Re S19AB Motor Traffic Act 1950, S138A District Courts Act 1963 and S38A Local Courts Act 1963 [1982] PNGLR 122

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Kearney DCJ, Greville–Smith J, Andrew J, Kapi J
• Judgment Date: 22 March 1982
• Citation: [1982] PNGLR 122
• Docket Number: Supreme Court Reference No 1A of 1981
• Court: Supreme Court
• Year: 1982
• Judgement Number: SC223

Full Title: Supreme Court Reference No 1A of 1981; Re S19AB Motor Traffic Act 1950, S138A District Courts Act 1963 and S38A Local Courts Act 1963 [1982] PNGLR 122

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

Judgment Delivered: 22 March 1982

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REFERENCE NO. 1A OF 1981

IN THE MATTER OF S. 37 (4) AND S. 37 (5)

OF THE CONSTITUTION

AND IN THE MATTER OF THE VALIDITY OF S. 19AB (2) (E) (III)

OF THE MOTOR TRAFFIC ACT 1950, S. 138A (1) (B) OF THE DISTRICT COURTS ACT 1963, AND S. 38A (1) (C) OF THE LOCAL COURTS ACT 1963

AND IN THE MATTER OF A SPECIAL REFERENCE UNDER S.19 OF THE CONSTITUTION

BY THE PUBLIC SOLICITOR

Waigani

Kidu CJ Kearney DCJ Greville Smith Andrew Kapi JJ

30-31 July 1981

2 August 1981

22 March 1982

VEHICLES AND TRAFFIC — Offences — Traffic infringement — Traffic infringement summons — Acts requiring court to record plea of guilty on non-appearance — Validity of legislation — Motor Traffic Act 1950, s. 19ab (2) (e) (iii) Infra p. 124.1 — District Courts Act 1963, s. 138a (1) (b) Infra p. 125.2 — Local Courts Act 1963, s. 38a (1) (c) Infra p. 125.3 — Constitution, s. 37 (4) Infra p. 126.4, s. 37 (5) Infra p. 126.5.

CRIMINAL LAW — Criminal responsibility — Proof of guilt — Traffic infringement summons — Acts requiring court to record plea of guilty on non-appearance — Validity of legislation — Motor Traffic Act 1950, s. 19ab (2) (e) (iii) Infra p. 124.6 — District Courts Act 1963, s. 138a (1) (b) Infra p. 125.7 — Local Courts Act 1963, s. 38a (1) (c) Infra p. 125.8 — Constitution, s. 37 (4) Infra p. 126.9, s. 37 (5) Infra p. 126.10.

CONSTITUTIONAL LAW — Separation of powers — Legislation providing for certain curial procedures — Criminal offence — Act requiring court to record plea of guilty on non-appearance — Validity of legislation — Whether usurpation of judicial function.

STATUTES — Validity — Offences for traffic infringement — Acts requiring court to record plea of guilty on non-appearance — Right to have charge proved — Motor Traffic Act 1950, s. 19ab (2) (e) (iii) Infra p. 124.11 — District Courts Act 1963, s. 138a (1) (b) Infra p. 125.12 — Local Courts Act 1963, s. 38a (1) (c) Infra p. 125.13 — Constitution, s. 37 (4) Infra p. 126.14, s. 37 (5) Infra p. 126.15.

CONSTITUTIONAL LAW — Basic rights — Protection of the law — Offences — Right to have charge proved — Traffic infringement summons — Acts requiring court to record plea of guilty on non-appearance — Validity of legislation — Motor Traffic Act 1950, s. 19ab (2) (e) (iii) Infra p. 124.16 — District Courts Act 1963, s. 138a (1) (b) Infra p. 125.17 — Local Courts Act 1963, s. 38a (1) (c) Infra p. 125.18 — Constitution, s. 37 (4) Infra p. 126.19, s. 37 (5) Infra p. 126.20.

Amendments made to s. 19ab (2) (e) (iii) of the Motor Traffic Act 1950, s. 138a (1) (b) of the District Courts Act 1963, and s. 38a (1) (c) of the Local Courts Act, 1963, enabled police officers to issue summonses for traffic infringements; such summonses containing the information that if the fine therein imposed was paid within 14 days that would be the end of the matter and if not paid, the charge would come before the court designated in the summons and should the defendant fail to appear by counsel or in person, the court if "satisfied that the Traffic Infringement Summons has been served ... shall record a plea of guilty and shall consider the sentence which shall be pronounced in open Court ...".

On a reference to determine the validity of the amendments,

Held

(1) The curial procedure set out in the legislative provisions referred:

(a) does not permit of the proof of guilt required by s. 37 (4) (a) of the Constitution to sustain a conviction; and

(b) denies a defendant the hearing by a court guaranteed him by s. 37 (5) of the Constitution; and

(c) (Greville Smith J. not deciding) involves a purported exercise by the Parliament of that judicial authority of the People in respect of criminal offences which is vested exclusively in the National Judicial System;

and the sections of the several Acts are accordingly unconstitutional.

