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State v Kaputin [1979] PGLawRp 690; [1979] PNGLR 544 (10 October 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 544 - The State v John Rumet Kaputin�

[1979] PNGLR 544

N204

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

JOHN RUMET KAPUTIN

Waigani

Greville Smith J

23 July 1979

27 September 1979

1 October 1979

9-10 October 1979

CRIMINAL LAW - Particular offences - Disobeying lawful order issued by court - Nature of proceedings - Onus of proof - Standard of proof - Lawful excuse - Strict interpretation of Code - �Disobey� - Order requiring lodging of company returns - Appropriate sentence - Criminal Code, s. 209[dclxix]¹.

WORDS AND PHRASES - �Disobey� - Disobeying lawful order - Statutory offence - No element of wilfulness - Criminal Codes, s. 209[dclxx]².

Section 209 of the Criminal Code provides:

�Any person who without lawful excuse, the proof of which lies on him, disobeys any lawful order issued by any court of justice or by any person authorized by any law of Papua New Guinea to make the order, is guilty of a misdemeanour, unless some mode of proceeding against him for such disobedience is expressly provided by any law of Papua New Guinea, and is intended to be exclusive of all other punishment.�

The accused a member of Parliament and Minister of State, was a director and the secretary of a company, the New Guinea Development Corporation Limited, which failed to lodge with the Registrar of Companies its annual return for 1977 and other documents required by the Companies Act 1963 to be lodged therewith. On 30th March, 1978, an order was made by the National Court requiring the accused to make good the default within three months. The returns were not lodged as ordered and the accused was charged with the offence of disobeying a lawful order made by a court under s. 209 of the Criminal Code. The returns were finally lodged some fourteen months after the order was made.

Held

N1>(1)�� The proceedings were competent and properly brought under s. 209 of the Criminal Code.

N1>(2)�� The onus of proving that the accused disobeyed a lawful order issued by the court, under s. 209 of the Criminal Code is on the State, and the standard of proof required is proof beyond reasonable doubt.

Woolmington v. Director of Public Prosecutions, [1935] A.C. 462, referred to.

N1>(3)�� The onus of proving lawful excuse under s. 209 of the Criminal Code is on the accused and the standard of proof required is proof on the balance of probabilities.

R. v. Carr-Briant, [1943] 1 K.B. 607;

R. v. Dunbar, [1958] 1 Q.B. 1;

Everard v. Opperman[1958] VicRp 62; , [1958] V.R. 389, at p. 391;

Briginshaw v. Briginshaw [1938] HCA 34; (1938), 60 C.L.R. 336, at pp. 349, 361-362;

Taylor v. Ellis, [1956] V.L.R. 457, at p. 461; and

Robertson v. Police[1957] NZPoliceLawRp 12; , [1957] N.Z.L.R. 1193, at p. 1194, referred to.

N1>(4)�� The offence of disobeying a lawful order issued by the court under s. 209 of the Criminal Code is a statutory offence and is to be interpreted strictly in the context of s. 209 itself.

Bank of England v. Vagliano Bros.[1891] UKLawRpAC 6; , [1891] A.C. 107, referred to.

N1>(5)�� The word �disobey� in s. 209 of the Criminal Code, in the context of the section means simply, �fail to obey�.

N1>(6)�� Semble �lawful excuse� in s. 209 of the Criminal Code would include the various exculpations provided in Ch. V of the Criminal Code and may extend to excuses which are provided or arise under some other statute or provision of the law.

Bank of England v. Vagliano Bros.[1891] UKLawRpAC 6; , [1891] A.C. 107, referred to.

N1>(7)�� On the evidence the offence had been proved beyond reasonable doubt, and there being no defence of lawful excuse made out the accused should be found guilty as charged.

N1>(8)�� In the circumstances, the accused should be sentenced to imprisonment with hard labour for ten weeks.

Trial

This was the trial of an accused on a charge of disobeying a lawful order issued by the court, under s. 209 of the Criminal Code. The full terms of the charge and the relevant facts are set out in the reasons for judgment hereunder.

Counsel

G. Poole, for the State.

I. Nwokolo, for the accused.

Cur. adv. vult.

