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al of Papua New Guinea

MAGISTERIAL SERVICES

OF

PAPUA NEW GUINEA

MAGISTRATES' MANUAL

OF

PAPUA NEW GUINEA

by

EDWARD R. HILL (BA, LLB)
Lecturer in Law and Law Clinic Supervisor,
School of Law, University of the South Pacific

and

GUY POWLES (BA, LLM (Hons), PhD)

Foreword to the Manual

I am delighted that Magistrates in Papua New Guinea now have a Magistrates Manual. The earlier publication (The Criminal Jurisdiction of Magistrates in Papua New Guinea by N K F O'Neill and R N Desailly, 1982) covered the criminal jurisdiction only and is out-of-date and unavailable. The new Manual is, therefore, a significant development for Magistrates in Papua New Guinea.

The Manual is intended not only to provide Magistrates with guidance as to how court proceedings should be conducted according to the relevant law and procedure, but also as to a Magistrate�s personal approach to his judicial responsibility.

An important feature of the preparation of this Manual has been the consultative process by which groups of Magistrates have met with the authors in order to consider draft chapters and to make suggestions as to how topics might best be treated in the Manual, and generally to provide valuable input. For their part, the authors have produced a text that takes into account local advice. I am grateful to AusAID for making the funds available for the two consultative workshops held in Port Moresby. The result is what Papua New Guinean Magistrates can be proud to call a �home-grown� Manual.

I am further delighted for reasons of institutional responsibility and the desire to respond appropriately to the public demand for quality and the timely resolution of disputes coming before Magistrates. As we enter the new Millennium, after 25 years of independence of a nation as diverse as ours, major socio-economic developments have brought with them all types of disputes with varying complexities that must be dealt with by the courts. 

On 18 August 2000, legislative amendments merging the grades of Magistrates and abolishing the Local Courts came into effect. This has permitted Magistrates, previously limited by jurisdictional barriers, to deal immediately with disputes that they would not otherwise have attended to. Magistrates have been encouraged and are being trained to improve their judicial writing and general skills. It is worth mentioning that alternative dispute resolution, pursuant to these legislative amendments, is now a formal aspect of the hearing of most, if not all, civil matters before the District Court. All these matters emphasise the importance of the drive to improve judicial skills.

The Magistrates Manual is no exception. It was appropriately given priority at the beginning of the Access to Laws Project. Its completion is an achievement. I am confident that the Manual will be warmly received by Magistrates and I sincerely believe that it will have a profound impact on how Magistrates apply their judicial skills in the resolution of disputes and, for that matter, make an important contribution to the administration of justice. In addition to its value to Magistrates, it will be indispensable for training purposes. Altogether, the Manual will greatly advance the quality improvement of the Bench in Papua New Guinea.

May I also stress the developmental aspect of this publication. I hope that, as Magistrates become familiar with the Manual and can test it in its operation over time, they will provide me with information and comments that will assist in the drafting of future editions.

I sincerely thank the authors for their commitment to the Manual and their friendship in the process. I also commend the Magistrates who assisted the authors during the consultative process.

George Manuhu
Chief Magistrate

Papua New Guinea
May 2001

Introduction

The Magistrates of Papua New Guinea perform a vital role in society. A vast amount of criminal, civil and family litigation passes through the courts in which they serve. Without an ethical, knowledgeable and motivated magistracy, the country would be placed at an enormous disadvantage.

Many Magistrates have, over the years, been required to perform their duties without ready access to legal materials. This manual is intended to redress this deficiency. It is hoped that it will become a helpful day-to-day reference and a source of information that will refresh and supplement the working knowledge of Magistrates. It is intended to be a practical book. Footnotes have not been used and extensive case citations have for the most part been avoided. Important Papua New Guinea decisions are referred to, but foreign authorities are not cited.

This book has been written to form part of a series of texts on the laws of Papua New Guinea. Others in the series have been written simultaneously. It is hoped that the contents of this manual in relation to criminal law, land law and the law of evidence will be complemented by other texts devoted exclusively to these subjects. Relevant statutes and provisions of the Constitution are referred to throughout the manual, and will provide a guide to lead Magistrates to the applicable legislation. The Bench Statute Book, a companion to this manual, is intended to be the primary source on which Magistrates should rely.

It is impossible in a book of this nature to cover exhaustively all of the matters that come before Magistrates. Such a book would require several volumes. It has been necessary to be selective in the coverage of topics. The coverage has been determined with a view to maximising the practical benefit that it will provide in the most common types of cases that Magistrates preside over. Serving Magistrates have been of great assistance in determining the coverage of the manual.

Part 1 of the manual includes chapters that are relevant to Magistrates in all types of cases and extending beyond their professional lives. Judicial ethics and conduct pervade the entire range of judicial duties. Matters of jurisdiction, basic principles underlying court hearings presided over by Magistrates, matters of natural justice, representation of parties and the step-by-step procedure of criminal and civil hearings are considered in Chapters 1-4. Part 2 (Chapter 5) deals with evidence. This chapter is intended to provide a readily accessible reference to the most common issues that arise in the law of evidence in Papua New Guinea. Part 3 consists of chapters dealing with criminal jurisdiction and responsibility, criminal procedure and principles of sentencing. Part 4 begins with two chapters relating to civil litigation and civil procedure generally. Then a chapter is devoted to each of family and children�s matters, Land Courts and Village Courts. Chapter 19 is divided into four sections, covering (a) Coroners inquests, (b) disputes arising out of elections and electoral rolls, (c) the surety of the peace and good behaviour jurisdiction and (d) motor vehicle deaths compensation. Part 5 is concerned with enforcement and costs, and Part 6 with Magistrates� civil liability and case management. Finally, Part 7 deals with settlements and dispute resolution, writing and delivering decisions, and appeals.

The laws of Papua New Guinea are dynamic. As this manual was being written, the Local Courts were abolished and the District Courts Act and the Village Courts Act were amended. Parliament can be expected to pass new laws that affect the operation of the Magistrates� Courts and practice directions and rules may be made. The role of alternative dispute resolution can be expected to increase. Case law can be expected to clarify the meaning of existing legislation. Subsequent editions of this manual may be required to take into account changes in the law. The use of this edition over a period of time can be expected to reveal matters which will require further attention. Revision will then compensate for any lack of accuracy or completeness which appears in the present edition.

Much of the legislation that is currently applied by Magistrates is in need of amendment or outright repeal and replacement with new legislation. One need look no further than Pts VI, IX and X of the District Courts Act to find provisions which are archaic, unclear and arguably inappropriate to the realities of the justice system or wider Papua New Guinean society. Much of the law that is applied in District Courts calls out for reform. However, these are matters for Government and Parliament. Magistrates have an obligation to uphold and apply the law as it presently exists. Accordingly, the authors have refrained from extensive commentary on the law or its underlying policy except in so far as it assists Magistrates in discharging their duties.

The authors are indebted to a large number of people whose expertise and willing assistance was provided � particularly the Chief Magistrate Mr George Manuhu, the Deputy Chief Magistrate Mr John Numapo and Magistrates Mr Steven Oli, Ms Regina Sagu, Ms Dessy Magaru, Mr Paul Beu�u, Mrs Ibonigu Kapigeno, Mrs Christine Anawe, Mr John Gesling, Mr Brian Pebo and Mr Mark Selefkariu. These Magistrates contributed the benefit of their experience and ideas during two intensive workshops held at Port Moresby in the first half of 2000. The manual is the better for their input, they have put their stamp upon it, and indeed their involvement in the creation of the manual demonstrates that this publication belongs truly to them.

The authors also wish to recognise the roles played by Professor Don Chalmers and Dr Val Haynes, and the support of members of the Publications Committee of the �Access to Laws� project of which this manual is part. In many practical ways, representatives of Thomson Legal and Regulatory Group and members of the Port Moresby office of the �Access to Laws� project gave valuable assistance to the authors.

To the best of their abilities the authors have attempted to state the law as it existed on 31 August 2000.