Request by Principal Legal Adviser on a Point of Law arising in a case where a Person tried upon Indictment has been Acquitted [1980] PNGLR 326

• Jurisdiction: Papua New Guinea
• Judge: Wilson J, Greville–Smith J, Andrew J
• Judgment Date: 10 October 1980
• Citation: [1980] PNGLR 326
• Docket Number: PLAR No 1 of 1980
• Court: Supreme Court
• Year: 1980
• Judgement Number: SC181

Full Title: PLAR No 1 of 1980; Request by Principal Legal Adviser on a Point of Law arising in a case where a Person tried upon Indictment has been Acquitted [1980] PNGLR 326

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

Judgment Delivered: 10 October 1980

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PLAR NO. 1 OF 1980. IN THE MATTER OF A REQUEST BY THE PRINCIPAL LEGAL ADVISER TO THE NATIONAL EXECUTIVE FOR THE OPINION OF THE SUPREME COURT OF JUSTICE ON A POINT OF LAW ARISING IN A CASE WHERE A PERSON TRIED UPON INDICTMENT HAS BEEN ACQUITTED.

AND IN THE MATTER OF S. 41 (1) OF THE SUPREME COURT ACT 1975

Waigani

Wilson Greville Smith Andrew JJ

28-29 April 1980

10 October 1980

CRIMINAL LAW — Unlawful killing — Manslaughter — Provocation as defence — Whether provocation available as complete defence — "Offence of which an assault is an element" — Means "an offence in the commission of which an assault is committed" — Criminal Code ss. 271, 272, 307.

STATUTES — Interpretation — Rules of construction — "Literal" rule — Whether appropriate to circumstances of Papua New Guinea at this time — Duty of Supreme Court to assist in development of indigenous jurisprudence adapted to changing circumstances of Papua New Guinea — Constitution, s. 21, s. 158 (2), Sch. 2.2 (1), Sch. 2.4.

On a reference to the court pursuant to s. 41 (1) of the Supreme Court Act 1975, of the question whether provocation is available as a complete defence to an accused person on a charge of manslaughter under s. 307 of the Criminal Code:

Held

(1) (Greville Smith J. dissenting). Provocation as defined in s. 271 of the Criminal Code is available as a complete defence under s. 272 of the Code, to an accused person on a charge of manslaughter under s. 307 of the Code.

R. v. K.J. [1973] P.N.G.L.R. 93;

R. v. Marumyapusek [1973] P.N.G.L.R. 582;

Regina v. Nantisantjaba [1963] P.N.G.L.R. 148; and

The State v. Saikoro Norman [1979] P.N.G.L.R. 599 adopted.

Kaporonovski v. The Queen (1973) 133 C.L.R. 209; and

The State v. Marawa Kanaio [1979] P.N.G.L.R. 319 not followed.

(2) (Greville Smith J. dissenting). The words "an offence of which an assault is an element" in s. 271 of the Code are to be interpreted as meaning "with reference to an offence in the commission of which an assault is committed"; the section is not to be limited to cases where the offence charged includes by definition an assault.

R. v. K.J. [1973] P.N.G.L.R. 93;

R. v. Marumyapusek [1973] P.N.G.L.R. 582;

Regina v. Nantisantjaba [1963] P.N.G.L.R. 148; and

The State v. Saikoro Norman [1979] P.N.G.L.R. 599 adopted.

Kaporonovski v. The Queen (1973) 133 C.L.R. 209; and

The State v. Marawa Kanaio [1979] P.N.G.L.R. 319 not followed.

(3) (Greville Smith J. not deciding). The "literal" rule of statutory interpretation is inappropriate to the circumstances of Papua New Guinea at this time.

(4) (Per Wilson J.). "The Supreme Court has (and should accept) a special responsibility to 'assist in the development of our indigenous jurisprudence, adapted to the changing circumstances of Papua New Guinea'." (Constitution, s. 21 (1), s. 158 (2) ).

(5) (Per Andrew J.). "Provocation is to be judged by the standards of our community and not that of any other ..."

Reference

This was the reference pursuant to s. 41 (1) of the Supreme Court Act 1975 of a question of law: the question being: "whether provocation under ss. 271, 272 of the Criminal Code Act 1974 is available as a complete defence to an accused person on a charge under s. 307 of the Criminal Code Act 1974 of unlawful killing".

Counsel

R. S. O'Regan and K. A. Wilson, to put the affirmative case.

W. J. Karczewski, to put the negative case.

B. Sakora, for the Principal Legal Adviser.

Cur. adv. vult.

10 October 1980

WILSON J: Pursuant to s. 41 (1) of the Supreme Court Act 1975, the Principal Legal Adviser desires the opinion of the Supreme Court on a point of law which arose in a case where an accused person was tried upon indictment and was acquitted on a charge of manslaughter. The acquittal was upon the basis that the accused had an absolute defence of provocation under s. 272 of the Criminal Code Act 1974. The question for this Court's determination is whether provocation is available as a complete defence to an accused person on a charge of manslaughter under s. 307 of the Code.

Prior to 12th September, 1973, when Kaporonovski v. The Queen (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R. 472.1 was decided in the High Court of Australia the law in Papua New Guinea was that provocation was available as a complete defence to an accused person on a charge of manslaughter. That such was the law was to be seen from a consideration of a number of decisions of single judges of the Supreme Court and one decision of the pre-Independence Full Court of the Supreme Court in R. v. K.J. [1973] P.N.G.L.R. 93.2. Those cases (including one which contained an expression of a contrary view) were discussed by Clarkson J. in R. v. Marumyapusek [1973] P.N.G.L.R. 582.3, which decision was actually handed down after Kaporonovski v. The Queen (supra) was decided but before copies of the judgments delivered in the High Court of Australia became available. The cases are also discussed in Kaporonovski v. The Queen (supra) itself. In short those cases decided that the words "an offence of which assault is an element" mens "an offence in the commission of which an assault is committed".

Kaporonovski v. The Queen (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R. 472.4 decided (in a decision by a majority of three to two) that, in a case involving a charge of grievous bodily harm, the defence of provocation under ss. 268 and 269 of the Criminal Code (Qld.) — equivalent to ss. 271 and 272 of the Papua New Guinea Code — applied only to offences in the definition of which an assault is an element. It was not available merely because, on the evidence, the offence charged in a particular case was shown to have involved the commission of an assault. That case decided that the words "an offence of which an assault is an element" mean "an offence in the definition of which an assault is an element".

Between 12th September, 1973, (when Kaporonovski v. The Queen (supra) was decided) and 16th September, 1975, (the date of Independence) the law in Papua New Guinea was that provocation was not available as a complete defence to an accused person on a charge of manslaughter under s. 307 of the Code, because manslaughter is not "an offence in the definition of which an assault is an element". Kaporonovski v. The Queen (supra), being a decision of the High Court of Australia to which appeals from Papua New Guinea lay, was followed. Indeed, it was considered in a number of manslaughter cases to be an authority binding on courts in Papua New Guinea.

In the period since Independence there has been uncertainty in Papua New Guinea as to whether or not provocation is available as a complete defence to an accused person on a charge of manslaughter. In some cases single judges have felt persuaded by the decision in Kaporonovski v. The Queen (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R.5 and have followed it; one such case was The State v. Marawa Kanaio [1979] P.N.G.L.R. 319.6. In other cases, single judges have not felt persuaded by the decision in Kaporonovski v. The Queen (supra) and have not followed it; one such case was The State v. Sakoro Norman [1979] P.N.G.L.R. 599.7. This is the first time that the post-Independence Supreme Court has had an opportunity to consider this question and, by its decision, to clear up the uncertainty.

The fundamental point at issue in this case is whether or not the Supreme Court of Papua New Guinea should, in this branch of the criminal law, follow the persuasive decision of the High Court of Australia in Kaporonovski v. The Queen (1973) 133 C.L.R. 209; (1973) 47 A.L.J.R. 472.8. I use the word "persuasive" advisedly, because, since Independence, no longer are decisions of the High Court of Australia binding upon the Supreme Court of Papua New Guinea (see Sch. 2.12 of the Constitution). Nevertheless, there is no doubting the high standing of the High Court of Australia and the desirability, as a general rule, of preserving uniformity; for these reasons, this court should be slow to differ from a persuasive authority of such weight. I would not characterize the views expressed by the majority in Kaporonovski v. The Queen (supra) as obiter dicta for the same reasons I expressed in my judgment in Premdas v. The Independent State of Papua New Guinea [1979] P.N.G.L.R. 329.9 in which I made reference to the disinction which I think needs to be drawn between judicial dicta and obiter dicta. The important point to make is that the real question of principle arising for decision in this case and as arose in that case would appear to be the same (see The Queen v. Kopal Wamne Unreported judgment No. 809, October 1974.10).

Little purpose will be be served by me canvassing all the reasons for and against each of the two...