Section 96 is the point in a committal at which the defendant is spoken to directly. It is a right to be heard, and it is also a trap, because anything said becomes evidence at the trial.
The words the magistrate must say
Where a Court proceeds with the examination of a defendant, the Court shall read the charge to the accused and explain its nature in ordinary language and shall say to him these words, or words to the same effect:
“Having heard the evidence for the prosecution do you wish to be sworn and give evidence on your own behalf, or do you desire to say anything in answer to the charge? You are not obliged to be sworn and give evidence, nor are you required to say anything, unless you desire to do so; but whatever evidence you may give on oath, or anything you may say, will be taken down in writing, and may be given in evidence on your trial. You are clearly to understand that you have nothing to hope from any promise of favour, and nothing to fear from any threat, which may have been held out to you to induce you to make any admission or confession of your guilt; but whatever you now say may be given in evidence on your trial, notwithstanding any such promise or threat.”
The Magistrates’ Manual states that omission of the explanation means the subsequent proceedings are invalid, and recommends that magistrates put the explanation in their own words, since the statutory formula is dense. It also lists the rights the formula embodies: the presumption of innocence, the right to silence under Constitution section 37(10), the right to make an unsworn statement without being questioned on it, and the right to give evidence and call witnesses.
The defendant’s three options
| Option | Consequence |
|---|---|
| Say nothing | No inference is drawn; the committal proceeds on the prosecution evidence |
| Make an unsworn statement | Taken down, read back, signed by the magistrate and, if he wishes, the defendant; not subject to cross-examination; admissible at trial under s 97 |
| Give sworn evidence | May be cross-examined by the prosecutor and the magistrate; the evidence and the answers are admissible at trial: The State v Topoma [1980] PNGLR 18 |
| Admit the charge | Committal for sentence under s 103 rather than for trial: admitting the charge |
In Topoma Kapi J held that a defendant who chooses to give sworn evidence at committal may be cross-examined, and that the statement including the answers is admissible against him at trial; but, semble, if the accused was not advised of the legal consequences of his options, the National Court may in its discretion reject the answers if it was unfair to admit them. The Manual draws the lesson that the statutory words do not explain the consequences of choosing sworn over unsworn evidence, and that an unrepresented defendant may need more.
What happens to what is said
Anything the defendant says in answer shall be (a) taken down in writing in the English language and read to him; (b) signed by the Magistrates constituting the Court and by the defendant if he so desires; and (c) kept with the depositions and transmitted to the Public Prosecutor (s 96(2)).
On the trial, a statement made under section 96 may be given in evidence without further proof, notwithstanding that it may be exculpatory or self-serving, if it purports to be signed by the Magistrates by or before whom it was taken (s 97).
Section 98 preserves the prosecution’s right to tender any other admission or confession that is admissible by law, so the section 96 statement is in addition to, not instead of, the record of interview.
A right to be heard, including by counsel
There is no right to be heard under section 95, but there is a right to be heard under section 96. The magistrate has a duty to provide a real and meaningful opportunity to the defendant under section 96; written submissions are not a substitute for the right to be heard orally on them except where the parties, with leave, waive that right. A committal made after counsel was refused the chance to make oral submissions was quashed for denial of natural justice and remitted for rehearing before another magistrate.
So the section 96 stage is where a defence lawyer argues, on the served statements and any evidence called, that the Court should not commit. Tkatchenko v Magaru (2000) N1956 reached the same result where the magistrate failed to give the plaintiff the opportunity under sections 95(3) and 96.
No cross-examination of witnesses at this stage
Section 96(3), added in 2000, provides that in an examination of a defendant under Division 1 neither the defendant nor his legal representative may cross-examine any witness. The defendant may call witnesses if the Court allows oral evidence under section 94(6), but cannot at this stage cross-examine the prosecution’s. Whether cross-examination is available before the section 95 finding is a separate and unsettled question; see cross-examination at committal.
After the statement
Once the examination is complete the Court decides under section 100 whether all the evidence is sufficient to put the defendant on trial, and either discharges him or commits him for trial in custody or on bail. The Manual notes that the magistrate may revise the opinion formed under section 95 in the light of what the defendant has said. See the test for committal.
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.