9-10 October 1979

GREVILLE SMITH J:� In this case the accused has pleaded not guilty to a charge (as amended) in the following terms, namely:

John Rumet Kaputin of Rabaul stands charged that on the 13th March, 1978, at Waigani in Papua New Guinea an order was made by the National Court of Papua New Guinea under and in execution of the Companies Act 1968 (as amended) whereby it was ordered that the said John Rumet Kaputin within a period of three months from the date of the said order make good the default of The New Guinea Development Corporation Ltd. in failing, within fourteen days of service of a notice requiring that company to lodge with the Registrar of Companies in Port Moresby, an annual return for the year 1977 in the prescribed form to comply with that notice, and to make good the default of The New Guinea Development Corporation Ltd. in failing, within fourteen days after service upon it of a notice requiring that Company to lodge with the Registrar of Companies in Port Moresby, a copy of every profit and loss account and balance sheet (including every document required by law to be attached thereto) which is to be laid before that company in annual general meeting for the 1977 calendar year accompanied by a copy of an auditor�s report to comply with that notice, and that he, being the person by whom the said order was required to be performed, without lawful excuse disobeyed the said order by failing to lodge the aforesaid documents or any of them within the time allowed by the order of the Honourable Court.

Following the plea, counsel for the accused moved to quash the charge on the ground that s. 209 of the Criminal Code under which the charge was laid is so wide in its terms and so lacking in specificity that the offence which it purports to create is not an offence defined by law within the meaning of s. 37(2) of the Constitution of the Independent State of Papua New Guinea that section is accordingly unconstitutional and invalid, and that the offence with which his client is charged is accordingly an offence unknown to law.

The State Prosecutor submitted that the charge contained in the indictment was properly laid within the terms of s. 209 of the Criminal Code, and that that provision is in accordance with the provisions of s. 37(2) of the Constitution, and is valid.

I thereupon ruled that a question arose relating to the interpretation of the Constitution which was not trivial, vexatious or irrelevant and that the matter should by virtue of the provisions of s. 18(2) of the Constitution be referred to the Supreme Court, adjourned further proceedings in the National Court and by notice of reference dated 1st August, 1979, referred the matter to the Supreme Court in accordance with the requirements of s. 18(2) of the Constitution.

On 6th September, 1979, the matter of the Constitutional reference was heard before the Supreme Court at Waigani of which together with my brother the Chief Justice and my brother Saldanha, I was a member.

Section 209 of the Criminal Code provides as follows:

�DISOBEDIENCE TO LAWFUL ORDER ISSUED BY STATUTORY AUTHORITY

Any person who without lawful excuse, the proof of which lies on him, disobeys any lawful order issued by any court of justice or by any person authorized by any law of Papua New Guinea to make the order, is guilty of a misdemeanour, unless some mode of proceeding against him for such disobedience is expressly provided by any law of Papua New Guinea, and is intended to be exclusive of all other punishment.�

Section 37(2) of the Constitution provides as follows:

N2>�(2)�� Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.�

Section 10 of the Constitution provides as follows:

�CONSTRUCTION OF WRITTEN LAWS

All written laws (other than this Constitution) shall be read and construed subject to:

(a)�� in any case � this Constitution; and

(b)�� in the case of Acts of the Parliament � any relevant Organic Laws; and

(c)�� in the case of adopted laws or subordinate legislative enactments � the Organic Laws and the laws by or under which they were enacted or made,

and so as not to exceed the authority to make them properly given, to the intent that where any such law would, but for this section, have been in excess of the authority so given it shall nevertheless be a valid law to the extent to which it is not in excess of that authority.�

The Supreme Court, after hearing argument on the matter ruled that if (which it did not decide) s. 209 of the Criminal Code indeed in its present form offends against the provision of s. 37(2) of the Constitution in the way submitted, it is nevertheless a valid law except to the extent that it contains the words �or by any person authorized by any law of Papua New Guinea to make the order�, that the indictment is supportable on the provisions of s. 209 reading that provision with the abovementioned words omitted, and that therefore the motion to quash on the aforementioned ground failed.

Counsel for the accused also moved to quash on another ground, resting this argument upon the following words in s. 209, namely:

�... unless some mode of proceeding against him for such disobedience is expressly provided by any law of Papua New Guinea, and is intended to be exclusive of all other punishment.�

This argument, as I understood it, started off with a reference to the provisions of sub-s. (8) and (10) of the Companies Act 1963 as amended.

