In the Matter of s37(4)(a) of the Constitution and s14(2) of the Summary Offences Act and In the Matter of a Reference under s18(2) of the Constitution [1981] PNGLR 50

• Jurisdiction: Papua New Guinea
• Judge: Kearney DCJ, Andrew J, Miles J
• Judgment Date: 06 March 1981
• Citation: [1981] PNGLR 50
• Docket Number: Supreme Court Reference No 2 of 1980
• Court: Supreme Court
• Year: 1981
• Judgement Number: SC192

Full Title: Supreme Court Reference No 2 of 1980; In the Matter of s37(4)(a) of the Constitution and s14(2) of the Summary Offences Act and In the Matter of a Reference under s18(2) of the Constitution [1981] PNGLR 50

Supreme Court: Kearney DCJ, Andrew J, Miles J

Judgment Delivered: 6 March 1981

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

(S.C.R. NO. 2 OF 1980)

IN THE MATTER OF S. 37 (4) (A) OF THE CONSTITUTION AND S. 14 (2) OF THE SUMMARY OFFENCES ACT 1977 AND IN THE MATTER OF A REFERENCE UNDER S. 18 (2) OF THE CONSTITUTION

Waigani

Kearney DCJ Andrew J Miles J

25 August 1980

27 February 1981

6 March 1981

CRIMINAL LAW — Evidence — Onus of proof — Presumption of innocence — Proof of facts peculiarly within knowledge of accused — "Grounds for believing that cheque (passed) would be paid in full on presentation" — State of bank account facts "peculiarly within his knowledge" — "According to law" — Summary Offences Act 1977, s. 14Infra p. 52.1 not inconsistent with Constitution s. 37 (4) (a).

CRIMINAL LAW — Particular offences — Passing valueless cheque — Defence — "Reasonable grounds for believing that cheque (passed) would be paid in full on presentation" — State of bank account facts "peculiarly within his knowledge" — Onus of proof — Reasonableness of grounds requires proof on balance of probabilities — Summary Offences Act 1977, s. 14Infra p. 52.2 — Constitution s. 37 (4) (a).

CONSTITUTIONAL LAW — Constitution of the Independent State of Papua New Guinea — Construction — Onus of proof in criminal matters — Presumption of innocence — Innocent until proved guilty "according to law" — Facts peculiarly within knowledge of accused — Defendants burden discharged on balance of probabilities — Constitution s. 37 (4) (a) — Summary Offences Act 1977, s. 14Infra p. 52.3.

The facts upon which a person bases his belief that a cheque which he passes will be paid in full by the bank when presented, are facts which are either peculiarly within the knowledge of the person passing the cheque, or would be with the exercise of reasonable care, within the meaning of s. 37 (4) (a) of the Constitution; whether or not these facts constitute reasonable grounds is a matter for determination by the court before whom the defence is raised, and the defendant discharges such a burden of proof upon the balance of probabilities.

S.C.R. No. 1 of 1980; Re s. 22a of the Police Offences Act (Papua) 1912 (repealed) [1981] P.N.G.L.R. 28 followed.

The phrase "according to law" in s. 37 (4) (a) of the Constitution refers to the whole body of law in the country as exhaustively defined in s. 9 of the Constitution; it includes both the Statute law and the underlying law.

Per Curiam:

It would be unconstitutional to place upon the accused the ultimate burden of establishing his innocence with respect to the elements of the offence charged.

Reference.

This was a reference under s. 18 of the Constitution of the Independent State of Papua New Guinea of a "question relating to the interpretation or application of any provision of a Constitutional Law", by a magistrate hearing a charge under s. 14 of the Summary Offences Act 1977, of passing a valueless cheque. The question referred is set out at p. 54.

Counsel:

J. Karczewski, for the informant.

A. Amet, for the defendant.

A. Pert, for the Principal Legal Adviser to the National Executive Council.

Cur. adv. vult.

6 March 1981

KEARNEY DCJ: Mr. Rambio received a public utilities bill from his town council. He paid it by a cheque. The amount of the cheque was more than the amount which stood to the credit of his bank account. His bank therefore refused to pay out on the cheque. The council informed the police, and the police charged Mr. Rambio with passing a valueless cheque.

The offence of passing a valueless cheque is created by s. 14 of the Summary Offences Act 1977, as follows:

Section 14 (2) of the Summary Offences Act 1977 which provides a defendant charged with the offence of passing a valueless cheque with a defence "if the person charged proves that he had reasonable grounds for believing that the cheque would be paid in full on presentation", is not inconsistent with s. 37 (4) (a) of the Constitution; and s. 14 is not a law which creates an offence of which a person charged is not presumed innocent until proved guilty according to law.

"14. VALUELESS CHEQUES

(1) A person who obtains, or pays for, any goods, money, valuable security, credit, benefit or advantage by passing a cheque which is not paid on presentation to the bank against which it is drawn is guilty of an offence.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.

(2) It is a defence to a charge for an offence against Sub-Section (1) if the person charged proves that he had reasonable grounds for believing that the cheque would be paid in full on presentation.

(3) The fact that at the time the cheque was passed there was some funds to the credit of the account against which the cheque was drawn is not, of itself, a defence to a charge of an offence against Sub-Section (1)."

Mr. Rambio appeared before the District Court. He pleaded not guilty. Before the police led evidence, defence counsel submitted that s. 14 is invalid and ineffective, and hence creates no offence, because s. 14 (2) requires a defendant to prove his innocence, and this is inconsistent with the Constitution, s. 37 (4) (a), which provides:

" (4) A person charged with an offence —

(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would with the exercise of reasonable care be, peculiarly within his knowledge;"

The magistrate thereupon referred this constitutional point to this Court, in accordance with the Constitution, s. 18 (2).

I have had the benefit of reading the opinion of Miles J., we agree on the answer to the question referred, but it is desirable that I express my own reasons.

The question is whether s. 14 (2) of the...