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Apelis v Willy [1981] PGLawRp 612; [1981] PNGLR 510 (7 December 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 510 - Saimon Apelis v Wirrenu Willy�

[1981] PNGLR 510

N348(M)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

SAIMON APELIS

V

WIRRENU WILLY

Kimbe & Waigani

Kearney DCJ

18 November 1981

7 December 1981

INFERIOR COURTS - Practice and procedure - Transfer of proceedings - Criminal proceedings - Transfer from Local Court to District Court - No power to transfer for sentence only - No power to transfer after verdict - Local Courts Act 1963, ss. 41, 42.

INFERIOR COURTS - �Judgment� - Transfer of proceedings - Criminal proceedings - Judgment equivalent to verdict stage - Local Courts Act 1963, ss. 41, 42.

Section 41(1) of the Local Courts Act 1963 provides that a Local Court �may at any time before judgment ... for reasons which shall be recorded, make an order staying the proceedings ... and transferring the proceedings for hearing and determination ... by a District Court�. Section 42 provides that the District Court �shall proceed to the trial or retrial of the case as though, in a criminal proceeding, a complaint of facts constituting the offence had been made�.

Held:

N1>(1)����� Criminal proceedings may be transferred from a Local Court to the District Court pursuant to s. 41(1) but the District Court is required to start from the beginning and hear the whole matter regardless of what has taken place in the Local Court;

N1>(2)����� Criminal proceedings cannot therefore be transferred from a Local Court to the District Court for the purposes of sentence only;

N1>(3)����� �Judgment� in s. 41(1) is to be interpreted as referring to the verdict stage of criminal proceedings and accordingly any transfer of criminal proceedings under s. 41(1) must be effected before the Local Court delivers a verdict after a hearing or accepts a plea of guilty.

Appeal.

This was an appeal against sentence on a charge of driving under the influence, where the appellant had pleaded guilty before the Local Court and was sentenced by the District Court.

Counsel:

E. Jubilee, for the appellant.

T. Kitchin, for the respondent.

Cur. adv. vult.

7 December 1981

KEARNEY DCJ:� This is an appeal against a sentence of two months imprisonment with hard labour, imposed upon the appellant by the District Court at Kimbe on 24th August, 1981, after he had pleaded guilty before the Local Court at Kimbe to a charge of driving a motor vehicle whilst under the influence of intoxicating liquor.

The appeal was initially argued on the basis that the sentence was too severe. I drew to counsels� attention the question whether, in view of the transfer of the proceedings from the Local Court to the District Court, after the appellant had admitted the statement of facts read out, and had had nothing to say on the allocutus, he had been properly sentenced at all. Two questions appear to require consideration: the purpose for which proceedings may be transferred; and the time within which any such transfer may be made.

As to the purpose, the District Court magistrate stated in his report to this Court:

�The matter came on for hearing initially in the Local Court and after the defendant had pleaded guilty to the charge and after having admitted the truth of facts as read to him, the Local Court then transferred the matter over to the District Court for a decision on penalty only. It is proper and within the power of the Local Court to transfer a matter to the District Court for a decision on sentence after it has found the defendant guilty and a charge against him proven, and vice versa.�

Whether that last sentence is an accurate statement of the law depends upon the proper construction of Pt. 5 of the Local Courts Act 1963 (ss. 41-42), which provides for the transfer of proceedings from Local Courts to other courts.

Section 41(1) of the Act deals with the jurisdiction of the Local Court to order a transfer. It provides that a Local Court�

�... may at any time before judgment ... for reasons which shall be recorded, make an order staying the proceedings, and, on such terms as seem to it just, transferring the proceedings for hearing and determination ... by a District Court.�

A criminal proceeding is a single proceeding, though analytically it has two parts: whether guilt is proved; and, if so, what the punishment should be. Section 41(1) requires that any order for transfer relates to that single proceeding, which is transferred in order that it may be heard and determined. Section 42 provides that the District Court�

�... shall proceed to the trial or re-trial of the case as though, in a criminal proceeding, a complaint of facts constituting the offence had been made to it ...�

It is clear from these provisions that if a criminal proceeding is transferred to it, the District Court must hear and determine that proceeding, by trying or re-trying the case. If the Local Court had transferred the case before embarking upon a hearing, the first hearing�the �trial��is before the District Court. If the Local Court had embarked upon a hearing, but transferred the case before judgment, the (second) hearing�a �re-trial��is before the District Court. But in either event, the District Court is required to start from the beginning, as if a complaint had just been made to it in the usual way.

What this means is that the District Court cannot treat the question of guilt as already determined and proceed to deal only with the sentence; that would not be a trial or re-trial of the case. The fact that there was a plea of guilty before the Local Court does not affect matters.

To enable a District Court to deal only with sentence, treating the question of guilt as already decided by the Local Court, would require a law in most specific terms. See, for example, s. 110 of the District Courts Act 1963.

Accordingly, I consider that the order of the Local Court transferring the case to the District Court, for sentence only, was made without jurisdiction. And that the District Court had no jurisdiction to deal with the case on that basis. It follows that all of the sentence proceedings before the District Court, were a nullity and must be quashed.

There is the second question; was the transfer made in time? This raises the meaning of �judgment� in s. 41(1). Mr. Jubilee submitted that so far as a criminal proceeding was concerned, the word �judgment� in s. 41(1) is not used in the sense of �verdict�; that submission appears to receive support from the apparent distinction drawn in s. 41(2) between �verdict� and �judgment�. Yet I am inclined to think that it is not correct.

It would be surprising if a Local Court, having proceeded to find a defendant �not guilty� could before ordering his discharge, send him for re-trial by another court. That would appear to be contrary to the Constitution, s. 37(8); and equally there would appear to be a breach of that fundamental right, if the defendant were sent for re-trial after conviction by the Local Court. I think that �judgment� in s. 41(1) refers to the verdict stage, and any transfer under s. 41(1) must be effected before the Local Court delivers its verdict after a hearing, or accepts a plea of guilty.

Accordingly, I consider that the transfer of this criminal proceeding was made without jurisdiction, because it was transferred after �judgment�, that is, after the Local Court had determined the question of guilt.

I might perhaps add that I doubt whether Parliament intended to draw a time distinction between �verdict� and �judgment� stages, in s. 41(2). I think that it had in mind only the verdict stage of proceedings and the word �judgment� is used to describe that stage in civil proceedings.

In the circumstances, the appeal must be upheld and the purported sentence of two months imprisonment quashed and set aside. So is the order for suspension of the driving licence for eight months. The legal position is that the appellant presently stands convicted on his own plea before the Local Court and he has not yet been sentenced by that court. The case is therefore remitted to the same Local Court magistrate to enable him to consider the punishment which should be imposed.

Order accordingly.

Solicitor for the appellant: Warner Shand, Wilson & Associates.

Solicitor for the respondent: L. Gavara-Nanu, Public Prosecutor.