Papua New Guinea
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Legal Resources for Papua New Guinea
E-Learning Resources |
Background
Papua New Guinea is a country in Oceania, comprising the eastern half of the island of New Guinea and islands in Melanesia. It shares land border with Indonesia to the West and is directly adjacent to Australia to the South and the Solomon Islands to the East. PNG’s capital is Port Moresby, and it is the world’s third largest island country. PNG established its sovereignty in 1975, after being ruled by three external powers since 1884, including the colonial Australian government for nearly 60 years; it is now an independent Commonwealth realm. It was reported in December 2022 Papua New Guinea (PNG)’s population is closer to 17 million and most of its people live in customary communities.
The Legal system
Papua New Guinea has a mixed legal system of common law and customary law; customary laws, as adapted to the processes of modernization, continue to wield extensive influence at the village level. Papua New Guinea's autochthonous Constitution is the supreme law of the country, establishing the system of government and law. Section 9 of the Constitution identifies sources of law, which are the Constitution; Organic Laws; Acts of Parliament; Acts of Provincial Legislatures; Subordinate Legislation; Emergency Regulations; Laws made under or adopted by the Constitution; and the Underlying Law.
Section 12 An Organic Law must not be inconsistent with the Constitution and has the same authority as the Constitution. The provisions on Provincial Government were introduced as a result of an amendment of the Constitution. Section 187C of the Constitution states that an Organic Law shall provide the legislative powers of Provincial Governments.
The Underlying Law is the unwritten law to be applied on any matter on which there is no legislation. Section 20(1) of the Constitution provides that an Act of Parliament shall declare and provide for the development of an Underlying Law. No such act has yet been passed.
The adversarial system of criminal procedure, retained after independence, stands in contrast to traditional processes of dispute resolution which emphasizes mediation, compromise and compensation. Collective responsibility remains a social fact in most customary communities, in practice it is in tension with the principles of individualized criminal responsibility underlying the modern system.
Legal Aid
The Public Solicitor manages a large number of criminal and civil cases for and on behalf of people throughout the country. Core legal services and assistance provided by the Public Solicitor include:
- Criminal cases: All the indictable offences under the Criminal Code and including bail applications, appeals and other criminal offences that carries a maximum penalty; punishable by imprisonment for more than two years. Legal aid and assistance are provided to juveniles in conflict with the law
- Civil Cases: include the matters such as civil negligence cases, workers compensation, civil rights, infant settlement, maintenance, divorce, appeals, legal advice and limited commercial matters.
The functions of the Public Solicitor are to provide legal aid, advice and assistance for persons in need of help by him, and in particular:
- limited to advice and preparation of documents in any proceedings in respect of which an Act of the Parliament prohibits legal representation of any party to the proceedings; and
- granted in accordance with an order of priorities relative to the resources of the Public Solicitor laid down by an Act of the Parliament.
A person aggrieved by a refusal of the Public Solicitor to provide legal aid may apply to the Supreme Court or the National Court for a direction under Subsection (2)(b).
An Act of Parliament may make provision for the Public Solicitor to make a reasonable charge for services provided by him to persons in need of his help whom he considers are able to make a contribution towards the cost of these services.
There are 88 law firms in Papua New Guinea, of which 30 are located in Boroko and 27 in Port Moresby.
Source of Defendants Rights
Defendant’s rights in Turkmenistan are primarily derived from the Constitution, national laws, and the criminal procedure code. However, in practice, these rights are often limited due to government control over the judiciary and legal system.
Section 37 of the PNG Constitution states that:
(3) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.
(4) A person charged with an offence
- (a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and
(b) shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged; and
(c) shall be given adequate time and facilities for the preparation of his defence; and
(d) shall be permitted to have without payment the assistance of an interpreter if he
cannot understand or speak the language used at the trial of the charge; and
(e) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him inaccordance with law; and
(f) 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.
(5) Except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence, but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment, (except in default of payment of a fine), to be heard summarily in his absence if it is established that he has been duly served with a summons in respect of the alleged offence.
The International Criminal Court (based on the Rome Statute) states that the main rights of the defendant include:
- Article 67 (1) Right to remain silent and not to be compelled to testify or confess guilt;
- Article 63 (1) Right to be present during trial;
- Article 66 Presumed innocent until proven guilty beyond reasonable doubt;
- Article 67 (1)(b) Right to have adequate time and facilities for the preparation of the defence;
- Article 67(1)(a) and 64(8) Right to be fully informed of the charges against him or her;
- Right to have a lawyer appointed, free of charge if necessary;
- Article 64(2) and 67(1)(c) Right to a speedy trial;
- Article 67 Right to a public hearing;
- Article 64(3)(b) and 67(1)(f) Right to be tried in one’s language and have a free interpreter;
- Article 64(7) and 67 Right to a public trial;
- Article 67(1)(e) Right to examine the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf.
