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Bareto v Kilimito [1990] PGNC 83; [1990] PNGLR 125; N814 (19 March 1990)

N814

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

BENSON BARETO

V

DONATUS KILIMITO

Waigani
Hinchliffe J

16 March 1990
19 March 1990

APPEAL - Retrial - When appropriate - Appeal against sentence - Traffic conviction - Serious offence - Notes of sentencing magistrate inadequate - Retrial ordered.

INFERIOR COURTS - District Court - Record of proceedings - Adequacy of - Proper transcript for possible appeal purposes - Inadequate notes - Retrial ordered on appeal.
On an appeal against sentence of three months imprisonment for a serious traffic offence imposed by a District Court magistrate,

Held

In the absence of notes of the sentencing magistrate sufficiently adequate for the Appeal Court to conduct a full and proper appeal, the appeal should be allowed and a retrial before another magistrate of the District Court ordered.

Appeal

This was an appeal against sentence on conviction for a driving offence.

Counsel

G Emilio, for the appellant.
J Pambel, for the respondent.
Cur adv vult

19 March 1990

HINCHLIFFE J: This is an appeal from the District Court against a three month term of imprisonment imposed upon the appellant for driving a motor vehicle during a term of suspension. Unfortunately, the magistrate’s notes are quite inadequate and make it impossible for me to conduct an appeal properly.

Magistrates should ensure that they record proceedings adequately as, like the National Court, their notes are, in fact, the transcript. Without a proper transcript, the judge or judges on appeal will not know what happened in the court below.

The transcript before me is not, in fact, a transcript. It is a compilation of brief notes. Clearly, much of the proceeding before the magistrate is not on record. I am unable to determine whether or not his Worship considered using his powers under the District Courts Act (Ch No 40) not to convict the appellant but to release him on a good behaviour bond. It seems from what the appellant’s lawyer said to me that the offence may have been committed under extenuating circumstances, but the magistrate’s notes are so brief I am not sure whether such circumstances were considered.

The appellant called a character witness in the District Court but what he actually said remains a mystery. I say that because in the notes his appearance is noted and that is all.

The offence that the appellant has committed is a serious offence and it seems to me that, if he is convicted, then the court has no alternative but to send him to gaol for a minimum period of three months. The only way to avoid such punishment is to convince the court that no conviction should be recorded and to release the person on a good behaviour bond or to discharge him: see s 132 of the District Courts Act (Ch No 40).

In the circumstances, I am satisfied that this Court is unable to deal with this appeal because of an unsatisfactory transcript. I am of the view that it should go back to the District Court.

I make the following orders:

1. Appeal upheld and the conviction and sentence quashed.

2. The matter be returned to the District Court to be reheard by another magistrate.

3. The matter be listed for mention at the Four Mile Traffic Court on 26 March 1990 at 9.30 am.

4. Bail is extended to 26 March 1990.

Appeal upheld Retrial ordered

_____________

Lawyer for the appellant: Gregory Emilio.
Lawyer for the respondent: Public Prosecutor.