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Heduru Transport Pty Ltd v Vegoli [1977] PGNC 3; N99 (24 June 1977)

Unreported National Court Decisions

N99

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APP. 197 OF 1976
BETWEEN
HEDURU TRANSPORT PTY. LTD.
APPELLANT
AND
GAIRO VEGOLI
RESPONDENT

Waigani

Frost CJ
4 April 1977
10 June 1977
24 June 1977

CRIMINAL LAW - application of Chapter V of Criminal Code to all statutory offences - generally under Chapter V no criminal responsibility for an act or omission which occurs independently of the exercise of the will - exclusion a question of statutory construction - Criminal Code ss.23, 36, Police Offences (Rubbish Dumping) Act 1969, s.5(1).

CRIMINAL LAW - aiding and abetting - being directly or indirectly concerned in the commission of an offence - company servant stopping and leaving stationary a truck upon a public road and thereby aiding servants employed by Government department to dump rubbish and being concerned therein in contravention of Police Offences (Rubbish Dumping) Act 1969, s.5(1) - no knowledge by company of facts constituting offence - whether company guilty of aiding and abetting or being concerned in commission of offence - Criminal Code s.23, Acts Interpretation (Interim Provisions) Act 1975, s.23.

CRIMINAL LAW - aiding and abetting - being concerned in commission of offence - absolute prohibition under substantive offence - whether vicarious liability imposed - Criminal Code, s.23, Acts Interpretation (Interim Provisions) Act 1975, s.23, Police Offences (Rubbish Dumping) Act 1969, s.5(1).

CRIMINAL LAW - “person” - company - Criminal Code s.1, Acts Interpretation (Interim Provisions) Act, s.3(1).

STATUTES - whether construction permissible by reference to object to be attained - Constitution, s.109(4), Police Offences (Rubbish Dumping) Act, s.5(1), Acts Interpretation (Interim Provisions) Act, s.23.

FROST CJ: The appellant company wa12on 12th November 1976 convicted by the District Court upon a charge that on 16th October 1976 contrary to the Police Offences (Rubbish Dumping) Act 1969, s.5(name="_ednref1038">N99.html#_edn1038" title=""le="">[mxxxviii]¹ the ny dumped a quantity ofty of rubbish on a public road known as 6-Mile Taurama Road, and fined K35.00. An appeal is now brought on the grounds that the Company wt responsible for dumping the rubbish, and that the decisiocision was wrong in law or, alternatively, against the weight of evidence in that the magistrate found that persons responsible for dumping rubbish were the servants of the appellant when the vehicles were out on loan.

Counsel for the appellant put a number of arguments which fell within the first broad ground, and no objection was taken that the grounds were not more specifically stated.

The case raises the question of in what circumstances a company is vicariously liable for an offence committed by an employee, a question which so far as I can ascertain has not before been considered under the law applicable in Papua New Guinea.

The facts as found by the magistrate were that on the date in question at the intersection of Taurama Road and 6-Mile Road, the informant saw a truck pulled up alongside the road with a driver and four other men standing on the truck. The four men were all shovelling rubbish out of the truck onto the road, which, of course, constituted on their part a contravention of the Act. On the side of the truck was printed the name of the appellant. Apparently the driver was identified as such as a result of a conversation the respondent had with the men at the scene. There was a sign on a nearby tree, “Dumping of Rubbish is Prohibited in this Area”.

Now the whole point of the case is that it was only the driver who was employed by the appellant. It is not the simple case of a truck driver discharging the rubbish by tipping the tray. The four labourers were employed by the Government to which the truck had been hired. From the evidence of Tom Vagi, the manager of the appellant, and Mr. Kolopi Lopia, the Regional Supervisor of the Government Storehouse, at Badili, it was proved that the appellant, which owned trucks, had a contract with the Government to supply vehicles for the carriage of stores. Under the contract documents, which were tendered in evidence, an authorized Government officer was to advise the company of the availability of cargo for carriage and delivery, and despatch was to be carried out in accordance with the instructions. A driver, employed and paid by the company, was supplied with each truck. On the day in question two trucks were supplied to the Government. To Vagi’s knowledge no member of the company told the driver to dump rubbish on that day. Mr. Lopia testified that two trucks from the appellant company came to the storehouse, where rubbish was piled up to be carried away and dumped. Two trucks were loaded by the storehouse labourers. The witness told the driver to take the rubbish to the dump. There were four labourers to each truck. He said it was the driver’s job to get rid of the rubbish.

