Ex Parte John Papadakis; Re The Senior Magistrate of The National Capital District District Court at Boroko v The Independent State of Papua New Guinea

• Jurisdiction: Papua New Guinea
• Judge: Williams J:
• Judgment Date: 30 September 1977
• Citation: [1977] PNGLR 313
• Court: Supreme Court
• Year: 1977
• Judgement Number: SC121

Supreme Court: Prentice DCJ, Raine J, Williams J

Judgment Delivered: 30 September 1977

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

EX PARTE JOHN PAPADAKIS

RE: THE SENIOR MAGISTRATE OF THE NATIONAL CAPITAL DISTRICT AT BOROKO AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Prentice DCJ Raine Williams JJ

27 September 1977

30 September 1977

PREROGATIVE WRITS — Prohibition — District Court — Order nisi following amendment of information — Magistrate's decision within jurisdiction — Prohibition not available.

INFERIOR COURTS — District Court — Jurisdiction — Power to decide rightly or wrongly within jurisdiction — Appeal appropriate remedy for error.

Held

(1) Prohibition does not lie for error of law unless there is an excess of jurisdiction.

Halsbury's Laws of England 3rd ed. Vol. 11 par. 120 referred to.

(2) Where jurisdiction is given to decide a question there is power to decide it rightly or wrongly, and not only power to decide it rightly.

Parisienne Basket Shoes Pty. Ltd. v. Whyte (1938) 59 C.L.R. 369 followed and applied.

(3) Whether or not an information charging an offence punishable by way of summary conviction before a District Court, or an amended information is a good one disclosing an offence, is a matter within the jurisdiction of the District Court.

(4) Where an information charging an offence punishable by way of summary conviction before a District Court was amended at the hearing and thus incorrectly framed, that was a mistake made in a proper exercise of jurisdiction for which prohibition would not lie, and for which the appropriate remedy would be by way of appeal to the National Court.

Colonial Bank of Australasia & Anor v. Robert Willan (1874) L.R. 5 P.C. 417. The Queen v. The Commissioners for Special Purposes of the Income Tax (1888) 21 Q.B.D. 313 and The King v. Nat Bell Liquors, Limited [1922] 2 A.C. 128 referred to.

Prohibition

This was the return of an order nisi for prohibition sought against the Senior Magistrate of the National Capital District Court of Boroko, prohibiting the continuance of proceedings in the District Court against the applicant. The proceedings came before the Magistrate by way of information charging an offence punishable on summary conviction, and contrary to s. 9 (2) of the Crocodile Trade (Protection) Act 1966-70. During the hearing an application to amend the information was granted, the Magistrate indicating that the information as amended charged a valid offence (this not in law being so). After obtaining an adjournment of the proceedings an order nisi for prohibition was obtained from a Judge of the National Court.

Counsel

L. K. Young, for the applicant. See infra p. 319 for a summary of submissions made.

B. M. Ryan, for the respondent (informant) and the Magistrate. See infra p. 320 for a summary of submissions made.

Cur. adv. vult.

30 September 1977

PRENTICE DCJ: The applicant moves to have an order nisi prohibiting the continuance of proceedings against him in the District Court, made absolute.

An information was laid against him in the following terms alleging that:

"While holding Crocodile Buyer's Licence No. CB56 and Crocodile Exporter's Licence No. CE30, was, without reasonable excuse, in possession of 3 crocodiles dealt in contrary to restrictions imposed by Regulation 8 of the Crocodile Trade (Protection) Regulations 1970-5, to wit 3 crocodile of which the belly-width exceeded 510mm. thereby contravening the provisions of Section 9 (2) of the Crocodile Trade (Protection) Act 1966-70."

Section 9 of the Crocodile Trade (Protection) Act 1966-1970 reads as follows:

"9 (1) The Regulations may prohibit or restrict in relation to the whole Territory or to a part of the Territory the taking, killing, sale, barter, exchange of, or trading or dealing in, for money or moneys worth, all or any crocodiles of a particular species or below a minimum size or above a maximum size.

