Reservation Pursuant to s15 of the Supreme Court Act; Omaro Garo v The Police [1985] PNGLR 320

• Jurisdiction: Papua New Guinea
• Judge: Cory J:
• Judgment Date: 27 November 1985
• Citation: [1985] PNGLR 320
• Docket Number: Supreme Court Reservation No 4 of 1985 (SCR No 4 of 1985)
• Court: Supreme Court
• Year: 1985
• Judgement Number: SC304

Full Title: Supreme Court Reservation No 4 of 1985 (SCR No 4 of 1985); Reservation Pursuant to s15 of the Supreme Court Act; Omaro Garo v The Police [1985] PNGLR 320

Supreme Court: Kidu CJ, Pratt J, Cory J

Judgment Delivered: 27 November 1985

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT RESERVATION NO 4 OF 1985;

RESERVATION PURSUANT TO S 15 OF THE SUPREME COURT ACT; OMARO GARO

V

THE POLICE

Waigani

Kidu CJ Pratt Cory JJ

24 September 1985

27 November 1985

STATUTES — Operation and effect — Repealed law — Treated as never having existed.

STATUTES — Interpretation — Presumptions — Legislature does not make mistakes — Courts bound by.

STATUTES — Interpretation — Amending legislation — Legislation amending principal Act without apparent advertence to intervening repealing legislation — Criminal Code (Ch No 262), s 420 — Criminal Code (Minimum Penalties) Amendment Act 1983 (No 10 of 1983), s 22.

CRIMINAL LAW — Sentencing — Minimum penalties — Summary proceedings before grade V magistrates — Confined to penalties in Criminal Code (Ch No 262), s 420 — Criminal Code (Minimum Penalties) Amendment Act 1983 (No 10 of 1983), s 22.

Held

(1) A repealed law is to be treated as never having existed.

Kay v Goodwin (1830) 6 Bing 576 at 582; 130 ER 1403 at 1405; Surtees v Ellison (1829) 9 B & C 750 at 752; 109 ER 278 at 279, followed.

(2) In interpreting legislation a court is bound to proceed upon the assumption that the legislature does not make mistakes.

Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531 at 549, followed.

(3) Accordingly (Cory J dissenting) where a District Court constituted by a grade V magistrate deals with an offence specified in the Criminal Code, Sch 2, the Court is bound by the penalties provided for in the Criminal Code, s 720, and introduced by the Criminal Code (Minimum Penalties) Amendment Act 1983, which provides that the offender shall be fined a sum not less than K100 and not exceeding K200 or imprisoned for a term not less than three months and not exceeding six months.

Cases Cited

Bristol Guardians v Bristol Waterworks Co [1914] AC 379.

Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531.

Kay v Goodwin (1830) 6 Bing 576; 130 ER 1403.

Surtees v Ellison (1829) 9 B & C 750; 109 ER 278.

Reservation of Question of Law

This was the hearing of a question of law reserved under the Supreme Court Act (Ch No 37), s 15. The question reserved appears at the beginning of the reasons for judgment of Kidu CJ hereunder.

Counsel

P Aeava and B McMillan, to argue the negative case.

E Kariko, to argue the affirmative case.

Cur adv vult

27 November 1985

KIDU CJ: This Court is asked to answer the following question:

"Where a District Court constituted by a Magistrate Grade V deals with an offence specified in Schedule 2 of the Criminal Code (Ch No 262) then does such a Court have jurisdiction to impose some other form of punishment despite the fact that s 420 of the Criminal Code has been amended by s 22 of the Criminal Code (Minimum Penalties) (Amendment) Act 1983, No 10 of 1983, which provides that the offender shall be fined a sum not less than K100.00 and not exceeding K200.00 or imprisonment for a term not less than three months and not exceeding six months."

The Sch 2 offences are indictable offences which can be dealt with summarily by virtue of the Criminal Code (Ch No 262), s 420 (1), by grade V magistrates. The problem this Court must deal with has arisen out of one of the amendments to s 420 enacted by Parliament. As at 1 January 1982, as a result of the Criminal Code (Indictable Offences) Act 1980 (No 28 of 1980), s 420 read as follows:

"When a person is charged before a District Court constituted by a Magistrate Grade V with an offence specified in Schedule 1A, the Court shall deal with the charge summarily according to the procedure set out in s 421, and may impose a penalty not exceeding the maximum period of imprisonment specified in the last column of that Schedule" (See Revised Laws, Ch No 262, as amended at 1 January 82).