Rights of the Accused
S37(1) of the Constitution provides that: “Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.”
- Unlawful Arrests:
Section 42(5) (liberty of the person) of the PNG Constitution outlines the rights of someone subjected to unlawful arrests, searched and seizures:
"Where complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained –
- the National Court or a Judge shall inquire into the complaint and order the person concerned to be brought before it or him; and
- unless the Court or Judge is satisfied that the detention is lawful, and in the case of a person being detained on remand pending his trial does not constitute an unreasonable detention having regard, in particular, to its length, the Court or a Judge shall order his release either unconditionally or subject to such conditions as the Court or Judge thinks fit.
Hence, the fact that there is an obligation for the court to inquire into any complaint of ulawful arrest implies that there is strong procedural safeguards to ensure that there is procedural fairness in arresting individuals.
Sub-section (6) further states that: “A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.”
In the event that bail is refused, subsection (7) states that a request on the reasons for the refusal of the bail is permitted. Further, the person or his representative may apply for his release to higher courts:
“(7) Where a person to whom Subsection (6) applies is refused bail– (a) the court or person refusing bail shall, on request by the person concerned or his representative, state in writing the reason for the refusal; and (b) the person or his representative may apply to the Supreme Court or the National Court in a summary manner for his release.” - Unlawful Searches:
Section 44 of the PNG Constitution states that: No person shall be subjected to the search of his person or property or to entry of his premises, except to the extent that the exercise of that right is regulated or restricted by a law
- that makes reasonable provision for a search or entry
- under an order made by a court; or
- under a warrant for a search issued by a court or judicial officer on reasonable grounds, supported by oath or affirmation, particularly describing the purpose of the search; or
- that authorizes a public officer or government agent of Papua New Guinea or an officer of a body corporate established by law for a public purpose to enter, where necessary, on the premises of a person in order to inspect those premises or anything in or on them in relation to any rate or tax or in order to carry out work connected with any property that is lawfully in or on those premises and belongs to the Government or any such body corporate; or
- that authorizes the inspection of goods, premises, vehicles, ships or aircraft to ensure compliance with lawful requirements as to the entry of persons or importation of goods into Papua New Guinea or departure of persons or exportation of goods from Papua New Guinea or as to standards of safe construction, public safety, public health, permitted use or similar matters, or to secure compliance with the terms of a licence to engage in manufacture or trade; or
- for the purpose of inspecting or taking copies of documents relating to the conduct of a business, trade, profession or industry in accordance with a law regulating the conduct of that business, trade, profession or industry; or
- the affairs of a company in accordance with a law relating to companies; or
- for the purpose of inspecting goods or inspecting or taking copies of documents, in connection with the collection, or the enforcement of payment of taxes or under a law prohibiting or restricting the importation of goods into Papua New Guinea or the exportation of goods from Papua New Guinea; or
- that complies with Section 38 (general qualifications on qualified rights).
- that makes reasonable provision for a search or entry
(2) A person who is arrested or detained:
(a) shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and
(b) shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and
(c) shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained, and shall be informed immediately on his arrest or detention of his rights under this subsection.
Section 221 of the Criminal Practice Rule 2022 further adds that: Unlawful detention with intent to defile
(a) Detained a woman [or girl] (name person) against her will in [or on] premises for the purpose of her being unlawfully carnally known by a man; or
(b) Detained a woman [or girl] (name person) against her will in a brothel.
No person shall be subjected to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.
The killing of a person in circumstances in which Section 35(1)(a) (right to life) does not, of itself, contravene Subsection (1), although the manner or the circumstances of the killing may contravene it.
Section 36(17) states that: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”
Further rights related to being informed of the charges pressed are outlined under section 37(4)(c) to (f) of the Constitution: “(c)shall be given adequate time and facilities for the preparation of his defence; and
(d) shall be permitted to have without payment the assistance of an interpreter if he cannot understand or speak the language used at the trial of the charge; and
(e) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and
(f) 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 37(4)(b) of the Constitution states that: “A person charged with an offence– shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged; and”.
Further rights related to being informed of the charges pressed are outlined under section 37(4)(c) to (f) of the Constitution: “(c)shall be given adequate time and facilities for the preparation of his defence; and
(d) shall be permitted to have without payment the assistance of an interpreter if he cannot understand or speak the language used at the trial of the charge; and
(e) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and
(f) 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.”
