Re S19(1)(f) of the Criminal Code (Ch262) [1982] PNGLR 150; (Poning's case)

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Kearney DCJ, Greville–Smith J, Kapi J, Pratt J
• Judgment Date: 26 March 1982
• Docket Number: Supreme Court Reference No 2 of 1981
• Citation: [1982] PNGLR 150
• Court: Supreme Court
• Year: 1982
• Judgement Number: SC224

Full Title: Supreme Court Reference No 2 of 1981; Re S19(1)(f) of the Criminal Code (Ch262) [1982] PNGLR 150; (Poning's case)

Supreme Court: Kidu CJ, Kearney DCJ, Greville–Smith J, Kapi J, Pratt J

Judgment Delivered: 26 March 1982

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REFERENCE NO. 2 OF 1981 IN THE MATTER OF A REFERENCE UNDER S. 18 (2) OF THE CONSTITUTION

AND IN THE MATTER OF S. 19 (1) (F) OF THE CRIMINAL CODE AND S. 155 (4) OF THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Kidu CJ Kearney DCJ Greville Smith Kapi Pratt JJ

24 August 1981

26 March 1982

CRIMINAL LAW — Punishment — Powers of disposition — National Court — Charge proved — No power to dismiss without proceeding to conviction — Criminal Code, s. 19 (1) (f) Infra p. 162. The Revision of Laws affected the renumbering of the Criminal Code between the date of hearing and the date of the judgment. See p. XIX.1 formerly s. 19 (h) — Constitution, s. 155 (4) Infra p. 153.2.

CONSTITUTIONAL LAW — Judicial powers — National Court — Powers of disposition — Charge proved — No power to dismiss without proceeding to conviction — Power to make such other orders as necessary to do justice — Criminal Code, s. 19 (1) (f) Infra p. 162. The Revision of Laws affected the renumbering of the Criminal Code between the date of hearing and the date of the judgment. See p. XIX.3 formerly s. 19 (h) — Constitution, s. 155 (4) Infra p. 153.4.

JUDGMENTS AND ORDERS — Judicial powers — Such other orders as are necessary to do justice — Of adjectival or remedial character — Must be within judicial power — Constitution, s. 155 (4) Infra p. 153.5.

A question relating to the interpretation of the Criminal Code Act 1974 is not a question "relating to the interpretation or application of any provision of a Constitutional Law" and cannot be referred to the Supreme Court pursuant to s. 18 (2) of the Constitution.

The Criminal Code Act 1974, and in particular s. 19 (h), (s. 19 (1) (f) under the revised law), does not empower the National Court, where it has found an offence proved, to dismiss it without convicting.

The Constitution, s. 155 (4), does not empower the National Court, where it has found an offence proved to dismiss it without convicting: the power of disposition of offenders dealt with under the Criminal Code is exclusively and exhaustively provided for therein.

(Kapi J. not deciding) When a constitutional question is referred to the Supreme Court under s. 18 (2) of the Constitution, the court or tribunal should defer making any final order disposing of the matter out of which it arises until it has the decision of the Supreme Court on the question referred.

As to the interpretation of s. 155 (4) of the Constitution which provides that;

"Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case."

(1) (Per Kidu C.J.) Section 155 (4) exists only to ensure that persons' rights or interests as determined by law are properly enforced or protected if existing laws are deficient in that respect.

(2) (Per Kearney Dep. C.J.) Section 155 (4) is directed solely to the power of the Court to issue preventive or remedial judicial process within judicial power, e.g. an injunction, for the purpose of protecting or enforcing a party's primary rights.

(3) (Per Greville Smith J.) The "other" orders in s. 155 (4) must be procedural in nature and designed to enforce the substantive law as established in s. 9 of the Constitution: the "inherent" power can not extend to the making of orders with the character of "law".

(4) (Per Kapi J.) The "other" orders in s. 155 (4) must be orders of a character similar to prerogative writs in the sense that they are remedial in nature.

(5) (Per Pratt J.) The "other" orders in s. 155 (4) need not be orders similar in nature to prerogative writs: where the law is silent and where the making of an order would not conflict with any statutory provisions or any principle of the underlying law, an order may be made under s. 155 (4) to fill the gap in such a way that justice will be served.

Cases Cited

Acting Public Prosecutor v. Uname Aumane and Ors [1980] P.N.G.L.R. 510.

Avia Aihi v. The State (No. 1) [1981] P.N.G.L.R. 81.

Backhouse v. Moderana (1904) 1 C.L.R. 675.

