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

• Jurisdiction: Papua New Guinea
• Judge: Prentice CJ, Saldanha J, Andrew J
• Judgment Date: 08 November 1978
• Citation: [1978] PNGLR 421
• Court: Supreme Court
• Year: 1978
• Judgement Number: SC139

Supreme Court: Prentice CJ, Saldanha J, Andrew J

Judgment Delivered: 8 November 1978

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

CONSTITUTIONAL REFERENCE NO. 3 OF 1978

IN THE MATTER OF S. 11 (3) OF THE INTER-GROUP FIGHTING ACT 1977.

Waigani

Prentice CJ Saldanha J Andrew J

30 October 1978

8 November 1978

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, s. 11 (3) Infra p. See headnote.1 — Constitution s. 37 (4) (a).

STATUTES — Validity of legislation — Severability — Inter-Group Fighting Act 1977, s. 11 (3) Infra p. See headnote.2 — Burden of proof placed on accused — Provision contrary to s. 37 (4) (a) Infra p. See headnote.3 of Constitution — Sub-section non-severable under s.10 of Constitution — Whole of section invalid.

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, s. 11 (3) Infra p. See headnote.4 — Constitution s. 37 (4) (a) Infra p. See headnote.5.

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. Section 11 thereof creates the offence of taking part in an unlawful assembly that becomes involved in inter-group fighting and s. 11 (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 s. 18 of the Constitution of the Independent State of Papua New Guinea, for determination of the question whether s. 11 (3) of the Inter-Group Fighting Act 1977 contravened s. 37 (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 s. 11 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 s. 37 (4) (a) of the Constitution.

Attygalle and Anor. v. The King [1936] A.C. 338; R. v. Oliver [1944] 1 K.B. 68; R. v. Ewens [1967] 1 Q.B. 322; R. v. Scott (1921) 86 JP. 69; R. v. Edwards [1974] 2 All E.R. 1085; John v. Humphreys [1955] 1 All E.R. 793; and R. v. Turner [1814-23] All E.R. 713 at p. 715 referred to.

(2) (Prentice CJ dissenting). Accordingly s. 11 (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 s. 37 (4) (a) of the Constitution.

(3) As s. 11 (3) of the Inter-Group Fighting Act 1977 cannot be regarded as severable under s. 10 of the Constitution the whole of s. 11 must be regarded as being invalid.

In Reference No. 1 of 1976 (P) [1976] P.N.G.L.R. 537 and Strickland v. Rocla Concrete Pipes Ltd. (1971) 124 C.L.R. 468 referred to.

Reference

This was a reference to the Supreme Court pursuant to s. 18 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 s. 37 (4) (a) of the Constitution of the Independent State of Papua New Guinea".

Counsel

G. C. Lalor, to argue the affirmative case.

D. W. Baker, to argue the negative case for the Principal Legal Adviser to the National Executive.

N. W. King, to argue the negative case.

Cur. adv. vult.

8 November 1978

PRENTICE CJ: A reference pursuant to s. 18 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 s. 37 (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 s. 11 (3) of the Act.

Apparently many hundreds of men have in recent months been charged with, and many convicted and imprisoned for, offences under s. 11 of the Act. Some have appealed; and the question now before us was raised in one such appeal from a District Court.

Section 37 (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 Pt. 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 Sub-section (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 Section 10 (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 Section 10 (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 Sub-section (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."

Section 12 goes on to deal with organising an inter-group fight and s. 13 with inciting a person to fight.

It has been contended that the offence created by s. 11 is constituted by all of its sub-sections, (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 sub-s. (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 sub-s. (3) be ruled invalid, the whole of s. 11 must fall, as sub-ss. (1) and (2) standing without (3) would constitute offences and punishment with stricter results than could have been contemplated by the Parliament.

It is my opinion that the elements of the offence of "taking part in an unlawful assembly which is involved in an inter-group fight, are to be found in the terms of s. 10 and sub-ss. (1) and (2) of s. 11. The last named sub-section, the offence having...