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Papua New Guinea - Magistrates' Manual

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MAGISTERIAL SERVICE

PAPUA NEW GUINEA

MAGISTRATES' MANUAL

PAPUA NEW GUINEA

EDWARD R. HILL (BA, LLB)
Lecturer in Law and Law Clinic Supervisor, School of Law, University of the South Pacific
Barrister and Solicitor of the Supreme Court of British Columbia and the High Court of Fiji
Formerly Lecturer, Faculty of Law, University of Papua New Guinea

and

GUY POWLES (BA, LLM (Hons), PhD)
Fellow of the Faculty of Law, Monash University
Barrister and Solicitor of the Supreme Court of Victoria and of the High Court of New Zealand
Formerly Judge of the Appellate Division of the Supreme Court of the Federated States of Micronesia
and Magistrate in Samoa

May 2001

Index

INTRODUCTION

Part 1 �� Judicial Independence, the Legal System, Conduct of Court Matters and Court Hearings

Chapter 1 �� Judicial Independence, Ethics and Conduct

1.1�� Introduction

1.2�� Rules of Conduct

1.3�� Rule 1: A Magistrate shall Uphold the Integrity and Independence of the Judiciary

1.4�� Rule 2: A Magistrate shall Avoid Impropriety and the Appearance of Impropriety in all of the Magistrate's Activities

1.5�� Rule 3: A Magistrate shall perform the duties of Judicial Office Impartially and Diligently

1.6�� Rule 4: A Magistrate shall Conduct the Magistrate's Extra-judicial Activities in such a way as to Minimise the Risk of Conflict with Judicial Obligations

1.7�� A Magistrate shall Refrain from Political Activity

1.8�� Protection of Magistrates from Liability

Chapter 2 -�� The Magistrates Court in Context

2.1�� The National Judicial System

2.2�� The Magistrate's Court as a Creature of Statute

2.3�� Sources of Law

2.4�� Custom

2.5�� Common Law and Equity

2.6�� Constitutional Guidance

2.7�� Constitutional Rights

2.8�� Case Law in the Magistrates' Courts

2.9�� The Role of the Magistrate in Adversarial Proceedings

Chapter 3 �� Magistrates' Powers, Representation of Parties and the Conduct of Matters in Court

3.1�� The Magistrate in Court

3.2�� The Magistrate and Unrepresented Parties

3.3�� The Representation of Parties

3.4�� Legal Representation

3.5�� Representation by Person Other than a Lawyer

3.6�� Prosecutors

3.7�� Witnesses in Court

3.8�� Working With Interpreters

Chapter 4 �� Court Hearings

4.1�� Procedure in Court

4.2�� Choice of Jurisdiction, Venue of the Court and Transfer of Proceedings

4.3�� Issues to be Determined and Roles of Parties

4.4�� Ex parte Hearings

4.5�� Joint Parties and Severance of Parties

4.6�� Open Court

4.7�� At the Beginning of a Day's Hearings

4.8�� Order of Proceedings During the Hearing; Checklists

4.9�� Adjournments

4.10�� Change of Magistrates and Termination of Magistrate's Power

PART 2 -�� EVIDENCE

Chapter 5 �� Key Concepts in Evidence

5.1�� Introduction

5.2�� Admissions

5.3�� Affidavits

5.4�� Burden of Proof

5.5�� Character Evidence

5.6�� Circumstantial Evidence

5.7�� Compellability

5.8�� Competence

5.9�� Confession

5.10�� Corroboration

5.11�� Credit

5.12�� Cross-Examination

5.13�� Custom

5.14�� Direct Evidence

5.15�� Documentary Evidence

5.16�� Examination in Chief

5.17�� Hearsay Rule

5.18�� Hearsay Rule � Exceptions

5.19�� Hostile Witness

5.20�� Illegally or Wrongfully Obtained Evidence

5.21�� Judicial Note

5.22�� Leading Questions

5.23�� No Case Submission

5.24�� Oaths and Affirmations

5.25�� Opinion

5.26�� Presumptions

5.27�� Previous Consistent Statement

5.28�� Previous Inconsistent Statement

5.29�� Privilege

5.30�� Real Evidence

5.31�� Recent Complaint

5.32�� Refreshing Memory

5.33�� Relevance

5.34�� Re-examination

5.35�� Standard of Proof

5.36�� Voir Dire

5.37�� Weight

PART 3 -�� CRIMINAL CASES IN THE MAGISTRATES' COURT

Chapter 6 � Criminal Jurisdiction: A Guide

6.1�� Introduction

6.2�� Purpose of the Criminal Justice System, Judicial Power and Constitutional Principles