Barila v. Huffa (1978) 18 S.A.S.R. 226.

Barnes, Ex parte [1896] A.C. 146.

Cobiac v. Liddy (1969) 119 C.L.R. 257.

Drew v. Willis [1891] 1 Q.B. 450.

Griffiths v. The Queen (1977) 137 C.L.R. 293; 15 A.L.R. 1.

Mareva Compania Naviera S.A. v. International Bulk Carriers S.A. [1975] 2 Lloyds Rep. 509; [1980] 1 All E.R. 213 (C.A.).

Mauga Logging Company Pty. Ltd. v. South Pacific Oil Palm Development Pty. Ltd. (No. 1) [1977] P.N.G.L.R. 80.

Mikasa (N.S.W.) Pty. Ltd. v. Festival Stores (1972) 127 C.L.R. 617.

Mountifield v. Ward [1897] 1 Q.B. 326.

Oaten v. Auty [1919] 2 K.B. 278.

Quinn, In re; Ex parte Consolidated Foods Corporation (1978) 52 A.L.J.R. 117.

R. v. Ambaidunga Kinde (Unreported pre-Independence S.C. judgment No. 799, 13th June, 1974).

R. v. Coney and Ors (1882) 8 Q.B.D. 534.

R. v. Jerome and McMahon [1964] Qd. R. 595.

R. v. Tonks and Goss [1963] V.R. 121.

Saki v. The State [1980] P.N.G.L.R. 33.

State, The v. Meli Heti (19771 P.N.G.L.R. 173.

Stephens v. Cuckfield R.D.C. [1960] 2 Q.B. 373.

S.C.R. No. 1 of 1979; Premdas v. The Independent State of Papua New Guinea [1979] P.N.G.L.R. 329.

S.C.R. No. 1A of 1981; Re Motor Traffic Act [1982] P.N.G.L.R. 122.

Reference

This was a reference to the Supreme Court pursuant to s. 18 (2) of the Constitution by Andrew J. of two questions which appear at the beginning of the reasons for judgment of Kidu C.J. hereunder.

Counsel

L. Gavara-Nanu, to argue the affirmative case.

K. Wilson and M. Doiwa to argue the negative case.

Cur. adv. vult.

26 March 1982

KIDU CJ: A National Court Judge referred the following questions:

"1. Did I err in law in finding that the Criminal Code Act 1974 and in particular s. 19 (h) (now s. 19 (1) (f) ) thereof does not empower the National Court to proceed to the finding of a charge or charges proved against an accused person and to then make an order dismissing the charge or any other order, without proceeding to conviction?

2. Did I err in law in finding that s. 155 (4) of the Constitution of the Independent State of Papua New Guinea empowers the National Court to proceed to the finding of a charge or charges proved against an accused person and to then make an order dismissing the charge or any other order, without proceeding to conviction?"

The Reference arose out of a case in which a person had been charged with forgery and uttering. The learned trial judge found that the charge was proved but did not consider that the case warranted the recording of a conviction. He, therefore, used the Constitution, s. 155 (4), and discharged the accused without recording a conviction.

A Reference to this Court under s. 18 (2) of the Constitution must relate to the interpretation or application of a provision of a Constitutional Law. Question 1 in the Reference does not so relate and therefore is not properly before this Court. However, if it had been properly put to the court I would have answered it "No". Neither s. 19 (1) (f) nor any other provision in the Criminal Code allows the National Court not to record a conviction and discharge an offender. As far as I am aware s. 138 of the District Courts Act 1963 and s. 20 of the Local Courts Act 1963 are the only provisions that provide for this to be done. The former provision reads:

"138 (1) Where a person is charged before a court with a simple offence, and the court thinks that, having regard to the character, antecedents, age, health or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict punishment, or other than a nominal punishment, or that it is expedient to release the offender on probation, the court may, without proceeding to conviction, make an order either:

(a) dismissing the charge; or

(b) discharging the offender conditionally on his entering into a recognizance, with or without sureties, to be of good behaviour and to appear for conviction and sentence when called on at any time during such period, not exceeding three years, as is specified in the order.

(2) Where an order is made under the last preceding subsection, the order shall, for the purpose of:

(a) revesting or restoring stolen property;

(b) enabling the court to make orders as to the restitution or delivery of property to the owner;

(c) the payment of money upon or in connexion with that restitution or delivery; and

(d) an appeal against conviction,

have the same effect as a conviction."

Question 2 is a proper one for this Court....