The whole committal turns on one word in section 95: “sufficient”. The courts have explained what it means, and, just as importantly, what a magistrate must not take into account.
The two decision points
(1) Where all the evidence offered on the part of the prosecution has been heard or received, the Court shall consider whether it is sufficient to put the defendant on trial.
(2) If the Court is of opinion that the evidence is not sufficient to put the defendant on trial for an indictable offence it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.
(3) If the Court is of opinion that the evidence is sufficient, it shall proceed with the examination in accordance with this Division.
Section 100 repeats the exercise after the defendant has been given the section 96 opportunity: when the examination is completed the Court considers whether the evidence, now including anything the defendant has said or called, is sufficient, and either discharges or commits. The Magistrates’ Manual notes that the test is the same at both points and that the magistrate may modify the opinion formed under section 95 when deciding under section 100.
A bona fide opinion of a prima facie case
To decide that the evidence offered by the prosecution in committal proceedings “is sufficient to put the defendant upon his trial” the court has only to form a bona fide opinion that there is a sufficient prima facie case against the defendant.
Clarkson J was construing the predecessor of section 95, and his formulation has been applied ever since; Akia v Francis (2016) N6555 cites it as the governing test. The section heading of section 95, “Court to consider whether prima facie case”, confirms it. The standard is deliberately lower than the trial standard: the question is whether there is evidence on which a reasonable tribunal could convict, not whether the magistrate would.
Evidence on every element
The purpose of committal hearing is to gather evidence and assess it to see whether the evidence is sufficient to commit the accused for trial or sentence in the National Court. This requires proper and reasonable assessment of the evidence with a view to seeing whether all the elements or ingredients of the offence are present before the magistrate can commit. Sections 94B, 94C, 95 and 100 are to be read together.
So the magistrate’s method is to identify the elements of the offence charged, and to ask whether the admitted statements contain some evidence of each. Akuram J added that whether the findings are against the weight of the evidence is “not an important aspect”; weighing is for the trial.
Can the magistrate assess credibility?
To a limited extent. In R v Wewak Resident Magistrate; Ex parte Dyer [1967–68] PNGLR 511 Minogue J held that when forming the opinion it is within the magistrate’s competence to consider the demeanour of witnesses and the degree of credit to be given to them, and that if the prosecution evidence is clearly tainted or worthless the magistrate should discharge the defendant forthwith. In a paper committal there is no demeanour to observe, but a statement that is internally contradictory, or that on its face fails section 94C, can be rejected. What the magistrate may not do is resolve a genuine conflict between witnesses; that is the trial’s task.
What must not be taken into account
| Matter | Authority |
|---|---|
| Whether the prosecution is oppressive or unjust | Manual ch 11: if the evidence is sufficient the magistrate cannot refuse to commit on that ground |
| Court workload and case management | Maladina v Poloh (2004) N2568: irrelevant to the magistrate’s opinion under ss 95 and 100 |
| The likely sentence, or the defendant’s character | Not part of the sufficiency question; relevant only to bail |
| Whether the Public Prosecutor will ultimately indict | Criminal Code s 525: the Public Prosecutor’s decision, made afterwards |
| A constitutional question that is trivial, vexatious or irrelevant | Golu v Marum (2013) N5104: the District Court may form its own view for the purpose of the prima facie question and need not refer such a question to the Supreme Court |
Discharge is not acquittal
A discharge under section 95 or 100 ends the committal, and the defendant, if in custody, is released. It is not an acquittal. Section 526 of the Criminal Code allows the Public Prosecutor, where a court of summary jurisdiction has refused to commit, to consider the depositions and any other evidence and to indict for any offence they warrant. Ex parte Dyer held the other way round that the National Court will not order a magistrate who has formed the opinion that the evidence is insufficient to commit or to change his opinion. See the ex officio indictment.
Challenging a sufficiency finding
Because the test is a bona fide opinion, a finding of sufficiency is very hard to attack. Lak v Magaru [1999] PNGLR 572 refused leave for judicial review of a committal on the ground that no reasonable magistrate could have found a prima facie case, holding that such complaints go to the trial, not to jurisdiction. See challenging a 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.