Subsection (8) provides:

�If a corporation or person, having made default in complying with:

(a)�� any provision of this Ordinance or of any other law which requires the lodging or filing in any manner with the Registrar of any return, account or other document or the giving of notice to him on any matter; or

(b)�� any request of the Registrar to amend or complete and re-submit any document or to submit a fresh document,

fails to make good the default within fourteen days after the service on the corporation or person of a notice requiring it to be done, the Court or a District Court may, on an application by any member or creditor of the corporation or by the Registrar, make an order directing the corporation or any officer thereof or that person to make good the default within such time as is specified in the order.�

Subsection (10) provides:

�Nothing in this section shall prejudice the operation of any law imposing penalties on a corporation or its officers or such person in respect of any such default.�

Subsection (8) is the provision under which the National Court order referred to in the indictment was made. The argument then appeared to proceed that the words �any law� in sub-s. (10) mean any law under the Companies Act 1963, and that accordingly, in the terms of s. 209 of the Criminal Code a mode of proceeding against the accused for disobedience to the National Court order is expressly provided by the Companies Act 1963 and is intended to be exclusive of all other punishment. Sections 163, 379, 380 and 381 of the Companies Act 1963 were referred to in addition, and also Murgon Shire Council v. Maudsley[dclxxi]³. I must confess that I had great difficulty in grasping counsel�s argument. To begin with I was of opinion that there appeared no reason why the words �any law� should be given the restricted meaning defence counsel would have the court subscribe to them. Beyond that I must simply say that I was unable to construe the matter referred to as supplying any basis for an inference that the present proceedings are not competent.

It was also submitted that the availability of common law contempt of court proceedings against the accused for failure to obey the National Court order, and the provisions of the Orders and Rules of the National Court relating to contempt of court proceedings provide a mode of proceedings intended to be exclusive of all other punishment. Once again I was unable to see how any inference arises that the present proceedings are not competent.

The motion to quash was therefore dismissed.

At this point it is necessary to consider the matter of onus of proof.

Under s. 209 of the Criminal Code the burden of proving that the accused disobeyed a lawful order issued by the court is on the State and such proof must be proof beyond a reasonable doubt. See Woolmington v. Director of Public Prosecutions [dclxxii]⁴. However the rule in Woolmington�s case is expressly laid down as being subject to �any statutory exception� and the words �the proof of which lies on him� specifically cast the persuasive burden on the accused of proving lawful excuse. The accused is required to establish his defence but only on the balance of probabilities � the ordinary civil burden of proof � R. v. Carr-Briant [dclxxiii]⁵; R. v. Dunbar [dclxxiv]⁶. In Everard v. Opperman[dclxxv]⁷�Scholl J. said:

�... if, at the end of all the evidence, the offence charged is otherwise proved beyond reasonable doubt, but it is uncertain whether or not a special permit existed, the defendant should be convicted.�

But this does not mean that he need do no more than adduce evidence raising a probability that the defence exists. The tribunal must be persuaded, on the probabilities, of the truth of the defence.

In Briginshaw v. Briginshaw[dclxxvi]⁸�Lathan C.J. said as follows:

�The petitioner carries the onus of persuading a judge to make up his mind in his favour. If he does not succeed in so persuading a judge, he fails in his petition and the matter is at an end.�

Dixon J. (as he then was) said[dclxxvii]⁹:

�The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality ... it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal.�

In Taylor v. Ellis[dclxxviii]¹⁰�Scholl J. said:

�... if the prosecution proves beyond reasonable doubt facts which establish guilt unless the exculpatory provisions apply, and the defendant leaves the court in doubt whether those provisions do or do not apply, the defendant should be convicted.�

In Robertson v. Police[dclxxix]¹¹�F. B. Adams J. said:

�It would seem to be enough that the tribunal should regard the allegation as being probably true. Mere possibility, as distinguished from probability, will not discharge the onus; and, in my opinion, the assertion of the probability implies on the part of the tribunal such measure of belief or mental acceptance as we normally concede to the probable. The mind of the tribunal does not need to reach that degree of certainty which is necessary where the onus rests on the prosecution, but may weigh the probabilities, and may accept the conclusion which arises therefrom, even though some element of doubt may remain.�

At the close of the case for the State, defence counsel submitted that there was no case to answer, on the following grounds.

