Rakatani Peter v South Pacific Brewery Ltd [1976] PNGLR 537

• Jurisdiction: Papua New Guinea
• Judge: Kearney J:
• Judgment Date: 29 November 1976
• Citation: [1976] PNGLR 537
• Docket Number: SCR No 1 of 1976 (P)
• Court: Supreme Court
• Year: 1976
• Judgement Number: SC109

Full Title: SCR No 1 of 1976 (P); Rakatani Peter v South Pacific Brewery Ltd [1976] PNGLR 537

Supreme Court: Frost CJ, Prentice DCJ, Kearney J

Judgment Delivered: 29 November 1976

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IN RE REFERENCE NO. 1 OF 1976 (P) AND RAKATANI PETER

V

SOUTH PACIFIC BREWERY LTD

Waigani

Frost CJ Prentice DCJ Kearney J

18 June 1976

30 July 1976

29 November 1976

CONSTITUTIONAL LAW — Constitution of the Independent State of Papua New Guinea — Construction — Protection of law — Provision for hearing of offence in absence of accused — Whether s. 131 See headnote.1 of District Courts Act 1963 a "provision" of the type referred to in s. 37 (5) See head note.2 of the Constitution — Constitution s. 10 Section 10 of the Constitution provides:

"Construction of Written Laws.

All written laws (other than this Constitution) shall be read and construed subject to —

(a) in any case — this Constitution; and

(b) in the case of Acts of the Parliament — any relevant Organic Laws; and

(c) in the case of adopted laws or subordinate legislative enactments — the Organic Laws and the laws by or under which they were enacted or made,

and so as not to exceed the authority to make them properly given, to the intent that where any such law would, but for this section, have been in excess of the authority so given it shall nevertheless be a valid law to the extent to which it is not in excess of that authority."3.

INFERIOR COURTS — Procedure — Provision for hearing and determination of information for simple offence in absence of defendant — Validity of s. 131 See headnote.4 of District Courts Act 1963 — Construction thereof — Provision to be construed as relating to offence maximum penalty for which does not include imprisonment (except in default of payment of fine).

Section 37 (5) of the Constitution of The Independent State of Papua New Guinea provides:

"Except with his own consent, the trial [of any person] 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 orders him to be removed and the trial to proceed in his absence, but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment, (except in default of payment of a fine), to be heard summarily in his absence if it is established that he has been duly served with a summons in respect of the alleged offence."

Section 131 of the District Courts Act 1963 provides:

"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 s. 55 of this Act 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 District Courts Act defines a "simple offence" as meaning "an offence punishable on summary conviction before a Court by fine, imprisonment or otherwise".

Held

(Per Frost C.J. and Kearney J.) Section 131 of the District Courts Act 1963 is a "provision" of the type referred to in the proviso to s. 37 (5) of the Constitution, but only in so far as it relates to an offence punishable on summary conviction before a Court the maximum penalty for which does not include imprisonment (except in default of payment of a fine).

In so far as s. 131 of the District Courts Act 1963, purports to provide that in certain circumstances an offence the maximum penalty for which includes imprisonment (except in default of payment of a fine) may be heard summarily in the absence of the defendant, if goes beyond that for which the law may provide under s. 37 (5) of the Constitution. There being therefore a question of inconsistency arising between an Act of Parliament and the Constitution, s. 10 of the Constitution is required to be applied. Section 10 of the Constitution is to be read as a rule of construction in the sense that it provides a guide for the ascertainment of the intention of Parliament in the case of partial invalidity of a law; but for the particular legislative intention always to prevail in accordance with the Spirit of the Constitution; meaning that if from the terms of an Act it appears that Parliament intended that only the Act as a whole should come into operation, then the whole would fail if there was partial invalidity.

Australian Railways Union v. Victorian Railways Commissioners (1930) 44 C.L.R. 319; Pidoto v. Victoria (1943) 68 C.L.R. 87; Bank of New South Wales v. The Commonwealth (1948) 76 C.L.R. 1 and Strickland v. Rocla Concrete Pipes Ltd. (1971) 124 C.L.R. 468 considered.

To read down the definition of simple offence in its application to s. 131 of the District Courts Act 1963, so as to confine its operation to summary offences punishable otherwise than by imprisonment (except in default of a fine) does not amount to judicial legislation but is merely the process of construction which the Court is required to undertake under s. 10.

(Per Prentice Deputy C.J.) Taking into account the conditions of the country, making use of the aids to interpretation available under the Constitution — e.g. pursuant to ss. 24 and 25 thereof and the use of the preamble in cases of doubt (Sch. 1.3 (1) ), exercising such judicial ingenuity as may safely be indulged, taking full account of the National Goals and Directives, the rights of individuals and the duties of the State, and though not perhaps in accord with the manner of interpretation of acts of Parliament elsewhere, believing that the Supreme Court of Papua New Guinea should be prepared and is empowered to, not only eliminate a phrase from an Act if by so doing, constitutional validity could be secured in accordance with what it construed Parliament's intention, but also to add a phrase or change a phrase with the intent of construing (translating) an Act so that it is valid and still expressing the clear Parliamentary intent; accordingly, s. 131 of the District Courts Act 1963 is to be read and constred in such a manner as to permit an ex parte hearing "in the case of an offence punishable by imprisonment (otherwise than for default in payment of a fine) if the accused consents to the charge being heard in his absence".

Reference

This was a reference under s. 18 of the Constitution, by the District Court at Port Moresby of the following question:

"Is section 131 of the District Courts Act a 'provision' of the type referred to in the proviso to sub-section (5) of section 37 of the Constitution?"

Counsel

CF Wall to argue the affirmative case

LW Roberts-Smith to argue the negative case

Cur. adv. vult.

29 November 1976

FROST CJ: This is a reference under s. 18 of the Constitution by the District Court at Port Moresby of a question relating to the interpretation and application of s. 37 (5) of the Constitution. The question is:

"Is section 131 of the District Courts Act a 'provision' of the type referred to in the proviso to sub-section (5) of section 37 of the Constitution ..."

The point of the question is whether s. 131 which purports to confer jurisdiction, upon proof of due service, to hear and determine an information of a simple offence in the absence of the defendant, is authorized by s. 37 (5) of the Constitution. The point is a difficult one, and the Court has had full assistance from counsel both in written submissions and also in argument before the Court.

At the outset I should refer to both provisions. Section 37 (5) can conveniently be divided into two parts. First, it prohibits the trial of a person taking place, except with his consent, in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable, and the Court orders him to be removed. Secondly, it authorizes provision to be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment (except in default of a fine), to be heard summarily in his absence if it has been established that he has been duly served with a summons in respect of the alleged offence.

In the present case the information was brought under the Employment Statistics Act 1971, for an offence the maximum penalty for which included imprisonment for 2 months.

The effect of s. 131 is that if the defendant to a summons for a simple offence does not appear, and there is proof of due service, "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...