During 1982, s 420 was amended by the Criminal Code Amendment Act 1982 (No 12 of 1982), s 5, which replaced the word "shall" in subs (1) with the word "may" and inserted a new subs (2). So as at 1 January 1983, s 420 read as follows:

" (1) When a person is charged before a District Court constituted by a Magistrate Grade V with an offence specified in Schedule 2, the Court may deal with the charge summarily according to the procedure set out in s 421, and may impose a penalty not exceeding the maximum period of imprisonment specified in the last column of that Schedule.

(2) Sections 330 (2), 538, 542, 543, 544, 546, 551, 564 and 603 apply to an offence dealt with under this subdivision."

So the penalty for Sch 2 cases was provided for in Sch 2 by virtue of s 420 (1). Section 420 (1) contained no penalty provision.

Then in 1983 the Criminal Code (Minimum Penalties) (Amendment) Act 1983 (Act No 10 of 1983) was enacted and went into effect on 14 July of that year. Section 22 of this Act provides as follows:

"22. Section 420 of the Criminal Code is amended by deleting the penalty provision in subsection (2) and substituting the following:

' (2) Where a charge is dealt with under subsection (1), the offender shall be fined a sum of not less than K100.00 and not exceeding K200.00 or imprisonment for a term not less than three months and not exceeding six months'."

It was submitted that the amendment is ineffective because it purports to amend a non-existing provision. It was suggested that what Parliament did was to amend the repealed subs (2) of s 420. There in fact was such a provision which read as follows:

"Where a charge is dealt with under subsection (1), the offender is liable to a fine not exceeding K200.00 or imprisonment for a term not exceeding six months."

But this provision was repealed by the Criminal Code (Indictable) Offences Act 1980. So the submission that Parliament intended to amend this repealed provision by s 22 of Act No 10 of 1983 means that Parliament made a mistake. This assertion would of course fly in the face of two well established principles. The first of these two principles is that a repealed law is to be treated as having never existed:

Tindall CJ in Kay v Goodwin (1830) 6 Bing 576 at 582; 130 ER 1403, said:

"Now it is perfectly clear, that the 5 G 2 was repealed by the Statute of the 6 G 4, c 16. I take the effect of repealing a statute to be to obliterate it as completely from the records of the Parliament as if it had never passed; and, it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted, and concluded whilst it was an existing law."

Lord Tenterden CJ in Surtees v Ellison (1829) 9 B & C 750 at 752; 109 ER 278 at 279 said:

"It has long been established that when an Act of Parliament is repealed it must be considered (except as to transactions past and closed) as if it had never existed. That is the general rule; and we must not destroy that by indulging in conjectures as to the intention of the legislature."

Lord Halsbury, LC in Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531 at 549 expressed the second of the two principles as follows:

"But I do not think it is competent for any court to proceed upon the assumption that the legislature has made a mistake. Whatever the real fact may be, I think a court of law is bound to proceed upon the assumption that the legislature is an ideal person that does not make mistakes. It must be assumed that it has intended what it has said, and I think any other view of the mode in which one must approach the interpretation of a statute would give authority for an interpretation of the language of an Act of Parliament which would be attended with most serious consequences."

In view of these well established principles it must be assumed that when Parliament enacted Act No 10 of 1983 it had before it the Criminal Code as amended to date. Quite clearly then Parliament meant to delete the penalty provision in subs (1) and not subs (2). The part of subs (1) to be deleted reads:

"... and may impose a penalty not exceeding the maximum period of imprisonment specified in the last column of that Schedule."

There is also little doubt that Parliament intended, by the same amending provision, to add a completely new subsection to s 420. This is clear from the wording of the provision:

"Where a charge is dealt with under subsection (1)...."

So the new proposed provision cannot be part of subs (1). I consider that what Parliament intended to do was to add a subs (3) to s 420. There was, in my view, no intention to affect subs (2) at all as it contains no penalty provision but provides for certain provisions of the Criminal Code to be applicable in cases in Sch 2 dealt with by grade V magistrates. The result of the amendment to s 420 by Act No 10 of 1983, s 22, is that s 420 should...