The principal issue, as the magistrate saw it, was whether the persons responsible for dumping the rubbish on 16th October 1976 were the servants of the appellant company at the relevant time.

Upon the evidence the appellant company was found responsible for the act of dumping the rubbish as charged. The magistrate arrived at this conclusion after considering four factors. They were, in summary, first, that the driver of the truck remained an employee of the Company, even although the truck had been hired out to the Government; secondly, even though it was the labourers who were unloading the truck, and they were not employed by the company, the driver was under an independent liability as he had the control of the truck, had pulled it off the road and had the discretion as to where to dump the rubbish and the power to prevent the act, simply by either telling the labourers to stop, or moving the truck; thirdly, having regard to the subject matter of the Act, the offence fell within the category of “public welfare offences” or “criminal nuisances”, for which the test of strict liability, without proof of any criminal intent on the part of the persons involved could not be avoided if the law is to be effectively enforced; and fourthly, that the Company was for the purposes of the criminal law vicariously responsible for the act of the driver even although he was not instructed to perform the act, and the company had no knowledge of it.

The two main principles considered by the magistrate were, first, that there is a presumption at common law that the defendant commits no offence unless he has a guilty mind, and the principle of vicarious responsibility for quasi-criminal offences. The latter principle was expressed by Atkin J. in a passage so often quoted in Mousell Brothers, Limited v. London and North-Western Railway CompanyN99.html#_edn1039" title="">[mxxxix]². His Lordship said:

“I think that the authorities cited by my Lord make it plain that while prima facie a principal is not to be made criminally responsible for the acts of his servants, yet the Legislature may prohibit an act or enforce a duty in such words as to make the prohibition or the duty absolute; in which case the principal is liable if the act is in fact done by his servants. To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed.”

It was held immaterial whether the master was an individual or a corporation.

Because of the application of these common law principles without regard to the statute law of Papua New Guinea the case was unfortunately tried on the wrong basis. For it is the Criminal Code to which recourse must first be had whenever the issue of criminal responsibility is raised. Further, as the driver did not himself dump the rubbish the provisions of the Interpretation (Interim Provisions) Act 1975, s.23, which deals with the modes of participation in an offence, are also basic to the case. But first I shall refer to the Code.

Section 36 provides that the provisions of the chapter in which it is found, that is “Chapter V - Criminal Responsibility”, apply to any offence against any law of Papua New Guinea. “Criminal Responsibility” which is defined as “liability to punishment as for an offence”, Criminal Code, s.1, is thus to be determined not by the common law doctrine of mens rea, or the requirement of a “guilty mind” of some kind but under Chapter V. That chapter contains s.23 which provides, so far as is material, that a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.

The position under the Queensland Criminal Code, which so far as is material to this case has been adopted under the Papua New Guinea Code, has been succinctly stated by Gibbs J. as follows:

“Section 36 of The Criminal Code provides that the provisions of Ch.V. ‘apply to all persons charged with any offence against the Statute Law of Queensland.’ It would indeed be anomalous if the criminal responsibility of bodies corporate must be determined by the application of the rules of the common law that have been replaced, so far as natural persons are concerned, by Ch.V, and I am satisfied that this is not the intention. ‘Persons’ in s.36 in my opinion includes bodies corporate. The definition of ‘person’ in s.1 of The Criminal Code does not indicate an intention that the definition of ‘person’ in s.36 of The Acts Interpretation Act of 1954 should not apply to the provisions of Ch.V......It follows that a corporation, like a natural person, is not criminally responsible for an act which occurs independently of the exercise of its will (s.23), including ... an act done by a servant in violation of his instructions.”

Grain Sorghum Marketing Board v. Supastok Pty. Ltd., Ex parte Grain Sorghum Marketing BoardN99.html#_edn1040" title="">[mxl]³. Now, as the Interpretation (Interim Provisions) Act 1975, s.3(1), the Papua New Guinea provision corresponding to the Acts Interpretation Act of Queensland, s.36, also includes a body corporate, in my opinion the statement of the law by Gibbs J. is fully applicable to the Criminal Code, and I would adopt it.