6.3�� Nature and Types of Offences and the Statutory Jurisdiction of Magistrates in Criminal Cases

6.4�� Geographical Limitations of Criminal Jurisdiction

6.5�� Concurrent Jurisdiction and Transfer of Proceedings

6.6�� Time of Offences

6.7�� District Court Jurisdiction in Relation to Children

6.8�� Types of Sentences and Orders

Chapter 7 � Criminal Responsibility and General Defences

7.1�� Offences and the Criminal Code

7.2�� Parties to Offences: Accomplices

7.3�� Attempts to Commit Offences

7.4�� Proof of Criminal Responsibility: Intention

7.5�� Intention and Automatism

7.6�� Honest and Reasonable Mistake of Fact

7.7�� Ignorance of the Law and Honest Claim of Right

7.8�� Prior Conviction / Acquittal / Sentence

7.9�� Extraordinary Emergency

7.10�� Insanity

7.11�� Intoxication

7.12�� Immature Age

7.13�� Justification and Excuse

7.14�� Defence of Self or Property

7.15�� Provocation

7.16�� Custom

Chapter 8 � Informations

8.1�� Commencement of Criminal Proceedings

8.2�� Form

8.3�� Essential Ingredients

8.4�� Particulars

8.5�� Consideration by the Magistrate

8.6�� Amendment

8.7�� Duplicity and Uncertainty

8.8�� Joint Accused

Chapter 9 � Summons and Warrants

9.1�� Bringing the Defendant to Court

9.2�� Summonses

9.3�� Arrest Generally

9.4�� Arrest Without Warrant, and Police Powers and Duties

9.5�� Arrest Warrants Issued by the Courts

9.6�� Other Occasions for Arrest Warrants

9.7�� Attendance of Witnesses

9.8�� Search Warrants

Chapter 10 � Bail

10.1�� The Presumption of the Right to Bail

10.2�� Jurisdiction to Grant Bail

10.3�� Applications in District Courts

10.4�� Issues Relating to the Exercise of Discretion

10.5�� Procedure at a Bail Hearing

10.6�� The Bail Certificate

10.7�� Conditions Attaching to Bail

10.8�� Variation and Revocation

Chapter 11 � Committal Proceedings

11.1�� Criminal Hearings Generally

11.2�� Nature and Purpose of Committal Proceedings

11.3�� Committal Jurisdiction in Papua New Guinea

11.4�� Commencement of Committal Proceedings Generally

11.5�� Committal Without a Hearing

11.6�� Inquiry into the Documentation Under Section 94C

11.7�� Consideration of the Evidence

11.8�� Examination of the Defendant

11.9�� Discharge or Committal of the Defendant

11.10� Defendant's Admission of Guilt

11.11� Witness Statements May be Relied on as Evidence at Trial

Chapter 12 � Guilty Pleas

12.1�� What Constitutes a Guilty Pleas

12.2�� Summary of Procedure

12.3�� Significance of Guilty Plea

12.4�� Safeguards in the Law and Practice

12.5�� Plea-Bargaining

12.6�� Procedure Following a Plea of Guilty

Chapter 13 - Sentencing

13.1�� Purpose

13.2�� The Sentencing Hearing

13.3�� Sentencing Facts

13.4�� Sentencing Principles

13.5�� Matters Which Must be Considered

13.6�� Sentencing Options

13.7�� Preventive Orders

PART 4 � CIVIL, FAMILY AND OTHER JURISDICTIONS

Chapter 14 � General Matters Relating to Civil Litigation

14.1�� Introduction

14.2�� Considerations Relating to Jurisdiction in the District Court

14.3�� Parties

14.4�� Complaints and Defences

14.5�� Civil Hearings in the District Court

14.6�� Disposition Without Contested Hearing

14.7�� Orders

Chapter 15 � Key Concepts in Some Civil Matters

15.1�� Contracts and Their Elements

15.2�� Other Contractual Terms

15.3�� Parties to the Contract

15.4�� Defects in Contracts and Elements that Make Contracts Invalid (Vitiating Elements)

