; Supreme Court Review No 5 of 1987; Review pursuant to Constitution s155(2)(b); Application by Principal Legal Adviser re Re Central Banking (Foreign Exchange and Gold) Regulations (Ch138) [1987] PNGLR 433

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Kapi DCJ, Amet J
• Judgment Date: 30 December 1987
• Court: Supreme Court
• Docket Number: SCR No 5 of 1987
• Judgement Number: SC346

Full Title: Supreme Court Review No 5 of 1987; Review pursuant to Constitution s155(2)(b); Application by Principal Legal Adviser re Re Central Banking (Foreign Exchange and Gold) Regulations (Ch138) [1987] PNGLR 433

Supreme Court: Kidu CJ, Kapi DCJ, Amet J

Judgment Delivered: 30 December 1987

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT OF JUSTICE REVIEW NO 5 OF 1987 REVIEW PURSUANT TO CONSTITUTION SECTION 155 (2) (B) APPLICATION BY PRINCIPAL LEGAL ADVISER RE CENTRAL BANKING (FOREIGN EXCHANGE AND GOLD) REGULATIONS (CH NO 138)

Waigani

Kidu CJ Kapi DCJ Amet J

25 August 1987

30 December 1987

BYLAWS AND REGULATIONS — Validity — Power to make regulations as specifically prescribed and as necessary or convenient to give effect to Act — Regulation within specific proscription not ultra vires — Central Banking Act (Ch No 138), ss 61, 70 — Central Banking (Foreign Exchange and Gold) Regulations, reg 33.

CRIMINAL LAW — Practice and procedure — Acquittal — What constitutes — Accused must plead to indictment before acquittal founded.

APPEAL — Judicial review — Jurisdiction — Criminal proceedings — Review sought by Principal Legal Adviser — Ruling on demurrer before plea taken — No acquittal — No appeal procedures available — Important question of law — Review procedure available — Constitution, s 155 (2).

STATUTES — Interpretation — General principles — Constitutional requirements paramount — Constitution, ss 109 (4), 158 (2).

BANKS AND BANKING — Offences — Foreign exchange control — Validity of Regulations — Offence of sending foreign currency out of country — Regulation within power — Central Banking Act (Ch No 138), ss 61, 70 — Central Banking (Foreign Exchange and Gold) Regulations, reg 33.

The Central Banking Act (Ch No 138) (the Act), s 70, provides:

"The Head of State, acting on advice, may make regulations, not inconsistent with this Act, prescribing all matters that by this Act are required or permitted to be prescribed, or that are necessary or convenient to be prescribed for carrying out or giving effect to this Act or for the conduct of business by the Central Bank, and in particular for prescribing penalties or fines not exceeding K100.00 for offences against the regulations."

Section 61 of the Act provides:

" (1) Notwithstanding any other law but subject to this Act, the regulations may provide for or relate to:

(a) the control of foreign exchange; and

(b) the control of gold.

(2) In particular, and without limiting the generality of Subsection (1), the regulations may relate to:

...

(d) the taking or sending out of the country of Papua New Guinea currency, foreign currency or gold; and

...

(3) The regulations may:

(a) provide that an offence may be prosecuted either summarily or on indictment; and

(b) provide penalties for offences against the regulations, not exceeding:

(i) on summary conviction — a fine not exceeding K200.00 or imprisonment for a term not exceeding six months, and default penalties of fines not exceeding K10.00; and

(ii) on conviction on indictment a fine not exceeding K10,000.00 or imprisonment for a term not exceeding five years, and default penalties of fines not exceeding K500.00; and

..."

Regulation 33 of the Central Banking (Foreign Exchange and Gold) Regulations provided for penalties for failing to comply with the regulations in the terms of s 61 (3) (b) of the Act.

On a demurrer to charges in the National Court of sending foreign currency out of the jurisdiction and which was heard and determined after the accused was arraigned and without any plea being taken, the trial judge ruled that reg 33 was invalid as being ultra vires s 70, and discharged the accused. On an application for judicial review brought pursuant to the Constitution, s 155 (2), by the Principal Legal Adviser,

Held

(1) The discharge of the accused from the indictment after the demurrer was upheld did not amount to an acquittal as there cannot be an acquittal unless an accused has pleaded to the indictment.

(2) In the absence of an acquittal in criminal proceedings the State had no right of appeal under the Supreme Court Act (Ch No 37) which might be pursued and there being an important question of law for determination the procedure under s 155 (2) of the Constitution was available to the Principal Legal Adviser without the need to meet any other prescribed criteria.