In Queensland it has thus been accepted that, in general, a principal, whether a natural person or a company, cannot be held criminally responsible for the unauthorized acts of a mere servant, on the ground that acts done without the knowledge of the principal are done independently of its will. Section 23. Hunt v. MaloneyN99.html#_edn1041" title="">[mxli]⁴, The Poultry Farmers Co-operative Society Limited v. The Grain Sorghum Marketing BoardN99.html#_edn1042" title="">[mxlii]⁵, Breene v. BovdN99.html#_edn1043" title="">[mxliii]⁶, Grain Sorghum Marketing Board v. Supastok Pty. Ltd.N99.html#_edn1044" title="">[mxliv]⁷ (supra)Kehoe v. Dacol MotorMotors Pty. Ltd.N99.html#_edn1045" title="">[mxlv]⁸. (re decisions of the Full Court of the Supreme Court of Queensland). The same view seems to s to have been adopted in Western Australia where the Code also has been largely taken from the Queensland Criminal Code. Geraldton Fishermen’s Co-operative Ltd. v. MunroN99.html#_edn1046" title="">[mxlvi]⁹, But see Keeley v. KjellgrenN99.html#_edn1047" title="">[mxlvii]¹⁰. (Both cases are decisions of the Full Court of the Supreme Court of Western Australia). It is true that a company may be directly rather than vicariously liable because of the acts or omissions of a responsible officer who, on the facts, is shown to represent the “directing mind and will of the company, and controls what it does”. H.L. Bolton (Engineering) Co. Ltd. v. T.J. Graham & Sons Ltd.N99.html#_edn1048" title="">[mxlviii]¹¹, per Lord Denning at p.172; Tesco Supermarkets Ltd. v. NattrassN99.html#_edn1049" title="">[mxlix]¹², per Lord Reid at pp.170-171. But there is no question of that principle being extended to the facts of this case; the truck driver plainly cannot be regarded as the company.

However, just as the common law requirement of a guilty mind has been dispensed with in the case of absolute offences, it is possible for the application of s.23 also to be excluded. The Queensland cases, in my opinion correctly, recognize that this may be effected, certainly by the express provision of the statute creating the offence. Hunt v. MaloneyN99.html#_edn1050" title="">[ml]¹³ (supra Stanley J. at p.177,.177, per Mack J.(as he then was) at p.183; Breene v. BoydN99.htmn1051" title="">[mli]¹⁴ (supra) at p.297-8; Ke. e v. Dacol Motors Ptrs Pty LtdN99.html#_edn1052" title="">[mlii]¹⁵ (suprn example in the legislegislation of this country may be fon the Liquor Licensing Act Act 1963, s.123(2).

In Queensland, although there are early cases which appear to have decided to ontrary, it is now acceptedepted that the operation of s.23 cannot be excluded merely by the objects of the statute creating the offence. Hunt v. MaloneyN99.html#_edn1053" title="">[mliii]¹⁶ (supra),Stanley & Mack Mack JJ. The section should not be held to be excluded in relation to a statutory offence unless a statute usear and unequivocal language to that effect. - Breene v. Boyd<54">N99.html#_edn1054" title="">[mliv]¹⁷ (supra).

Now the applicability of the provisions of Chapter V of the Code to summary prosecutions is an interpretation not new to this country. It was drawn to the attention of the Court by counsel for the informant irosecution under the Motor otor Traffic Act 1950, and was considered by Minogue J. (as he then was) in Thick v. HoeterN99.html#_edn1055" title="">[mlv]¹⁸. His Honour clearly applied to the facts of the case the view taken in the Queensland cases that “Section 36 of the Code applies s.23 to every statutory offence irrespective of type”. (at p.95). Section 23 of the Motor Traffic Act provides a general defence where a person proves to the Court that the offence or contravention could not have been avoided by reasonable efforts on his part. The actual ground of the decision was that that section and s.23 of the Criminal Code could not stand together, and in view of the repugnancy the provisions in the Act prevailed. His Honour referred to the judgment of Mack J. in Hunt v. MaloneyN99.html#_edn1056" title="">[mlvi]¹⁹ (supra) a83, but I cannot bnot but feel that His Honour’s summary of that judgment rather under-stated the view of Mack J. that reference to the objects of a statute would be insufficient to excl.23. However, it is clear fear from the judgment that His Honour was not prepared to go so far. Thick v. HoeterN99.html#_edn1057" title="">[mlvii]²⁰ (supra).

