Principal Magistrate, District Court, Port Moresby; Ex Parte the Public Prosecutor, The State v [1983] PGSC 17; [1983] PNGLR 43 (4 March 1983)

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

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

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�.

�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.

N1>(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.

N1>(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.

N1>(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.

N1>(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.

N1>(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.

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.

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 Code[xi]¹�is now amended by Act No. 28 of 1980 to read as follows:

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:

N2>�(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:

N2>�(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.

N2>(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 followed in achieving the new �hand-up brief� committal proceeding. Once again the sections are merely dealing with matters of procedure and directing what is to be done, the order in which they are to be done and the time in which they are to be done. There has been no alteration to the basic requirement set out in s. 36 of the District Courts Act that in respect of criminal matters, proceedings shall be commenced by information. An information may be in writing or given verbally to a magistrate, depending on circumstances. In the vast majority of instances, no doubt, the informations covering the offences listed under Sch. 1A would in fact be in writing. So far as I am able to determine, there has been no alteration in the form of information which still should set out the charge with reference to the section and Act which has been breached, whether it be wilful murder or behaving in an offensive manner.

To accommodate the new procedure it was necessary to rebuild the old rooms quite extensively. It is imperative however to bear in mind that Acts 31 and 32 and the parts they amended, have nothing to do with the decision as to which person is to walk in through which door, that is the door to summary procedure or the door to procedure by committal. The Acts have achieved considerable structural change to the furniture and fittings within the courtroom but they are procedural and organizational changes only and do not affect the ultimate decision as to who shall or shall not walk in which particular door. The crucial question is then who decides whether the person charged is to enter through one door or the other.

If the person is to be dealt with by way of committal, the procedure to be followed is set down in Pt VI, as amended by Act No. 31 of 1980, which deals exclusively with persons who are to be charged by way of committal. On the other hand, Act No. 32 of 1980 deals with those persons whose cases will be heard summarily and details the procedures which will be followed at such hearings.

The final amending Act pertinent to the present problem, passed in conjunction with all these other amendments, was No. 44 of 1980 which amended s. 4 of the Public Prosecutor (Office and Functions) Act 1977. This added a subsection �(ga)� which I shall set out in a moment. The Public Prosecutor�s Act, as the title indicates, outlines the various powers and functions of that constitutional office-holder pursuant to s. 177 of the Constitution:

(a)�� in accordance with an Act of the Parliament and the Rules of Court of the Supreme Court and the National Court, to control the exercise and performance of the prosecution functions... before the Supreme Court and the National Court, and before other courts as provided by or under Acts of the Parliament; and....�

It is apparent that the Public Prosecutor�s normal functions would occupy him in appearances before the National Court and the Supreme Court. Only by a specific Act of Parliament does he acquire any special right in relation to other courts. He has of course, the right enjoyed by any practitioner to practise before all courts, whereas a police prosecutor has a special provision in the District Courts Act, namely s. 67(3), which permits any informant to appear by a police officer.

There is a constitutional safeguard for the police set out in s. 197 of the Constitution, thus:

N2>�(1)�� The primary functions of the police force are, in accordance with the constitutional laws and Acts of the Parliament:

(b)�� to maintain and, as necessary, enforce the law in an impartial and objective manner.

N2>(2)�� Insofar as it is a function of the police force to lay, prosecute or withdraw charges in respect of offences, the members of the police force are not subject to direction or control by any person outside the force.�

The subsection is very wide in its coverage and excludes even such persons as the Prime Minister, the Minister or Secretary for Justice and of course the Public Prosecutor.

