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Kamir v Woi Woi [1974] PGLawRp 369; [1975] PNGLR 39 (13 December 1974)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 39 - Kamir v Peneia Woi Woi

[1975] PNGLR 39

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

JOHN KAMIR

V

PENEIA WOI WOI

Port Moresby

Prentice J

4 December 1974

9 December 1974

13 December 1974

INFERIOR COURTS - Local courts - Jurisdiction - No power to suspend operation of own orders prior to institution of appeal therefrom - Local Courts Act s. 30[xxxix]¹.

VEHICLES AND TRAFFIC - Licensing of drivers - Person convicted of traffic offence - Disqualification - Whether necessary to administer allocutus before disqualifying - Undesirability of such a practice.

The appellant, a bus driver by occupation was convicted in a Local Court on a charge of driving a motor vehicle in excess of the speed limit; he was fined ten dollars and his driver�s licence was suspended for three months. Before notice of appeal against sentence was filed, an application was made to the magistrate who heard the case for an order, pursuant to s. 30 of the Local Courts Act, suspending operation of the order for disqualification pending an appeal against sentence. The magistrate refused the order holding that he lacked jurisdiction. On appeal therefrom,

Held

N1>(1)����� Section 30 of the Local Courts Act does not empower a local court to suspend operation of its own order prior to the institution of an appeal therefrom.

Possible ambit of the powers conferred by s. 30 of the Local Courts Act discussed.

And on appeal against sentence,

Held

N1>(2)����� that an order for disqualification is not invalidated if the defendant is not asked, before the magistrate exercises his power to disqualify, if he has anything to say on the subject.

Undesirability of establishing practice of administering allocutus before disqualifying, discussed.

N1>(3)����� In all the circumstances no substantial miscarriage of justice (as required by s. 43(3) of the Local Courts Act) had been shown and the appeal should be dismissed.

Appeals

The appellant was convicted in the Local Court at Boroko on 27th September, 1974 on a charge of driving a motor vehicle in excess of a prescribed speed limit. He was fined ten dollars and his driving licence was suspended for a period of three months. On 25th October, 1974 an application was made to the magistrate who heard the case for an order pursuant to s. 30 of the Local Courts Act, suspending operation of the order for disqualification pending appeal against sentence. On 1st November, 1974 the appellant lodged his notice of appeal against sentence. An appeal against the refusal of an order pursuant to s. 30 of the Local Courts Act, and the appeal against sentence were heard together.

Counsel

C. F. Wall and S. B. Passingan, for the appellant.

B. M. Ryan and B. J Cassells, for the respondent.

Cur. adv. vult.

13 December 1974

PRENTICE J: Two appeals were heard together herein, as a matter of convenience, and by consent of counsel.

The appellant was convicted in the Local Court at Boroko on 27th September, 1974, on a charge of driving a motor vehicle in excess of the speed limit in a particular area (30 miles per hour). He was fined ten dollars and his driving licence was suspended for a period of three months. He is a driver by occupation employed at the University of Papua New Guinea. Suspension of licence therefore potentially can affect his livelihood.

On 25th October, 1974, application was made to the magistrate who had heard the case, that the operation of his order of disqualification should itself be suspended pending an appeal against his sentence. The application was heard and refused the same day,� the learned magistrate holding that he lacked jurisdiction. The appellant�s application purported to have been made under s. 30 of the Local Courts Act which is in the following terms:

�Subject to this Act in respect of any matter not provided for by this Act a Local Court may make such order as seems to it convenient and as does substantial justice�.

The Local Courts Act provides in ss. 43 and 44 for an appeal to lie to the Supreme Court, and in s. 45 for the granting of bail by a Judge of the Supreme Court pending hearing of the appeal. Section 46 provides that the Judges may make Rules of Court for prescribing and regulating the practice and procedure on appeals. Such Rules were made by Statutory Instrument No. 44 of 1967. These provide that an appeal is to be instituted by notice of appeal lodged with the Supreme Court. Such lodging may be effected initially by radiograph message. No provision is made in the Local Courts Act similar to that in the District Courts Act, whereby the magistrate on receipt in his court of a notice of appeal and of the entry into a recognizance, may suspend the operation of his order at least as to imprisonment. Rule 15 of the Supreme Court Rules provides that:

�Subject to any order which may be made in the matter by the Supreme Court an appeal shall not operate as a stay of execution�.

Appellant�s counsel contends that the right to make an application to the Supreme Court for a stay of the magistrate�s order pending appeal, is in the circumstances of the geography, conditions of travel and communication, and availability of legal advice in Papua New Guinea, an inadequate one and he says that the provision in r. 15 of the Supreme Court Rules is not intended to be exclusive. It would be, he says, a fortunate appellant who happened to have a Supreme Court Judge on circuit in his town at the time of his conviction. For practical purposes, applications to the Supreme Court for stays of execution would have to be made in Port Moresby in the majority of cases. The delays involved would work hardships and might render appeal fruitless in regard to such matters as appeals against suspension of licence.

