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State v TR [2015] PGNC 126; N6023 (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.
    
24. Lenalia J. observed, the matter having been committed to the National Court by a Juvenile Court:
    

"As noted from s18 of the Juvenile Courts Act, this Court would only deal with a juvenile case where it involves a charge of homicide, rape or other offences punishable by death or life imprisonment; and the Court may then exercise the sentencing powers conferred by the Juvenile Courts Act which powers are detailed in ss.30 - 32 of the Act."

25. His Honour was plainly aware that if s.387 had been correctly analysed and applied to the facts as ultimately detailed by the prosecution, Subsection (3) would have been inapplicable. It was the only part of S.387 for which life imprisonment was prescribed. There was, nevertheless, a committal to the National Court on the basis that the matter could not have been dealt with by the Juvenile Court. Having done so, the Juvenile Court was functus officio. True, the National Court could have quashed the committal order and remitted it back to the Juvenile Court. Absent that option it was open to his Honour to exercise the jurisdiction conferred by s.18 of the Act.
    
26. A similar situation arose in the case of State v. Wesley Penias [2014] PGNC 41; N5659. The accused a juvenile was correctly committed to the National Court as it was alleged that the victim of sexual penetration was under 12 years of age. Before Batari J., it was ultimately established that she had been 14 years of age. The accused was 17 years of age and sentenced accordingly. The jurisdiction assumed included the power under s.535 of the Criminal Code to amend the indictment. However, it was the original indictment which vested jurisdiction in the National Court to the exclusion of a Juvenile Court.
    
27. A variation on that situation occurred before Kassman J. in State v. Juvenile H (2014) CR No. 187 of 2013. The accused had been charged as an adult with sexual penetration of a child aged 12 years contrary to s.229A(1) of the Criminal Code. The maximum penalty was 25 years. It was, therefore, outside the terms of s.18 of the Juvenile Courts Act 1991. It only emerged that the accused was 15 years 11 months and therefore a juvenile during submissions on sentence. He was 14 years 6 months at the time of the offence. On committal, he had been assessed incorrectly, as it happened, as over 18 years of age.
    
28. Kassman J., understandably, queried the assumption of jurisdiction by the National Court. His Honour noted that it was a matter within the jurisdiction of a Juvenile Court but was satisfied that there was no established Juvenile Court in Tari where the offence took place. There was no Juvenile Court Magistrate. The District Court was unavailable.
    
29. In those circumstances, although satisfied that a District Court would have had jurisdiction in the absence of a Juvenile Court and/or Juvenile Magistrate, his Honour considered that the National Court could, in the absence of any available District Court judge, assume jurisdiction.
    
30. It is apparent that, in ordinary circumstances, in cases of a juvenile charged with an offence outside of s.18 of the Juvenile Courts Act, the matter should not be committed to or dealt with by the National Court.
    
31. Further, where a Court has concurrent jurisdiction with another Court or Tribunal, there is no obligation on the superior Court to exercise that jurisdiction. (see eg s48A(3) Australian Capital Territory (Self-Government) Act 1988).
    
32. In Faull v. Commissioner for Social Housing for the ACT [2013] ACTSC 121, Refshauge J. considered a challenge to a decision of the Residential Tenancies Tribunal. There was provided an appeal only on a question of law.
    
33. As is the case with the National Court, the Supreme Court of the ACT has unlimited jurisdiction and is a superior court of record.
    
34. Thus the power of the Court to exercise supervisory jurisdiction could not be limited or excluded by ordinary legislation. The reason for that is that in the Act, the role and powers of the Supreme Court are embodied in Commonwealth Legislation (S48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth)). The Tribunal was established and empowered under Territory Legislation (see generally "Section 48A of the ACT SG Act 1988 (Cth)'. 2005 16 Public Law Review 213). However, that entrenched supervisory role does not exclude "the usual procedural option of refusal to exercise the jurisdiction on the ordinary discretionary grounds applicable to certiorari."
    
35. A similar conclusion was reached by Crispin J. in De Domenico v. Marshall [2001] ACTSC 52 on appeal from the Administrative Appeals Tribunal. Having found the initial decision flawed, he set it aside and, relying on s.48A (supra), substituted the opposite conclusion.
    
36. In Evans v. Shiels [2004] ACTSC 19, Connolly J. cautioned against reading such a provision as S.48A too widely. It does not confer unlimited jurisdiction to right any wrong.
    
37. Nor, as I commented in Rose v. Snape [2000] ACTSC 115 [47]-[48], would it mean that statutory limits on rights of appeal could blithely be ignored. The history of the transfer of judicial power to the self-governing territory was the subject of an article by Miles CJ – "Justice at the Seat of Government" (1992) 66 ALR 555.
    
