The State v Officer–in–Charge of the Wabag Corrective Institution and the Magistrates of the Kundis Village Court; Ex Parte Pende Kinakope [1982] PNGLR 308; SCR No 6 of 1981; State v OIC Wabag Corrective Institution [1982] PNGLR 308

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Judge: Kidu CJ, Kapi DCJ, Andrew J
• Judgment Date: 11 August 1982
• Citation: [1982] PNGLR 308
• Judgment Number: SC232
• Year: 1982
• Docket Number: Supreme Court Reference No 6 of 1981

Full Title: Supreme Court Reference No 6 of 1981; The State v Officer–in–Charge of the Wabag Corrective Institution and the Magistrates of the Kundis Village Court; Ex Parte Pende Kinakope [1982] PNGLR 308; SCR No 6 of 1981; State v OIC Wabag Corrective Institution [1982] PNGLR 308

Supreme Court: Kidu CJ, Kapi DCJ, Andrew J

Judgment Delivered: 11 August 1982

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

S.C.R. NO. 6 OF 1981 IN THE MATTER OF THE STATE

V

OFFICER-IN-CHARGE OF THE WABAG CORRECTIVE INSTITUTION AND THE MAGISTRATES OF THE KUNDIS VILLAGE COURT

Waigani

Kidu CJ Kapi DCJ Andrew J

11 August 1982

INFERIOR COURTS — Village courts — Jurisdiction — Criminal offences — Jurisdiction where child offender — Village Courts Act 1974, s. 25 (a).

INFANTS AND CHILDREN — Criminal proceedings — Jurisdiction of village courts.

(Andrew J., dissenting): A village court has jurisdiction in respect of offences prescribed for the purpose of s. 25 (a) of the Village Courts Act 1974, where the alleged offender is a child and the offence is committed within the area for which the village court was established and outside the area of any Children's Court.

Cases Cited

In the matter of WW (an infant) (Unreported National Court judgment No. 267 of 17th November, 1980).

Reference

This was the reference of a question of law made by the National Court in proceedings seeking orders absolute for writs of habeas corpus and certiorari. The question referred is set out at the beginning of the reasons for judgment of Kidu C.J. hereunder.

Counsel

L. Gavara-Nanu, to argue the affirmative case.

A. Amet, to argue the negative case.

R. Gunson, for the Principal Legal Adviser to the National Executive.

Cur. adv. vult.

11 August 1982

KIDU CJ: The National Court sitting at Wabag on 23rd October, 1981, reserved for this Court the following question:

"Has a village court jurisdiction in respect of offences prescribed for the purpose of s. 25 (a) of the Village Courts Act 1974, where the alleged offender is a child and the offence was committed within the area for which the Village Court was established and outside the area of any Children's Court?" (Section 25 (a) is renumbered s. 22 (a) in Ch. 44 of the Revised Laws.)

Pende Kinakope, a child aged 14 years, was adjudged guilty by the Kindis village court of taking a young goat belonging to another. He killed the goat and ate it, so it was alleged before the National Court. He was fined K100 (beyond the K50 maximum fine a village court is empowered to impose) and ordered to pay the fine the same day, i.e. 17th September, 1981. He failed to pay the fine and was ordered to be imprisoned for ten weeks. On 18th September, 1981, this order was endorsed by the Wabag District Court under s. 34 (1) of the Village Courts Act.

On 23rd October, 1981, Mr. Kopunye of the Public Solicitor's Office applied (under O.82 r. 2 of the Rules of the National Court) for orders absolute for writs habeas corpus and certiorari. These applications were made on the basis that Pende was imprisoned illegally. The case In the Matter of WW (an infant), Unreported National Court judgment N. 267 of 17th November, 1980, was cited as authority supporting the applications. The National Court, in that case, ruled that a village court had no power to entertain cases involving children charged with offences prescribed under s. 22 of the Village Courts Act. I reproduce the relevant passages of this judgment:

"Children's Courts have been set up throughout the country under the provisions of the Child Welfare Act. In many cases however, the village courts are not operating in the same area covered by the Child Welfare Act. In those cases where they are purporting to be exercising jurisdiction in such circumstances, I consider they are clearly acting without authority or a legal basis to do so. Where a Children's Court area has been declared, not even a court of summary jurisdiction is permitted to deal with offences committed by persons under 16 (see s. 37 (1) of the Child Welfare Act). So far as criminal cases are concerned, the village courts are limited to a number of minor offences as listed in reg. 3 of the Statutory Instrument No. 41 of 1974. The jurisdiction of course is purely based on statute and the courts cannot operate outside such basis.

