvenile Court in and for that area,

a court of summary jurisdiction may, subject to Subsection (2), exercise in and for area the jurisdiction conferred by this Act on a Juvenile Court.

(2) A court of summary jurisdiction -

(a) shall, so far as practicable, sit and conduct proceedings in accordance with this Act; and

(b) may hear and determine summarily an offence punishable on summary conviction and otherwise triable in a District Court; and

(c) may impose any order under Section 80, other than an order for custody or imprisonment; and

(d) if the court considers that the nature or circumstances of the offence are of sufficient gravity, may order that the case be heard by a properly constituted Juvenile Court.”
[Emphasis supplied]

17. I am aware that a senior Magistrate of the District Court is resident in Kainantu. There is a District Court exercising the powers and functions of a court of summary jurisdiction in Kainantu. I do not think it would be convenient and practicable for the matter to be heard and determined in Goroka for two significant reasons. Firstly, the juvenile is a student and is in a critical stage of his education in terms of preparing for his final grade 8 national examinations. To travel to Goroka with his parents for court hearings would not only be costly but will have serious impact on his education. Secondly, all witnesses are located within the Kainantu area and are easily accessible, therefore in my view, it is only just and proper to have the court hearing conducted in Kainantu. In my view all these considerations operate in the best interest of the juvenile which is the underlying imperative of the Act.

18. For all these reasons I make the following orders:

1. This matter shall be transferred to Kainantu District Court to be heard and determined by a Juvenile Court Magistrate or a Magistrate exercising the powers of a court of summary jurisdiction under the Act.
   
2. The Clerk of the District Court in Kainantu must ensure that the juvenile’s case is accorded the treatment as required under the Act and be listed before the appropriate court for hearing as soon as possible.
   
3. The Registrar of the National Court or in his place the Assistant Registrar of National Court in Goroka shall forthwith transfer the National Court file and records relating to the juvenile to the Clerk of District Court in Kainantu.
   
4. The Registrar of the National Court or in his place the Assistant Registrar of National Court in Goroka shall forthwith take all steps necessary to close the file or proceedings in the National Court and ensure due compliance with the requirements of Part XI and in particular ss. 109 and 110 of the Act.
   
5. The Bail reviewed and granted by the National Court to the juvenile on 21 June 2019 is extended.

__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Juvenile