(c)�� shall control and exercise the prosecution function of the State; and�

I do not think it was seriously contended by counsel that this section gave any �control� by the Public Prosecutor over police prosecution functions as covered by s. 197 of the Constitution. The Constitution has established as a matter of principle that the police will not be controlled by outside sources in their prosecutional role except when Parliament decrees. Any such decree would have to be in the clearest terms. It is obvious to me that where the word �State� appears in s. 4(1)(c), (above), the draftsman is using that term in a general way, best exemplified in the heading of an indictment, namely The State v AB After all, it is by virtue of the Criminal Code and other legislation that the State itself (that is the people through the State) may prosecute those who have committed serious offences. With less serious matters or committal cases, however, it is an individual informant, invariably a member of the police force, who appears as the prosecutor and it may well be said that the State as such is not concerned with the information until it has been converted into a condition where it should come before the Public Prosecutor. I do not think there is any conflict between s. 197(2) and s. 4(1)(c). They are dealing with different areas of law enforcement. Furthermore, s. 197(1) of the Constitution specifically directs the police force to enforce the law. What s. 197(2) implies, quite apart from the common law position, is that the police will enforce the law not only by making arrests and bringing accused persons before the court as required under the law, but will also prosecute the matter so far as it is their function to do so, with all due speed.

There are certain Acts under which the prosecution of offences would not normally be a part of the functions of the police force. For example the Customs Act, the Health Acts and the Companies Acts give the prosecutorial function to certain other officers of government and are not police matters. On the other hand there can be no doubt that s. 432 offences are patently matters of police concern. What the Constitution emphasizes is that the primary functions of the police shall be as controlled by the Constitution and Acts of Parliament and include, enforcing the law and the laying and prosecuting of charges under s. 197(2). In addition the common law always dictated that the ancient office of constable carried with it a duty to bring all persons suspected of having committed offences before a justice of the peace to be dealt with under the law of the land. This ancient obligation is enshrined by s. 136 of the Police Force Act, (Ch. No. 65), which stipulates that the police have all the common law duties, obligations and powers possessed by a constable under the common law. Not only is there thus a constitutional direction, but one which restates the position which pertains at common law. The Constitution uses the phrase in s. 197(1) �insofar as it is the function of the police force�. It is their clear duty and long-standing function to bring alleged malefactors before a justice, by way of information.

Turning now to s. 4(f) to (h) of the Public Prosecutor�s Act, we find the Public Prosecutor:

N2>�(f)�� may, in his absolute discretion, provide counsel, to appear for and on behalf of the State, in any other proceeding before the National Court or the Supreme Court in which the State has an interest; and

N2>(g)�� shall, in his absolute discretion, give consent or refuse consent, to proceed with the prosecution of any criminal offence where his consent is by law required; and

N2>(ga)�� may, in his absolute discretion, elect the method of proceeding under s. 432 of the Criminal Code, including the withdrawal of an information; and

N2>(h)�� may, in his absolute discretion, provide assistance either by provision of legal representation or otherwise,...�

In all these matters it can be seen that the discretion is the prosecutor�s absolutely and alone. It is not given to one of his staff, it is not given to the Minister or to the Secretary for Justice or to the Police Commissioner or to a magistrate grade V. It may well be that should the Public Prosecutor wish to delegate his discretion under this section, he may do so but that is not of concern in this case. Nor do I think that giving such discretion to the Public Prosecutor in any manner attempts to cut down s. 197(2) of the Constitution. The police still lay the charge and prosecute insofar as it is their function to do so. By this Act however, it is clearly no longer their function to prosecute a s. 432 offence where the Public Prosecutor elects that it shall proceed in a different manner. Section 197(1) specifically states that the functions of the force shall be in accord with Acts of Parliament and thus anticipates the possibility of such functions being altered under such Act. The matters mentioned in s. 197(2) are also within the contemplation of the tasks to be performed by the force under s. 197(1) and thus may likewise be subject to change by Act of Parliament.

It may well be that the wording of s. 4(ga) could have been more felicitously and lucidly expressed. But nevertheless its purpose is to vest a discretion in the Public Prosecutor to decide whether or not he shall have the matters listed in 1A of the Schedule dealt with in a summary manner or permit them to proceed by way of committal. It is in him absolutely that the discretion to act in accordance with s. 4(f), (g), (ga), and (h) vests. In my view the wording and the existence of paragraph �(ga)� is crucial to one�s approach in endeavouring to interpret the entire composite of amendments.