Inbrief prof provisions of the statute in question here, there is no express reference to the matter. The issue is whether s.23 of the Code has been excluded by nary implication having regard to the subject matter and objd objects of the statute. A fully reasoned expression of the view against such a construction is to be found in the judgment of the Full Court of Western Australia delivered by Hale J. in Geraldton Fishermen’s Co-operative Ltd. v. MunroN99.html#_edn1058" title="">[mlviii]²¹ (supra). The questiere was was whether s.24 of the Criminal Code, which deals with the defence of honest and reasonable mistake, was excluded by a statute making it an offence under s.24A for a person to have in his control crayfish tails of a weight less than the weight prescribed. The exclusion of s.23 of the Code of course presents the same problem. As the case was strongly relied on by counsel for the appellant and contains also a relevant citation from Lim Chin Aik v. R.N99.html#_edn1059" title="">[mlix]²², I shall set out the passage in full:

“For the respondent it was argued that by reason of the second paragraph of s.24 the operation of the section is excluded so far as concerns any offence created by s.24A of the Fisheries Act. There is no express exclusion, but it is said that there is an implied exclusion. In my opinion, this involves solely a question of statutory construction. It may be that in some cases decided in this Court this has been lost sight of, but it is now accepted that s.36 of the Criminal Code means exactly what it says and that the provisions of Chapter V apply to all statutory offences. It follows that where there is no express exclusion then s.24 and the section creating an offence must, if possible, be read together, and s.24 can not be treated as excluded by implication, unless on a fair reading of the penal section (read of course in the context of the whole Act in which it stands) it is seen that the penal section is inconsistent with the co-existence of s.24 so that effect cannot be given to both at the same time:......... If this view is correct then decisions on the implied exclusion of the common law doctrine of mens rea cannot govern the present case. Now the mere fact that s.24A is couched in absolute language cannot by itself be an implied exclusion of s.24 of the Criminal Code: if this were so, s.24 would never apply unless a penal section itself indicated that s.24 was to apply, and this would be an inversion of what is enacted by s.24. And, in my opinion, it is not permissible to find an implied exclusion by regarding the subject-matter of the particular statute. The most that such an examination can show is that it would be quite reasonable for Parliament in the particular case as a matter of policy to have excluded s.24: but if on a fair interpretation of the words used it can be seen that the two sections can stand together, then the fact that an exclusion would have been reasonable, or even the fact that an exclusion might have been expected, cannot, in my opinion, justify the adoption of a gloss on the words used so as to bring about such a result. I can see nothing in s.24A of the Fisheries Act, whether it is read alone or in conjunction with the rest of the Act, which shows any intention on the part of Parliament to exclude s.24 of the Criminal Code, or which creates the slightest difficulty in allowing both sections to stand together.

But if I am wrong in this view, and if in construing this statute we are bound to apply the criteria which have been developed by the courts (not without some inconsistencies) for determining whether a statute impliedly excludes the common law requirement of mens rea, I would arrive at the same conclusion. The most recent authoritative discussion of this subject is to be found in the opinion of the Privy Council in Lim Chin Aik v. R., (1963) 1 All E.R. 223, at pp.227-229. Towards the end of that passage their Lordships said:

‘But it is not enough in their Lordships’ opinion merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended. It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means that there must be something he can do, directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim. This principle has been expressed and applied in Reynolds v. G.H. Austin & Sons Ltd., (1951) 2 K.B.135, and James & Sons Ltd. v. Smee, Green v. Burnett (1955) 1 Q.B.78. Their Lordships prefer it to the alternative view that strict liability follows simply from the nature of the subject-matter and that persons whose conduct is beyond any sort of criticism can be dealt with by the imposition of a nominal penalty ... But though a nominal penalty may be appropriate in an individual case where exceptional leniency is called for, their Lordships cannot, with respect, suppose that it is envisaged by the legislature as a way of dealing with offenders generally. Where it can be shown that the imposition of strict liability would result in the prosecution and conviction of a class of persons whose conduct could not in any way affect the observance of the law, their Lordships consider that, even where the statute is dealing with a grave social evil, strict liability is not likely to be intended.’ ”

Hale J. then went on, with respect in a well-reasoned passage, to refer to the real possibility that on the facts completely innocent persons, such as carriers with no chance of knowing the contents of parcels under their control, would, if s.24 were excluded, be brought within the Act, and it was held accordingly that the Act did not impose strict liability.