15.5�� Remedies for Breach of Contract

15.6�� Torts

15.7�� Statutory Sources of Liability for Fault

15.8�� Remedies for Tortious Wrongs

Chapter 16 � Family and Children's Matters in Magistrate's Courts

16.1�� Introduction

16.2�� Determination of Paternity: Child Welfare Act

16.3�� Orders for Maintenance: Deserted Wives and Children Act

16.4�� Child Custody Under the Deserted Wives and Children Act

16.5�� Awards of Compensation for Adultery and Enticement

16.6�� Certifying the Dissolution of Customary Marriages

16.7�� Enforcement of Maintenance Orders: Maintenance Orders Enforcement Act

16.8�� Enforcement of Maintenance Orders: Child Welfare Act

16.9�� Enforcement of Maintenance Orders: Deserted Wives and Children Act

Chapter 17 � The Land Courts

17.1�� Introduction

17.2�� Mediation

17.3�� Local Land Courts

17.4�� Provincial Land Courts

17.5�� Inspections

Chapter 18 � The Village Courts

18.1�� Introduction

18.2�� Unique Characteristics if Village Courts

18.3�� Village Court Orders

18.4�� Relationship of Magistrates with the Village Courts

18.5�� Endorsement of Village Court Orders � Fines and Orders for Execution

18.6�� Enforcement of Fines and Orders for Execution

18.7�� Appeals and Reviews

18.8�� Supervision of Village Courts

Chapter 19 � Coroners, Elections and Other Jurisdictions

19A�� Coroners' Inquests

19A.1� The Coroner's Jurisdiction

19A.2� Stage I � Initial Investigations

19A.3� Stage II � Inquests

19B�� Elections

19B.1� Enrolment Appeals (National and Local-Level Elections)

19B.2� Petitions: Disputed Elections or Returns (Local Level)

19B.3� References: Disputed Qualifications or Vacancies (Local-Level)

19C�� Surety of the Peace and Good Behaviour

19C.1 Part X of the District Courts Act

19C.2 Grounds for Invoking the Court's Jurisdiction

19C.3 The Procedure

19C.4 Evidence

19C.5 Recognisance

19C.6 Forfeiture of Recognisance

19D�� Motor Vehicle Deaths Compensation

19D.1 The Motor Vehicles (Third Party Insurance) Basic Protection Compensation) Act

19D.2 The Inquiry

19D.3 Determinations

19D.4 Award and Enforcement

PART 5 - � ENFORCEMENT AND COSTS

Chapter 20 - Enforcement

20.1�� Introduction

20.2�� Enforcement of Civil Judgments

20.3�� Third-Party Claims Against Property

20.4�� Attachment of Debts

20.5�� Deliberate Non-payment of Judgment Debts

20.6�� Enforcement of Fines

20.7�� Contempt

Chapter 21 � Costs, Fees and Expenses

21.1�� Types of Costs in General

21.2�� Orders for Costs

21.3�� Costs Under the District Courts Act

21.4�� Costs in Criminal Matters

21.5�� Costs in Civil Matters

21.6�� Adjournments

21.7�� Witnesses

21.8�� Lawyers' and Agents' Costs

21.9�� Costs on Appeal

PART 6 -�� MAGISTRATES' CIVIL LIABILITY AND CASE MANAGEMENT

Chapter 22 � Civil Liability and Protection of Magistrates

22.1�� Principle of Liability

22.2�� Principle of Immunity

22.3�� Liability and Protection of Magistrates and Clerks

22.4�� Scheme of Part XII of the District Courts Act

22.5�� Other Jurisdictions

Chapter 23 � Case Management

23.1�� Introduction

23.2�� The Importance of Case-Flow Management

23.3�� Objectives

23.4�� General Principles

23.5�� Methods of Managing Case-Flow

23.6�� Development of a Case-Flow Policy

PART 7 -�� SETTLEMENT, DECISIONS AND APPEALS

Chapter 24 � Out-of-Court Settlements and Alternative Dispute Resolution

24.1�� Introduction

24.2�� Advantages of Out-of-Court Settlement

24.3�� Negotiation � the Most Common Means of Resolving Cases Out of Court

24.4�� What is Alternative Dispute Resolution?

24.5�� More About Mediation

24.6�� When is Mediation Appropriate (or Inappropriate)?

24.7�� The Stages of Mediation

24.8�� The Duties of Magistrates in Relation to Mediation

24.9�� Formalising an Out-of-Court Settlement

Chapter 25 � Decisions and Reasons

25.1�� Introduction

25.2�� Formalities of Recording Judgments

25.3�� Interim Decisions and Orders

25.4�� Reasons for Decisions

25.5�� Communicating Reasons for a Decision

25.6�� The Qualities of a Good Judgment

Chapter 26 � Appeals from the District Court

26.1�� Introduction

26.2�� What may be Appealed

26.3�� Minimising the Chances of an Appeal

26.4�� How an Appeal is Made

26.5�� Duties of a Magistrate When an Appeal is Commenced

26.6�� After the Appeal

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