Firstly he submitted that there was no evidence that his client was the John Rumet Kaputin who was named in the order. On this point I held that the identity of unusual names was alone sufficient, and that as further evidence a company return in evidence showed that John Rumet Kaputin �parliamentarian�, was the director and secretary of the company involved and that it was common knowledge that the man in the dock who had answered to that name was one also. Further, many points of law had already been taken by the defence in this case both in this court and before the Supreme Court, and it was hardly possible to conceive of an accused person, who had the simple answer to the charge that he was not the man in question, going to the trouble and expense of taking those points.

Secondly defence counsel, upon the authority of several old common law decisions one of which was Dodington v. Hudson[dclxxx]¹²�dealing with attachment of persons for disobedience of court orders to pay money, restore partitions wrongly removed, etc. submitted that his client could not be charged for breach of the order in this case because there had not, in addition to service of the order, been on the State evidence an �oral demand�. The reasoning which was at the basis of the rule in those cases does not, in my opinion, apply to the present case, and in any event because the offence charged is a Code offence, does not apply on the interpretation rules relating to codes. See Bank of England v. Vagliano Bros.[dclxxxi]¹³.

Thirdly Mr. Nwokolo submitted that the section should be read as though the word �wilfully� appeared before the word �disobeys� in s. 209 and that there was no evidence in the State case to show that the disobedience alleged was wilful. This also I think was on the authority of Dodington�s case[dclxxxii]¹⁴. Once again the reply is that the Criminal Code is a code and that if the section had meant �wilfully disobeys�, it would have contained that expression. I rejected this submission.

Fourthly Mr. Nwokolo submitted that the word �disobey� in s. 209 means more than �fail to obey� and of itself necessarily imports or connotes an element of wilfulness of which there was no State evidence.

I agree that the word disobey can mean wilfully refuse or neglect to obey, but it may also mean simply �fail to obey�. The latter is in my opinion its meaning in the context of the section in question, in the light of the structure of the section which seeks to throw the proof of any exculpation peculiarly within the knowledge of the accused upon the accused.

Finally Mr. Nwokolo submitted that the State had not adduced any evidence going to negative a defence under s. 23 of the Criminal Code.

There are two answers to this. The first is that in the case of such a defence the accused ordinarily carries the evidentiary onus, that is, there must be something before the court raising or suggesting the defence before the State need call any evidence to negative it. R. v. Lobell [dclxxxiii]¹⁵; R. v. Johnson [dclxxxiv]¹⁶; Mancini v. Director of Public Prosecutions[dclxxxv]¹⁷. This is conclusive against Mr. Nwokolo�s contention of no case to answer, as there was nothing in the State case suggesting such a defence.

The second answer is that, in my opinion, the section in question provides a statutory exception to the rule that the onus of negativing such a defence, when such a defence arises is on the prosecution, and shifts the onus to the accused who must establish this defence, as a matter of probability, as a �lawful excuse�.

For these reasons the submission of no case to answer failed. It is not, in my view, for the purposes of this case necessary, nor is it desirable, to attempt an exhaustive definition of the term �lawful excuse� in s. 209, but in my view it would include the various exculpations provided within Ch. V of the Criminal Code which deals generally with criminal responsibility and may (though the Criminal Code is, as the name implies, a code) (Bank of England v. Vagliano Bros. [dclxxxvi]¹⁸) extend to excuses which are provided or arise under some other statute or provision of the law.

On the evidence I am satisfied beyond any reasonable doubt that on 13th March, 1978, the accused was ordered by the National Court under the provisions of s. 12 (8) of the Companies Act 1963 (as amended) to make good, within three months, the default of the New Guinea Development Corporation Ltd. in failing to lodge with the Registrar of Companies in Port Moresby an annual return for the year 1977 in the prescribed form including a copy of the last balance sheet and of the last profit and loss account (including every document required by law to be attached thereto) together with a copy of the report of the auditor thereon. I am further satisfied beyond reasonable doubt that the accused failed to lodge or cause to be lodged the said documents or any of them within the time stipulated by the said order and that the said documents were not lodged until 11th May, 1979.