I agree with Mr. Gunson that there are three categories involved, but I prefer to define the categories in terms of method of prosecution rather than by the term �offences�. The three categories are indictable offences, indictable offences triable summarily and simple offences.

By s. 3 of the Criminal Code as amended by Act No. 28 of 1980, crimes and misdemeanours are indictable offences and shall be prosecuted:

Where offences are prosecuted on indictment, this implies a prosecution following committal by a magistrate for only by this means may an indictment be presented in accordance with the provisions of s. 525 and s. 526 of the Criminal Code (see s. 524).

That is, a number of offences which on the face of it are indictable but may under certain circumstances be dealt with in a summary manner.

In addition to the s. 432 offences, there are other crimes and misdemeanours which, although indictable offences, shall be prosecuted:

Two examples of the latter category of offences are those defined in Ch. 43 of the Code such as stealing a canoe (although even here by s. 425 the magistrate in his absolute discretion may commit for trial), and offences for example under s. 167 of the Customs Act, (Ch. No. 101), where the prosecution may take place either in the National Court or in a Magistrates Court according to the amount of the maximum fine fixed for imposition (though I specifically refrain from ruling whether the prosecution before the National Court is necessarily a prosecution on indictment). As regards this second category, matters included under par. (b) have been greatly enlarged and the entire method of procedure has been altered.

Finally, s. 3 of the Code defines a simple offence as �an offence not otherwise designated�.

The next obvious step is to determine the means by which the prosecution is effected. Category I comes within Pt VI of the District Courts Act. Categories II and III come within s. 28(1) and Pt VII of the District Courts Act.

Whichever the category, the proceedings before a court must be commenced by way of information under s. 36 of the District Courts Act. The content of that information is laid down under s. 38 of the Act, which states inter alia that:

�The description of an offence in the words of the Act...creating the offence, or in similar words, is sufficient in law.�

A long line of authorities (see for example Kennedy Allen, (3rd ed. 1956), The Justices Acts (Queensland), 116 et seq.) makes it abundantly clear that the information must set forth the elements constituting the offence as defined in the Act itself, and in order to obtain this greater particularity it has become standard practice to stipulate at the foot of the information the Act and section contravened. That reference, of course, will be to the definition section and not to the penalty section. Thus an information alleging wilful murder would refer to s. 304 of the Criminal Code and not to the punishment section, s. 309. Likewise, a charge of housebreaking would refer to s. 407 (s. 395 in the revised Code) which contains both the definition and the penalty and not to s. 432 which refers to method of procedure and the maximum penalty which may be imposed where the offence is dealt with by a grade V magistrate. To refer in the information merely to s. 432 is in my view both inconsistent and incorrect. The reference must be to the section in the Criminal Code which defines the offence (and thus makes it an offence). The section under which the particular information is laid is not s. 432 but the definition section in the Code. The purpose of Sch. 1A is not to depart from normal practice but merely to describe in the briefest of 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.

Until the Public Prosecutor does elect however the proceedings on the information must take their ordinary course. It is essential to appreciate that the information laid against the defendant comes into existence immediately following his arrest. In exercising a discretion under s. 4(ga), however, the Prosecutor is electing either to proceed under the new way or to allow the matter to proceed in the ordinary way. It is not that he is electing one of two separate methods. He is electing to take a matter out of the ordinary course of procedure. If he does not elect then the matter will proceed as always under the District Courts Act. If he does elect to proceed by way of summary hearing then the matter must be placed before a grade V magistrate.