Further assistance in the construction of statutes at common law in relation to this matter has also been afforded in the speech of Lord Reid in Sweet v. ParsleyN99.html#_edn1060" title="">[mlx]²³:

“What, then, are the circumstances which it is proper to take into account? In the well known case of Sherras v. De Rutzen [1895] UKLawRpKQB 77; (1895) 1 Q.B 918) Wright J. only mentioned the subject matter with which the Act deals. But he was there dealing with something which was one of a class of acts which ‘are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty’ (p.922). It does not in the least follow that when one is dealing with a truly criminal act it is sufficient merely to have regard to the subject matter of the enactment. One must put oneself in the position of a legislator. It has long been the practice to recognise absolute offences in this class of quasi-criminal acts, and one can safely assume that, when Parliament is passing new legislation dealing with this class of offences, its silence as to mens rea means that the old practice is to apply. But when one comes to acts of a truly criminal character, it appears to me that there are at least two other factors which any reasonable legislator would have in mind. In the first place a stigma still attaches to any person convicted of a truly criminal offence, and the more serious or more disgraceful the offence the greater the stigma. So he would have to consider whether, in a case of this gravity, the public interest really requires that an innocent person should be prevented from proving his innocence in order that fewer guilty men may escape.”

His Lordship then went on to mention as the second factor that “every manifestly unjust convinction made known to the public tends to injure the body politic by undermining public confidence in the justice of the law and of its administration.” (at p.150). I would refer also to the passage from the judgment of Devlin J. (as he then was) in Reynolds v. G.H. Austin & Sons Ltd.N99.html#_edn1061" title="">[mlxi]²⁴, which is set out in Gardner v. AkeroydN99.html#_edn1062" title="">[mlxii]²⁵, an authority relied on by counsel for the appellant.

Now, in my opinion, this mode of construction of statutes to determine whether the common law presumption of mens rea has been excluded, is relevant by analogy to the present case, which was the basis of the argument by counsel for the respondent. It seems to me that the approach taken by the Courts in Australia under the Code is rather a narrow one. It does not take into account that in practice Parliament does not deal expressly with the matter, or the assumption mentioned by Lord ReidN99.html#_edn1063" title="">[mlxiii]²⁶. Lord Devlin has made the pertinent comment that, “One is driven to the conclusion that the reason why Parliament has never done that is that it prefers to leave the point to the judges and does not want to legislate about it.” Devlin, ‘Samples of Law Making’, cited Criminal Law, Smith & Hogan, Third Edition, p.69. In Papua New Guinea a broader approach is enjoined upon the Courts by the Constitution.

Section 109(4) provides as follows:

“(4) Each law my thb Parliamentament shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law accg to rue i, meaning and spirit....”

>

In inIn interprterpreting this section it is proper to bear in mind the view of the Constitutional Planning Committee that, “We cannot afford to have our Courts take a narrowly legalistic approach if the law is to be justly applied.” See also Reference No.1 of 1976N99.html#_edn1064" title="">[mlxiv]²⁷ per Prentice, Deputy C.J.

Turning to the object of the Police Offences (Rubbish Dumping) Act 1969, as required under the Constitution clearly the statute is not one of “a truly criminal character”, but ratirected against dumping as g as a public nuisance or pollution of town and country-side. Alphacell Ltd. v. WoodwardN99.html#_edn1065" title="">[mlxv]²⁸. In my opinion the legislative intention would be rendered nugatory if in large scale operations responsibility was restricted to the driver of the truck involved, and the vicarious liability of the employer excluded. Giving the Act a liberal construction so as to achieve its object, vicarious liability was certainly intended. The nature of the offence also under s.5(1) supports an absolute construction. Dumping, throwing away or abandoning rubbish generally seem to me to connote a deliberate action. Alphacell Ltd. v. WoodwardN99.html#_edn1066" title="">[mlxvi]²⁹ (supra). Automatism can be dismissed as a practical defence, and as ignorance of the law is no excuse (Criminal Code s.22), there would appear to be little room for a defence of accident us.23 or of honest and reasonable mistake under s.24. The tyhe types of case in which these defences could be set up seem to me so unusual that it is consistent with the legislative intention that the prohibition should be absolute, in order that fewer persons responsible for a contravention should be allowed to escape.

