Constitutional Reference No 3 of 1978; In the matter of s11(3) of the Inter–Group Fighting Act 1977

• Jurisdiction: Papua New Guinea
• Citation: [1978] PNGLR 421
• Date: 08 November 1978
• Court: Supreme Court
• Year: 1978

Supreme Court: Prentice CJ, Saldanha J, Andrew J

Judgment Delivered: 8 November 1978

1 Constitutional law—presumption of innocence—Constitution s37(4)—participation in tribal fighting not peculiarly within knowledge of accused

2 Statutes—validity of legislation—severability—subsection non–severable under Constitution s10—whole of section invalid

3 Evidence—burden of proof—Constitution s37(4)—s11(3) Inter–Group Fighting Act places burden on accused—unconstitutional

4 CONSTITUTIONAL LAW—Constitution of the Independent State of Papua New Guinea—Construction—Presumption of innocence—"Particular facts . . . particularly within his knowledge"—Participation in inter–group fighting—Burden of proof on accused—Legislation invalid—Inter–Group Fighting Act 1977, s11(3)—Constitution s37(4) (a).

5 STATUTES—Validity of legislation—Severability—Inter–Group Fighting Act 1977, s11(3)—Burden of proof placed on accused—Provision contrary to s37(4)(a) of Constitution—Subsection non–severable under s10 of Constitution—Whole of section invalid.

6 CRIMINAL LAW—Evidence—Burden of proof—Presumption of innocence—Participation in inter–group fighting—"Particular facts . . . particularly within his knowledge"—Burden of proof on accused—Legislation invalid—Inter–Group Fighting Act 1977, s11(3)—Constitution s37(4)(a).

The Inter–Group Fighting Act 1977 is expressed to be an Act to provide for the suppression of fighting between inter–groups and the creation of offences in relation to inter–group fighting and for related purposes. S11 thereof creates the offence of taking part in an unlawful assembly that becomes involved in inter–group fighting and s11(3) provides:

"A person charged with an offence against this section is guilty of that offence unless he proves, to the satisfaction of the court, that he did not take part in the actual fighting."

On a reference pursuant to s18 of the Constitution of the Independent State of Papua New Guinea, for determination of the question whether s11(3) of the Inter–Group Fighting Act 1977 contravened s37(4)(a) of the Constitution, which provides:

"A person charged with an offence shall be presumed innocent till 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, particularly within his knowledge."

Held

(1) (Prentice CJ dissenting). The fact whether an accused person, charged with an offence contrary to s11 of the Inter–Group Fighting Act 1977, did or did not take part in the actual fighting is not a fact "peculiarly within his own knowledge" within the meaning of s37(4)(a) of the Constitution.

Attygalle and Anor v R [1936] AC 338; R v Oliver [1944] 1 KB 68; R v Ewens [1967] 1 QB 322; R v Scott (1921) 86 JP. 69; R v Edwards [1974] 2 All ER 1085; John v Humphreys [1955] 1 All ER 793; and R v Turner [1814–23] All ER 713 at 715 referred to.

(2) (Prentice CJ dissenting). Accordingly s11(3) of the Inter–Group Fighting Act 1977 is invalid because it places upon an accused person the onus of proving that he did not take part in the actual fighting when that particular fact is not peculiarly within his knowledge and thus contravenes the fundamental right of presumption of innocence as contained in s37(4)(a) of the Constitution.

(3) As s11(3) of the Inter–Group Fighting Act 1977 cannot be regarded as severable under s10 of the Constitution the whole of s11 must be regarded as being invalid.

In Rakatani Peter v South Pacific Brewery Ltd [1976] PNGLR 537 and Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 referred to.

Reference.

This was a reference to the Supreme Court pursuant to s18 of the Constitution of the Independent State of Papua New Guinea which provides that "where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal other than the Supreme Court, the court . . . shall refer the matter to the Supreme Court . . . ".

The matter referred by the National Court was as follows: "Is the Inter–Group Fighting Act 1977 invalid in that it contravenes s37(4)(a) of the Constitution of the Independent State of Papua New Guinea".

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Prentice CJ:

A reference pursuant to s18 of the Constitution has been made to this Court from the National Court sitting in Mount Hagen, for an answer to the question posed as follows:

"Is the Inter–Group Fighting Act 1977 invalid in that it contravenes s37(4) (a) of the Constitution of the Independent State of Papua New Guinea."

On the hearing of the Reference it was agreed that the Court should be asked to restrict its inquiry to the validity of s11(3) of the Act.

Apparently many hundreds of men have in recent months been charged with, and many convicted and imprisoned for, offences under s11 of the Act. Some have appealed; and the question now before us was raised in one such appeal from a District Court.

S37(4)(a) of the Constitution reads:

"A person charged with an offence—shall be presumed innocent till 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."

The purpose of the Inter–Group Fighting Act No 43 of 1977 which was amended by No 37 of 1978, was expressed as being:

"To discourage fighting between groups of Papua New Guineans by providing for—

(a) The creation of offences in relation to such fighting; and

(b) the imposition of severe penalties for such offences; and

(c) the collective punishment of the leaders of groups involved in fighting; and

(d) the imprisonment of group leaders for non–payment of penalties imposed on them as a result of their groups' participation in such fighting."

It is desirable that Part III of the Act headed "Inter–Group Fighting", be set out in full:

"10. PREPARING TO FIGHT.

(1) For the purposes of this Act, any gathering of five or more persons any one of whom is armed with an offensive weapon which is

(a) taking part; or

(b) appears to be about to take part; or

(c) appears to be preparing to take part, in a fight with any other group of persons or a member of the other group of persons is an unlawful assembly.

(2) A person who takes part in an unlawful assembly referred to in Subsection (1) is guilty of an offence.

Penalty: Imprisonment for a term not exceeding two years.

11. TAKING PART IN AN INTER–GROUP FIGHT.

(1) For the purposes of this Act, an inter–group fight is deemed to have taken place if any member of an unlawful assembly referred to in s10(1) assaults or attempts to assault or commences to fight with a member of another group of persons.

(2) A person who takes part in an unlawful assembly referred to in s10(1) which is involved in an inter–group fight is guilty of an offence.

Penalty: In relation to an inter–group fight in which a person is killed—a term of imprisonment not exceeding five years.

In relation to an inter–group fight in which no person is killed—a term of imprisonment not exceeding three years.

(3) A person charged with an offence against this section is guilty of that offence unless he proves, to the satisfaction of the court, that he did not take part in the actual fighting.

(4) Nothing in Subsection (2) shall be construed as restricting the penalty to which a person may be subject under any other law for an offence arising out of or connected with an inter–group fight."

S12 of the Inter–Group Fighting Act goes on to deal with organising an inter–group fight and s13 with inciting a person to fight.

It has been contended that the offence created by s11 is constituted by all of its subsections (1) and (2) rendering mere presence in an unlawful assembly which is involved in an inter–group fight (evidenced minimally by an attempt to assault) an offence for which a defence is provided by (3). To the extent that subsection (3) places the onus upon a person charged of establishing that "he did not take part in the actual fighting", it must be held invalid.

It was further submitted, and this submission was concurred in by all counsel, that if subsection (3) be ruled invalid, the whole of s11 must fall, as subsections (1) and (2) standing without (3) would constitute...