Foreword

My office has developed this book in I trust that you find the book useful.
order to help people understand the court Particularly, I record my appreciation to
processes in Papua New Guinea from Mrs Tracy Ganaii, LLB, who has led this
a complainant’s or a witness’s point of work in the Public Prosecutor’s Office. I
view. When an offence is committed on a also place on record my appreciation to
person or their property, and that person staff of the office who made contributions
has been called to give evidence for the and all of those people from other
State, it may be the first time that person organisations (including civil society) who
has ever been to a court. The personnel gave feedback on the drafts and made the
of my office are hopeful that the contents final document more relevant and user
of the book, once read or explained, will friendly for their work.
help take away any concerns people may
have in relation to going to court. Much of I hope that this book will help the
the contents will be unfamiliar to people professionals who assist survivors of violent
outside of the legal system. However, this crimes, victims of offences generally and
book cannot be cited as a text on legal witnesses to have greater access to our
processes. legal system and hopefully, achieve just
results from their interaction with the
Many of the words used in the text are system. I also trust that the book will
legal words and that is why definitions ultimately assist victims of crime in Papua
have been provided. The major criminal New Guinea to gain greater confidence in
laws used in the courts are outlined, and using our legal system.
some of the abbreviations used in court
documents have been included to help
people better understand any forms they
may receive or be served with when
going to court. The Juvenile, District,
and National Courts’ systems have been
explained.

As well, we have included some brief

information on the police investigation
process. For many people, it will be Jack Pambel, LLB,
unfamiliar to them. Appendixes are Acting Public Prosecutor
included for victims of family or sexual April 2008
violence going to court, victim impact
statements and consent as it relates to
rape and sexual assault cases. A brochure
on what state witnesses should know is
available from the Public Prosecutor’s
Office at Waigani or in the provinces. This
book also contains details on preparing
for court, the court processes and the
withdrawal of charges.

i
 Contents

Aims of the Book

i Foreword
ii Contents
1 Definitions
10 Abbreviations
11 Major Legislation in Criminal Cases
12 Juvenile Court
12 1. What is the layout of the court?
13 2. Who are the people in court and what do they do?
13 3. What is the dress of the people in the court?
14 4. General information
16 District Court
16 1. What is the layout of the court?
17 2. Who are the people in court and what do they do?
17 3. What is the dress of the people in the court?
18 4. General information
20 National Court
20 1. What is the layout of the court?
21 2. Who are the people in court and what do they do?
21 3. What is the dress of the people in the court?
22 4. General information
24 Supreme Court
25 Police Investigation Processes
28 Preparation of the Victim or Witness for their
Appearance in Court
30 Victim Impact Statements
31 Withdrawal of Charges
32 Appendix A: Information for victims of family and
sexual violence going to court
37 Appendix B: Victim impact statement
41 Appendix C: Consent
Contact Details for Public Prosecutor’s Offices
(see inside back cover)

ii
Definitions

Accused A person charged with an offence who is to appear in the

National Court is referred to as the accused. [Also see
defendant]

Acquit Upon the evidence available, a judge or a magistrate

makes a decision, based on the facts and/or the law,
to set free the defendant or accused from the charge
or indictment. That person cannot be charged with or
prosecuted for the same offence at any later time.

Adjournment Where a magistrate or judge decides that the case before

the court should be held at some later time or date.

Affirmation This is where a non-Christian who is to give evidence or

appear in court, says that they will tell the truth in court
and that they understand what may happen if they do
not tell the truth. Other religions may have special ways
of telling the court that they will tell the truth. [Also see
Oath]

Allocutus The prisoner addresses the court on what he or she

thinks his or her punishment should be. This occurs after
conviction but before sentence.

Appeal The process of contesting a decision of a lower court is

an appeal. There are time limits for lodging an appeal
with the courts.

Appellant This is the person or party who is appealing a court’s

decision.

Arraignment This is the process when a court asks a defendant or

accused by name, if the charge is true or not true after
the details of the charge have been read to him or her.

Arrest Taking away the liberty or freedom of a person by some

lawful authority in order to answer a charge that may
later be presented to a court is an arrest.

Bail This is where the police or the court releases from

custody, someone who has been charged with an offence.
It requires the person to continue to appear in court until
the case is finalised. The bail may be granted with or
without any conditions, including the payment of some
security.

GOING TO COURT | Definitions 1

 Bail Certificate This is the certificate issued to the defendant or accused
by a magistrate or a judge granting bail.

Bench Warrant This is also sometimes known as an Arrest Warrant. It

is a document issued by the court for the arrest of a
defendant or accused when they fail to appear in court
or they have escaped from custody, or have otherwise
breached other conditions of bail.

Brief Facts This is the story about how the offence happened including
before and after it happened. It usually contains the
elements of an offence and it is read to the court before
a defendant or accused enters a plea. Other names for
this are Summary of Facts or Statement of Facts.

Callover A review of the status and progress of cases in a National

Court circuit area. [Also see Listings]

Case dismissed The magistrate decides on the evidence available that the
defendant is not guilty as charged. That person cannot
be charged with or prosecuted for the same offence at
any later time. [Also see Acquit]

Case struck out The magistrate decides that the case will not proceed.
However this is not a dismissal and the charge may again
be laid at some future time.

Case withdrawn This is where the prosecutor makes an application to the

District Court to withdraw the charge.

Charge It is the accusation made against the person who has

been summonsed or arrested.

Committal This is where on indictable charges, the magistrate

considers the evidence presented in the District Court to
decide if there is enough evidence for the defendant to
be tried or sentenced in the National Court.

Complainant This is a person who makes the complaint to the police

or to the court. A person from an organisation or a
company making a complaint, informs the police, but
the organisation or company is the actual complainant.
[Also see Informant]

Consent Appendix C explains some of the issues relating to

consent in sexual assault and rape cases.

2 GOING TO COURT | Definitions

Convict This is a person who has been found guilty of an offence
by the court. The person may be then given a sentence,
and if it is a term in prison, the person is said to be ‘a
convict’. [Also see Prisoner]

Conviction The formal finding and recording of guilt against an

accused person, or defendant.

Defendant This is a person charged with an offence who is to appear

in the District Court. [Also see Accused]

Defence This is the accused’s/defendant’s legal reason,

explanation or justification for the actions for which they
are charged.

Defence Counsel This is the legal representative of the person on trial.

Discharge This is where a magistrate makes a decision, based on

the facts and/or the law, to set free the defendant from
the charge.

Dock This is the place where the defendant or accused sits in

a court.

Election Certificate This is a document completed and signed by the public

prosecutor to give power to Grade 5 magistrates to hear
indictable cases in the District Court, rather than the
National Court. The certificate must be filed with the
District Court.

Evidence This can be what is allowed to be said by witnesses

in court, some physical item or items that may be
presented in court, or documents that are relevant to the
case. The evidence may be direct evidence or it can be
circumstantial in that it is a fact that is legally relevant
to the case.

Ex Officio Indictment This is an indictment signed and presented in the National

Court by the public prosecutor in special cases where the
committal magistrate has refused to commit a person to
trial. The ex officio indictment is only to be signed by the
public prosecutor. [Also see Indictment]

Finding This is a conclusion by the magistrate or judge about the

evidence or some issue of law.

GOING TO COURT | Definitions 3

 Guilty An accused person or defendant may enter a guilty
plea if they admit that they committed the offence. The
magistrate or judge may give a verdict that the accused
person or defendant is guilty after hearing the evidence
in a trial where that person has pleaded not guilty.

Hearing This is the trial of a case before a court. [Also see Trial]

Indictable Offence This is a serious criminal offence that is usually dealt with
in the National Court. [Also see Schedule 2 Offence]

Indictment This is the formal document presented by the public

prosecutor outlining the charges against the accused
person/s in the National Court. [Also see Ex officio
indictment]
Informant A person who informs the police about an offence that
has been committed is the informant. A police officer
who lays the formal charges against the defendant is
also known as the informant [Also see Complainant]

Information This is the document which has the charge the defendant
or accused is charged with by the police. It is a police
document that is put with the court file.

Judge A person with legal qualifications and experience who

is appointed by the government to hear cases in the
National or Supreme Courts, or other tribunals. A judge
is referred to as “Your Honour” if you are addressing her
or him in a court room.

Judgment The decision on verdict or sentence of the judge who is

hearing the case is referred to as the judgment.