The law provides for a presumption of innocence and due process, including a public trial “within a reasonable time.” The court system generally enforced these rights, except for timeliness.
Section 37(11) of the Constitution states: “A determination of the existence or extent of a civil right or obligation shall not be made except by an independent and impartial court or other authority prescribed by law or agreed upon by the parties, and proceedings for such a determination shall be fairly heard within a reasonable time.”
Subsection 12 further adds that: “Except with the agreement of the parties, or by order of the court in the interests of national security, proceedings in any jurisdiction of a court and proceedings for the determination of the existence or extent of any civil right or obligation before any other authority, including the announcement of the decision of the court or other authority, shall be held in public.”
Under page 5 of the Constitution, it was acknowledge that “all persons in our country are entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever their race, tribe, places of origin, political opinion, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the legitimate public interest, to each of the following”, which “life, liberty, security of the person and the protection of the law” is included.
Section 42(7) further states that: “(7) Where a person to whom Subsection (6) applies is refused bail– (a) the court or person refusing bail shall, on request by the person concerned or his representative, state in writing the reason for the refusal; and (b) the person or his representative may apply to the Supreme Court or the National Court in a summary manner for his release.”
Section 37(2) of the Constitution states that: “(2) Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.”
- Generally:
Section 37(3) of the Constitution guarantees the right to a fair trial: “A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.”
Further, subsection (5) states that: “Except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence, but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment, (except in default of payment of a fine), to be heard summarily in his absence if it is established that he has been duly served with a summons in respect of the alleged offence.” This implies that the courts could not continue a trial with the absence of the person charged with an offence, subjected to the limitations as outlined in the relevant clause.
- Right to a Trial by Jury:
There is no provision for trial by jury. [5] All criminal trials take place before a judge or magistrate sitting alone.
- Right to a Speedy Trial:
Section 37(14) of the Constitution holds that: “In the event that the trial of a person is not commenced within four months of the date on which he was committed for trial, a detailed report concerning the case shall be made by the Chief Justice to the Minister responsible for the National Legal Administration.”
- Right to an Impartial Judge:
Section 37(3) guarantees that: “A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.”
- Right Language Interpretation:
Section 37(4)(d) states that: “shall be permitted to have without payment the assistance of an interpreter if he cannot understand or speak the language used at the trial of the charge”
- Right to Habeas Corpus: Section 42(5) of the Constitution states that: “(5) Where complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained– (a) the National Court or a Judge shall inquire into the complaint and order the person concerned to be brought before it or him; and (b) unless the Court or Judge is satisfied that the detention is lawful, and in the case of a person being detained on remand pending his trial does not constitute an unreasonable detention having regard, in particular, to its length, the Court or a Judge shall order his release either unconditionally or subject to such conditions as the Court or Judge thinks fit.”
Rights of Counsel
(b) shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and
(c) shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained, and shall be informed immediately on his arrest or detention of his rights under this subsection.”
A further point to add is that under section 42(2)(a), the Constitution states that: “A person who is arrested or detained -- shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him”.
Means of Protecting or Enforcing Rights
While there is no explicit mention of similar exclusionary rule in the Papua New Guinea Constitution, the magistrates’ manual provides some guidance with regards to how the rights and freedoms outlined above may be enforced.
The following excerpts are extracted from the Magistrates’ Manual of Papua New Guinea:
“If it is alleged that the evidence was obtained in an unconstitutional manner and should be excluded for that reason pursuant to s 57 of the Constitution, the case must be adjourned so that the National Court can rule on that question. The District Courts have no jurisdiction to rule on applications for relief (in the form of an order for the exclusion of evidence or otherwise) for breaches of the Constitution.”
Section 57 of the Constitution concerns the enforcement of guaranteed rights and freedoms. Subsections 4 and 5 state that: “(4) Any court, tribunal or authority may, on its own initiative or at the request of a person referred to in Subsection (1), adjourn, or otherwise delay a decision in, any proceedings before it in order to allow a question concerning the effect or application of this Division to be determined in accordance with Subsection (1).
(5) Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.”
Further, the Magistrates’ Manual state that: “However, Magistrates have discretion, based on common law, to exclude evidence which has been obtained in an unfair manner. The Judges Rules, which originated in England in 1912, provide a basis for the exercise of this discretion. They were intended to guide the conduct of police in dealing with criminal suspects. The rules provided that suspects are to be warned that they are not obliged to give evidence.”
