Before 1980 a committal was a hearing at which prosecution witnesses gave evidence and were cross-examined. The paper committal changed that, and the Act has never quite settled what remains of the defendant’s right to test the witnesses before trial.
The constitutional starting point
A person charged with an offence shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution.
Section 60 of the Act repeats the right for “the witnesses giving evidence for or against him”. The question is whether a witness whose written statement is tendered under section 94 is a witness “called before the court” at all.
The 1986 decision: yes
A magistrate refused to allow the complainant in a robbery committal to be cross-examined on her affidavit. On judicial review, Woods J held that where affidavits have been tendered in committal proceedings under Part VI, the accused may cross-examine witnesses, relying on section 60, sections 94(6)(b) and 94B, and Constitution section 37(4)(f).
The Magistrates’ Manual describes this judgment as referring to the constitutional right and to the fact that the defendant’s right to question witnesses is traditionally part of the committal process.
The 2000 amendment
In an examination of a defendant in accordance with this Division neither the defendant nor his legal representative shall be permitted to subject any witness to cross-examination.
Inserted by the District Courts (Amendment) Act 2000, this looks like a legislative answer to Nagira. But the Manual points out a difficulty: the subsection speaks of “an examination of a defendant”, which is the stage under section 96 after the Court has found the evidence sufficient, not the earlier stage under sections 94C and 95 at which the prosecution statements are received. On that reading the amendment does not determine whether a witness may be cross-examined before the sufficiency finding.
The other view: test them at trial
In Tkatchenko v Magaru (2000) N1956 Sevua J held that the National Court in its civil review jurisdiction should generally decline to intervene in committal proceedings where the complaint can be properly dealt with by the criminal court, and, as the Manual summarises the view, that it is sufficient if the defendant’s rights in relation to the prosecution evidence are protected in the course of the trial in the National Court. Judicial review was nonetheless granted in that case, on the different ground that the magistrate had denied the plaintiff his rights under sections 95(3) and 96. The two lines of authority have not been reconciled by the Supreme Court.
What happens in practice
| Route | Basis | Comment |
|---|---|---|
| Ask the magistrate to allow oral evidence and cross-examination of a named witness | s 94(6)(b); Nagira | A discretion; most likely to succeed where the statement is central and its reliability is genuinely in doubt |
| Ask the magistrate to reject a statement that fails s 94C(2) | Kai Wabu [1994] PNGLR 498 | The prosecution’s only cure is to call the witness, who is then open to cross-examination |
| Request a sufficiency submission and argue the statements do not disclose a case | s 94B(2)(b); s 95 | Tests the case on paper without cross-examination |
| Reserve the challenge for trial | Tkatchenko | The statement is a prior inconsistent statement for cross-examination in the National Court |
Three things are not in doubt. The defendant may call witnesses at the committal if the Court allows oral evidence under section 94(6). The defendant may give evidence or make a statement under section 96, and if he gives sworn evidence he may himself be cross-examined by the prosecutor and the magistrate, as The State v Topoma [1980] PNGLR 18 confirms. And a defendant who consents to a paper committal under section 94B gives up any cross-examination at that stage.
Why it matters
Whichever view a particular magistrate takes, a request to cross-examine should be made early, in writing if possible, identifying the witness and the reason, so that the Court can consider it under section 94(6) and the prosecution can arrange for the witness to attend. A refusal is a decision the defendant can point to later, and if it amounted to a denial of natural justice it is a ground for judicial review; see challenging a committal.
The Manual sets out the traditional value of cross-examination at committal: it lets the defence evaluate the witnesses, and any discrepancy between the committal evidence and the trial evidence can be used to discredit the witness at trial or to found a plea in mitigation. Its cost is that witnesses testify twice, which the 1980 reforms were designed to avoid. A defendant weighing whether to press for cross-examination should remember that the committal decides only whether there is a prima facie case, and that a strong cross-examination which does not destroy the case will simply forewarn the prosecution.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.