Juvenile Under the Juvenile Court Act, this refers to a person aged
over 7 years and under 18 years of age. Another term
used to refer to a juvenile, is a “minor”. The Criminal
Code defines the age of criminal responsibility as 7 years
and over – subject to special conditions.
[Note: Proposed changes to legislation may see an increase in the
age of criminal responsibility.]

Listings The parties appear in court for mention of their cases,

and a date is set for entering a plea or to start a trial.
[Also see Callover]

4 GOING TO COURT | Definitions

Magistrate A person with legal qualifications and relevant experience
who is appointed to hear cases in the District Court, or
courts other than the Supreme or National Courts is a
magistrate. They have responsibility for hearing evidence
and making judgements, or in committals, deciding
whether there is enough evidence to send the defendant
to trial before a judge, or for sentencing. A magistrate is
referred to as “Your Worship” if you are addressing him
or her in a court room.

No case submission This is an application sometimes made by the lawyer for

the defendant or accused at the close of the Prosecution
case. The lawyer asks the court to stop a case and
discharge a defendant or accused for reasons that the
prosecution has not provided sufficient evidence against
the accused or defendant.

Mention This is a court process when the parties decide on issues

like a plea, or a date for a trial. [Also see Listings]

Nolle Prosequi This is a process where the prosecutor presents to court a

document asking for the proceedings to be stopped. This
is not an acquittal. It means that this case can again be
taken to court if further evidence becomes available.

Not Guilty This is a plea where the defendant or accused says they
did not do what they are charged with, OR it is the verdict
given by the magistrate or judge based on the evidence
presented in the trial. It is a term that means the person
is not legally responsible for the charge or indictment.

Oath This is where a Christian person who is to give evidence

swears to God that they will tell the truth in the court.
Some of the people appearing in court, like interpreters,
may also take an oath if they are Christians. [Also see
Affirmation]

Parole This is where a prisoner serves part of the sentence in

custody and the remaining part of the sentence outside
custody. The prisoner must serve one third of the prison
sentence before being considered for parole by the Parole
Board. The Board must set conditions for the release on
parole of a prisoner.

GOING TO COURT | Definitions 5

 Plea This is the reply to the charge or indictment by the
defendant or accused, for example true or guilty, not
true or not guilty.

Police Prosecutor A member of the Royal Papua New Guinea Constabulary

who appears in a case in the District or Juvenile courts
and represents the State of Papua New Guinea in criminal
matters. The police prosecutor is there to assist the court.
[Also see Public Prosecutor]

Presiding judge This is the judge who made the decision. It is sometimes
also referred to as the trial judge.

Pre-Trial Conference This is a court process where all parties appear before a
judge or magistrate and discuss issues that will be raised
at the trial. It can also refer to a meeting between a
party’s lawyer and their witness.

Prima Facie The words literally mean on the face of it. A judge or
magistrate may make a finding that there is enough
evidence or not evidence prima facie. [Also see No case
submission]

Prisoner This is a person who has been found guilty or who has
pleaded guilty, and who is in custody awaiting sentence
by the court. It also refers to a person who has been
sentenced and is serving a period in custody. [Also see
Convict]

Probation This is a non-custodial sentencing option of a court. The

court is assisted in its decision to allow probation or not
and the conditions to apply, by the recommendations
of a probation officer’s report. The person on probation
will be supervised by a probation officer or a voluntary
probation officer.

Public Prosecutor This is the government lawyer who is responsible for the
prosecution function of the State. There are no fees for
this service. [Also see Police Prosecutor]

Public Solicitor This is the lawyer provided by the government to defend

or represent the defendant or the accused. The services
are generally free but there may be cases where a small
fee is charged for the services provided.

6 GOING TO COURT | Definitions

Punishment The sentence or other form of penalty that is given to
a defendant or accused by the court is known as the
punishment. It could include a good behaviour bond, a
probation order, a fine, or a prison sentence. A court
can also order “restitution” to be paid to a complainant
for expenses such as the value of the item stolen, the
medical or dental expenses incurred in an assault, and
where the complainant suffers financial loss in other
offences.

Remand Where a defendant or accused is in custody or on bail

and awaiting trial or sentence, this is known as remand.

Remandee The defendant or accused who has been remanded in

custody or on bail and awaiting trial or sentence is known
as the remandee.

Respondent This is the person or party against whom an appeal case

is made.

Schedule 2 Offence These are serious offences that can be dealt with by a
Grade 5 magistrate in the District Court when a police
prosecutor has filed an election certificate with the court.
For information and examples of these offences, refer to
the Criminal Code Schedule 2FS. [Also see Indictable
offence]

Sentence This is the sentence of the court about penalty. A

magistrate or judge has many options available as to the
penalty from good behaviour bond, probation, to a fine,
restitution, and/or imprisonment. The prosecutor can
tell the magistrate or judge a victim’s or complainant’s
concerns regarding a sentence. The defence can tell
them the concerns of the accused or defendant. It is up
to the judge or magistrate to decide the terms of the
sentence.

Statement of Facts [See Brief Facts]

State Prosecutor In criminal courts, this is a lawyer who works for the
Public Prosecutor’s Office. [Also see public prosecutor]

Submissions This can be oral, or written, or both forms of argument

and /or information put to a court on points of law or facts.
Submissions are also made on verdict or sentence.

GOING TO COURT | Definitions 7

 Subpoena [See Summons]

Summary of Facts [See Brief Facts]

Summary Offence An offence that is dealt with in the District Court by a

magistrate is a summary offence.

Summons This is a legal document used to direct and compel the

named person to appear in court at a particular time,
date and place for giving evidence or producing evidence
to the court. If the person named fails to attend court,
he or she may be subject to arrest if the court issues a
warrant. This document may also be called a subpoena.

Trial This is the process where a court examines evidence and

the judge then makes a decision on the guilt or otherwise
of the accused based on the facts presented and the
appropriate laws involved.

Trial Date This is the date on which the trial will be starting.

Verdict This is the decision of the court after considering the

plea of the defendant or accused, the facts, the laws
involved, and submissions of lawyers or prosecutors.

Victim This is a person who has suffered harm, including

physical, sexual, financial, or mental injury, loss of
property or other economic valuables as a result of an
offence against the criminal law. The term is relevant
whether or not a suspect is charged with or convicted of
any offence. [Also see Complainant]

Village Court Village Courts are established under the Village Courts
Act. There are limitations on the type of cases that can be
heard in the Village Courts. For example, serious assault,
sexual offences, and other crimes cannot be heard by
the Village Court magistrates, but the cases get referred
to the police. Some examples of cases that the Village
Courts can deal with include minor assaults, breach
of the peace, drunkenness, public nuisance, stealing
from gardens, or destroying fences around a piggery or
poultry. Appeals against decisions of the Village Courts
are made to the District Courts.

8 GOING TO COURT | Definitions

Voire dire This is a trial within a trial where the defendant or
accused challenges certain aspects of the evidence to be
presented by the State.

Warrant of Commitment This is a paper directing the Correctional Services

personnel to keep a convicted prisoner in custody in
order to serve a prison term.

Warrant of Remand This is a paper authorizing the detention of a defendant

or an accused in custody for a specific period.

Witness There are different types of witnesses. The main type is

an eye witness who gives evidence in court about what
they have seen when an offence is committed. Other
types may include expert witnesses such as a medical
doctor who may give evidence on the conduct of a post
mortem or a police officer involved in the apprehension
of a suspect. A witness will make an affirmation or swear
an oath that the evidence they give to the court will be
the truth.