This common law discretion relates primarily to the exclusion of evidence in a criminal case. It most commonly relates to a confession or evidence that has been obtained as a result of information given to the police by a defendant. For instance, if a person was threatened or assaulted by the police and, as a result, told the police where stolen property was located (which would link that person to the offence), a discretion to exclude might be exercised.
A further scenario where there may be a nullity of sentences is outlined: “Natural justice in the sentencing process may also require the Magistrate to permit the offender to re-open his or her sentencing plea after it has concluded (but before sentence) if additional critical material needs to be put to the court. It is a denial of natural justice for the Magistrate to fail to obtain sufficient facts upon which to find the sentence. Such failures may render the sentencing process a nullity and give grounds for appeal.”
District courts may order “good behavior bonds” (noncustodial sentences with the threat of incarceration for infractions over a period of time) for abusers, in addition to ordering that compensation be paid for violations of human rights.
Section 160(2) of the PNG Constitution states that: “The Supreme Court is a superior court of record and accordingly, subject to any Act of the Parliament, has the power to punish the offence against itself commonly known as contempt of court.”
Hence, the above 2 clauses establish the power of the Supreme Court and the National Court to punish the offence known as contempt of court.
Particularly, the offence of contempt of court does not require to be prescribed by written law. This is pursuant to section 37(2) of the PNG Constitution states that: “Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.”
Chapter 3 of the Magistrates’ Manual records the Magistrate’s approach to contempt. It is recognized that: “This is the most powerful tool available to the Magistrate and should be used only when it is absolutely necessary. The reason for this is that if the Magistrate is obliged to punish somebody for contempt, that may be an indication that the Magistrate has not been careful to anticipate problems in the court and to take less drastic steps to maintain order in the court.” Hence, it can be expected that the offence of the contempt of court is only meted as a last resort when other alternative measures to maintain court order, such as “quiet[ly] adjourning the case for an hour or two or until the afternoon” fail.
It is noted in the same document that: “Contempt is an offence, and so must be proved beyond a reasonable doubt to have been committed in the manner alleged.” The document divides the offence into four categories, with two in court and two out of court: In court- within Magistrate’s power
1. Disturbing the conduct of the court while the court is sitting.
2. Disobeying an order of the court after the case is finished.
Outside court - Magistrate has no power
3. Publishing in newspapers or by other means, before the case is heard, such things as statements which might prejudice parties in the case.
4. Making a serious personal criticism of the Magistrate, or conduct of a case, out of court.
Pre-Trial Procedure
Police procedure
- Arrest:
Provisions of the Constitution and Arrest Act make it clear that police cannot detain an arrested person without granting bail or taking the person before a court.
The police may arrest a suspect with or without a warrant (Section 3 of the Arrest Act). Most police arrests occur without a warrant. Section 3 of the Arrest Act gives police considerable discretion to arrest: “A policeman may, without warrant, arrest a person whom he believes on reasonable grounds–
(a) is about to commit; or
(b) is committing; or
(c) has committed,
an offence.”
Under this section, no warrant is required where a police officer believes on reasonable grounds that a person is about to commit, is committing or has committed, an offense.
Section 14 of the Arrest Act 1977 outlines that the police may use all reasonable means to make the arrest, subjected subsection (2):
“(c) resists the arrest, whether by force or by refusing to move, or seeks to evade arrest, whether by running away or by other means, the authorized person may, subject to Subsection (2), use all reasonable means to make the arrest.
(2) Subsection (1)(c) does not justify the use of greater force than is reasonable in the circumstances.”
Section 18 of the Arrest Act 1977 outlines the duties of officer-in-charge of station:
“(1) Where a person has been arrested and taken to a police station, the officer-in-charge of the police station shall–
(a) immediately release the person if he considers that–- (i) the person arrested did not commit the offence for which he was arrested or any other offence and there is no other reason to justify his detention under this Act or any other law; or
(ii) there are good reasons why the arrested person should not be proceeded against for an offence; or
(iii) proceedings can be effectively taken by way of summons against the arrested person; and”Subsection 1 importantly outlines the considerations for immediate release of the arrested. When one of the three criteria above is met, there ought to be immediate release of the arrested individual.
