Ex Parte Alios Wafing; The Queen on the Prosecution of Alois Wafing v Terrence Mitchell and Ohuma Ijahujo [1973] PNGLR 461

• Jurisdiction: Papua New Guinea
• Judge: Minogue CJ, Frost SPJ, Prentice J
• Judgment Date: 03 August 1973
• Court: Supreme Court
• Citation: [1973] PNGLR 461
• Docket Number: Regina v Mitchell and Ijahujo
• Year: 1973
• Judgement Number: FC51

Full Title: Regina v Mitchell and Ijahujo; Ex Parte Alios Wafing; The Queen on the Prosecution of Alois Wafing v Terrence Mitchell and Ohuma Ijahujo [1973] PNGLR 461

Full Court: Minogue CJ, Frost SPJ, Prentice J

Judgment Delivered: 3 August 1973

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

MITCHELL AND IJAHUJO

EX PARTE ALIOS WAFING

Port Moresby

Minogue CJ Frost SPJ Prentice J

1-3 May 1973

3 August 1973

HUMAN RIGHTS — Trial not to take place in absence of defendant — Procedure for ex Parte determination of summary offences where defendant does not appear after being served with summons — Whether procedure infringes guaranteed human rights — Human Rights Ordinance, 1971, s. 5 (2) Infra, p. 461.1, 16 (3) Infra, p. 463.2 — District Courts Ordinance, (1963-1970), s. 131Infra, p. 464.3.

Section 5 (2) of the Human Rights Ordinance 1971 provides: "Unless the contrary intention appears, whether by express inference or necessary implication, each law of the Territory, whether made before or after the commencement of this Ordinance, shall be read and construed as being subject to the provisions of this Ordinance."

Held

(By Frost SPJ and Prentice J, Minogue CJ dissenting) That s. 5 (2) embodies a rule of construction that past and future legislation is to be construed as being subject to the provisions of the Human Rights Ordinance. However, it does not operate to effect an implied repeal of an existing enacted law. If such a law cannot be construed as being subject to the Human Rights Ordinance without effecting a repeal, or without depriving that law of sensible operation, the effect of the subsection is exhausted and the prior law remains unaffected in its operation according to its plain meaning.

Section 131 of the District Courts Ordinance (1963-1970) provides inter alia that a court can hear and determine an information for a simple offence in the absence of a defendant who does not appear after being duly served with a summons. Section 16 (3) of the subsequently-enacted Human Rights Ordinance provides inter alia that ". . . except with his own consent, the trial shall not take place in (the defendant's) absence", unless his behaviour renders the continuation of the proceedings in his presence impracticable.

W. was duly served with a summons for driving a motor vehicle without being licensed for that purpose, but did not appear at court. The magistrate, considering that s. 16 (3) of the Human Rights Ordinance so required, refused to proceed to hear the case ex parte on the ground that W. had not consented to the trial taking place in his absence. On the return of an order nisi in lieu of mandamus —

Held

(1) (by Frost SPJ and Prentice J, Minogue CJ dissenting), the magistrate had erred and should be ordered to proceed to hear and determine the information ex parte.

Per Frost SPJ and Prentice J:

(2) Section 16 (3) of the Human Rights Ordinance, 1971 is not to be read so as to effect an implied repeal of s. 131 of the District Courts Ordinance (1963-1970) or to deprive it of sensible operation;

(3) Section 131 of the District Courts Ordinance (1963-1970) is not to be read and construed as subject to s. 16 (3) of the Human Rights Ordinance 1971 since a "contrary intention" appears by necessary implication. Although the right to the protection of the law as embodied in the Human Rights Ordinance might be supposed to be universally applicable, the procedure laid down by s. 131 is a well-established and unobjectionable procedure for the hearing of prosecutions for summary matters where the defendant fails to appear, and the practice does not involve a denial of the fundamental rights of the protection of the law.

Per Prentice J:

Where it is shown that a summons in due form has been duly served, and there is no appearance of the accused, the accused's consent to the hearing taking place in his absence should be inferred until the reverse is shown. This in itself constitutes a sufficient ground upon which to grant the relief sought.

Mandamus

The Secretary for Law applied to the Full Court pursuant to s. 21 of the District Courts Ordinance for an order absolute in lieu of mandamus directing the stipendiary magistrate at Goroka to proceed to hear and determine ex parte an information laid against Alios Wafing, who had not appeared even though he had been duly served with a summons for driving a motor vehicle without being licensed for that purpose. The magistrate was of the opinion that an ex parte hearing would be contrary to the provisions of s. 16 (3) (f) of the Human Rights Ordinance 1971, which provides that a person charged with an offence shall ... "and except with his own consent, the Trial shall not take place in his absence ..." and refused to proceed ex parte. The arguments of counsel, and the relevant statutory provisions, are referred to in the judgments.

Counsel

J Greville-Smith, for the applicant.

N Gregory, amicus curiae.

Cur. adv. vult.

3 August 1973

MINOGUE CJ: This was the return of an order nisi in lieu of mandamus referred into the Full Court and directed to Mr. Terrence Mitchell, the stipendiary magistrate at Goroka, and to one Ohuma Ijahujo to show cause why the former should not proceed to hear and determine ex parte an information laid before the Clerk of the District Court at Goroka charging the latter with driving a motor vehicle without being licensed for that purpose.

The defendant was proceeded against by information and summons and it was proved that the summons was served on him in ample time for him to have appeared to answer to it. He did not appear on the return date and the learned magistrate holding himself bound by s. 16 (3) of the Human Rights Ordinance 1971 refused to proceed ex parte, it not having been shown to him that the defendant had consented to the trial taking place in his absence. Section 16 (3) is as follows:

"16 (3) A person charged with an offence:

(a) shall be presumed innocent until proved guilty according to law;

(b) shall be informed promptly in a language which he understands and in detail, of the nature of the offence with which he is charged;

(c) shall be given adequate time and facilities for the preparation of his defence;

(d) shall be permitted to have without payment the assistance of an interpreter if he cannot understand or speak the language used at the trial of the charge;

(e) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or to have a legal representative assigned to him in a case where in the opinion of the court the interests of justice so require, and without payment by him in any such case if he does not, in the opinion of the court, have sufficient means to pay the costs involved; and

(f) shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution,

and, except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence."

The Crown contends that this section is not applicable in this case, that the procedure applicable is laid down in the District Courts Ordinance and that the learned magistrate in the proper exercise of his discretion should have proceeded ex parte to hear the case against the defendant.

The question thus raised is one of some difficulty. Before the enactment of the Human Rights Ordinance the procedure in default of appearance was governed by s. 131 of the District Courts Ordinance which reads as follows:

"131. If, at the time and place appointed by a summons for hearing and determining an information of a simple offence, the defendant does not appear when called, and proof is made to the court upon oath, or by deposition made as prescribed by section 55 of this Ordinance, of due service of the summons upon the defendant a reasonable time before the time appointed for his appearance, the court may either:

(a) proceed ex parte to hear and determine the case in the absence of the defendant; or

(b) upon oath being made before it, substantiating the matter of the information to its satisfaction, issue its warrant for the arrest of the defendant to bring him before a court to answer to the information and to be further dealt with according to law."

The section appears to be a direct transcription of s. 142 of the Justices Act of Queensland 1886-1949 which in turn is taken from the English Summary Jurisdiction Act of 1848. If under this section a court proceeds to hear a summons ex parte s. 33 of the Ordinance provides that an order made ex parte may be set aside on terms. The procedure...