GOING TO COURT | Definitions 9

 Abbreviations Used in Court Documents

CBC Community Based Corrections / Probation Office

CB No. Charge Book Number

CCA Criminal Code Act

CR No. Crime Report Number [National Court]

CS Correctional Services

DC District Court

DC No. District Court Number

FC Family Court

JC Juvenile Court

JCO Juvenile Court Officer

MP No. Miscellaneous Proceedings Number

MS Magisterial Service

NC National Court

OB Occurrence Book [RPNGC document]

PP Public Prosecutor

PPO Public Prosecutor’s Office

PS Public Solicitor

PSO Public Solicitor’s Office

RPNGC Royal Papua New Guinea Constabulary

SC Supreme Court

SC No. Supreme Court Number

SCAPP No. Supreme Court Application Number

SCRA No. Supreme Court Reference Appeal Number

SCR No. Supreme Court Review Number

St-v- State against [versus]

VIS Victim Impact Statement

10 GOING TO COURT | Abbreviations Used in Court Documents

Major Legislation in Criminal Cases

Arrest Act, Chapter 339 of 1997

Bail Act, Chapter 340 of 1977

Constitution of the Independent State of Papua New Guinea,

Chapter 1 of 1975

Criminal Code Act, Chapter 262 of 1974

District Court Act, Chapter 40 of 1963

Evidence Act, Chapter 48 of 1975

Juvenile Court Act, Chapter 40 of 1991

Lukautim Pikinini Act, No. 15 of 2007

National Court Act, Chapter 38 of 1975

Supreme Court Act, Chapter 37 of 1975

GOING TO COURT | Major Legislation in Criminal Cases 11

 Juvenile Court

For the purpose of this court, a juvenile 1. What is the layout of the court?
is defined as a child between the age of
7 and less than 18 years of age. If you There may or may not be a dock in
have been requested or summonsed by which the juvenile defendant sits. Also,
the Juvenile Court or the police to attend there may or may not be a witness box
as a witness in court, there are several in which a witness will sit. Where this is
things you need to know. The summons the case, the defendant and the witness
may tell you the place, time and date, will sit on chairs on opposite sides of
but police will also be able to tell you the court. The defendant may sit on the
where the court is if you are unsure; right side of the bar table as seen by the
that may happen if you witness a crime, magistrate. The witness may sit on the
or you are a victim of crime, in another left side of the bar table as seen by the
place rather than where you live or magistrate.
work. There are some important points
to know about the juvenile court.

Drawing of a typical Juvenile Court.

12 GOING TO COURT | Juvenile Court

2. Who are the people in the court • A witness – including a victim - will
and what do they do? attend the court as required by the
prosecutor and give their evidence.
• There will be the magistrate, who
controls the court. • If the juvenile defendant is on
remand in a CS facility, he or she will
• The prosecutor (usually a police be guarded by CS personnel. If the
prosecutor) will present the case juvenile defendant is on remand in a
against the juvenile defendant for the juvenile remand centre, then an officer
informant. of the remand centre will accompany
them. If the juvenile defendant is on
• The defence lawyer (either a private bail, he or she will just walk into the
lawyer or from the Public Solicitor’s court and sit on the chair, when their
Office) will represent the juvenile name is called. A parent or guardian
defendant either by challenging the of a juvenile will also be required to
evidence or providing facts to the attend the court regardless of whether
magistrate if the defendant pleads the juvenile is in custody or on bail.
guilty.
• Because the Juvenile Court is a closed
• The juvenile court officer is a person court, members of the public, other
who might sit with the juvenile during than the parents or guardians of the
interviews, advise the juvenile of their juvenile, will not be allowed in the
rights, or make submissions on behalf court.
of the juvenile to the magistrate. A
volunteer juvenile court officer may
attend where there is no appointed 3. What is the dress of the people
juvenile court officer. in the court?
• The juvenile defendant who is accused The magistrate will wear ordinary
of committing the crime will attend. clothes. The prosecutor will be in
ordinary clothes, not a police uniform.
• An interpreter may be present Lawyers will appear in ordinary clothes.
if language is a problem for the
defendant or a witness prefers to
All other people in the court, with the
speak in a language other than
exception of the CS personnel, will be in
English. (Most proceedings will be in
ordinary clothes. A juvenile defendant
Tok Pisin.)
on remand will wear civilian clothes.

A magistrate in the Juvenile Court.

GOING TO COURT | Juvenile Court 13

 4. General information:
The case is called by the police • If a juvenile defendant pleads “not
prosecutor. The defendant takes their guilty”, the magistrate will tell the
place in the dock. The charge is read juvenile about their right to prepare
by the court and the defendant enters their case and have their witnesses
a plea. If the plea is a “guilty” plea, the come to court on the date of the
police prosecutor reads the statement hearing to give evidence.
of facts, then both the defence and the
police prosecutor make submissions • If the magistrate makes a ruling that
on the appropriate punishment. A the charge is proven, consideration
pre-sentence report completed by the is then given by the magistrate to
juvenile court officer or the volunteer sentencing. It is up to the magistrate
juvenile court officer and given to the to decide whether on finding the
court, will also be considered in the defendant guilty, to convict and
sentencing process. The magistrate will sentence the defendant, or to
consider all submissions and ultimately make some alternative order. The
hand down their decision. magistrate will always require a pre-
sentence report for cases with juvenile
In a summary trial, the evidence is defendants.
presented and then witnesses may be
cross examined or asked questions • If the juvenile defendant pleads “not
about their story. Because people take guilty”, the police prosecutor will
an oath or affirmation to tell the truth, it present evidence through witnesses
is important that all the evidence given who may be cross examined by the
or presented is the truth. Where it is defence. Then the defence can elect
suspected that the evidence is false, the to say nothing, or give an unsworn
witness can be charged with a serious statement, or give a sworn statement
offence called “perjury”. on the case, or call witnesses to give
evidence in support of the defence case.
If the sworn statement is presented,
The magistrate considers all of the
the police prosecutor can cross-
evidence and can do one of a number
examine the witness. If witnesses
of things.
are called by the defence, the police
prosecutor can cross-examine those
• In relation to summary offences witnesses. Then submissions are
or an indictable offence triable made to the court and the magistrate
summarily, the defendant may plead decides whether there is sufficient,
either “guilty” or “not guilty”. If the admissible evidence of proof beyond
defendant pleads guilty, the facts are reasonable doubt to find the accused
read to the court, and the magistrate guilty or not guilty. If guilty, then the
asks the defendant whether he or she situation is as above. If the juvenile
agrees with the facts read out. If the defendant is found “not guilty” the
defendant does not agree with the magistrate dismisses the case and
facts very relevant to the law under the defendant is discharged.
which they have been charged, the
plea will be changed to a not guilty
plea; then there will be a full hearing
with witnesses called to give evidence
at some later date.

14 GOING TO COURT | Juvenile Court

• If the charge is for murder, rape or
other offence where the penalty is Notes:
life imprisonment or death, then
the law says that the National Court 1. Where there is no Juvenile
must hear those cases. Witnesses Court, then a Court of Summary
are generally not called to give Jurisdiction may sit as a Juvenile
evidence at a committal proceeding Court. The procedures will still be
in the Juvenile Court. The charge is the same as if a Juvenile Court
read and an explanation is given to was sitting.
the defendant about the process for 2. There are some very important
a committal proceeding. It will be provisions about the publicity of
explained that the role of the court is cases in the Juvenile Courts. If
to look at the evidence that the police a witness has given evidence in
have gathered and decide whether a case in a Juvenile Court, the
there is sufficient evidence against results cannot be published unless
the defendant. The juvenile defendant the court has authorised it. The
or their legal representative may name of the juvenile, the school
make a no case submission to the they attend, or other matters that
magistrate in relation to the case. If could lead to the identification of
the magistrate decides there is not a juvenile defendant or victim can
enough evidence, they will refuse never be published. Therefore,
to commit and the defendant will be witnesses in a Juvenile Court
discharged. However, if the magistrate should always be careful not
decides there is sufficient evidence, to talk about the identity of the
they will commit the defendant to trial defendant or the case in general
in the National Court. Bail is a matter to any journalist or author.
for the National Court to consider in
these very serious matters. 3. The right to appeal decisions of
the Juvenile Court lie with Grade
5 magistrates in the District Court
or the National Court. There is
a time period of one month in
which to lodge an appeal against
the procedures, the conviction,
the sentence or an order of the
court.

Outside the Juvenile Court

in Port Moresby.

GOING TO COURT | Juvenile Court 15

 District Court

If you have been requested or

summonsed to attend the District Court
as a witness, there are several things
you need to know. The police will be able
to tell you where the court is if you are
unsure. That may happen if you witness
a crime, or you are a victim of crime,
in another place rather than where you
live or work. There are some important
points to know about the District Court.

1. What is the layout of the court?

Drawing of a typical District Court.

16 GOING TO COURT | District Court

2. Who are the people in the court • A court attendant is there to provide
and what do they do? administrative assistance to the
magistrate (in some cases).
• There will be the magistrate, who
controls the court and hears the • A probation officer may compile a
cases. probation report that can assist the
magistrate to consider an appropriate
• The prosecutor (usually a police sentence if the defendant is found
prosecutor) will present the case guilty or pleads guilty. This may
against the defendant. The informant occur where a defendant is already
is usually the police. on probation or in special cases.