I think one only has to determine how a matter becomes a charge under s. 432 to highlight the fact that it must be the Public Prosecutor alone in whom the discretion vests. If I might just return to the opening words of s. 432:

�When a person is charged before a District Court constituted by a magistrate grade V....�

Now the word �charged� must mean charged according to law. In respect of any offence in Category I and Category II (Pt (b)) he may be charged according to law either by way of committal or by way of an election on the part of the Public Prosecutor to proceed in the summary jurisdiction. If this were not so, s. 4(ga) would become meaningless because even the most junior police prosecutor could decide on the day, after the person was arrested and charged at the police station, by presenting the information before a grade V magistrate in preference to any other magistrate and thereby deprive the Public Prosecutor of any option at all. It may be argued, in my view without merit, that a person is not really charged until he is called upon to plead. But the point is that again the entire proceeding would be regulated by a police constable and the whole of the subsequent course of the proceedings be determined by his discretion and that of no one else. That he has a discretion which cannot be interfered with under the Constitution is obvious. That there has now been an Act of Parliament to override that discretion is to me also equally obvious � otherwise the intention of Parliament to bring about a new system of summary procedure through the Public Prosecutor, would be defeated. If I am wrong in this, there is then a clear conflict between s. 432 and the amending sections of the District Courts Act and the Public Prosecutor�s Act. I do not consider that such conflict exists. The sections can be read quite comfortably, sensibly and logically together and the intention of Parliament to have certain cases dealt with summarily under the guiding hand of the Public Prosecutor is implemented. Until the election is made, the information, which I again stress has nothing on the face of it to indicate one way or the other what procedure shall be followed, is not a s. 432 matter merely because it contains an offence set out in Sch. 1A. It is committal matter which must proceed on that basis until the Public Prosecutor elects for it to be dealt with as a summary one.

If I am correct in my interpretation, there must be a pattern of consistency running through the various sections and amendments. I have been particularly concerned at the apparent similarity of wording between the amended ss 100 and 101 of the District Courts Act on the one hand and the amended s. 432 of the Criminal Code, in that each section contains words which could be summarized in the form �persons charged with an offence under s. 432�. Section 100 now reads:

(ii)�� an offence against s. 432 of the Criminal Code where such offence is not to be summarily tried:...and�

It is important to remember that these sections appear in that part of the Act which covers committal proceedings and not the part dealing with procedure by summary hearing.

I must admit to some lingering puzzlement as to why ss 100(a)(ii) and 101(1)(b) were inserted at all. On my interpretation of s. 432 the effectual meaning thereof is that it covers a person who is charged after due election and as a result of such election by the Public Prosecutor. If I were to apply a similar interpretation to s. 100 it would lead to the apparent anomaly that the section was dealing with the person who had been charged after election, that being the only way on my interpretation where someone could be charged under s. 432 and yet the subsection goes on �to deal with someone who is not to be summarily tried�. Putting the matter another way: a person is only charged as a result of an election by the Public Prosecutor and yet the election deals with a person who it is decided should not be summarily tried. A resolution of this conflict could lie in the proposition that the power vested in the Public Prosecutor to elect whether to proceed by summary fashion on the one hand or to proceed by committal on the other, implies that he shall control the entire prosecutorial function, or at least that function in respect of matters listed in Sch. 1A, and decides not only whether the defendant shall be dealt with by way of summary trial but whether he may be dealt with on committal. In short the proceedings are halted until such election is made. It is not a matter of opening a gate to another route but of blocking the whole road until either one gate or the other is opened at the dictate of the Public Prosecutor. I cannot agree with such proposition, because I am unable to find anything in the amending Acts which gives the Public Prosecutor power over a committal proceeding other than the power to elect that such proceeding will be dealt with summarily. I cannot find any power granting him general control over committal proceedings.

