Ex Parte the Public Prosecutor [1983] PNGLR 43

• Jurisdiction: Papua New Guinea
• Judge: Bredmeyer J:
• Judgment Date: 04 March 1983
• Citation: [1983] PNGLR 43
• Docket Number: The State v Principal Magistrate, District Court, Port Moresby
• Court: Supreme Court
• Year: 1983
• Judgement Number: SC243

Full Title: The State v Principal Magistrate, District Court, Port Moresby; Ex Parte the Public Prosecutor [1983] PNGLR 43

Supreme Court: Kapi DCJ, Pratt J, Bredmeyer J

Judgment Delivered: 4 March 1983

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE STATE

V

THE PRINCIPAL MAGISTRATE, DISTRICT COURT, PORT MORESBY; EX PARTE THE PUBLIC PROSECUTOR

Waigani

Kapi DCJ Pratt Bredmeyer JJ

29 October 1982

4 March 1983

CRIMINAL LAW — Practice and procedure — Election to proceed summarily — Offences which may be dealt with summarily by grade V magistrate — Power to elect vested exclusively in Public Prosecutor — Information to proceed by way of committal unless election made — Time for election — Power of withdrawal — Criminal Code, s. 432 — District Courts Act 1963, ss 68A, 100, 101 — Public Prosecutor (Office and Functions) Act 1977, s. 4.

Under s.4 (ga) of the Public Prosecutor (Office and Functions) Act 1977, the Public Prosecutor "may, in his absolute discretion, elect the method of proceeding under s. 432 of the Criminal Code, including the withdrawal of an information".

Under s. 432 of the Criminal Code:

"When a person is charged before a District Court constituted by a magistrate grade V with an offence specified in Schedule 1A, the court shall deal with the charge summarily according to the procedure set out in s. 433...."

Schedule 1A describes in brief terms the name of the offence, the section number and the maximum penalty which may be imposed by a grade V magistrate where a conviction is recorded.

Held

(1) The word "charged" in s. 432 of the Criminal Code, means charged according to law, that is, either by way of committal or by way of an election on the part of the Public Prosecutor to proceed in the summary jurisdiction.

(2) When an information is laid in the District Court for an offence which is listed in Sch. 1A of the Criminal Code, the matter is, and must proceed on the basis of being, a committal matter, until or unless the Public Prosecutor elects, pursuant to s. 4 (ga) of the Public Prosecutor (Office and Functions) Act, for it to be dealt with summarily.

(3) Until such an election is made a person is not charged with an offence "under s. 432", that is an offence prosecuted or elected under s. 432; he is only charged with an offence under the Criminal Code.

(4) If, in the case of an offence which is listed in Sch. 1A of the Criminal Code, the Public Prosecutor wishes to elect, pursuant to s. 4 (ga) of the Public Prosecutor (Office and Functions) Act, for the matter to be dealt with summarily, he must make that election before the committal papers are served on the defendant pursuant to s. 101 of the District Courts Act.

(5) The power of "withdrawal of an information" vested in the Public Prosecutor by s. 4 (ga) of the Public Prosecutor (Office and Functions) Act, is exercisable only where he has elected to proceed summarily.

Order Nisi for Certiorari

This was the return of an order nisi for certiorari, directed to a magistrate of the District Court, for removal of two matters out of the magistrate's court and to quash the convictions on the ground of lack of jurisdiction.

Counsel

J Byrne, for the State.

R. Gunson, for the Principal Magistrate, District Court, Port Moresby.

Cur. adv. vult.

4 March 1983

KAPI DCJ: I have read the judgment of Pratt J and agree with the reasoning therein and the orders proposed.

PRATT J: Since 15 August 1980, a number of offences which were previously dealt with only on indictment by the National Court can now be brought before a magistrate grade V. The offences are set out in Sch. 1A to an amendment of the Criminal Code by Act No. 28 of 1980. The new system required considerable amendment to certain parts of the District Courts Act 1963. This was achieved by Act No. 31 of 1980, District Courts (Committal Proceedings in Cases of Indictable Offences) Act; and Act No. 32 of 1980, District Courts (Hearing of Indictable Offences) Act. The Public Prosecutor contends that a District Court may not proceed to hear summarily those offences listed under Sch. 1A until he has elected to proceed with that method. The magistrate on the other hand ruled that he did not have to await such election but as the matter had been brought before him, he should proceed to hear the case.