• The defence lawyer (either a private • A child welfare officer does welfare
lawyer or from the Public Solicitor’s reports and presents them to court
Office) will represent the defendant. in cases where there is a juvenile
The defendant may not have money to offender. The welfare report basically
pay a lawyer, and the Public Solicitor comprises details on the juvenile’s
may have no available lawyer to background information. This occurs
attend so the defendant can speak for only where the District Court is sitting
themselves. as a Juvenile Court.

• The defendant who is accused of

committing the crime. 3. What is the dress
of the people in the
• An interpreter may be present if court?
the defendant or a witness prefers
to speak in a language other than A magistrate will generally
English. (Most proceedings will be in wear robes. However, she
Tok Pisin.) or he may also appear
in ordinary clothes. The
• Because most courts are public, there Evidence Act makes
may be people from the media, the allowance for ordinary
general public, and other people with clothes to be worn
an interest in the case who attend by the magistrates
and sit in the court. Sometimes, a under certain
magistrate may close the court and circumstances.
order people to leave because of the
particular case.

• The defendant is seated in the dock. If

on remand, he or she will be guarded
by CS personnel. If the person is on
bail, they walk into the court and sit in
the dock when their name is called.

• There may be someone representing

the defendant, with special leave of
the court, who is not a lawyer. This
only occurs after consideration by the
magistrate.
Typical dress of
a District Court
magistrate.
GOING TO COURT | District Court 17
 Under normal circumstances, detectives At the close of the prosecution’s case,
will be in ordinary clothes; however, the the defence may make a no case to
police prosecutor, public safety officers answer submission if they hold the
or other police personnel will be in police view that there is not enough prima
uniform. facie evidence to call the defendant to
answer the charge. The magistrate will
Lawyers will be in their gowns. However, then make a ruling on whether or not
under the Evidence Act, if an application the defendant has a case to answer. If
has been successful in doing away with the magistrate rules that there is no
the formalities, lawyers may be required case to answer, the charge against the
to take off their gowns and appear in defendant is dismissed.
ordinary clothes.
If the magistrate rules that there is a
The interpreters, the support persons case to answer, the defendant can elect
and any person who has leave of the to do one of the following. The defendant
court, will wear ordinary clothes. can elect to say nothing and remain
silent, give an unsworn statement from
the dock which means they are not
The defendant will wear ordinary clothes,
subject to be cross-examined, or give a
even if on remand in custody.
sworn statement from the witness box
and be subject of cross-examination.
4. General information: In addition, the defence may call other
witnesses to give evidence in support of
The case is called by the police the defence case. Where the witnesses
prosecutor. The defendant takes their give sworn statements, they are also
place in the dock. The charge is read subject to cross-examination by the
by the court and the defendant enters police prosecutor.
a plea. If the plea is a “guilty” plea, the
police prosecutor reads the statement Submissions on verdict are then made to
of facts, then both the defence and the the court and the magistrate will decide
police prosecutor make submissions on on whether there is sufficient evidence
the appropriate punishment. of proof beyond reasonable doubt to find
the defendant “guilty” or “not guilty”.
If the defendant pleads “not guilty”, If “guilty” the magistrate passes the
the police prosecutor will open the appropriate sentence or penalty. If “not
prosecution case by presenting evidence guilty”, the case is dismissed and the
through witnesses. In a hearing, defendant is discharged.
the evidence is presented and then
witnesses may be cross-examined or The defendant in a committal case does
asked questions about their story. The not formally enter a plea in open court.
prosecution tells their story first, and The magistrate however, considers
then the defence may cross-examine whether there is sufficient evidence from
the witness. Because people take an the police hand-up brief and decides to
oath or affirmation to tell the truth, either refuse to commit, or to commit
it is important that all evidence given the defendant to the National Court for
or presented is the truth. Where it is trial before a judge. The magistrate will
suspected that the evidence is false, the only send the accused to the National
witness can be charged with a serious Court for trial if there is prima facie
offence called “perjury”. evidence. Bail may be reviewed at the
first mention in the National Court.

18 GOING TO COURT | District Court

 However, through a request of the Police
Prosecutor or a complainant, the Public Notes:
Prosecutor on looking at the evidence in
an indictable case may decide to present 1. Any magistrate may hear a
an ex officio indictment to the National committal case.
Court. In that case, the defendant may 2. Grade 5 Magistrates deal with
stand trial, and the witnesses will be indictable offences triable
required to give evidence. summarily (Schedule 2 offences
in the Criminal Code). These
In relation to summary offences, or an offences may only be dealt with
indictable offence triable summarily, by the magistrate if the police
the defendant may plead either prosecutors file an election
“guilty” or “not guilty”. If the defendant certificate with the court. If the
pleads guilty, the facts are read to the election certificate is not filed, the
court, and if satisfied, the magistrate magistrate can not deal with the
convicts the defendant. Then there is case.
consideration by the magistrate of the
good things about a defendant that can 3. The right to appeal a decision of
help in deciding to reduce the penalty. the District Court lies with the
The prosecutor will outline the matters National Court. There is a time
the magistrate should take into account period of one month allowed to
on sentence, including the impact of the lodge the appeal from the date of
crime on the victim and the appropriate the decision of the District Court.
type and range of sentence. Either the
defendant or their lawyer may also
outline matters that a magistrate can
take account of when sentencing. Then
a decision is made by the magistrate
about the penalty.

During a typical District Court session.

GOING TO COURT | District Court 19

 National Court

If you have been summonsed by the court

or requested by the Public Prosecutor
to appear as a witness in the National
Court, there are several things you need
to know. The police will be able to tell
you where the court is if you are unsure.
You may be required to attend if you
witness a crime, or you are a victim of
crime. There are some important points
to know about the National Court.

1. What is the layout of the court?

Drawing of a typical National Court.

20 GOING TO COURT | National Court

2. Who are the people in the court attendant to remove that person from
and what do they do? the court room.

• There will be the judge, who controls • Correctional Service officers will
the court. appear in uniform with the accused,
if that person is in custody. The CS
• There will be the judge’s associate, officers escort the remandees from
who helps the judge both in the prison to the court and take them
court room and out of court by doing back at the conclusion of each day’s
research and advising lawyers of court hearing.
administrative matters. The judge’s
associate will also administer the oath • Because most courts are public, there
to all witnesses. may be people from the media, the
general public, and other people with
• A court reporter is also in the court an interest in the case who attend and
room. This person is responsible for sit in the court. Sometimes, a judge
tape recording the whole proceedings may close the court and order the public
of a court case from the start to the to leave because of the circumstances
finish. of the particular case. The Evidence
Act provides for the judge to allow in
• A lawyer from the Public Prosecutor’s some cases a person to support the
Office will present the case for the victim in court, for example by sitting
State of Papua New Guinea against near them while they give evidence;
the accused. that person will stay. The Constitution
allows for an interpreter under certain
• The defence lawyer (either a private circumstances and that person will
lawyer or one from the Public Solicitor’s stay where necessary.
Office) will represent the accused
either with challenging the evidence • The accused is seated in the dock and
if the accused has pleaded “not if on remand, they will be guarded by
guilty”, or by making submissions on CS personnel. If the person is on bail,
sentence to the judge if the accused they walk into the court and sit in the
pleads “guilty”. dock when their name is called.

• An interpreter may be present if the 3. What is the dress of the people

accused or a witness prefers to speak in the court?
in a language other than English.

• The juvenile court officer or a volunteer A judge will wear robes and a white bib.
juvenile court officer is a person who In criminal cases, judges wear red robes,
might sit with the juvenile during the and in civil cases, the robes will be black.
trial or sentence. This officer will also Judges wear white wigs. She or he will
complete the pre-sentence report on appear in those robes, but under some
the juvenile if required. circumstances, they may be required to
appear in ordinary clothes. The Evidence
• A court room attendant will be in the Act provides that in some cases a judge
court. That person calls out the names may decide that civilian clothes will be
of the people required to attend and worn by the judge. The public prosecutor
give evidence before the court. If may make an application for doing away
someone is disturbing the business with the formalities.
of the court, a judge may ask the

GOING TO COURT | National Court 21

 The judge’s associate will wear a black 4. General information:
robe and a white bib. He or she will not
wear a wig. Because people take an oath to tell the
truth, it is important that all evidence
Under normal circumstances, detectives given or presented is the truth. Where
will be in civilian clothes, other police it is suspected that the evidence is
will be in police uniform, and lawyers false, the witness can be charged with a
may be in their gowns. However, under serious offence called “perjury”.
the Evidence Act, if an application has
been successful in doing away with the • In relation to the trial, the accused
formalities, lawyers too may be required may indicate that he or she will make a
to take off their gowns and appear in plea of either “guilty” or “not guilty”.
ordinary clothes.
• If it is a “guilty” plea, the brief facts
are read to the court, and the judge
The interpreters, the support persons,
then reads the file and if satisfied of
the court reporters and the court room
the guilt of the accused, confirms the
attendants will wear ordinary clothes.
plea. The defence and the prosecutor
will make submissions as to the
The accused will wear ordinary clothes, matters the judge should take into
even if in custody on remand. account in imposing sentence. As
well, the prosecutor may present a
victim impact statement as to the
impact of the crime on the victim. The
judge will then decide the appropriate
sentence.