Apart from putting the State upon proof, the defence did not contest any of the foregoing matters of fact.

The accused did not call or give any evidence but made an unsworn statement from the dock. In it he stated that over the relevant period he had been a member of Parliament and a Minister of State and he had been under the pressure of heavy responsibilities involving many journeys overseas. He stated that thus there were times when the accountant employed by him required conferences with him when he was necessarily unavailable, and that there were times when he was available and the accountants, due to their other responsibilities were not. He spoke of difficulty in getting accountants as employees of the company, with the implication, I gather, that the records of the company had not been kept up to date.

I accept those generalities, but they are only generalities and they do not persuade me that the accused did all he reasonably could have done to comply with the requirements of the order of the National Court and I am not satisfied that by reasonable endeavours the accused could not have complied with the order within the time stipulated, and I am not satisfied that with reasonable endeavours he could not have complied much earlier than he did.

I am fortified in this view by the fact that no application for an extension of time was ever made, as I am sure it would have been if the accused had had a proper sense of his responsibilities under the order and if there were facts, which would stand the test of statement on oath subjected to cross-examination, justifying such an extension.

Defence counsel has not attempted to categorize the lawful excuse he seeks to establish. The only �lawful excuse� which could possibly arise, as a matter of law upon what the accused has said is in my opinion an excuse of impossibility of performance of the terms of the order by means reasonably open to him. I think that if this was established as a fact he would have a lawful excuse under s. 23 of the Code.

In my view neither that nor any other �lawful excuse� is made out and I find the accused guilty as charged.

OBSERVATIONS ON PENALTY � 10TH OCTOBER, 1979

This, it will be noted, is not an offence under the Companies Act 1963, but a misdemeanour under the Criminal Code. The maximum penalty prescribed under s. 209 of the Criminal Code is imprisonment with hard labour for one year. Before imposing a term of actual imprisonment the court should consider carefully whether a fine would adequately meet the facts of the case, or a shorter term of imprisonment together with a fine, or a suspended sentence, or any of the other penalties or variations available under ss. 19 and 613 of the Criminal Code. This I have done, indeed at length and most anxiously, as I have no direct guidance for offences of this kind in this jurisdiction.

The maximum sentence of one year must be reserved for the worst type of offence of the kind under consideration.

The basic facts of this particular case are that the company, the New Guinea Development Corporation Ltd., of which the accused is a director failed to lodge with the Registrar of Companies its annual return for 1977 and other documents required by law to be lodged therewith. The reason why these papers are required by law to be lodged is that the lodgment of such returns gives authenticated information as to the financial (and other) position of the company from year to year which is then available to the Registrar, and at the office of the Registrar of Companies to the shareholders, and to the creditors of the company and other people with whom the company does business or has dealings. This offers some basic protection to those people in their dealings with the company.

An order such as made by the court in this case, and prosecution under s. 209 of the Criminal Code for breach of due compliance, represent close to the last resort the Registrar has available to him to obtain the lodging of annual returns and other statutory documents.

It is not the function of this court to punish the defendant in respect of the earlier delays in the lodgment of the 1977 returns, or other returns, but the court cannot entirely ignore the background in assessing the seriousness of the default of which the defendant has in this case been convicted. The records of the Registrar of Companies show that the company was, notwithstanding constant helpful attention by and pressure from the Registrar of Companies and his officers, continuously and substantially in arrears with statutory returns. Right from the company�s inception in 1972 the accused was a director and the secretary of the company and all dealings with the Registrar appear to have been handled by the defendant. It would appear that he to a considerable extent controlled the company, so much so that defence counsel has suggested that if he were imprisoned the company might well collapse. Defence counsel referred to it as �the company he� (meaning the defendant) �established�, and to the defendant as �its figurehead�.

The company business was no small affair. It had approximately ten thousand �members�, all Papua New Guineans, though the returns sought by order of the court when lodged revealed that in respect of K109,765 contributed in the beginning as share capital by those persons no shares had yet been issued. They also disclosed that the auditors were unable to certify that the documents lodged gave a true and fair view of the state of the affairs of the company. Non-current liabilities were stated as over K200,000 and likewise with current liabilities, and fixed assets were shown as over K400,000. The principal activity of the company was shown as operating plantations, squash courts, and rental property.

