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Table of contents

• Challenges to decisions of England and Wales magistrates' courts - Wikipedia
• How To Submit Your Article:
• Going to court
• GOING TO COURT? 10 ESSENTIAL TIPS

You have a choice. You may go into the witness box and give evidence on oath and be cross-examined like any other witness, and you may call witnesses in your defence — but you are not obliged to do this: you do not have to give or call any evidence. Instead, you may remain silent, or you may make an unsworn statement to the court. Whichever you decide, you may address the court before the court makes a decision on the evidence.

The Magistrate must then ask the defendant —. In criminal cases, the accused has a constitutional right:.

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The right does not extend to the Village Court: see 3. Legal representation for the accused provides essential protection for the rights of the citizen in a legal system where prosecution and defence are adversaries, and the resources of the state are available to one side only. As discussed in Chapter 2. An accused unskilled in the art of questioning is at a serious disadvantage. So also is an accused who is unaware of the intricacies of the law and procedure. The District Courts Act goes further than the Constitution. It provides that a party, whether in a criminal or a civil case, is entitled to be represented by a lawyer if they wish, or, as discussed below under 3.

In the Village Courts, a party to proceedings in criminal, civil or enforcement matters is not entitled to legal representation, but may be represented by any other person: see 3. The usual rules of statutory interpretation would have the effect of permitting a party to be represented by a lawyer or any other person in relation to these three jurisdictions. In other cases, a Local or Provincial Land Court may permit a group to be represented by a member of the group. Representation by a lawyer is of great assistance to a party and may also facilitate the work of the court.

Legal representation gives a party a distinct advantage. If only one party to a dispute has a lawyer, the Magistrate may be obliged to ensure that the unrepresented party is not unfairly disadvantaged. The Magistrate should know what are the limits of acceptable conduct on the part of members of the legal profession. While a lawyer is engaged to represent his or her client as a party with determination and without fear, the legal training and practical skills that the lawyer brings to the court can be of great assistance to the Magistrate in the conduct of the case in hand.

In appropriate cases, the lawyer will clarify the issues of fact and law, and may present argument that assists the court to reach a just decision. Further, in cases where a question arises as to whether custom applies, counsel is under a statutory duty to call evidence and obtain information and opinion that would assist the court in determining the nature of the relevant rules of customary law, and whether or not to apply those rules in the case: Customary Law Act , s For these reasons, a Magistrate who develops good professional relationships with the lawyers appearing in a case can benefit significantly and improve the throughput of cases.

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Tactics used by lawyers, which run against the interests of justice, must be dealt with firmly as soon as they become apparent. The lawyer owes an over-riding duty of confidentiality to the client which may prevent disclosure of matters to the court unless the client agrees. These rules may be summarised as follows:. Subject to the rules, a lawyer must conduct each case in such manner as he or she considers will be most advantageous to the client. A lawyer must not knowingly deceive or mislead the court. A lawyer must appear formally and tidily dressed, act with due courtesy to the court and conduct himself or herself in a professional manner.

In cross-examining a witness, a lawyer must not question the credibility of the witness by attacking his or her character, unless there are reasonable grounds to support the line of questioning. Similarly, a defending lawyer in a criminal case must not, in a plea in mitigation, make any allegation that is merely scandalous or calculated to vilify or insult any person.

A lawyer must always exercise his or her own independent judgment as to the substance and form of statements made and questions asked in court, and, in particular, must not allow himself or herself to be the channel for statements or questions intended to insult or annoy the witness or any other person. While a witness is under cross-examination, no lawyer should communicate with the witness without the leave of the court. While a case is pending or likely to be pending before a court, a lawyer representing an interested party must not communicate with the Magistrate about the facts or issues unless he or she has first informed the other interested party or lawyer and given them the opportunity to be present.

Subject to these rules, a lawyer must defend his or her client and endeavour to protect the client from being convicted, irrespective of any opinion which the lawyer may have formed as to the guilt or innocence of that person. If a client has made a clear confession of guilt in respect of a charge before the proceedings have commenced, the lawyer may decide whether or not to act for the client.

If, however, the confession is made during the proceedings, the lawyer must continue to act for the client, on condition that a lawyer who has heard a confession of guilt must not:. A lawyer may advise the client as to the plea in a criminal charge, if necessary in strong terms, but the client must be allowed complete freedom of choice as to the plea he or she wishes to make.

How To Submit Your Article:

Similarly, while a defending lawyer may advise the client about giving evidence in his or her own defence, the client alone must decide whether to give evidence or not. The Magistrate should be aware of the special difficulty the subject of paragraphs 10 and 11 above which can arise when a lawyer is acting for someone the lawyer knows, or suspects, to be guilty of the charge. The lawyer to whom the client-defendant has privately admitted his or her guilt is bound by rules of confidentiality not to inform the court unless the defendant agrees.

It is for the court to determine the question of guilt beyond reasonable doubt, according to law. The lawyer is not a judge. That would amount to misleading the court, and is a serious breach of professional ethics. In short, the vigilance of the Magistrate is important. Their participation helps to meet the need for representation in the courts, and it also provides valuable training experience for people who have been studying law and need practical experience.