The National Court in Waigani, Port Moresby.

22 GOING TO COURT | National Court

• If the accused pleads “not guilty”, the
lawyer from the Public Prosecutor’s Notes:
Office who appears for the State will
present evidence through witnesses 1. In an appeal against conviction or
who may be cross examined by the sentence, the judge wears a black
defence. Then the accused can elect robe.
to say nothing, make an unsworn 2. Appeals may also be lodged in
statement from the dock, call other the National Court in regard to
witnesses to give evidence in support a decision of a District Court
of the defence case, or give sworn magistrate.
evidence. If sworn evidence is given,
the prosecutor can cross examine 3. Appeals can be made by the public
the accused or witness. After hearing prosecutor to the Supreme Court
the evidence the judge will decided in relation to sentence, but not
whether he or she is satisfied beyond conviction. However, the accused
reasonable doubt that the accused is or their lawyer can appeal to the
guilty of the offence alleged. If guilty, Supreme Court on both conviction
the judge listens to submissions by and sentence.
the defence and the prosecution on
sentence. The prosecutor may present
a victim impact statement as to the
impact of the crime on the victim. If
the judge finds the accused not guilty,
the accused is acquitted of the charge;
he or she is then set free.

• A listings court or callover is

conducted each week at Waigani. In
other centres, a callover may either
be done monthly or at the start of a
circuit. That allows the judges to hear
of the status and progress of each
case. It is also the time when judges
review the bail status of each accused
person.

GOING TO COURT | National Court 23

 Supreme Court

In a Supreme Court case, you are on the facts presented and law involved,
allowed to attend, but usually the then the senior judge reads the majority
lawyers attend on behalf of the parties verdict in the court. A time limit of 40
to the particular case. Your lawyer will days is set for the lodgement of an
be able to tell you where the court is appeal. There is a fee for submitting
being held if you want to attend and you an appeal. A person aggrieved by a
are unsure of the location. Witnesses are decision of the National Court can also
generally not called to give evidence in apply to the Supreme Court by way of
the Supreme Court. However, there may a judicial review application. This often
be instances where a person is called to occurs where the person has not filed
give evidence. This may happen where an appeal within the 40 days’ period. In
the court decides to hear fresh evidence such an application, the person or their
or evidence which for some reason lawyer must explain why he or she did
was not presented before the National not appeal within the 40 days and make
Court. a very good case to be heard in the
Supreme Court.
Judges and lawyers rely on appeal books
to present their cases in this Court. The Public Solicitor’s Office, private
Everything that happens in the National lawyers or a prisoner may lodge appeals
Court is recorded and later printed against either conviction or sentence or
so that the Supreme Court can follow both.
exactly what happened in the court
below. The Public Prosecutor’s Office, by law,
cannot appeal a conviction. However,
This court is where appeals may be the Public Prosecutor’s Office may, in
heard in respect of convictions and/ certain cases, appeal against sentence
or sentencing of criminal matters. The if it is too lenient.
Supreme Court can overturn a conviction
or sentence, or increase or decrease a In appeal cases, judges wear red robes
sentence. Where a National Court has and a white wig. Lawyers appearing in
refused to grant bail to an accused the Supreme Court wear black gowns
person, the lawyers may apply to the and a white bib. There is nothing stopping
Supreme Court for bail to be granted. an appellant from arguing his/her own
case. In such cases, he or she would
Where there is an appeal by the accused wear ordinary clothes and be invited
against a conviction or sentence, three by the court to sit at the bar table and
judges sit as the Supreme Court. present the appeal.
Each judge makes their decision based

24 GOING TO COURT | Supreme Court

Police Investigation Processes

When a crime is committed, police will and in court. Always ask the police for a
investigate it if someone reports it to copy of your statement so that you can
them. They will usually write something take it home.
in an Occurrence Book [OB] at the Police
Station, and complete a Crime Report. Sometimes, police may come across
Once police have a statement about the a crime being committed and then
complaint, they begin their investigation. they start their investigation based on
Before you sign a statement, or make what they see and hear from those
your mark on it, you should be sure that present. An important part of the police
it says what happened and also, that investigation is making sure they keep
you agree with what is written in it. If the evidence safe and available to be
you cannot read and write, you can ask presented in court. Sometimes, they can
for someone you trust to read it over to photograph the evidence and return the
you, and if you agree, you then sign it or actual property to the owner but usually
make your mark on it. they will have to keep the item to be
presented in court as an exhibit.

An important part of the investigation

process used by the police is to keep
the area where the crime happened
free from interference. Evidence can be
gathered from that crime scene and if it
is relevant, it will be presented in court.
Police will have tape or there may be
police officers who tell people they are
not allowed to enter into a crime scene
for a while. Once the police gather the
evidence, people will be allowed to go
about their business. Do not touch the
evidence. Call the police to collect the
evidence.

Language may be a problem in relation

Once police have enough information or
to what is written in the statement. It is
evidence that they can present to the
your statement, and you must be sure
court, they arrest and formally charge
that what is written is what you say or
the person or people whom they suspect
mean. Sometimes, a police officer may
committed the crime. The police officer
write something in English when you
must believe on reasonable grounds
have said something in Tok Ples. Make
that the person or people they arrest,
sure that you really do understand
actually committed the crime. In the
what has been written and that it
District Court, that person is known as
means what you said. If there is any
the defendant and in the National Court,
language difficulty, you may ask for an
that person is known as the accused.
interpreter both at the police station

GOING TO COURT | Police Investigation Processes 25

 The police or the court will decide on Before going to court, the prosecutor
whether the defendant will be allowed must check all the statements and
out on bail. There may be conditions physical evidence that the police have
attached to the bail, like staying away gathered. They will make sure that the
from the victim, or reporting regularly legal points are covered and that the
to police, or not consuming any alcohol charges are correct. Witnesses may be
or drugs; that is up to the police, or spoken to by the prosecutors, and the
the magistrates or judges to decide. If defendants or accused may be spoken
you are worried about payback if the to by their lawyers or staff of the public
defendant is released, you should tell the solicitor’s office.
police. If you fear for your safety or the
safety of your family or other witnesses If you receive a summons to appear in
when the defendant is released, you court, you must appear or you risk being
should call the police immediately so charged with an offence. Sometimes,
that action can be taken. people think that if compensation
is paid, that they do not have to go
The police also collect evidence from to court. That is not true. They still
people other than the person directly have to go to court where they have
affected by the crime, like a robbery been summonsed and the magistrate
victim or victim of any sexual assault. or judge will listen to the details of the
They interview people who know compensation that has been paid. The
something about the incident and put fact that compensation has been paid
the whole picture together. They then does not mean the case will not go ahead.
have to complete a brief with all the facts It is only a matter that the magistrate
and gather up all the physical evidence. or judge may take into account when
A copy of the file is then served on the determining sentence.
defendant. At the first available court
sitting, the defendant appears before
the magistrate.

26 GOING TO COURT | Police Investigation Processes

In some cases the judge may allow you The State will make an application for
to have a person to support you through any exhibits or property used in a trial
the court process. The magistrate or to be returned to the lawful owner. The
judge may allow that person to sit with court will make an order for the return
you when you give evidence but they of the property to the owner. If there
are not permitted to speak to you or are problems in getting any property
anyone else while doing so. Do not talk returned to the owner, a letter should
to other people, particularly those who be written to the registrar of the court
may be called as witnesses, about the in question.
case. If the defence lawyers want to
talk to you, you can tell the prosecutor
but it is up to you whether or not you
speak to the defence lawyer. You do
not have to. If you make a complaint to Note:
police about a criminal case, or if you In rare circumstances, a person may
are to give evidence in a court case, you be given immunity from prosecution for
have a right to be protected. Should any an offence. That means that the person
person make threats to you, or try to will not be prosecuted for the offence
intimidate you into withdrawing your in which they will be giving evidence
complaint or not giving evidence, you in a trial against another person. This
should talk to police or the prosecutor may happen because the evidence
as soon as possible. the person has is vital for a successful
prosecution. If there is sufficient cause
Police may be involved in taking victims/ for immunity to be granted, the public
witnesses to and from the court. The prosecutor may decide to grant it. The
RPNGC personnel will make any travel public prosecutor is the only person
and accommodation arrangements from who can grant immunity; other officers
another province or district if necessary. of the Public Prosecutor’s Office may
The police budget allows for those make recommendations only.
expenses to be met. However, there is
NO allowance paid to witnesses.