Further, subsection (1)(b) outlines the alternative scenario of when there is no immediate release of the arrested individual:
“(b) if he does not release the person under Paragraph (a)–take the person into custody and enter in a permanent register of arrests the name of the person and if it appears that the person arrested–
- has committed an offence–the nature of that offence; or
- has been arrested for some other reason–that reason; and”
Subsection 1(c) outlines the duties of the officer-in-charge:
(c) promptly inform the person arrested or cause him to be informed in language he understands of–
- (i) the reason for his arrest; and
(ii) details of the charges against him; and
(iii) his right, immediately and in private– (A) to communicate with a member of his family or a personal friend; and (B) to give instructions to a lawyer of his choice, including the Public Solicitor if he is entitled to legal aid; and(d) as soon as practicable consider and accordingly grant or refuse bail in accordance with the Bail Act 1977; and
(e) if bail is not granted under Paragraph (d) or if for any other reason the person arrested remains in custody at the station–take the person, or cause him to be taken, before a court without delay; and
(f) if bail is granted to the person by a court but for any reason the person remains in custody at the station after bail is granted–take the person or cause him to be taken before a court as soon as practicable after the expiration of 14 days after the bail is granted; and
(g) if bail is granted to the person but he remains in custody after being brought before a court on one or more occasions–take the person or cause him to be taken from time to time before a court as soon as practicable after the expiration of 14 days after the time he last appeared before a court.
(2) The officer-in-charge of a police station shall at all times permit persons arrested or detained at the police station–
(a) whenever practicable, without delay and in private to communicate with–- (i) a member of his family or a personal friend; and
(ii) a lawyer of his choice, including the Public Solicitor if he is entitled to legal aid; and(b) to give instructions to a lawyer of his choice, including the Public Solicitor if he is entitled to legal aid.
- Searches:
Section 49 of the Constitution states that: “Every person has the right to reasonable privacy in respect of his private and family life, his communications with other persons and his personal papers and effects, except to the extent that the exercise of that right is regulated or restricted by a law that complies with Section 38 (general qualifications on qualified rights).”
Section 44 of the Constitution states that: “No person shall be subjected to the search of his person or property or to entry of his premises, except to the extent that the exercise of that right is regulated or restricted by a law– (a) that makes reasonable provision for a search or entry–“.
Hence, the police have no general power to enter premises to search for people or property. This is recognized by the Constitution in the right to privacy and the right to freedom from arbitrary search and entry.
The Search Act of 1977 allows a police officer to search a person where there are reasonable grounds for believing the person is in possession of goods that have been stolen or otherwise unlawfully obtained, or intended for the commission of an indictable offense:
“(1) Where a policeman believes on reasonable grounds that a person has in his possession–
- (a) anything that has been stolen or otherwise unlawfully obtained; or
(b) anything used or intended to be used in the commission of an indictable offence,
he may stop and search that person in accordance with Section 4 and, where applicable, exercise the power of seizure under Section 10(1).”Section 4 of the Search Act 1977 lays down the duties of the police officers when searches are carried out:
“(1) Subject to this section, a person conducting a search of a person may touch the body and clothing of the person being searched.
(2) Searches of the person shall be conducted with due regard to decency.
(3) A person conducting a search of another person shall not use any greater force than is reasonable in the circumstances.
(4) Subject to Subsection (5), a search of a female shall only be carried out by or in the presence of an adult female.
(5) Where a policeman has reasonable grounds to believe that a female he has arrested is carrying a firearm or other offensive weapon he may, with due regard to decency, seize the weapon.
(6) Subsection (5) does not justify the use of greater force than is reasonable in the circumstances.”
Importantly, the searched should be conducted with due regard to decency and no greater force than is reasonable in the circumstances should be used.
Generally, all searches must be conducted with a warrant issued by a court, other than the Local Court. The court must be satisfied that there are reasonable grounds for believing that any building, craft, vehicle or place is involved in an offense that is committed or is about to be committed. If anything is found pursuant to the search warrant and is seized by the police, a record must be kept. A breach of search procedures under the Act may lead to a compensation action under Sections 57 and 58 of the Constitution, or a civil action under Section 17 of the Search Act. (Constitution, Sect.44 (a) (i) (ii); Search Act, Sect.6, 12)
The police may also search persons, and any property under their immediate control, when they are arrested or in lawful custody as outlined in section 3(3) and (4):
“(3) Where a person in lawful custody is to be detained in a place of confinement he may, immediately before he is so detained, be searched at that place of confinement by a policeman or a member of the Correctional Service, as the case requires in accordance with Section 4, who may, where applicable, exercise the power of seizure under Section 10(3).
(4) The owner of a craft or a person in command of a craft or a person authorized by either of them or a policeman may in accordance with Section 4, search a person intending to board the craft and, where applicable, may exercise the power of seizure under Section 10(3).”