The Magistrate should always check the certification of trainees and students before they appear, and should be aware that they lack experience and may make mistakes. On the other hand, they might appreciate feedback on their performance in court, if given to them informally after the court has risen. The Magistrate should be aware that misconduct may be reported to the University Dean or to the Head of the Institute. The leave which may be granted to such a person applies only to the one sitting of the court and is limited to the one proceeding. Subject to the cautions indicated, a grant of leave may be justified in two main types of situations:.

If the party has a disability, such as one which affects hearing or speaking, or is too young, old, ill-educated or otherwise weak or disadvantaged to represent himself or herself, the Magistrate should consider the situation carefully. In the first place, the Magistrate should weigh up the considerations referred to in 3. Also, is it absolutely clear that the party wishes to be assisted by the particular person who has come forward? What is the relationship between the two?

Going to court

If a party is unable to be present at a hearing or other due date, the party may seek to arrange for a person to represent the party on a particular day for limited purposes, such as asking for an adjournment. That person must seek the leave of the court to do so, and the Magistrate has an obligation to exercise his or her discretion judicially.

Provided the Magistrate has made inquiries and is satisfied that it is proper to do so, it may be convenient for all concerned for the Magistrate to grant leave to appear on that day and for that limited purpose. With regard to the representation of companies, co-operatives and other incorporated bodies, it is wise for a Magistrate to require the representative to produce an official letter, or other authentic documentation, in order to show that the person has the authority of the senior management of the company to appear in the particular matter before the court.

A more difficult question arises where the lawyer representing a party is unable to appear on a particular day and is unable to arrange for another lawyer to appear temporarily in the matter as agent. One consideration may be whether the person attending court has the authority of the lawyer or client to make decisions about, or agree to, procedural steps which need to be taken in the case.

Remember that a Magistrate who has granted leave to a person under the District Courts Act may revoke that leave at any time, if it is in the interests of justice to do so. Further, persons other than lawyers who represent parties are not subject to professional rules. It is a breach of the Lawyers Act for persons other than lawyers to make it their practice or business to represent parties in court.

Underlying the function of the prosecution is its responsibility to decide whether or not to prosecute and to retain control of that decision. A Magistrate cannot direct that charges be laid or discontinued. Although by definition an executive act, the decision whether or not to prosecute should be exercised in a quasi-judicial way.

There is no rule that requires that suspected criminal offences must automatically be the subject of prosecution. The prosecutor has a significant part to play in the day-to-day administration of justice. At the outset, it is the duty of the prosecution to check all informations and ensure that the correct wording of the charges is used. Then the prosecutor continues to make decisions affecting the prosecution process, such as whether or not to proceed on charges laid, whether to seek amendment and whether to agree to the reduction of charges to which the defendant will plead guilty.

The Public Prosecutor and State Prosecutors provided for under the Public Prosecutor Office and Functions Act are authorised to provide prosecutorial services, but at the level of the District Court prosecution is usually handled by members of the police force. In this manual, reference to the prosecutor and the prosecution includes prosecutorial services at all levels. The duties of the prosecutor are different from those of the defendant and defence lawyer. The obligations are wider, both to the court and to the public at large.

As the prosecutor is obliged to present the case fairly to the court, he or she has greater independence from those who are instructing the prosecutor than is enjoyed by other legal representatives. The prosecutor has a discretion as to which witnesses to call, and whether to call a particular witness in a particular case.

On the other hand, there is no similar duty on the defence to disclose any details of the defence case apart from an alibi to the prosecution: Awoda v The State [] PNGLR It is well known that the prosecutor must conduct the case moderately, albeit firmly. The prosecutor must not:. For example, if the evidence of a witness is known to be unreliable, the prosecutor should not present the witness to the court as worthy of credibility. This is because the relevant information as to the reliability and background of the witnesses whom the prosecution proposes to call will be available to the prosecutor and not to the Magistrate.

It is not the function of the prosecutor to ask the court to impose a particular sentence, although it is appropriate to inform the court of such maters as the prevalence of offences of the type of which the defendant has been convicted. When the circumstances of an offence are not particularly serious, the prosecutor should assist the court with information as to alternative penalties or courses of action which might be appropriate. See Chapter 13 on sentencing. It is usual for the parties to decide whether or not to call a witness or to request the issue of a witness summons, but it is the responsibility of the Magistrate, once the witnesses are in court, to ensure that the proper procedures for giving evidence are followed so that justice is done.

Interpreters may be needed. The non-attendance at court of witnesses is dealt with in Chapter 9. While it is the duty of members of the public to come forward in the interests of justice and give evidence in court proceedings, they are entitled not to be treated unfairly in court. It is the responsibility of the Magistrate to protect witnesses, including the parties, from questioning on matters which are not relevant to the case in hand, and to ensure that witnesses understand their rights.

For example, the court should not allow questions:. Further Evidence Act provisions govern the circumstances in which the court must decide whether:. The accused is, of course, entitled not to give evidence if he or she wishes, and this is not to be taken as an admission of guilt. Members of the public are generally excluded from the youth and family proceedings courts and, although the press may attend, there are restrictions on what they can report.