Investigation Process:

GOING TO COURT | Police Investigation Processes 27

 Preparation of the Victim or Witness for
their Appearance in Court
Either the police prosecutor or the lawyer in the court. The prosecutor can also
from the Public Prosecutor’s Office ask for a screen to be placed between
will need to talk to a victim or witness the accused and the witness so that
before the court case. They may go victims or witnesses do not have to look
over your statement with you and ask at the accused or defendant while they
you questions to make sure that they tell their story to the court.
understand what actually happened, or
understand what evidence you will be There is a process in giving evidence.
giving to the court. Depending on time Witnesses are not allowed to sit in the
available, some prosecutors may even court and listen before giving their
take you to the court to show you where evidence. A court attendant will call
everyone sits, and where you will sit on the witness’s name three times to get
the day. them to go into the court room. After
an oath to God is taken to tell the truth
During the time the prosecutors are (or take an affirmation if someone is a
talking with you, if you tell them things non-Christian), the witness will sit down
that are relevant to the case, but that in the witness box. First the witness tells
are not in your statement, they may their story and the prosecutor will ask
need to get that information from you by questions. Then the defence may ask
having you give an additional statement. questions of the witness about the story
You might want to give them things like that was told to the court. They do that
a clinic book, or other documents that to compare what the accused person or
were not available when you first talked defendant has said to them as his/her
to police. They need to take a record of representative, and what the witness
that. says happened at the time.

Prosecutors may also ask you to take The defence lawyer then finishes
them to the crime scene to show them asking questions of the witness and the
where and how the crime happened. prosecutor continues, if she or he needs
Courts may also ask to be taken to to get any further explanation of the
the crime scene so that the judge or story. Once the prosecutor has finished
magistrate has a deeper understanding this re-examination, the judge or
and appreciation of what actually magistrate may also ask some questions
happened. of a witness. The reason that happens
is for the magistrate or judge to gain a
If a witness needs an interpreter for any deeper understanding and appreciation
part of the process, it is important to of the facts of the case.
tell the police or prosecutor well before
hand. The interpreter must be someone When giving evidence, a witness will
who knows the witness’s or victim’s Tok need to speak loudly so that everyone in
Ples and English so that they can tell the court can hear what is being said. If a
the police or court what is being said. witness does not understand a question,
or can not hear a question, they can ask
Under the law, a judge or a magistrate for it to be repeated or explained further.
may allow a witness in certain If the magistrate or judge talks
circumstances to have a person to
support them while they give evidence

28 GOING TO COURT | Preparation of the Victim or Witness for their Appearance in Court
 to a witness, look at them, and answer the
question. A magistrate is called “Your
Worship” and a judge is called “Your
Honour”. If a witness forgets those
terms, they may say “sir” or “madam”,
depending on the sex of the magistrate
or judge.

When coming to court, a witness should dress

in clean, neat clothes with clean teeth and
combed hair. Witnesses must wear footwear.
Because the length of time a witness has to
stay at the court is unknown, they may want
to bring some water to drink and some food
for lunch. However, they can not take a bilum
into the court room before it is screened by
security personnel. Also, the courts do not
want to hear mobile phones ringing so you
are to leave them switched off while in any
court room. As well, children and babies
should be cared for by someone so that they
are not in court and making noise by playing
or crying.

After giving evidence, a witness may be

excused by the court. At that time, they
can either sit in the court room and listen to
what is said, or they can leave. Once they
have given evidence, they are not allowed
to discuss the evidence they have given with
any other witness still to be called to give
their evidence.

Remember, that if a witness changes jobs

or their addresses, they should advise the
police immediately. The witness should try
to contact the investigating officer, but if that
is not possible, they should advise the police
prosecutions office; if the case has already
been committed for trial, then the witness
should advise the Public Prosecutor’s office
staff of the change of details.

GOING TO COURT | Preparation of the Victim or Witness for their Appearance in Court 29
 Victim Impact Statements

Under the amendments to the Criminal

Code, a victim can tell the court about
how the crime has affected them. It can
be done in any of three ways. The first
is by the prosecutor’s submission to the
magistrate or judge, the second is sworn
evidence by the victim as a witness
at the sentencing, and the third is by
completing a victim impact statement
[VIS]. Refer to “Appendix B” for notes
on the VIS.

30 GOING TO COURT | Victim Impact Statement

WITHDRAWAL OF CHARGES

When an investigation is done by has been charged and there has been
police, and where evidence exists, the intimidation of the witness, the charges
police may arrest and charge a person should still proceed. It is not up to the
with an offence. Once that is done, the complainant or witness to withdraw the
charges cannot usually be withdrawn. charges; only a police prosecutor, with
For example, payment of compensation approval of their senior personnel, may
cannot be used as a reason to withdraw withdraw charges in the District Court. In
charges. Payment of compensation the National Court, the public prosecutor
does NOT mean that the charges are may authorise the prosecutor handling
withdrawn. the case to withdraw a charge.

Payment of compensation or interference On some occasions, a prosecutor may

in other ways, may be deemed to be present a nolle prosequi, if evidence is
perverting the course of justice. That not available to present to the court.
is a very serious criminal offence. The In that case, when evidence becomes
payment of compensation only means available a prosecutor may reopen the
that a prosecutor can tell the magistrate case.
or judge about the compensation
payment or other restorative justice If a victim or any other witness is forced
process; the judge or magistrate will by anyone to sign a statement saying
consider those facts when sentencing that the offence did not happen, or that
the prisoner, when he or she is found they did not wish to go ahead with the
guilty. case, they should immediately tell the
police or the prosecutor.
If it is a family or clan member who

GOING TO COURT | Withdrawal of Charges 31

 Appendix A

Information for victims of family or sexual violence

going to court

What types of criminal offences are covered by the term

“family violence”?
Family violence includes those offences where a member of the family, often
the husband or wife, or partner, commits the crime or breaks the law where
another family member is the victim. It can include offences committed by
children, or other relatives like parents, uncles, aunties, brothers, sisters,
grandparents, or step-parents on another family member. The types of
offences covered include common assault, serious assaults like bodily harm
or grievous bodily harm, unlawful wounding, attempted murder, murder,
manslaughter, OR stealing, fraud, wilful damage, or wilful destruction of the
victim’s clothing, money or other property. It is sometimes done when no
one is watching.

What types of criminal offences are covered by the term

“sexual violence”?
Such crimes as rape, sexual penetration of a child, sexual touching of a
child, sexual assault, sexual offences against the order of nature, incest,
indecent acts directed at a child, persistent sexual abuse of a child, obtaining
the services of a child for prostitution, offering or engaging a child for
prostitution, and receiving a benefit from child prostitution are covered. But
there are many others. [See also Appendix C regarding consent.]

What do I need to do if I have been a victim?

Sometimes, you would have been examined by a health officer or doctor.
Then you probably were interviewed by police and made a statement to
them. After making sure the statement is correct, you should sign the
statement, or make your mark on it. Police will give you a copy of that
statement and you should keep it with your important papers. When the
police have enough information to charge the suspect, they arrest the
person whom they believe committed the crime.

That person is then either kept in the police cells, or bailed to appear in
court at another time. If the person is kept in the cells, they must be taken
before a court at the first available time. However, even though the person
is arrested, the police may still be collecting evidence, and interviewing
people who may know something about the crime. If you fear payback for
reporting the matter, tell the police as soon as possible. The police will tell
you about court dates.

32 GOING TO COURT | Appendix A

What if the accused person admits to committing the crime?
That person will still have to go to court. They can then plead “guilty” and the
magistrate or judge sentences them for the offence. The accused person can be
given a good behaviour bond, or probation, or a fine, or be sent to prison. The
law sets out what the penalties may be for any given offence. In the District
Court, the defendants will possibly not be helped by a lawyer. In the National
Courts, the accused will either be assisted by the Public Solicitor or a private
lawyer to defend the charge.