I think however the dilemma can be resolved in another way. The wording in s. 100, �an offence against s. 432�, must be a short-hand way of saying �an offence specified in Sch. 1A referred to in s. 432 of the Code�. The real answer seems to be that although ss 100 and 101 are using similar words to those found in s. 432 they are dealing with a totally different situation. The District Court sections concern a person charged with an offence listed in the Schedule under s. 432. Section 432 itself however is not only dealing with the charged listed within the Schedule but where such charge has in fact been brought before a grade V magistrate. It can only come before such magistrate where it is properly laid � that is following election. In my view ss 100 and 101 are descriptive only and attempt to cover with some precision both the ordinary indictable offence and those offences which may or may not be dealt with on indictment. Section 432 however is directive on the understanding that the legal requirements namely proper election, have been met. In the final upshot my interpretation of ss 100(a)(ii) and 101(1)(b) could be reduced to the following:

�where a person is charged with an offence against s. 432, that is an offence listed under that section, but not actually preferred because a proper election has not been made by the Public Prosecutor and thus there is no charge to be summarily tried, then....�

One further section remains to be examined namely s. 68(A) brought in under Act 32 of 1980 and particularly the new subs. (2), which now reads:

�In relation to an offence under s. 432 of the Criminal Code, no information shall be withdrawn without the consent of the Public Prosecutor.�

At first glance this section would seem to cover all informations laid in respect of offences set forth in the Schedule under s. 432. In other words wherever an information was laid in respect of the matter which appeared in that Schedule, it was necessary for the Public Prosecutor to give his consent to the withdrawal of such information irrespective of whether he has elected to proceed summarily or otherwise. A moment�s reflection however convinces me that such a literal interpretation of the section cannot be correct. The difficulty once again stems from the short-hand phrase used by the draftsman � �an offence under s. 432�. That phrase could either mean an offence listed in Sch. 1A of s. 432 (as I have interpreted it to mean in s. 100 of the District Courts Act), or it could mean an offence prosecuted or elected under s. 432. I think it must imply the latter because when one goes to s. 432 that section is of course dealing with a person charged before a grade V magistrate with an offence specified in Sch. 1A � that is charged after proper election by the Public Prosecutor. It seems perfectly logical and consistent that if the Public Prosecutor elects to proceed by way of summary proceedings, he would then have full control of proceedings which would include not only the election so to proceed but an election to terminate the proceedings. It would be incongruous indeed if having decided to proceed in a particular manner, some other person could terminate the proceedings irrespective of the views of the Public Prosecutor. I believe that my view is supported by the fact that s. 4(ga) of the Public Prosecutor�s Act makes mention not only of the Public Prosecutor�s discretion to elect the procedure under s. 432 but also the concomitant power to withdraw any information which is then proceeding under s. 432 following his election.

Furthermore, if the more literal interpretation were the proper one, the anomalous consequence would follow that the consent of the Public Prosecutor was not required where the information charged �wilful murder� yet was required where the charge specified �common assault� irrespective of whether or not the Public Prosecutor had elected to proceed summarily, merely because the charge is listed in Sch. 1A. I do not believe that the draftsman intended such anomaly and the resolution is simply that the power of withdrawal only vests in the Public Prosecutor where he has elected to proceed summarily. As the power to elect is absolute, so too is the power to withdraw once the election is made.

Putting all these sections together, what they do is create a new jurisdiction in the courts and a new discretion in the Public Prosecutor. As a part of that new discretion it may cut down the prosecutorial function of the police force to some extent, although I am not satisfied that this is necessarily so. It was never the role of the police force to prosecute by way of trial, matters which are in effect indictable offences other than those which have been specifically delineated in the pre-amended Criminal Code, for example, stealing as a servant, assault and so forth. On the other hand, there has been no interference with the police power to lay the original information. That is still done and in fact must be done as quickly as possible after the arrest of an offender and proceeded with as expeditiously as possible like any other case whether under s. 432 or by committal. It appears the Public Prosecutor has developed a practice of advising that he will not elect to proceed under s. 432. It is perhaps this practical solution to a practical problem which has originally led to the difficulty. What he is really doing is merely intimating to the authorities, who will then be forewarned, that the Public Prosecutor will not at some subsequent stage direct a particular matter to be dealt with summarily. The election in my view is essential to creating the jurisdiction of the grade V magistrate. Until that election is made, there is no jurisdiction because a person is not charged with a s. 432 offence until such election is made. He is only charged with an offence under the Criminal Code. From a practical point of view, it is quite obvious that some means of bringing to the attention of the Public Prosecutor all matters listed in Sch. 1A must be worked out between himself and the prosecution�s branch of the police department. In finding a solution to this problem the authorities must bear in mind s. 37(3) of the Constitution, which directs inter alia:

