Re Provocation and Summary Offences Act 1977, s6 [1985] PNGLR 31

• Jurisdiction: Papua New Guinea
• Judge: McDermott J, Amet J, Los J
• Judgment Date: 29 March 1985
• Citation: [1985] PNGLR 31
• Docket Number: Supreme Court Reference No 6 of 1984
• Court: Supreme Court
• Year: 1985
• Judgement Number: SC286

Full Title: Supreme Court Reference No 6 of 1984; Re Provocation and Summary Offences Act 1977, s6 [1985] PNGLR 31

Supreme Court: McDermott J, Amet J, Los J

Judgment Delivered: 28 February or 29 March 1985

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REFERENCE NO 6 OF 1984 (RE PROVOCATION AND SUMMARY OFFENCES ACT 1977, S 6)

Waigani

McDermott Amet Los JJ

28 February 1985

CRIMINAL LAW — Defences — Provocation — Application of Code provisions to summary offences — Criminal Code (Ch No 262), s 22, Pt V — Summary Offences Act 1977, s 6.

SUMMARY OFFENCES — Defences — Provocation — Application of Code provisions to — Criminal Code (Ch No 262), s 22, Pt V — Summary Offences Act 1977, s 6.

Held

The defence of provocation is available to a defendant charged with unlawful assault contrary to the Summary Offences Act 1977, s 6.

Cases Cited

Acting Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299.

Aipa Peter v James Kapriko [1984] PNGLR 179.

Aisi, Henry v Malaita Hoala [1981] PNGLR 199.

Brunton v The Acting Commissioner of Stamp Duties for New South Wales [1913] AC 747.

Colquhoun v Brooks (1888) 21 QBD 52.

Dean v Wiesengrund [1955] 2 QB 120.

Freda Nup v Chris Hambuga [1984] PNGLR 206.

John Mongo and Lazarus Pisu v Simon Saun (Unreported judgment No N 470 (M), Pratt J, 13 July 1984).

Kaporonovski v The Queen (1973) 133 CLR 209.

Kereku v Dodd [1969-1970] P&NGLR 176.

Leonard Eliza v Mandina [1971-1972] P&NGLR 422.

Mogia Widu v Koda Ubia (Unreported judgment, Pratt J, N 473 (M), 11 May 1984).

Notham v Barnet London Borough Council [1978] 1 WLR 220.

O'Rourke v Boxhall [1958] Tas R 8.

PLAR No 1 of 1980 [1980] PNGLR 326.

R v Danes [1965] Qd R 338.

R v Rumints-Gorok [1963] P&NGLR 81.

R v Sleep [1966] Qd R 47.

Sangumu Wauta v The State [1978] PNGLR 326.

Wemay, Anna v Kepas Tumdual [1978] PNGLR 173.

Wieden, Peter Roy v Bogunu Di'i [1976] PNGLR 101.

Reference

This was a reference to the Supreme Court pursuant to the Supreme Court Act (Ch No 37), s 15, of the following question:

"Is the defence of provocation available to a defendant charged with unlawful assault contrary to s 6 of the Summary Offences Act?"

Counsel

S Injia, to argue the affirmative case.

G Salika, to argue the negative case.

Cur adv vult

29 March 1985

MCDERMOTT J: On 28 February 1985, the Court answered in the affirmative the following question which was originally referred by the Principal Magistrate Lae to the National Court and thence to this Court pursuant to the Supreme Court Act (Ch No 37), s 15.

"Is the defence of provocation available to a defendant charged with unlawful assault contrary to s 6 of the Summary Offences Act?"

The reasons for such decision are now given.

The question arose from two decisions of Bredmeyer J, Aipa Peter v James Kapriko [1984] PNGLR 179 and Fredu Nup v Chris Hambuga [1984] PNGLR 206. Both decisions were made on appeal from lower court convictions for offences under s 6 (1) of the Summary Offences Act 1977. Those decisions are in conflict with the decision of Pratt J in Mogia Widu v Koda Ubia (Unreported judgment Pratt J, N 473 (M), 11 May 1984).

The Criminal Code (Ch No 262) has always contained a common assault section — s 335:

"A person who unlawfully assaults another person is guilty of a misdemeanour.

Penalty: If no greater punishment is provided, imprisonment for a term not exceeding one year."

This is one of the sections in Pt V dealing with inter alia offences against the person. It is preceded by definition sections of assault (s 243), unlawful (s 244) and a whole series of exculpatory provisions applicable to that part. In my view it is no coincidence that these provisions take into account five of the common law defences cited in Archbold Criminal Pleading Evidence and Practice (1970) (40th ed) pars 2642-2650 and quoted by Bredmeyer J in Aipa Peter. Misadventure and lawful sport are further defences mentioned. The accident (s 24) definition takes care of misadventure and the sport provision is covered by s 244 already mentioned. The prosecutor only hinted at the possibility that the common law (only according to Archbold) may be inappropriate. What the applicable common law is could well be another problem, inquiry is unnecessary here. To hazard a guess, it seems that the common law, as it was until the time of passing of the Criminal Code Act 1899 (Qld), has been accommodated. It was the wisdo of Sir Samuel Griffith to go further and he did, with the provocation provisions, nicely placed between the defence of a dwelling house (s 265) and self defence against unprovoked assault (s 269).

Provision was made in Divn 6 of this Part of the Criminal Code for minor assaults to be dealt with summarily, with a penalty of a maximum term of imprisonment of six months or a maximum fine of K200. This remained the situation until the following offence was inserted in both the Police Offences Ordinance (Papua) 1912 and the Police Offences Ordinance (New Guinea) 1925 as amended in 1963:

"s30. A person who:

(a) unlawfully lays hold of, strikes or uses violence towards any other person ...

is guilty of an offence.

Penalty: K100 or imprisonment for six months, or both."

Clearly it was an offence created to deal with minor assaults. This subsection was part of composite provisions in Pt IV entitled Offences Generally. Other subsections dealt with obscene language, false reports, indecent, offensive or threatening behaviour and also behaving in a riotous manner. Generally, the offences in this part can best be described as a mixed bag of minor offences. This legislation continued until its repeal and replacement by the Summary Offences Act 1977, which provided a specific assault provision in these terms:

"6 (1) A person who unlawfully assaults another person is guilty of an offence.

Penalty: A fine not exceeding K200.00 or imprisonment for a term not exceeding six months.

(2) For the purposes of this section, a person who:

(a) strikes, touches, moves or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud; or

(b) by any bodily act or gesture, attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has an actual or apparent presentability to apply such force,

is deemed to assault that person."

Subsection (4) refers to the meaning of "applies force". The subsection is almost identical with the definition of assault in the Criminal Code, s 243. The new act was an update of the offences covered in the old Ordinances though vagrants were covered by other legislation. The Act did not escape the introduction of minimum penalties for certain offences — the penalty for assault is now "imprisonment for a term not less than six months and not exceeding two years".

With this brief history of the legislation it is no wonder that Pratt J, made the following remarks in Mogia Widu:

"It has been suggested I understand elsewhere, that as the assault covered in the charge before the magistrate was not contained in the Criminal Code it may be doubtful whether the defence of provocation under the Criminal Code is available to those charged with the summary offence. During argument I made it quite clear that in my view such a proposition was entirely without merit and seemed to be against all principles enunciated in this jurisdiction for many years. The fact that provocation is not contained in the offences covered by (Code) Div 5, Pt 1, which is applicable to all offences in the State by virtue of s 22 is quite beside the point. There is nothing contained in the wording of s 266 and s 267 to justify any attempt at limiting the application of the section to those assaults only mentioned in the Code."

There are weighty reasons for this view. Clearly Pt 1, Div 5 of the Criminal Code dealing with criminal responsibility is not the be all and end all in the application of the Code to assault. The matters set out in that division apply to offences against any law, but in relation to assault there are further additional considerations relating to criminal responsibility and these are contained in Pt V, Div 1 of the Code, dealing generally with justification and excuse. They do not relate to any law, they relate only to offences against the person — precisely where the draftsman placed them. There is nothing restrictive in this part to prevent its application to other laws relating to offences against the person. The Public Prosecutor has restricted his view to s 22. This is the same error I perceive Bredmeyer J to have made. That the Code is a comprehensive summation of the criminal law in this country seems to be ignored.

When the Code was introduced into Papua in 1902, it was then a new approach to and summation of the criminal law, thought eminently suitable for a fledgling colony with almost no lawyers. The...