The determination of what constitutes reasonable grounds, decency, and reasonable force in such cases is a matter for the court to decide and is only determined in the event of a subsequent legal challenge.
Hence, authorities cannot interrogate the accused based on the justification of the necessity or desirability of the process, subjected to the narrow restriction of exigencies of travel in reasonable circumstances.
Court Procedures
- Initial Court Appearance:After a person has been summoned or arrested s/he will be brought before the court to have the matter tried. In the case of a summary trial, the magistrate may proceed to hear the charge(s),
enter a decision in the case and impose punishment if the charges are proved. In the case of indictable offenses that are not triable summarily, the person charged must first appear before a District Court magistrate for committal proceedings.
4 (1) In any case in which the accused appears or is alleged to be a juvenile, the Court shall, as soon as is practicable after commencement of the proceedings, having regard to s 4 (age determination) of the Juvenile Justice Act 2014 and s 63 (age) of the Evidence Act, Chapter No 48, determine the age of the accused by making a finding as to the date of birth of the accused, which shall be recorded in Form 19.
(2) In making a determination under sub-rule (1) the Court:
- (a) shall have regard to the matters set out in s 4(3) of the Juvenile Justice Act; and
(b) may, in cases where it is unable with precision to determine the date of birth of the accused, estimate the date of birth, and for that purpose it is suggested that an appropriate estimated date of birth would be 1 July of the year in which it is estimated that the accused was born.If the Court determines that the accused is a juvenile, the Court shall proceed to determine whether it has jurisdiction in the case, having regard to s 20 (exercise of jurisdiction by National Court) of the Juvenile Justice Act, in Form 20. .
- Charging Instrument: 13(1) In prosecutions conducted by the Public Prosecutor, the charging instrument shall be an indictment, set out in Form 13.
(2) The statement of offence in the indictment may be in the words of:
- (a) the Schedule 1 form for the offence, with the changes necessary to make the words consistent with the particular circumstances of the alleged offence; or
(b) if there is no Schedule 1 form for the offence, the Code or other law creating the offence.14(1) In prosecutions conducted by a private prosecutor under s 616 of the Code, the charging instrument shall be an information, set out in Form 14.
(2) The statement of offence in the indictment may be in the words of:
- (a) the Schedule 1 form for the offence, with the changes necessary to make the words consistent with the particular circumstances of the alleged offence; or
(b) if there is no Schedule 1 form for the offence, the Code or other law creating the offence.15(1) Subject to this rule, the charges in a charging instrument shall be described as “Counts” and shall, if there is more than one charge, be numbered consecutively beginning with the number 1.
(2) When an alternative charge is expressly pleaded it shall be described as such and clearly indicate the count in respect of which it is an alternative.
(3) Where, on a trial, an application is made to amend an indictment, it may be made orally or, if directed by the Court by notice of motion supported, if appropriate, by affidavit, and determined in accordance with s 535 of the Code and other relevant laws.
- Preliminary Hearing: As soon as is practicable after the opening of a criminal file, the matter shall be called for the first mention, and the Judge shall, to the extent necessary and appropriate:
(a) identify the nature of the charges;
(b) ascertain legal representation for the accused;
(c) ascertain the bail or remand status of the accused;
(d) grant bail in accordance with the Bail Rules or issue a warrant of commitment on remand in Form 11;
(e) adjourn the matter to a fixed date and time for a further preliminary hearing.
- Pre-Trial Motions: 17(1) An application by an accused under s 534(2) or s 558 of the Code to quash an indictment may be made, subject to the directions of the Court, orally or by notice of motion, after presentation of the indictment or information, and before pleading to the charge.
(2) A notice of motion referred to in sub-rule (1) shall state the grounds on which the application is based.
- Discovery: 3 The prosecuting counsel shall file and serve on the defence counsel at least seven days before the date of the pre-trial review, a prosecution pre-trial review statement in Form 24, by which counsel shall inform the Court and the defence of:
(a) the likely charge(s) on which the accused is to be indicted, and in that regard the Public Prosecutor shall attach a draft indictment, unless for special reason it is considered by the Public Prosecutor inappropriate to do so in a particular case, without any enforceable obligation that the State will proceed as per the draft indictment, to the Court;
(b) the prosecution witnesses required at trial as shown on the committal documents and any notices of further evidence then delivered and of the availability of such witnesses; and
(c) facts which can be and are admitted pursuant to s 589 of the Code and which can be reduced to writing at the trial and of the witnesses whose attendance will not then be necessary; and
(d) any additional witnesses who may be called by the prosecution and the evidence that they are expected to give and, if the statements of these witnesses are not then available for service, a summary of the evidence that they are expected to give shall be supplied in writing; and
(e) the likely length of the State’s case; and
(f) exhibits which are to be tendered, including those that are appropriate to be tendered by consent; and
(g) issues as to the mental or medical condition of the accused or a witness; and points of law that may arise on trial, including any question as to the admissibility of evidence which then appears on the face of the papers or any case on which either party intends to rely as far as can be possibly envisaged at that stage; and
(i) the names of witnesses from whom statements have been taken by the prosecution but who are not going to be called and, in appropriate cases, disclosure of the content of those statements; and
(j) the order in which the witnesses for the prosecution will be called; and
(k) whether it is necessary for the Court to issue any summons requiring attendance of witnesses;
(l) of any other significant matter which might affect the proper and convenient trial of the case.