�That a person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time....�

This leads me to the final problem, namely at what point must the Public Prosecutor make his election so that all parties, not least of whom are the defendant and the presiding magistrate, may know what course they have to follow. If a person is to be dealt with summarily something must clearly occur before a stage is reached where documents are served under s. 101 as now amended. Once those documents have been drafted and served on the defendant it seems to me reasonable that both the prosecution and the defence would be entitled to believe that the matter was to be dealt with in the ordinary way of committal. Once the documents are served, in pursuance of s. 101, committal proceedings have been commenced and the law must take its course. It would obviously be most unsatisfactory for the parties to be uncertain as to whether the matter was to be dealt with summarily or by way of committal once they had arrived at court. Admittedly that situation did exist under the pre-amended Code but the great saving there was that the matter could not be dealt with summarily unless the defence agreed to such course. Consequently any defendant being charged under the old s. 432 would have a fair idea before the witnesses even commenced to give their evidence as to whether he intended to take the course of a summary proceeding or whether he was going to approach the matter as a committal, and consequently leave his major submissions and evidence for a subsequent trial. I also consider that s. 101 is the cut-off point because at the time when a defendant appears before the court under s. 101b, certain procedures must be followed and I cannot see anything in these sections which would allow the Public Prosecutor to then interfere with the course which the law had laid down and suddenly convert a matter which the court, the defendant and the police considered was a committal proceeding to a case triable summarily, especially when all the evidence is tendered by affidavit.

For these reasons therefore I consider that the learned magistrate did not have jurisdiction to deal with the charges before him in a summary manner. Irrespective of his status, no election had been made and the magistrate should have proceeded by way of committal. If the necessary documents have not been served as required by s. 101 then the magistrate should have either ordered the police to get on with the job or dismissed the charges for want of prosecution. As it is however the pleas have been wrongly taken and the convictions wrongly entered. In both instances I would make the order for certiorari absolute, remove the cases to this court, quash the convictions and return them to the magistrate�s court to be dealt with either as committal cases, or under s. 433 of the Code if the election may still be made because proceedings have not commenced under s. 101 of the District Courts Act. In view of the periods already served in custody it may well be that the authorities consider a continuation of the matters as serving no useful purpose.

BREDMEYER J: I agree entirely with the judgment of Pratt J and with the order he proposes. I believe he has resolved the apparently conflicting statutory provisions in a sensible way which gives effect to the intent of the legislature. I consider his reasoning compelling and cannot usefully add to it, but it may be helpful if I summarize his conclusions:

N2>1.�� When an information is laid in the District Court for an offence listed in Sch. 1A of the Criminal Code, the case is to be heard as a committal unless the Public Prosecutor elects to proceed by way of summary trial.

N2>2.�� If the Public Prosecutor elects for a summary trial he must make that election before the committal papers � the information, witnesses� affidavits etc. � are served on the defendant under s. 101 of the District Courts Act.

N2>3.�� When a case is being heard as a committal the information may be withdrawn at any time by the informant in his discretion.

N2>4.�� Where a Sch. 1A offence is being heard summarily the information can only be withdrawn by the Public Prosecutor.

Lawyer for the Principal Magistrate, District Court, Port Moresby: Principal Legal Adviser.

[xi]<[xi]As 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.

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Supreme Court of Papua New Guinea

Principal Magistrate, District Court, Port Moresby; Ex Parte the Public Prosecutor, The State v [1983] PGSC 17; [1983] PNGLR 43 (4 March 1983)

Papua New Guinea Law Reports - 1983