The State v Juvenile TR

• Jurisdiction: Papua New Guinea
• Judge: Higgins, J
• Judgment Date: 23 June 2015
• Court: National Court
• Judgement Number: N6023

Full : CR NO. 1061 OF 2014; The State v Juvenile TR (2015) N6023

National Court: Higgins, J

Judgment Delivered: 23 June 2015

N6023

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1061 OF 2014

THE STATE

V.

JUVENILE TR

Kokopo: Higgins, J.

2015: 14th May, 4th & 23rd June

CRIMINAL LAW – Juveniles – Jurisdiction of Courts – Incorrect committal to National Court – Remittal to Juvenile Court – Effect of Juvenile Justice Act 2014 and Juvenile Courts Act 1991.

Cases Cited:

Papua New Guinea cases

State v. A Juvenile M [2005] PGNC 141; N2815

The State v. JK [2012] PGNC 348; N4748

State v. Juvenile H (2014) CR No. 187 of 2013

State v. Kaore [2014] PGNC 43; N5572

State v. Knox [2008] PGNC 79

State v. Mamu [2002] PGNC 110; N2228

State v. Wesley Penias [2014] PGNC 41; N5659

Overseas Cases

De Domenico v. Marshall [2001] ACTSC 52

Dibeek Holdings Pty Limited v. Emmanuel Noteras & others [1997] ACTSC 83

Evans v. Shiels [2004] ACTSC 19

Faull v. Commissioner for Social Housing for the ACT [2013] ACTSC 121

Rose v. Snape [2000] ACTSC 115

Counsels:

Messrs. Tendui/Kupmain, for the State

Ms. Kasa, for the Accused

DECISION

23rd June, 2015

1. HIGGINS, J: TR is a juvenile. He is presently aged 16 years. On the 25th day of March 2013, he was involved in an assault upon Andrew Nakamura. That resulted in a gash to Andrew Nakamura’s head. Whether or not TR struck the particular blow that caused that wound, he was part of the unlawful enterprise of chasing down and assaulting Andrew Nakamura.

2. For present purposes, it is enough to note that he is and was at all material times, a juvenile within the meaning of the Juvenile Courts Act 1991 and its successor the Juvenile Justice Act 2014. The latter Act came into effect on 30 May 2014, after the events giving rise to the indictment presented against him and four adults dated May 2015. The day was not specified in the document but it also preceded the Juvenile Justice Act 2014.

3. The information laid pursuant to the Juvenile Courts Act 1991 charged on offence against S.319 of the Criminal Code Act. That offence carries 7 years imprisonment as a maximum sentence. On 22 August 2014, in the Juvenile Court at Kokopo, TR was committed to stand trial in the National Court at Kokopo.

4. On the matter coming before me for trial on 14 May 2015, TR advised, through counsel, that he would plead guilty to a new indictment alleging unlawful wounding contrary to s.322(1)(a) of the Code. That carries a maximum penalty of 3 years imprisonment.

5. After the trial of the 4 adults concluded, at which TR gave evidence, I formally accepted his plea of guilty on 4 June 2015 and directed the preparation of a presentence report. TR has no prior convictions or findings of guilt.

6. He next appeared on 23 June 2015. A presentence report was tendered.

7. That highlighted a potential difficulty similar to that faced by Justice Kassman in State v. Juvenile H CR No. 187 of 2013. Similarly, in this matter, until 23 June 2015, no-one raised the issue of the offender being a juvenile though there was no doubt as to that fact. Indeed, he is currently a Grade 7 student at Kabaleo Primary School.

8. There is a Juvenile Court of Kokopo and duly appointed Juvenile Court Magistrates.

9. Under s.15 of the repealed Act, the jurisdiction of a Juvenile Court was conferred in the following terms:

“A Juvenile Court has jurisdiction in the area for which it is established under Section 5, in respect of a juvenile –

(a) to hear and determine summarily all offences otherwise triable in a District Court or Local Court; and

(b) where the juvenile is charged with an indictable offence other than homicide, rape or other offence punishable by death or imprisonment for life, to hear and determine the charge summarily in accordance with the provision of this Act.”