38. In Dibeek Holdings Pty Limited v. Emmanuel Noteras & others [1997] ACTSC 83, I considered whether, even if the Court had co-ordinate jurisdiction with a specialist but inferior tribunal, it should stay parallel proceedings in that Tribunal or defer to its assumption of jurisdiction. I stated:
    

"If the Legislature establishes a specialist tribunal to deal with matters in that specialised area, then, prima facie, it would be expected that this Court would not, ordinarily, seek to assert its concurrent jurisdiction in relation to a matter then pending before such a tribunal".

39. That assumes, of course, concurrency. That is not the scheme of the Juvenile Courts Act. It clearly provides by virtue of ss.17 & 18 that a juvenile should be dealt with for criminal offences, other than those referred to in s.18, in the Juvenile Court and subject to the special procedures and protections provided to juveniles under that Act.
    
40. Recognising that may sometimes be impracticable, even impossible, in some locations and in some circumstances, the legislature has allowed for a District Court to assume jurisdiction (see. s.47; Juvenile Courts Act).
    
41. In default of either of those options being available, the National Court, as Kassman J. did in State v. Juvenile H (supra), may assume jurisdiction, though the same special procedures and protections are then engaged.
    
42. That is consistent with the comment I made in the Dibeek case (supra) that, if leaving the matter to be decided by the more appropriate tribunal would occasion injustice, in that case, because of unacceptable delay, the superior court may well consider it more appropriate to assume its default jurisdiction.
    
43. If there is any doubt about the primacy of the jurisdiction of the Juvenile Court, it has been dispelled by the Juvenile Justice Act 2014 which came into effect on 30 May 2014, repealing and replacing the Juvenile Courts Act. The equivalent section to s.18 of the former Act is s.20 but it is preceded by s.17.
    

"17. GENERAL JURISDICTION OF JUVENILE COURTS

(1) A Juvenile Court has exclusive jurisdiction in the area for which it is established in respect of a juvenile –

• (a) to hear and determine summarily an offence on summary conviction and otherwise triable in a District Court; and
  
• (b) subject to subsections (2) and (3), if the juvenile is charged with an indictable offence, to hear and determine the charge summarily in accordance with the provisions of this Act.
  

(2) Subsection (1)(b) does not apply to homicide, rape or any other offence punishable by Death or imprisonment for life.

(3) Proceedings for an offence under Section (1)(b) must be heard and determined by a Juvenile Court constituted by a Juvenile Court Magistrate.

(4) To avoid any doubt, and despite any other Act or law, a Juvenile Court has exclusive jurisdiction to hear and determine summarily, proceedings for an offence under Subsection (1)(b) by way of information, without the need for election by the prosecuting authority.

(emphasis added)

44. It is apparent that the jurisdiction of the Juvenile Courts where established in and for a particular area is to be "exclusive" of the jurisdiction of any District Court and, to the extent that is consistent with the Constitution, the National Court, save in the circumstances referred to in s19 or s20. That in no way limits or excludes the supervisory or appellate jurisdiction of the National Court or the Supreme Court. Appeals are dealt with under Part IX (ss 91- 94). Reviews, by Part VIII (ss 87 – 20). The same are consistent with the powers of the National and Supreme Courts provided for by the Constitution.
    
45. The present accused was committed to this Court by a District Court Magistrate. That was arguably invalid, though not necessarily a nullity. Nevertheless, it was contrary to the peremptory provisions of the Juvenile Courts Act 1991. That Act, pursuant to s115 of the Juvenile Justice Act 2014, continues to apply where the proceedings against a juvenile have been commenced as at the date of commencement of the Juvenile Justice Act. Further in such cases existing Juvenile Courts and Magistrates continue as if established under the new Act (see s.116 Juvenile Justice Act).
    
46. The new Act raises the age of criminal responsibility for 7 to 10 years (see s.2, s18 Juvenile Justice Act). That makes no difference to the proceedings involving this juvenile. Under each Act, it is the Juvenile Court that is designated to hear most charges of indictable offences alleged against a juvenile.
    
47. Accordingly, where a Juvenile Court and Magistrate is available in the area in which a juvenile is prosecuted for such an offence it must be heard in that Court.
    
48. In this case, therefore, as TR is and was at all relevant times a juvenile, it is the Juvenile Court at Kokopo which has the jurisdiction to deal with the matter and is immediately available to exercise that jurisdiction. Thus I directed that the matter be remitted to the Juvenile Court to be dealt with according to law.

_________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused