Disclosure in a Papua New Guinea committal is not a matter of prosecutorial courtesy. It is a statutory duty with a fixed timetable, and the National Court has treated it as mandatory.
The duty
Where a person is charged with an indictable offence that shall not be tried summarily, or a section 420 offence 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 the informant intends to tender at the committal hearing; (e) a list of documents and exhibits referred to in those statements that the informant intends to tender; and (f) a copy of each document in that list.
Where an exhibit cannot be copied or adequately described, the defendant shall be notified of the place nominated by the informant where it may be inspected.
The duty rests on the informant, the police officer who laid the charge, though in practice the police prosecutor or the investigating officer serves the brief. It is a duty to serve everything to be tendered. A statement that was not served cannot be relied on under section 94C(1), which confines the Court to statements “of which a copy has been served”, unless the Court waives service under section 94(6).
How and when
Service shall be effected (a) on a natural person, by delivering the documents to him personally; (b) on a company under the Companies Act, in accordance with that Act; (c) on any other corporation, on its chief officer or by post; or in any other manner provided by law, at least 14 days before the date fixed for the hearing.
The person who serves shall, within seven days, make an affidavit of the day and place of service and, at least 72 hours before the hearing, transmit it to the Clerk. A document purporting to be that affidavit is prima facie evidence of service.
| Step | Deadline |
|---|---|
| Service of the brief on the defendant personally | At least 14 days before the hearing date |
| Affidavit of service sworn by the server | Within 7 days after service |
| Affidavit transmitted to the Clerk | At least 72 hours before the hearing |
Note that unlike an ordinary summons under section 47, section 94(3)(a) does not allow service on an individual by leaving the documents at his home with someone else. The brief goes to the defendant, or to his legal representative, in person. Section 11 of the Interpretation Act governs the counting: the day of service is excluded.
What happens if the time limit is missed
McDermott J held that orders in the nature of certiorari to quash for excess or want of jurisdiction are available in respect of committal proceedings, and that where there had been non-compliance with the mandatory time limitation on service of documents to be relied on, an order should go to quash the committal. The Magistrates’ Manual states the rule as it now stands: failure to comply with the time limit for service may nullify the proceedings.
The practical course for a defendant served late is to object at the hearing and ask for an adjournment to a date that restores the 14 days, or for the late statements to be excluded. The Court can adjourn under section 75, and a magistrate who proceeds regardless, over objection, risks the committal being quashed on judicial review. A defendant who says nothing and takes part may be taken to have waived the point.
Waiver by the Court
Section 94(6) lets the Court, where it considers it expedient, waive the requirements for service and allow oral evidence and exhibits to be tendered at the hearing. This is the safety valve for a late statement from a newly found witness, or an exhibit that could not be copied. It is a discretion, and the Manual’s view is that it should be exercised with the defendant’s ability to prepare in mind, which points to an adjournment if the new material is substantial.
Why the time matters
Constitution section 37(4)(c) guarantees a person charged adequate time and facilities for the preparation of his defence. The 14 days are the Act’s measure of that for a committal. In that period the defendant, or a lawyer, can decide whether to accept a committal on the papers under section 94B, whether to ask the Court to consider a submission that the statements do not disclose sufficient evidence, whether to seek to cross-examine a witness, and what, if anything, to say under section 96.
Schedule 2 offences
For a Schedule 2 offence the Public Prosecutor’s election whether to proceed summarily is, under the arrangements described in the Manual, to be made before the documents are served under section 94, and service of the documents is treated as the commencement of committal proceedings if no election is made. See indictable offences triable summarily.
Copies afterwards
Section 164 entitles an interested party, on paying the prescribed fee, to copies of the information, the depositions and the decision. Section 121(2) entitles the defendant, the Public Prosecutor and the prosecutor to inspect exhibits held by the Court. The served brief remains the defendant’s own copy; see the hand-up brief.
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.