Will the accused person be kept in prison until the court case?
Not always. For some sexual offences, the law does allow for the police to grant
bail to them when they are first arrested. For other offences, the court may
decide at a bail hearing or listing. Usually, the police or the courts may set special
conditions if they let an accused person out on bail. They may make the person
report to police on a regular basis, they may prevent the person visiting certain
people (usually state witnesses), or they may ban the consumption of alcohol
or drugs by that person; there are many conditions that the police or courts can
impose. If you as a witness or victim have concerns about the accused person
harming you, tell the police immediately.

How do I know when I will have to go to court?

The police will contact you and let you know. It may be that you will be asked
to visit a prosecutor before the case so that you can talk about the evidence
(that is your story about what happened) you will give. You may have received
a summons. The summons is an order to attend at the court, and if you fail to
attend, you can be arrested and brought to the court to give the evidence. After
that, you may be charged with an offence. Sometimes, the prosecutor may not
call you to give evidence in court, even after interviewing you – and even if you
are at the court house.

Who pays my travel and accommodation if I have to go away from

home to the court?
It is the duty of the police to find you and bring you to court. You have to be
available to go to court. But sometimes there is no money in the police budget to
pay the costs. You may be requested to fund your own way to court.

What is my role in the trial process?

The police prosecutor or the lawyer of the Public Prosecutor’s office will call you
to give evidence of the offence committed in court. There are no fees for this
service.

Generally you will be spoken to by a prosecutor before the trial. The police will let
you know the timing. Remember, if you move house or change contact details,
you must always let the police know so that they can find you for the trial. It is
hard for the police or prosecutors to work out the timing of trials, so they may not
be in contact with you until just a day or two before the trial.

GOING TO COURT | Appendix A 33

 On the day of the trial, you wait outside the courtroom until your name is called.
You will be taken inside and shown where the witness box is; that is where you
will sit to tell your story. Where the witness is a child or a victim of a sexual or
violent offence, the judge or magistrate may direct the court room be cleared of
non-officials. It is a matter for the magistrate or judge to decide.

You will be asked questions that may be upsetting or embarrassing. But, you must
give all the details of the crime to the court. You must consider the questions
carefully, and speak loudly. If you do not understand the question or you cannot
hear clearly, then you may ask for the person to repeat their question, or ask
them to explain it to you.

Once you have finished telling your story and questioned by the lawyer for a
defendant or accused, you are free to go or stay. Then, you can leave the court.
Make sure that you are able to be contacted in case the prosecutor needs to get
you back for some reason. You can stay in the courtroom and listen to the rest
of the trial, the verdict of guilty or not guilty, and the sentencing – if it happens
that day.

What exactly do I have to tell the court?

You will have to take an oath to God on a bible, or an affirmation, to tell the truth
about the offence. Then you introduce yourself. The prosecutor will ask you to
tell the court what happened. When you tell your story you will have to speak
loudly so the people in the court can hear you. You must say everything about the
offence that you are asked by the prosecutor. Because courts deal with many of
these types of offences, the judge or magistrate will not be worried if the things
you say are very personal.

What about children telling their story in court?

Children can tell their story in court. However, before going to court the prosecutor
will ask the child some questions to make sure that the child knows the difference
between the truth and a lie. If the court is satisfied that the child knows that they
could be punished for telling lies to the court, they will be allowed to tell their
story.

Can they ask me about my previous sex life?

When the offence is a sexual offence, questions about your sex life are not usually
allowed. Also, the complainant in a sexual offence shall not be questioned about
their sexual activities, unless the magistrate or judge allows it. There are special
circumstances required before the judge or magistrate will allow it but generally
the questions have to be specifically about the offence being considered by the
court.

Can the accused directly ask me questions in the court?

The lawyer for the accused may ask you questions. If you are under 18 years
of age, or the trial is about a sexual offence, then the accused is not allowed to
ask you any questions himself or herself, but may ask questions through their
lawyer.

34 GOING TO COURT | Appendix A

Do I get paid for going to court?
No, you do not get paid. Our PNG legal system is based on cooperation. Be sure
to bring some water and food (and reading material) in case you are required to
sit at court for a whole day.

What about talking with other people about the trial and what I am
going to say?
It is suggested that you talk to the prosecutor as soon as possible if you are
approached, before talking about your story. You can talk with any other person,
but not with other witnesses or people who may be called to give evidence in that
particular trial. You may choose to speak to the defence lawyer but you do not
have to.

What about compensation?

You should never try to settle the matter by compensation payments. If you or
your relatives do receive payment of compensation from the accused or their
family, then you report all the details to the prosecutor or police. The magistrate
or judge can listen to the details of compensation payments and consider that
when sentencing the accused. Compensation cannot be used to avoid giving
evidence, or to have charges withdrawn.

What if I am frightened by the accused or worry that I will be

attacked if I give evidence?
In Papua New Guinea, there is no witness protection program at this time. You
should tell the police or the prosecutor if you are frightened of payback. When
an accused is on bail, if approaches are made by them to the witness to withdraw
the charges, or if the accused is interfering with or threatening the witnesses, the
prosecutor can make an application to the court to have the bail revoked. That
may mean that the accused waits in prison, on remand, until the case is heard in
the courts.

What are some reasons the accused is discharged or found not

guilty?
Many things are thought about when deciding guilt or innocence. It may be that
the evidence was not strong enough, or that some evidence was disallowed, or
some other legal reason. It does not necessarily mean the magistrate or
judge didn’t believe you. The judge or magistrate will usually give reasons for
their decision.

GOING TO COURT | Appendix A 35

 Can the court make it easier for me to tell my story?
Yes, the law says that where a witness is under 18 years of age, or in cases of
sexual offences, or for crimes of violence, some changes can be made. However,
it is always a matter for the magistrate or judge to decide. You do not have to ask
for the changes, you tell the prosecutor and they ask the court for the changes
to happen. The changes that can be made, while the witness gives their story,
include:

• The use of a screen or other way to stop the witness from seeing the
accused; (For example, if you are not feeling good about telling your story,
the prosecutor may ask for a screen to be placed between yourself and the
accused so that you do not have to look at him/her.) and/or
• The presence of a support person chosen by the witness to sit with them; (For
example, sometimes the judge or magistrate may allow a support person to
sit in the court with you while you tell your story. Tell the prosecutor if you
are feeling anxious or upset or worried. The police who dealt with your case
will be there. Someone from a support centre at a hospital may also attend
if you need them and have trust in them.) and/or
• Having the judge or magistrate dress in ordinary clothes; (For example,
if you feel uncomfortable about the way the officials are dressed, you can
tell the prosecutor how you feel and how it will affect the way you tell your
story. The prosecutor can ask for things to change.) and/or
• Changing the seating positions for people in the court; (For example, the
judge or magistrate can make changes to where people normally sit in the
court.) and/or
• Changing the place where the court is sitting; (For example, the magistrate
or judge may decide to move the court to another building.) and/or
• Not allowing other people in the court room; (For example, the judge or
magistrate will tell some people they must leave the court while the witness
is telling their story.) and/or
• Having another person explain the questions and answers of the witness
in a language that the witness understands; (For example, a person who
can explain the questions and answers in Tok Ples, or in Tok Pisin, or some
other language will be used to help the court hear the story of the witness.)
and/or
• Using television or other ways. (For example, the witness will be in a place
and the court is in another place so television or other ways will be used to
tell the story so the court can hear it.)

36 GOING TO COURT | Appendix A

Appendix B

Victim impact statement

Introduction:
The law allows for victims of offences in Papua New Guinea to tell the courts
how they have suffered from those offences committed against them. One
way to do that now is through a victim impact statement [VIS]. The law
allows for that. If for any reason, the victim cannot do that, then some
other categories of people identified in the law, may make the statement
[VIS]. Those other people include the wife or husband of the victim of the
victim, or any other relative of the victim, or any person who has custody of
the victim, or someone who has responsibility for the care or support of the
victim, or any dependent of the victim. The VIS means that victims have a
chance to take an active part in the criminal justice process [Section 21 of
the Criminal Code].

There are two other ways for a court to hear about how the offence affected
a person – with or without a VIS. The other ways are:

• Prosecutor’s submissions. With or without a VIS, the prosecutor

tells the court about the harm that has been done to or the loss
suffered by the victim; OR
• Sworn evidence. With or without a VIS, the prosecutor calls a victim
as a witness at the sentence hearing. The victim is then asked about
how the offence has affected them in regard to the harm done or loss
suffered.

So, what is a VIS?

