Re S22A(b) of the Police Offences Act (Papua) 1912 (Repealed) and s37(4) of the Constitution; V Biyang (Informant) v Liri Haro (Defendant) [1981] PNGLR 28

• Jurisdiction: Papua New Guinea
• Judge: Andrew J:
• Judgment Date: 06 March 1981
• Court: Supreme Court
• Citation: [1981] PNGLR 28
• Docket Number: Supreme Court Reference No 1 of 1980
• Year: 1981
• Judgement Number: SC193

Full Title: Supreme Court Reference No 1 of 1980; Re S22A(b) of the Police Offences Act (Papua) 1912 (Repealed) and s37(4) of the Constitution; V Biyang (Informant) v Liri Haro (Defendant) [1981] PNGLR 28

Supreme Court: Greville–Smith J, Andrew J, Miles J

Judgment Delivered: 6 March 1981

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REFERENCE NO. 1 OF 1980

IN THE MATTER OF A REFERENCE UNDER S. 18 OF THE CONSTITUTION AND IN THE MATTER OF S. 22A (B) OF THE POLICE OFFENCES ACT (PAPUA) 1912 (REPEALED), AND S. 37 (4) OF THE CONSTITUTION AND IN THE MATTER OF V. BIYANG (INFORMANT) AGAINST LIRI HARO (DEFENDANT)

Waigani

Greville Smith Andrew Miles JJ

25 August 1980

6 March 1981

CRIMINAL LAW — Evidence — Onus of proof — Presumption of innocence — Proof of facts peculiarly within knowledge of accused — Passing cheque not paid on presentation — Accused guilty "unless he proves" inter alia "that he had no intent to defraud" — Provision not unconstitutional — Lack of intent a fact peculiarly within knowledge of accused — "According to law" — Constitution s. 37 (4) (a) Infra p. 301 — Police Offences Act (Papua) 1912 (repealed), s. 22aInfra p. 31.2.

CRIMINAL LAW — Particular offences — Passing cheque not paid on presentation — Accused guilty "unless he proves" inter alia "that he had no intent to defraud" — Onus of proof — Lack of intent fact peculiarly within knowledge of accused — Constitution — s. 37 (4) (a) Infra p. 303 — Police Offences Act (Papua) 1912 (repealed), s. 22aInfra p. 31.4.

CONSTITUTIONAL LAW — Constitution of the Independent State of Papua New Guinea — Onus of proof in criminal matters — Presumption of innocence — Innocent until proved guilty "according to law" — According to common law in force at Independence — Facts peculiarly within knowledge of accused — Persuasive burden on accused — Constitution s. 37 (4) (a) Infra p. 305 — Police Offences Act (Papua) 1912 (repealed) s. 22aInfra p. 31.6.

POLICE OFFENCES — Passing cheque not paid on presentation — Accused guilty "unless he proves" inter alia "that he had no intent to defraud" — Onus of proof — Lack of intent fact peculiarly within knowledge of accused — Constitution s. 37 (4) (a) Infra p. 307 — Police Offences Act (Papua) 1912 (repealed), s. 22aInfra p. 31.8.

Section 22a (b) of the Police Offences Act (Papua) 1912 (repealed), which provides that a defendant charged with passing a cheque not paid on presentation under s. 22a, is guilty unless he proves, inter alia, a "lack of intent to defraud", is not unconstitutional in the light of the provisions of guaranteed rights of s. 37 (4) (a) of the Constitution of the Independent State of Papua New Guinea, which provides:

"A person charged with an offence 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."

Per Greville Smith J:

"As a result of s. 37 (4) (a) the law in Papua New Guinea relating to the proof of guilt in criminal cases is that the onus is on the prosecution to prove each element of the offence charged beyond reasonable doubt, subject to the following exceptions; namely:

(a) In the case of a defence of insanity, where there is a presumption of sound mind until the contrary is proved.