Two separate defendants had come before the Principal Magistrate in Port Moresby, who is a grade V magistrate, separately charged with independent offences of break and enter. One of them originally appeared first before the magistrate on 19 April and was subsequently dealt with by way of plea of guilty on 4 August. The other originally came before the magistrate on 6 May and after pleading guilty on 3 August was remanded until 4 August for sentence. On that day, following discussions between the police prosecutor and the Public Prosecutor, the police made an application for adjournment of both cases to 9 August to allow the Public Prosecutor to examine the files and decide whether he should elect to proceed in a summary fashion or allow the matter to be pursued by way of committal and subsequently made the subject of indictment before the National Court.

I should point out that in all these Sch. 1A matters there is a concurrent jurisdiction in the National Court and in the District Court. One of the obvious reasons for this is the present scarcity of grade V magistrates. I also observe that in respect of some offences, the magistrates may impose the same penalty as the National Court whilst in others the maximum penalty is considerably less than that which may be imposed by the National Court.

The magistrate pointed out to the police prosecutor that he had already dealt with one of the cases and on that basis refused the adjournment. In respect of the other matter he refused the adjournment on the basis that it was not exclusively a question for the Public Prosecutor whether such cases proceeded summarily, and again refused the adjournment. He then proceeded to sentence both of the defendants.

The Public Prosecutor made application to a National Court judge for an order nisi for a writ of certiorari to remove the matters out of the Magistrates Court and to quash the convictions on the basis of lack of jurisdiction. Under the rules of the court the order nisi has been made returnable before the Supreme Court and thus comes before us. No point was taken at this hearing on the standing of the Public Prosecutor in the matter. Likewise no issue was made by either party over the form which this application has taken.

A proper appreciation of the issue involved here requires a close look at parts of the amending Acts. Section 432 of the Criminal CodeAs the amending Acts refer to the section numbers of the Criminal Code before the Revised Acts commenced operation on 1 January 1983, I have referred to the old section numbers, unless otherwise indicated.1 is now amended by Act No. 28 of 1980 to read as follows:

"When a person is charged before a District Court constituted by a magistrate grade V with an offence specified in Schedule 1A, the court shall deal with the charge summarily according to the procedure set out in s. 433...."

Under the amended s. 433 the court is to proceed in accordance with Pt VII of the District Courts Act 1963. That part was extensively amended by Act No. 32 of 1980. The two sections particularly pertinent to the present problem are ss 128 and 134. Portions of the amended s. 128 were further amended by Act No. 31 of 1981 and I now set out in its present form one of the two subsections which were added to s. 128:

" (5) An indictable offence triable summarily under s. 432 of the Criminal Code shall be heard and determined in a District Court constituted by a magistrate grade V."

Subsection (6) goes on to state that the cases may be held at such time and place as determined by the court. Section 134 as amended by No. 31 of 1981 now reads:

" (1) At the time appointed for the hearing of an information of a simple offence or an indictable offence triable summarily, the defendant shall be informed in open court of the offence with which he is charged as set out in the information, and shall be called on to say if he is guilty or not guilty of the charge.

(2) When the defendant is called on under sub-section (1), the hearing is deemed to commence."

Pausing here for a moment, it is obvious that the amendments brought about by Acts Nos. 31 and 32 of 1980 were designed to achieve an enlargement of jurisdiction of the District Court. I do not believe that where for example s. 128 (5) says, such matters "shall be heard", it indicates anything more than the location where such matters are to be tried and before whom. For how else could the court or the magistrate acquire the relevant jurisdiction. The subsection does nothing more than direct the course to be taken provided other requirements have been attended to. Likewise, Act 31 of 1980 makes amendments, inter alia, to ss 100 and 101 of the District Courts Act which set out the method to be...