A VIS explains to the court the harm done or loss suffered by a victim. It
is a written statement signed by the victim or one of the people mentioned
above. It is given to the court before the offender is sentenced and when
found “guilty”.

Will a victim be awarded compensation or payment if they

make a VIS?
That is a matter for the court to decide.

How does a victim make a VIS?

They tell the police or public prosecutor all the details. It has to be completed
in writing and it has to be filed with the court. It must be signed by the
victim or person who actually makes the statement. If a person cannot sign
the document they can make their mark on it. Remember, a victim doesn’t
have to describe how the offence happened—the prosecutor will do that.
The victim just talks about how the offence has affected their life.

GOING TO COURT | Appendix B 37

 Who can make a VIS?
The law says that the only people who can make a VIS are:

• the actual victim; or, if the actual victim is dead, sick, or not able to make
a statement, then
• a husband or wife; or
• a dependent; or
• other relatives; or
• a person who has custody of the victim; or
• a person who is responsible for care or support of the victim.

What information should be included?

Include details of any physical injury, emotional harm, financial loss, or other loss
or damage a victim has suffered as a result of the offence.

• If there were physical injuries, describe the injuries, the pain suffered, the
medical treatment received at the time, any ongoing treatment and any
long-term physical effects. Outline any permanent physical injuries.
• If there was also emotional harm, it is important to describe how the victim
felt at the time of the offence and afterwards, if possible. It is also necessary
to explain how one’s way of living, whether one feels good about themselves,
and how their relationships with other people have been affected by the
offence. Here, a victim may include any details of counselling or medical
advice received as a result of the offence.
• If there has been any financial loss suffered, explain how this has happened—
how the capacity to earn money has been reduced, for example. It is also
important to explain any additional expenses such as medical, dental, or
counselling costs, or the cost of repairing damage to property or replacing
stolen items.
Documents, such as medical reports and receipts, may be attached if they support
the story in the VIS. Everything in the VIS must be true, as well as being about
the offence for which the accused has been found guilty.

Should a victim tell the magistrate or judge what the punishment

should be?
No. It is not proper for the victim to comment on how the offender should be
punished. The harm done to or loss suffered by the victim is only one piece of
many things the judge or magistrate must consider when passing sentence.

Will a victim have to read the VIS out in court?

No. The prosecutor gives the statement to the judge or magistrate. The prosecutor
may read out sections of the statement or draw the magistrate’s / judge’s attention
to particular points in the VIS.

38 GOING TO COURT | Appendix B

Will a victim have to go to court if they make a VIS?
Not necessarily. However, the lawyer representing the accused in court may want
to question the victim about their statement. The prosecutor – sometimes through
the investigating police – will tell the victim if they are required to attend court.

Who will see the VIS?

Obviously, the prosecutor preparing the case will read the statement. If a copy of
the VIS is given to the judge or magistrate, it must also be given to the defence
lawyer. The accused will read it if they can read, but their lawyer will usually
explain it to them.

Does a victim HAVE to make a VIS?

No, it is their choice. However, it is important for victims to participate in the legal
process so that they can attempt to achieve some just results. If a victim decides
not to make a VIS, they can still tell the prosecutor about how the offence has
affected them. It is important for the courts to hear about the impact of offences
on victims and consider that when passing sentence; that is why parliament
passed this legislation.

An example is provided of the suggested content for a VIS on the next page.

GOING TO COURT | Appendix B 39

 VICTIM IMPACT STATEMENT

Name: Insert Name

The victim must be informed:

• that the information is being gathered for submission to the judicial officer sentencing the
offender if the accused is found guilty or pleads guilty;
• that the information must be true;
• that the information must be recorded and may be verified in the manner set out at the
bottom of this form; and
• about who may properly see or make or keep copies of the information ascertained, and
about the orders, directions, and conditions, relating to disclosure and distribution of it
that may be made.

Statement to take story form and to cover the following:

Victims details if appropriate

- e.g. age, occupation, sex, living arrangements/marital status, relationship to offender (if
any), ethnic origin.

Physical injuries
- include type and extent of injuries, long/short term effects, whether treatment/absence
from work/hospitalisation was required. Attach any medical/dental reports.

Financial costs
- include costs of treatment, replacement/repair costs, loss of wages/income, incidental
costs, funeral costs for a murder/manslaughter case, etc. Attach any receipts.

Emotional harm
- include changes in behaviour, lifestyle, personal reaction. Include details of treatment or
counselling as appropriate. Attach any relevant reports.

Any other harm or effects

Victim or other person making the VIS: OR (if it is not practicable for the victim to sign):

I have given the information in this Victim Impact I have advised the victim that the information in
Statement knowing that it is for submission to the this Victim Impact Statement is for submission
judicial officer sentencing the offender and know that to the judicial officer sentencing the offender
the information must be true. The information is true to and that the information must be true. I have
the best of my knowledge and belief. I make it knowing read it to the victim and am satisfied that the
that if it is tendered in evidence, I will be liable to victim approves of it. I make it knowing that
prosecution if I have knowingly stated anything that is if it is tendered in evidence, I will be liable to
false or misleading in any particular. prosecution if I have knowingly stated anything
that is false or misleading in any particular.
Signature/Mark: (victim)
Signature:
Name: (printed)
Name: (printed)
Date:
Designation: Date:

40 GOING TO COURT | Appendix B

Appendix C

Consent
Rape is defined in Section 347 of Papua New Guinea’s Criminal Code. The
crime of rape is that a person sexually penetrates another person, without
that other person’s consent. The meaning of consent is set out in Section
347A of that same law. It says that “consent” means happy and willing
voluntary agreement. Then the law explains situations where a person does
NOT consent. They are –

(a) the person gives in because of the use of violence or force on

themselves or someone else; or
(b) the person gives in because of threats against themselves or someone
else; or
(c) the person gives in because of fear of harm to themselves or to
someone else; or
(d) the person gives in because he or she is held against their will; or
(e) the person is asleep, unconscious or drunk or drugged; or
(f) the person is unable to understand the nature of the act or of saying
they are unwilling to take part in the act due to mental or physical
disability; or
(g) the person is mistaken about the sexual nature of the act or the identity
of the person; or
(h) the person mistakenly believes that the act is for medical or health
purposes; or
(i) the accused abused a position of trust, power or authority; or
(j) the person agrees then says no by words or actions;
(k) the agreement for sex is by the words or actions of a person other than
the victim.

The judge or magistrate will still have to consider other issues like whether the
victim did not say or do anything to indicate consent to sex. That is normally
enough to show that sex took place without the person’s consent. Also the
person is NOT REGARDED AS CONSENTING to sex just because:

(i) they did not physically resist; or

(ii) they did not receive physical injury; or
(iii) then or before they freely agreed to engage in sex with that person
or some other person.

It is not a defence to a charge that the accused believed the person consented
to the activity that forms the subject matter of the charge where:

(a) the accused’s belief arose from –

(i) being drunk; or
(ii) not caring; or

(b) the accused did not try to find out whether the person was consenting
or agreed.
GOING TO COURT | Appendix C 41
 What you should know about consent?

What is consent?
• Consent means that everyone has the right to say yes or no.
• Consent means no one has the right to have sex with someone until and
unless that person says yes.
• Consent means two people have agreed to have sex, in the same way, at the
same time, with each other.

Types of consent
• Consent may be for only certain types of sexual activity, but not others.
• Consent to one type of sexual activity does not mean consent to another type
of sexual activity.

Examples of what consent means

• A sexual partner should not think they know what the other partner does or
does not want.
• A victim does not need to show the other person or persons used force.
• There is no duty for a victim to fight off or resist the attacker.

When to give consent

• Consent must be given before or at the same time as the sex takes place.
• Consent may be withdrawn at any time, as long as it is made clear.

How consent can be given

• Consent may be given by words or action.
• The person must say “yes” for the sex to occur.

Examples of where there is no consent

• Silence is not consent.
• Just allowing someone to sexually touch another is not consent.
• Failing to stop the attacker is not consent.
• When it has been forced or threatened or given by a mentally or physically
disabled adult or child is not consent.
• Physically allowing another person to touch him/her is not free consent.

Thoughts or beliefs about consent

• Simply because someone wants to be alone with you does not mean they
agree to sex.
• Simply because someone kisses you does not mean they consent to sex.

“No means no”

• Consent can be withdrawn at any time, as long as it is made clear.
• “No” means it is time to back off completely.
• Continuing to push ahead after “no” may be forcing the other person against
their will.

42 GOING TO COURT | Appendix C