In those cases where no Children's Court has been established for the area in which village courts are functioning, it is clear that the only court which may deal with such offenders is the District Court or the local court for that area: Section 37 (4) of the Child Welfare Act reads:

'Where no Children's Court has been established to exercise jurisdiction under this Act over a particular area, a Court of Summary Jurisdiction may exercise in that area the jurisdiction of a Children's Court under this Act as if it were a Children's Court under this Act.'

By definition under s. 5 of the Child Welfare Act a court of summary jurisdiction 'means a District Court or Court of Petty Sessions', using the old description current before the introduction of the present District Courts Act for the whole of Papua New Guinea in 1964. When local courts were introduced in 1964 as well, they were given jurisdiction equivalent to courts of summary jurisdiction and any reference in an earlier Act to a District Court or a court of summary jurisdiction shall 'be deemed to include a reference to a local court' or a local court magistrate (see s. 13 (2) of the Local Courts Act 1963 and also s. 287 of the District Courts Act 1963).

The Legislature has even seen fit to provide for emergency situations where a Children's Court magistrate cannot deal with a matter but a District Court magistrate is available (s. 36 (5) ). No amendment has been passed to provide for village court magistrates to have a like jurisdiction. In my view this is significant and conducive to the proper administration of justice.

It may be thought that s. 30 of the Village Courts Act was subject to an interpretation which resulted in the village court not being subject to the provisions and restrictions imposed by the Child Welfare Act. Section 30 (1) reads in part:

'In exercising its jurisdiction under this Division' (Civil and Criminal Jurisdiction) 'a village court is not bound by any law other than this Act that is not expressly applied to it ...'

The short answer however to any contention that the village court has jurisdiction over children despite the fact that it is not a court of summary jurisdiction by virtue of this section, is to be found in the opening words 'In exercising its jurisdiction'. In other words, it must have a jurisdiction to exercise in the first place. For example, it cannot deal with a murder or rape because that is not one of the offences listed in reg. 3 of the Village Court Regulations. Because of the existence of a prior Act which has not been repealed either explicitly or by implication by anything contained in the Village Courts Act, the jurisdiction to deal with children for criminal offences still rests in Children's Courts or when they do not exist, then a District Court or a local court. The village court was never granted such jurisdiction and therefore there is nothing for it to exercise."

In that case the learned judge did not have the benefit of arguments by counsel. The judgment was made "ex parte". This Court has had the benefit of well prepared arguments on the law from both the Public Solicitor in person and counsel for the Principal Legal Adviser, Mr. Gunson.

JURISDICTION OF CHILDREN'S COURTS

The Children's Courts derive their powers from the Child Welfare Act (Ch. 276 of the Revised Laws of Papua New Guinea). The relevant provisions of this Act are:

32. POWERS OF CHILDREN'S COURTS

(1) Subject to this Act, a Children's Court:

(a) shall, in respect of all offences committed by children, exercise the powers and authorities possessed by a District Court; and

(b) may (where a child is charged with an indictable offence punishable by death or imprisonment for life), hear and determine the charge in a summary manner in accordance with the provisions of this Act; and

(c) shall hear and determine all complaints and applications under this Act.

(2) Where a Children's Court deals summarily with an offence (other than a homicide or rape, or any other offence punishable by death or imprisonment for life) committed by a child, the court may:

(a) impose a penalty of:

(i) a fine not exceeding K100; or

(ii) imprisonment for a term not exceeding six months,

and, in addition to or instead of any penalty imposed under subparagraph (i) or (ii) make an order in respect of the child as if the child had been declared to be an incorrigible or uncontrollable child under this Act; or

(b) without proceeding to conviction:

(i) if the child is under the age of 14 years, and it appears to the court that punishment inflicted by a guardian of the child, or some other person, would be the most suitable penalty in the circumstances — adjourn the hearing...