(2) (Per Kearney Dep. C.J. and Kapi J.); The phrase "according to law" in s. 37 (4) (a) of the Constitution encompasses all the laws of the country, including the underlying law.

(3) (Per Greville Smith J., Kidu C.J. agreeing.); The summary hearing required by s. 37 (5) of the Constitution is a trial before a magistrate.

Cases Cited

Clyne v. East (1967) 68 S.R. (N.S.W.) 385.

Liyanage v. The Queen [1967] 1 A.C. 259.

Police, Commissioner of v. Tanos (1958) 98 C.L.R. 383.

Oxford, Ex parte; re Anderson (1969) 89 W.N. (N.S.W.) 226.

R. v. Brentford Justices; Ex parte Catlin [1975] 2 W.L.R. 506.

S.C.R. No. 1 of 1980; Re Police Offences Act [1981] P.N.G.L.R. 28.

S.C.R. No. 2 of 1980; Re s. 14 of the Summary Offences Act 1977 [1981] P.N.G.L.R. 50.

S.C.R. No. 4 of 1980; Re petition of M. T. Somare [1981] P.N.G.L.R. 265.

United States v. Klein (1870) 80 U.S. 128; 20 L. ed. 519.

Williams, Ex parte; re Singleton (1928) 28 S.R. (N.S.W.) 616.

Reference

This was a reference by the Public Solicitor pursuant to s. 19 of the Constitution of three questions which are set out at the commencement of the reasons for decision of Kidu C.J. hereunder.

Counsel

A. Amet, for the Authority referring under s. 19 of the Constitution, (the Public Solicitor).

R. Gunson, for the Principal Legal Adviser, intervening.

Cur. adv. vult.

22 March 1982

KIDU CJ: In this Reference by the Public Solicitor pursuant to s. 19 of the Constitution, the Court's opinion is sought on the following questions:

"1. Is s. 38a (1) (c) of the Local Courts Act (an amendment to the Principal Act made by s. 6 of the Local Courts (Traffic Infringement Summons) Act 1981) unconstitutional in that it contravenes s. 37 (5) of the Constitution?

2. Is s. 138a (1) (b) of the District Courts Act (an amendment to the Principal Act made by s. 4 of the District Courts (Traffic Infringement Summons) Act 1981) unconstitutional in that it contravenes s. 37 (5) of the Constitution?

3. Is s. 19ab (2) (e) (iii) of the Motor Traffic Act (an amendment to the Principal Act by s. 3 of the Motor Traffic (Traffic Infringement Summons) Act 1981) unconstitutional in that it contravenes s. 37 (5) of the Constitution?"

Sections 19ab (1) and (2), and s. 19ac (1) of the Motor Traffic Act 1950 provide as follows:

19ab. TRAFFIC INFRINGEMENT SUMMONS

(1) Where it appears to a member of the Police Force or a prescribed officer that a person has committed a prescribed offence against this Act, that member of the Police Force or prescribed officer may serve on that person a Traffic Infringement Summons.

(2) A Traffic Infringement Summons shall be in the prescribed form and shall:

(a) be directed against the person named therein as the person alleged to have committed the prescribed offence; and

(b) specify the alleged offence; and

(c) specify the penalty prescribed for that offence; and

(d) specify the Court to the Clerk of which the penalty may be paid within a period of 14 days commencing on the day following the day on which the Traffic Infringement Summons is served; and

(e) state that in the event of:

(i) payment of the penalty at the Court and within the period specified the case will not be called in Court; and

(ii) non-payment of the fine at the Court within the specified period the case will be called on the first day on which the Court sits following the expiry of the specified period; and

(iii) the person named in the Traffic Infingement Summons not appearing or not being represented when the case calls in Court under Sub-paragraph (ii), a plea of guilty shall be recorded and the case dealt with in accordance with the procedure of the Court; and

(iv) the person named in the Traffic Infringement Summons wishing to plead not guilty or otherwise wishing to be heard by the Court, he should appear or be represented in the Court on the first day on which the Court sits following the expiry of the specified period.

19ac. PROCEDURE ON TRAFFIC INFRINGEMENT SUMMONS

(1) The procedure following the service of a Traffic Infringement Summons shall be as follows:

(a) a defendant may pay the specified penalty to the Clerk of the specified Court within the specified period;

(b) in the event of payment under Paragraph (a), the matter proceeds no further;

(c) in the event of non-payment under Paragraph (a), the case is called in the specified Court on the first day on which the Court sits following the expiry of the specified period;

(d) where the case is called under Paragraph (c) and the defendant is not present or represented, a plea of guilty shall be recorded and the matter dealt with in accordance with the procedure of the Court;

(e) where the case is called under Paragraph (c) and the defendant is present or represented, the matter shall be dealt with in accordance with the procedure of the Court.

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