When the 1977 documents were not duly lodged, on 30th March, 1978, the National Court ordered the defendant to make good within three months from the date of the order the default of the company. This was a consent order arrived at between counsel for the State and counsel for the accused.

Under the order, as has been seen, the documents, already late, were required to be lodged by 30th June, 1978.

By 27th October, 1978, almost four months later, the returns had not been lodged, and the prosecution which is now being dealt with by this court was on that date instituted against the defendant. Still the documents were not lodged, until 11th May, 1979, over ten months after the date limited by the National Court order for the lodgment of the documents had expired.

At no time after the order of the National Court was made did the defendant make any application to the Court for an extension of time as he could, and in my opinion would, have done had he had at any time reasons sufficient to justify an extension, which would of course have had to be proved by evidence subject to cross-examination. The defendant states that he was unaware that an extension could be applied for. I am satisfied that if he was not aware it was because he was quite indifferent.

It has been put to the court that the defendant over the relevant period has at all times been a member of Parliament and a Minister of State with very heavy responsibilities involving the making of many journeys overseas on behalf of the Government. I accept this and I accept that he has been a very busy man indeed. It has also been put that the accountancy profession in Papua New Guinea is heavily overtaxed by their responsibilities and that sometimes when the defendant was available for conferences the accountants were not. I do not doubt this. However no evidence has been called to show, nor was it really suggested by the defendant, that this was a main or a substantial cause of the delay in this case.

Persons should keep the ambit and weight of their responsibilities, and I now refer to the defendant, within their capacity to cope, and if they do not they cannot expect to be excused from the consequences.

In any event I am satisfied that the defendant has failed in an extreme way to pay proper attention to his responsibilities under the order of this Court.

The accused is a mature, educated and experienced person and knows better. He is, as has been said, a member of Parliament and a Minister of State. He was for a substantial period Minister for Justice.

Disobedience to the orders of the National Court are rare, and it is not necessary to stress the general deterrent aspect of penalty in this case. There should be a substantial personal deterrent, and punishment. In addition, the penalty must be such as will appear to the people of this country to be adequate having regard to the extent of the disobedience to the order of this Court that has taken place, as I have outlined.

The defendant has no prior convictions and a long record of public service.

I have considered, �inter alia�, imposing a fine in this case, but have come to the conclusion that a fine, even a very substantial one, would not sufficiently reflect the seriousness of this matter, the gravamen of which is disobedience for a long period of an order of this Court. The impact of a fine is often too indeterminate and too diffuse. Often the money is supplied by others, at least in the short term, and is not repaid for a long time, if ever, or creditors or dependants or kinsmen of the accused suffer by its payment.

I take into full account and make allowance for the embarrassment that a custodial sentence is likely to cause a person in the defendant�s position, beyond that which it would cause an ordinary person. I keep well in mind that the documents have now in fact been lodged, and have been lodged for some time.

The accused has spent no time in custody awaiting trial. Under the provisions of the Criminal Code a sentence of imprisonment takes effect from the first day of the current sittings which in this case is 2nd October, 1979. It is the order of the court that the defendant be imprisoned with hard labour for ten weeks.

Orders accordingly.

Solicitor for the State: K. B. Egan, Public Prosecutor.

Solicitor for the accused: I. Nwokolo.

[dclxix][dclxx][dclxxi] [1921] Q.S.R. 1.

[dclxxii] [1935] A.C. 462.

[dclxxiii] [1943] 1 K.B. 607.

[dclxxiv] [1958] 1 Q.B. 1.

[dclxxv] [1958] VicRp 62; [1958] V.R. 389, at p. 391.

[dclxxvi] [1938] HCA 34; (1938) 60 C.L.R. 336, at p. 349.

[dclxxvii] [1938] HCA 34; (1938) 60 C.L.R. 336, at pp. 361-362.

[dclxxviii] [1956] V.L.R. 457, at p. 461.

[dclxxix] [1957] NZPoliceLawRp 12; [1957] N.Z.L.R. 1193, at p. 1194.