(2) The holder of a licence or a person required to hold a licence under this Act shall not without reasonable excuse (the burden of proof to which lies upon him), take, kill, buy, sell, barter, exchange, or trade or deal in, a crocodile or the skin of a crocodile, or be in possession of the skin of a crocodile taken, killed, sold, bartered, exchanged, or traded or dealt in, contrary to any restrictions imposed under the last preceding subsection.

Penalty: Four hundred dollars."

Regulation 8 of the Crocodile Trade (Protection) (Amendment) Regulation 1974 made under the Act, by Statutory Instrument No. 1 of 1975, provides as follows:

"8. RESTRICTION ON SIZE OF CROCODILES WHICH MAY BE PURCHASED, ETC.

The purchase, sale, barter, exchange, trading, dealing of or in, for money or money's worth, or possession of any crocodile of which the belly-width or horn-back width exceeds 510mm. is prohibited."

After the taking of the prosecution evidence the court was moved to rule that there was no case to answer. The learned magistrate held that there was a case to answer. The applicant himself then gave evidence in his own defence. An application was made thereafter for amendment of the charge by deletion of the words "dealt in". The application was opposed on the ground that the information after such an amendment would disclose no offence. Leave was granted and the amendment made, and the magistrate ruled that the amended information did disclose an offence. The order nisi was then obtained.

A preliminary point was argued in this court that prohibition did not lie, for that the magistrate was properly exercising his jurisdiction, in which process he was entitled to go wrong as well as to go right — that no excess of jurisdiction or denial of natural justice occurred — and that if the District Court's final decision were to be in error on the facts and law — it was corrigible only by way of appeal to the National Court.

It was submitted by Mr. Young that counsel for the informant would concede that there was no such offence known to the law as "being in possession of crocodile skins of which the belly-width exceeded 510mm." (i.e. that here possession of such skins did not constitute their possessor an offender). Once the learned magistrate concluded that "mere possession" was sufficient to constitute an offence, then he could be prohibited from proceeding further with a charge unknown to the law, it was said. Reliance was placed on Davies v. Andrews (1930) 25 Tas. L.R. 84, and De Faro v. Rankin (1899) 25 V.L.R. 170.

That reg. 8 cannot create the offence of possessing skins in excess of prescribed size (as was submitted), does I think flow from a reading of s. 9 which empowers (only) the making of regulations prohibiting the "taking, killing, sale, barter, exchange of or dealing in ... crocodiles below a minimum size or above a maximum size"; and also creates the offence of "being in possession of the skin of a crocodile taken, killed, sold, bartered, exchanged or traded or dealt in contrary to any restrictions imposed ..." Regulation 8 will be seen in its terms to have gone beyond the powers granted in s. 9 (1) when it purported to prohibit "possession of any crocodile ..." (exceeding 510mm.); and to that extent it is admitted to be ultra vires. However, Mr. Young concedes that reg. 8 may be construed "by the use of a blue pencil" as at least imposing a restriction upon the size of crocodiles which may be purchased.

Mr. Ryan for the informant, while admitting the ultra vires nature of part of reg. 8, nevertheless developed an interesting, if not altogether at this stage persuasive argument, that the information could be construed as a valid one with the aid of s. 71 District Courts Act, subject to its calling for particularization against duplicity, if such were sought. Section 71 reads as follows:

" (1) Where a person is charged before a court with a simple offence, an exception, exemption, proviso, excuse or qualification (whether it accompanies the description of the offence in the section of the law creating the offence or not) need not be specified or negatived in the information."

Under this argument unspecified matters of qualification should be inferred, so that the information be seen as relating to "possession of the skins of crocodiles taken, killed, sold, bartered, exchanged or traded or dealt in above the size of 510mm. belly-width".

Detailed argument on the point has not been heard; but I consider it sufficiently arguable to illustrate that the application for prohibition is misconceived. Prohibition may be refused if there be doubt in fact or law whether the inferior court is exceeding its jurisdiction or acting without jurisdiction (Halsbury, 3rd ed., Vol. 11, par. 215, p. 116). Other factors pointing in the same direction are that it would have still been open to the learned magistrate to have changed his mind, or his expressions of reasons, if the unfinished case had been allowed to proceed. Further application to amend the information might on reflection have been made and allowed, if such could be held...