Backley Yarume v Sylvester Euga

• Jurisdiction: Papua New Guinea
• Judge: Akuram J
• Judgment Date: 06 September 1996
• Citation: (1996) N1476
• Court: National Court
• Year: 1996
• Judgement Number: N1476

National Court: Akuram J

Judgment Delivered: 6 September 1996

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. That Committal hearing is only an inquiry and whether the findings of a magistrate is against the weight of evidence is not an important aspect. That is a matter to be decided in the trial proper at the National Court.

2. The purpose of Committal hearing is to gather evidence 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 and reasonable assessment 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 by the Public Prosecutor after Committal hearing should not be interfered with by the Courts. That is the duty and function of the Public Prosecutor.

Counsel

DL O'Connor for the Appellant

F Kuvi for the Respondent

6 September 1996

AKURAM J: This is an appeal against 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 was filed within time on the 15th of November 1995.

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

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

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

(c) The decision was against the weight of the evidence;

(d) The decision was wrong in law.

The Appellant's Counsel argued aggressively on the first two grounds and on the third and fourth grounds he basically submitted that the decision is against the weight of the evidence which was tendered contrary to proper procedures set down in section 94 of the District Courts Act. All I can say of the third 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 is a matter to be decided in the trial proper at the National Court. I say this for two main reasons:

1. Section 94B of the District Courts Act which is set out below stipulates that if a legal representative for the accused is present and requests the Court to consider the evidence, the Court conducting the inquiry into the 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. Committal for trial without consideration of the evidence

(1) Subject to Subsection (2), a Court inquiring into an offence may, if it is satisfied that all the evidence, whether for the prosecution or the defence, consists of written statements, with or without exhibits, tendered to the Court after service in accordance with section 94, commit the defendant for trial for the offence without consideration of the contents of the statements.

(2) Committal for trial in accordance with Subsection (1) shall not occur where:

(a) the defendant or one of the defendants does not have legal representation; or

(b) the legal representative of the defendant or one of the defendants, as the case may be, requests the Court to consider a submission that the statements referred to in Subsection (1) do not disclose 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 gather evidence 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 and reasonable assessment 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. This is in fact what section 100 of the District Court says. Section 100 reads:

That is:

100. Discharge or committal of defendant

(1) When an examination under this Division is completed, the Court shall consider whether the evidence is sufficient to put the defendant on trial.

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

(3) Where:

(a) in the opinion of the Court, the evidence is sufficient to put the defendant on trial; or

(b) the Court commits the defendant for trial under section 94B (1),

the Court shall:

(c) by warrant commit the defendant to a corrective institution, police lock-up or other place of security to be kept there safely until the sitting of the National Court before which he is to be tried, or until he is delivered by due course of law; or

(d) admit him to bail 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...