It is submitted that power should be found in the Local Court itself to suspend the operation of its order pending the hearing of an appeal therefrom � this is required by justice. Section 30 should receive a liberal interpretation so that this effect may be achieved.

The respondent�s counsel contends that it would be a significant invasion of the principle of functus officio if a Local Court were held without express legislative warrant, to have powers in regard to its own orders after they have been made. He pointed to the apparent power of a Local Court under s. 14 of the Act to pronounce as to validity of marriage by native custom. If s. 30 is to have the widest interpretation he says, it would be open to one party to approach the Local Court months after its decision on application to revoke that decision.

The learned magistrate himself considered that s. 30 did not give jurisdiction to do anything beyond that point of time when convictions and orders are made. It did not he thought, give power in any way to vary or suspend an order previously made. He rejected the application.

Notice of appeal against sentence itself was not filed until 1st November, 1974; so that at the time the application for suspension of operation of his disqualifying order was before him, no appeal had been instituted. I am of the opinion that even if s. 30 does give the wide power contended for by the appellant, it would not be an appropriate exercise of it for a Local Court to suspend operation of its own order prior to the institution of an appeal. I am satisfied therefore that no error or substantial miscarriage of justice has occurred through the magistrate�s rejection of the s. 30 application. I therefore dismiss the appeal No. 153 of 1974.

In Appeal No. 154 of 1974, the appellant challenges the sentence insofar as it ordered suspension of licence. The ground stated in the notice of appeal was that the sentence, being that referred to above, was manifestly excessive. The three month disqualification operated from the date of the court order, 27th September.

During the argument on the severity ground Mr. Wall submitted that the order for disqualification of licence was itself invalid, in that the magistrate had not expressly beforehand administered an allocutus in which he adverted to the possibility of such an order being made. This was yet another example of an appeal being developed in a fashion that can put the respondent, and this Court in considering the argument raised, at a disadvantage. The courts have many times deplored the practice. In the event I allowed a new ground to be added at the close of the appellant�s submission. This ground was:

�That the order for disqualification is invalid because the defendant was not asked before the magistrate exercised his power to disqualify, if he had anything to say on the subject�.

Cases from South Australia were cited to establish that in the opinion of Judges of the Supreme Court of that State the procedure of administering a special allocutus before suspending a licence should be mandatory. Apparently in South Australia the exercise of the power to disqualify is regarded as rather unusual and something special.

There is no prescription to this effect in the Motor Traffic Act of this country. No such practice as that laid down by the Supreme Court of South Australia seems to have been followed here; nor as far as I am aware in any other of the Australian States. The real possibility of a suspension of licence, appears always, at least outside South Australia, to have been widely recognised as a fact of life by people summoned to Courts dealing with traffic offences. While appreciating that in many cases it would no doubt be highly desirable for a magistrate who was considering a disqualification to seek the offender�s views; I would not wish to lay down a rule of practice for this country whereby such a course was made mandatory. There are many respects in which the conditions and needs of this country are quite different from those of the Australian States.

The magistrate appears to have considered that disqualification was the more important element of the punishment he intended to impose in this case. It is a matter of notoriety that the Courts in Port Moresby have been ordering quite stiff fines for traffic offences in an attempt to improve the very bad record of the city�s drivers. The fine of ten dollars is markedly lower than many imposed. At the time of hearing this appeal, the appellant had served two months and eight days of his period of disqualification � twenty-two days remaining. By the affidavit of Bas Fairio the transport officer of the University, it appears that during his disqualification he has been employed on clerical duties. It is not suggested that he has suffered loss of pay. The appellant is averred to be a good driver with a good driving record, diligent, keen and reliable. I am unable to believe it a practical possibility that at this stage his job as a driver is at risk. I am aware that �to deprive a citizen of the right to drive ... where that right is required for carrying out the daily duties of his occupation is a penalty which if wrongly imposed can amount to a substantial miscarriage of justice�. (Wilkeson & Ors. v. Grant)[xl]². Unlike the position under the Supreme Court Full Courts Ordinance s. 28 (Tremellan v. The Queen)[xli]³�it is necessary in appeals of this kind from a magistrate�s court to show a miscarriage of justice before an appeal may be allowed. I am satisfied that no substantial miscarriage of justice has occurred in all the circumstances of this case. Even were one to assume the disqualification to have been improperly imposed, the appellant has had benefit in the shape of a modest fine. The learned magistrate specifically reports that he has always when considering imposition of penalty of disqualification, taken into account the possible deprivation of livelihood. He was aware of its possible implication to this man � a bus driver and he considered that a larger monetary penalty would have been imposed if disqualification had not been ordered.

I dismiss the appeal, I confirm the conviction and order for payment of fine and suspension of licence.

Appeal dismissed.

Conviction confirmed.

Solicitor for the appellant: G. R. Keenan, Acting Public Solicitor.

Solicitor for the respondent: P. J Clay, Crown Solicitor.