Section 17 of the Act provided:

“(1) Where –

(a) no Juvenile Court has been established in an area; or

(b) 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,

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

(2) A court of summary jurisdiction exercising jurisdiction under Subsection (1)-

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

(b) may only impose orders of probation in accordance with Section 30(2)(c)(iii),

or, where it considers that the nature or circumstances of the offence are of sufficient gravity, it may-

(c) order that the case be heard by a properly constituted Juvenile Court; or

(d) hear and determine the case in accordance with this Act and order that the case be sent to a Juvenile Court for an order of sentence under Section 30(2)”.

10. The exercise of jurisdiction by the National Court in respect of a juvenile is expressly referred to in s.18. That provides:

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

(a) the committal proceedings shall be dealt with by a Juvenile Court; and

(b) subject to Subsection (2), the trial shall be heard and determined by the National Court.

(2) For the purposes of Subsection (1)(b)-

(a) the provisions of this Act with respect to procedure shall have effect; and

(b) the National Court may exercise the sentencing powers conferred by this Act on a Juvenile Court.

11. I note that the terms of this section are mandatory whereas the terms of s.17 are permissive (“shall” v “may”).

12. Section 18 has been the subject of previous judicial notice.

13. In The State v. A Juvenile M [2005] PGNC 141, Cannings J. sentenced a juvenile aged 14 at the date of the alleged offence. M was originally charged with attempted rape but pleaded guilty to common assault under s.335 of the Code. The offence occurred at Buka. The Juvenile Courts Act 1991 provides for special courts and magistrates to deal with offences alleged against juveniles save for those referred to in S.18. However, as Cannings J. noted “None of these special provisions have been invoked in relation to Bougainville.”

14. Clearly, if there was no Juvenile Court, a lacuna would exist if the National Court could not deal with the matter. Arguably, a District Court would, absent the special provisions in the Juvenile Courts Act (see s.17) lack jurisdiction to try the matter. That is, indictable offences are, otherwise, outside the jurisdiction of a District Court.

15. There was no argument addressed to the Court disputing that the National Court could assume jurisdiction. That assumption of jurisdiction could not derive from the general power of review vested in the National Court. Cannings J. considered that it derived from SS 155(3)(a), 155(4), 163(2) & 166(1) of the Constitution.

16. Section 163(2) states:

“The National Court is a superior court of record and accordingly, subject to any Act of the Parliament, has the power to punish the offence against itself commonly known as Contempt of court.”

17. Section 166(1) states:

“Subject to this Constitution, the National Court is a court of unlimited jurisdiction”.

18. Also relevant is s.172:

“(1) Subject to this Constitution, Acts of the Parliament may establish, or provide for the establishment of, courts within the National Judicial System in addition to the Supreme Court and the National Court, and may define, or provide for the definition of, their respective powers, functions and jurisdictions and their relationship with other components of the National Judicial System.”

19. It follows that Parliament might, as it has done, establish or provide for the establishment of, Juvenile Courts, expressly to deal with offences, including indictable offences, committed or alleged to have been committed by juveniles, including appeals therefrom to the National Court.

20. None of this limits the jurisdiction of the National Court to supervise the exercise of judicial power by the Juvenile Court. However, the Juvenile Courts Act does provide for a Court with special jurisdiction to deal with juveniles. It is apparent that it is the intention of Parliament that the Juvenile Court with the attendant protective provisions be the primary source of justice in respect of those matters within its jurisdiction.

21. In the case of State v. A Juvenile M [2005] PGNC 141; N2815, the option of a Juvenile Court was unavailable. So also was a District Court, albeit temporarily. Hence it was necessary for the National Court to assume jurisdiction.

22. In State v. Kaore [2014] PGNC 43; N5572, the National Court had to assume jurisdiction as the offence carried life imprisonment. (see also State v. Knox [2008] PGNC 79). There are, of course, many similar cases, (see The State v. JK [2012] PGNC 348; N4748).

23. I note that in the case of State v. Mamu [2002] PGNC 110; N2228, a juvenile had been charged with, inter alia, an offence against S.387 of the Criminal Code....