(b) Where an enactment prohibits the doing of an act save in specified circumstances, or by persons of specified classes, or with special qualifications or with the licence or persuasion of specified authorities, then once the prosecutor has proved beyond reasonable doubt the doing of the act the burden is on the person charged to bring himself within the exception or proviso, that is, to prove that he was entitled to do the prohibited act, independently of whether the facts he must prove to do so are, or would with the exercise of reasonable care be, peculiarly within his knowledge.

(c) In the case of an enactment which places upon the person charged the burden of proving particular facts which are, or would with the exercise of reasonable care be, peculiarly within his knowledge.

In the case of each exception the burden that rests on the accused is the legal, or as it is sometimes called the persuasive burden, not an evidentiary burden, and it is a burden of satisfying the court on a balance of probabilities, of persuading the court, on the probabilities, of the matter alleged by way of defence."

The presence or absence of lack of intent to defraud in s. 22a of the Police Offences Act (Papua) 1912 (repealed), is one which is peculiarly within the knowledge of the person concerned, and the onus is on the person charged under s. 22a of proving lack of intention to defraud as a particular fact.

The expression "according to law" in s. 37 (4) (a) of the Constitution encompasses all the laws of Papua New Guinea as set out in s. 9 of the Constitution including the underlying law of which the common law is a part under s. 20 and Sch. 2.2 (1), and means in the context of the section according to the common law in England at the time of coming into force of the Constitution and which embodied the concept of the presumption of innocence.

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. 22a of the Police Offences Act (Papua) 1912, now repealed. The question referred to is set out hereunder.

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

GREVILLE SMITH J: This is a reference under s. 18 of the Constitution from a magistrate sitting in the Boroko District Court to determine a charge brought by the informant Constable Biyang against the defendant Patrick Liri Haro under s. 22a of the Police Offences Act (Papua) 1912, now repealed. The charge against the defendant remains outstanding until this Court makes a decision on the reference and remits the matter back to the District Court.

The question referred is as follows:

"Is s. 22A (b) of the Police Offences Act (Papua) 1926-1977 [sic] (repealed), which requires a defendant charged under s. 22a of the Act, to 'prove a lack of intent to defraud', unconstitutional, given the provisions of guaranteed rights of s. 37 (4) (a) of the Constitution of the Independent State of Papua New Guinea?"

The section under consideration is in these terms:

"22A. A person who obtains any chattel, money or valuable security by passing a cheque which is not paid on presentation, or who passes any such cheque in payment or part-payment for services rendered or to be rendered to himself or to any other person, or partly in such payment or part-payment and partly for some other purpose, shall, notwithstanding that there may have been some funds to the credit of the account on which the cheque was drawn at the time it was passed, be guilty of an offence, unless he proves:

(a) that he had reasonable grounds for believing that the cheque would be paid in full on presentation; and

(b) that he had no intent to defraud.

Penalty: Imprisonment for twelve months."

At this point it is convenient, in juxtaposition with s. 22a, to set out, simply as a contrasting form of legislation, to which I shall refer by way of example later, the provisions of s. 209 of the Criminal Code which provides as follows:

"DISOBEDIENCE TO LAWFUL ORDER ISSUED BY STATUTORY AUTHORITY

Any person who without lawful excuse, the proof of which lies on him, disobeys any lawful order issued by any court of justice or by any person authorized by any law of Papua New Guinea to make the order, is guilty of a misdemeanour, unless some mode of proceedings against him for such disobedience is expressly provided by any law of Papua New Guinea, and is intended to be exclusive of all other punishment.

The offender is liable to imprisonment for one year."

Looking at the contents of s. 22a and the fact that the words "prove a lack of intent to defraud" in the referred question are enclosed in single raised commas it is clear that those words are a shortened form of the following, namely,

"prove a lack of intent to defraud if he is to escape conviction once the matters set out before the words 'unless he proves' have been proved against him beyond a reasonable doubt, and he himself has satisfied the court on a balance of probabilities of the matter referred to in the proviso."

I shall so treat them.

Sub-section (4) (a) of s. 37 of the Constitution provides as follows:

" (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...