The phrase “hand-up brief” is not in the Act, but it is what everyone calls the document at the centre of a modern committal. Understanding what is in it, and what the law requires of each page, is the key to the whole procedure.
Why committals run on paper
The Magistrates’ Manual records that the procedure was changed in 1980 from one in which prosecution witnesses gave oral evidence to one that relies primarily on written statements, other documents and exhibits. If a committal order is made, the documents are passed to the National Court as a hand-up brief. The change saved witnesses from testifying twice, but, as the Manual acknowledges, it also reduced the opportunity for the defence to test the evidence by cross-examination before trial.
What the brief must contain
Where a person is charged with an indictable offence that is not to be tried summarily, the informant shall serve on the defendant or his legal representative (c) a copy of the information; (d) a copy of each statement that the informant intends to tender at the committal hearing; (e) a list of documents and exhibits referred to in a statement that the informant intends to tender; and (f) a copy of each document referred to in that list.
Section 94(2) provides that where an exhibit cannot be copied or adequately described, the defendant must be told where it can be inspected. In practice the brief contains the statement of the complainant, the statements of eyewitnesses, the statements of the arresting and investigating officers, the record of interview, any medical report, and photographs or sketches.
The certificate of truth
A statement shall contain the following warning to the maker and shall be signed by the maker: “I … certify that this statement is true to the best of my knowledge and belief. I make it knowing that if it is tendered in evidence I will be liable to prosecution if I have knowingly stated anything that is false or misleading in any particular. Signed.”
A statement shall, for the purposes of Division III.2 of the Evidence Act (Chapter 48), be treated as an affidavit.
Section 94A gives the warning teeth: a person who knowingly makes a false or misleading statement in a section 94 document is guilty of an offence punishable by up to three years’ imprisonment. Because the statement is deemed an affidavit, the Evidence Act rules about affidavit evidence apply to it, which is why in Yawari v English (1996) N1433 a statement that did not comply with section 35 of the Evidence Act was held inadmissible on appeal from a committal.
Read and understood by the maker
A signature and a certificate are not enough on their own. Section 94C(2) forbids the Court to admit a statement unless satisfied that the maker read and understood it, or had it read to him in a language he understood. The State v Kai Wabu [1994] PNGLR 498 makes that inquiry mandatory and independent, and suggests an interpreter’s certificate for statements taken through a translator. See the section 94C inquiry.
Service and timing
Section 94(3) requires service on the defendant personally, or on a company under the Companies Act, at least 14 days before the date fixed for the hearing; section 94(4) requires an affidavit of service within seven days, transmitted to the Clerk at least 72 hours before the hearing. In The State v Rush; Ex parte Rush [1984] PNGLR 124 a committal was quashed by certiorari for non-compliance with the predecessor of this mandatory time limit. See service of the brief.
Waiver and oral evidence
Where a Court considers it expedient to do so, it may (a) waive the requirements for service of documents or exhibits under this section; and (b) allow the informant or defendant to call oral evidence and tender exhibits at a committal hearing.
The Manual notes that a witness may have to be called orally to cure a defect in the certification of a statement, and that a magistrate may want to question a witness to understand the allegations. Where oral evidence is taken, section 65 requires the depositions to be reduced to writing, read over to and signed by the witness, and signed by the magistrate.
What the brief is used for afterwards
| Use | Provision |
|---|---|
| The Public Prosecutor’s decision whether to indict, and for what | Criminal Code s 525; District Courts Act s 118(b) |
| Evidence at trial without further proof, with the National Court’s consent, where the witness is dead, insane, too ill to travel, kept away by the accused, or a registered medical practitioner | s 102 |
| The defendant’s own statement under s 96, admissible at trial without further proof | s 97 |
| The Public Prosecutor’s consideration after a refusal to commit | Criminal Code s 526(1)(a) |
| Disclosure to the defence: the brief is the defendant’s first sight of the prosecution case | s 94(1); Constitution s 37(4)(c) |
The served brief is the defendant’s. It is the basis for instructing a lawyer, for any submission under section 94B(2)(b) that the statements do not disclose sufficient evidence, and for cross-examination at trial on any inconsistency between what a witness said in the statement and what he says in the witness box. A defendant should keep it safe and take it to every appearance.
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.