Avia Aihi v The State [1981] PNGLR 81, Avia Ahia v The State (No 2) [1982] PNGLR 44 and Danny Sunu v The State [1984] PNGLR 305, considered but not applied.

(3) On a proper construction of the Central Banking Act, s 61 and s 70, reg 33 of the Central Banking (Foreign Exchange and Gold) Regulations was not invalid as being beyond power: there was no conflict between s 61 and s 70 of the Act: s 70 was to be read as providing a regulation making power for: (a) matters specifically prescribed or allowed to be prescribed by the Act, such as those matters prescribed in s 61 (3); and (b) matters necessary or convenient to be prescribed for the carrying out of the Act ...

Carbines v Powell (1925) 36 CLR 88 and R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170, considered.

(Per curiam) In interpreting the statutes of Papua New Guinea the matters contained in s 109 (4) and s 158 (2) of the Constitution are to be given paramount consideration.

Cases Cited

Avia Aihi v The State [1981] PNGLR 81.

Avia Aihi v The State (No 2) [1982] PNGLR 44.

Carbines v Powell (1925) 36 CLR 88; 31 ALR 241.

Danny Sunu v The State [1984] PNGLR 305.

R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; 56 ALJR 164; 38 ALR 439.

SCR No 4 of 1985; Omaro Garo v The Police [1985] PNGLR 320.

Judicial Review

This was an application for judicial review pursuant to s 155 (2) of the Constitution made in relation to a ruling on the validity of regulations after arraignment but before any plea was taken on an indictment on charges of unlawfully sending foreign currency out of Papua New Guinea contrary to the Central Banking (Foreign Exchange of Gold) Regulations.

Counsel

B K C Thompson QC and G Toop, for the appellant.

R S O'Regan QC and I M Molloy, for the respondent.

Cur adv vult

30 December 1987

KIDU CJ KAPI DCJ AMET J: John Harcourt Woodward was charged with 20 counts of unlawfully sending foreign currency out of Papua New Guinea. The charges were laid under s 33 (1) of the Central Banking (Foreign Exchange and Gold) Regulations (Ch No 138).

A demurrer to the charges was filed in the National Court before the matter went before Wilson J on 9 June 1987.

When the accused was arraigned his counsel, Mr Robberds QC, raised the demurrer and the accused never pleaded. The demurrer was argued and upheld and the accused discharged from the indictment. Wilson J upheld the following submissions advanced by Mr Robberds:

" (a) Section 33 (1) of the Central Banking (Foreign Exchange & Gold) Regulation was beyond power and void;

(b) the Head of State, acting on advice, had no power to make Regulations which prescribed penalties of fines exceeding K100.00 for offences against the Regulations made under the Central Banking Act; and

(c) The Head of State, acting on advice, had no power to make Regulations which prescribed a penalty of imprisonment for offences against the Regulations made under the Central Banking Act."

Section 33 (1) of the Regulations is as follows:

"33. Penalties

(1) A person who commits an offence against or fails or refuses to comply with, any of the provisions of this Regulation is liable:

(a) on summary conviction — to a fine not exceeding K200.00 or imprisonment for a term not exceeding six months, and a default penalty of a fine not exceeding K10.00; and

(b) on conviction on indictment — to a fine not exceeding K10,000.00 or imprisonment for a term not exceeding five years, and a default penalty of a fine not exceeding K500.00."

The Regulations were made pursuant to s 61 and s 70 of the Act:

"s61. Regulations relating to foreign exchange and gold

(1) Notwithstanding any other law but subject to this Act, the regulations may provide for or relate to:

(a) the control of foreign exchange; and

(b) the control of gold.

(2) In particular, and without limiting the generality of Subsection (1), the regulations may relate to:

(a) the appointment of authorised dealers in foreign exchange and gold and their powers, rights, duties and responsibilities, and the rates at which they may enter into transactions in foreign exchange and gold; and

(b) the buying, selling, borrowing, lending or exchange of foreign currency or gold; and

(c) any dealing or transaction having the effect of a purchase, sale, borrowing, loan or exchange of foreign exchange or gold; and

(d) the taking or sending out of the country of Papua New Guinea currency, foreign currency or gold; and

(e) transactions in Papua New Guinea currency with, or on behalf of, persons resident outside the country; and

(f) requiring any...