The defence counsel shall at least three days before the date of the pre-trial review, file and serve on prosecuting counsel a defence pre-trial review statement in Form 25, by which counsel shall inform the Court and the prosecution of, amongst other things:
(a) the likely defences to the charge, being as specific as is practicable in terms of any excusatory defences under the Criminal Code that are likely to be relied on at the trial;
(b) any alibi that the accused proposes to rely on at the trial, in which case the Judge shall give directions for filing and service of a notice of alibi in Form 26; and
(c) whether it is likely that the accused will give evidence;
(d) the number and description of defence witnesses;
(e) whether it is likely that admissions would be made pursuant to s 589 (admissions) of the Code.
- Nature of the Trial: Constitution Section 37.
(1) ....protection of the law...
(2) Except, subject to any Act of Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.
(3) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court.
Criminal Code Act 552.RIGHT TO BE TRIED.(1) In this section, “place of trial” means the place appointed under the National Court Act 1975 for sittings of the National Court at which the hearing of a charge of an indictable offence is to take place.
(2) A person who has been committed for trial or sentence or against whom the Public Prosecutor has laid a charge under Section 526 may make application at any sittings of the National Court to be brought to his trial.
(3) If no indictment has been presented against the applicant–
- (a) where the application is made at a sittings of the National Court at the place of trial–before the end of the sittings at which the application is made; or
(b) where the application is made at a sittings of the National Court at some other place–before the end of the next sittings of the court at the place of trial, the court shall, on application by him, admit him to bail on such terms as the court thinks proper, unless the court is satisfied that there are special reasons why the application should be refused.(4) If–
(a) a person has made an application under Subsection (2); and
(b) at the end of the sittings of the National Court at his place of trial next following the application–
- (i) no indictment has been presented against him; or
(ii) the court is satisfied that the prosecution has not in the circumstances of the case made a genuine attempt to complete its case,he is entitled to be discharged.
- Defendant: Criminal code act 570.DEFENCE OF ACCUSED.(1) A person charged with an offence is entitled to make his defence at his trial and to have the witnesses examined and cross-examined by his lawyer.
(2) A person charged with an offence may, by leave of the court, have his defence conducted by another person who is not a lawyer
570. PRESENCE OF ACCUSED.(1) Subject to Subsection (2), a trial must take place in the presence of the accused person, unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable, in which case the court–
(a) may order him to be removed; and
(b) may direct the trial to proceed in his absence.
The accused is asked to plead guilty or not guilty.
- Lawyers: When the accused has pleaded then any appearance of a lawyer for the accused is noted and the lawyer confirms that the plea is in accordance with instructions. Note that the accused or his or her lawyer may apply to change the plea.
- Expert Witnesses: The State calls its witnesses. Each witness must be sworn or affirmed. Where language is used then the language used should be noted. Procedure is examination-in-chief, then cross-examination, then re-examination if necessary. Re-examination is not to raise anything fresh but to clarify anything raised in cross-examination. The Judge should not ask questions, it is up to the lawyers to ask questions. Where the Judge considers that certain evidence needs to be clarified a Judge may ask questions.
- Judges: Judgement. Full judgement should be given. If adjournment required to prepare it then such should be taken. If ex tempore judgement given then it should be written or recorded as given immediately afterwards. Great care should be exercised if for any reason it is necessary to hand down a better or improved judgement later.
It is the Judge’s duty to ensure the warrant of commitment is properly completed, and especially to ensure that any pre-trial custody is properly accounted for and that the details of any suspension of sentence are correct.
- Victims: Role of Victim in Prosecution and Sentencing. Victims of crime have no official role in the prosecution and sentencing of offenders in the Western-style courts but play a significant role in the more informal proceedings of the Village Courts. Victims' Rights Legislation. The only Act that specifically addresses victims' rights is the Criminal Law (Compensation) Act of 1991. This Act allows the National Court, which hears indictable offenses, and the District Court, which hears summary offenses and indictable offenses triable summarily, to make compensation orders in criminal cases. The compensation can be in cash, goods, services, or any other kind or method that the judge considers appropriate.
- Sentencing: 11. Sentences of imprisonment: (1) If a sentence is passed that consists only of a term of imprisonment, with or without deduction of a pre-sentence period in custody and with or without suspension of part or all of the sentence, the order as to sentence may be in Form 70.
(2) If the offender has been convicted of more than one offence in one proceeding, there shall be only one order as to sentence, which should show the sentence allocated to each offence and whether the sentences are to be served cumulatively or concurrently.
12. Sentences other than imprisonment: If a sentence is passed other than as described in the last preceding rule, eg, a sentence that includes an ancillary order, such as an order for compensation under the Criminal Law (Compensation) Act or an order restricting movement of the offender under s 600 of the Code, the order as to sentence may be in Form 71.
18 deaf penalty (1) If the Court passes a sentence of death, the method of execution of the offender shall not be included in the order as to sentence (as this is a matter for the National Executive under s 614 of the Code), and the order as to sentence may be in Form 77. (2) An order under sub-rule (1) shall include a determination of the pre-sentence period in custody of the offender due to the importance of there being an official record of that period, so that it.
- Appeals:
- Right to Counsel: 35(4)A person charged with an offence- shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and (16) No person shall be deprived by law of a right of appeal against his conviction or sentence by any court that existed at the time of the conviction or sentence, as the case may be.
- Other Grounds for Appeal: Section 219 of the District Courts Act provides for appeals to be made by a person who is aggrieved by a decision of the court. A person aggrieved is almost invariably a party against whom an unfavourable decision has been made. The decision appealed against can take the form of a conviction in a criminal case, or the dismissal of an information or complaint. Other orders may also be appealed. For instance, a decision that awards damages to a party in a civil case, but which the party considers to be inadequate, may be appealed. Similarly, a custody or maintenance decision may not involve the dismissal of a complaint, yet a party may feel aggrieved and may appeal.
Rights in Prison
(2) The killing of a person in circumstances in which Section 35(1)(a) (right to life) does not, of itself, contravene Subsection (1), although the manner or the circumstances of the killing may contravene it.
37(17) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
- (a) is under sentence of death or imprisonment for a period of more than nine months; or
(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph,
Resources
- Department of State. (2022). 2022 Country Reports on Human Rights Practices: Papua New Guinea. U.S. Department of State. Retrieved from https://www.state.gov/reports/2022-country-reports-on-human-rights-practices/papua-new-guinea/.
- Federation of American Scientists. Miranda and custodial interrogation. Retrieved from https://sgp.fas.org/eprint/miranda.pdf.
- Government of Papua New Guinea. Constitution of the Independent State of Papua New Guinea. Retrieved from https://www.parliament.gov.pg/images/misc/PNG-CONSTITUTION.pdf.
- Judiciary of Papua New Guinea. (2022). Criminal Practice Rules 2022. Retrieved from https://www.pngjudiciary.gov.pg/images/pdf/Court_Rules/2022/3_CRIMINAL-PRACTICE-RULES-2022_FINAL.pdf.
- Judiciary of Papua New Guinea. National Court of Papua New Guinea. Retrieved from https://www.pngjudiciary.gov.pg/national-court.
- Legal Information Institute. Exclusionary rule. Cornell Law School. Retrieved from https://www.law.cornell.edu/wex/exclusionary_rule.
- Legal Information Institute. Right to counsel. Cornell Law School. Retrieved from https://www.law.cornell.edu/wex/right_to_counsel.
- Lowy Institute. (2022). Ending capital punishment is good for Papua New Guinea. Retrieved from https://www.lowyinstitute.org/the-interpreter/ending-capital-punishment-good-papua-new-guinea.
- Pacific Islands Legal Information Institute. Magistrates’ Manual: Chapter 3.1.3.1. Retrieved from http://www.paclii.org/pg/Manuals/Magistrates/Part1Chap3.htm.
- Pacific Islands Legal Information Institute. Magistrates’ Manual: Part 2, Chapter 5. Retrieved from http://www.paclii.org/pg/Manuals/Magistrates/Part2Chap5.htm.
- U.S. Bureau of Justice Statistics. Women and the criminal justice system in Papua New Guinea. Retrieved from https://bjs.ojp.gov/content/pub/pdf/wfbcjspng.pdf.