The Act also clearly meets the test laid down in Lim Chin Aik v. R.N99.html#_edn1067" title="">[mlxvii]³⁰ (supra), which was exed furd further by Lord Diplock in Sweet v. ParsleyN99.html#_edn1068" title="">[mlxvii>³¹ (supra). The busiof a road road carrier in the course of which trucks mcks may be used for dumping is peculiarly one in which there is room for the employer to take measures, by supervision, inspection and exhorting of drivers, which will promote the observance of the obligation not to dump rubbish in a prohibited place.

As a matter of statutory construction therefore, and to ensure the attainment of the objects of the statute, I would thus uphold the submission of counsel for the respondent that there is an implied exclusion of s.23 of the Criminal Code. Accordingly the Act creates an absolute offence, and it is no defence that the act of dumping was committed by a servant on behalf of the appellant without the knowledge of the company.

The other main issue in the case is whether there is proof that an employee of the appellant was a participant in the offence in such a manner as to render the appellant responsible for it.

At the outset, in my opinion, the magistrate was right in deciding that as the Government merely told the driver what to do, that is to get rid of the rubbish, the appellant retained the authority to control the manner in which he carried out his work, and thus the driver remained for the purposes of vicarious liability the employee of the Company, and was at the relevant time acting in the course of his employment. I see no reason why the test so laid down in Mersey Docks and Harbour Board v. Goggins & AnorN99.html#_edn1069" title="">[mlxix]³² for determininch of two empo employers was responsible for the negligence of a crane driver should not be applied in a criminal case. The view that criminal responsibility depends on the right of control isorted by the commentary to y to C. Gabriel Ltd. v. Enfield London Borough CouncilN99.html#_edn1070" title="">[mlxx]³³ which was very pry cited byed by counsel for the appellant. The facts in McDonald v. The CommonwealthN99.html#_edn1071" title="">[mlxxi]³⁴, which was alted by counsel for the appe appellant, fall clearly on the other side of the line.

It was strongly submitted by appellant’s counsel that there was no evidence to support the finding that the appellant’s driver was a participant at all. It is true that there was no evidence as to the driver’s name, a fact upon which counsel relied. But there was evidence that the appellant’s manager despatched two drivers and trucks to the Badili storehouse, that two of the appellant’s vehicles were loaded at the storehouse, and were driven away by the driver with instructions to take the rubbish to the dump. There were four labourers to each truck. In view of the informant’s evidence that the truck bore the appellant’s name, and that there were five men on the truck, four shovelling the rubbish, and one standing by, I consider that on the facts it was open to the magistrate to infer, without more, that the man standing by was the appellant’s driver. In fact the informant gave evidence that he spoke to the driver, but whether this was based on statements admissible against the appellant or otherwise does not appear.

On this evidence, the appellant’s driver was not himself physically engaged in the act of dumping the rubbish. Under the Criminal Code, s.7, in addition to the person who actually does the act or makes the omission which constitutes the offence, a person who enables aids counsels or procures any other person to commit the offence is deemed to have taken part in committing the offence. Both in Queensland and Western Australia it is accepted that, although s.7 falls outside Chapter V and is not therefore expressly made applicable under s.36, s.7 applies to all statutory offences. Hunt v. MaloneyN99.html#_edn1072" title="">[mlxxii]³⁵ (supra) tanley J. at p.169;.169; West v. PerrierN99.html#_edn1073" title="">[mlxxiii]³⁶ per Mansfield C.J.The Py Fary Farmers Co-operative Society Limited v. The Grae Grain Sorghum Marketing BoardN99._edn1074" title="">[mlxxiv]³⁷ (supra) per Philp Jp.12; Kehoe v.oe v. Dacol Motors Pty. Ltd.N99.html#_edn1075" title="">[mlxxv]³⁸ (supra) per Andrewat p.75; .75; Wilson v. <76">N99.html#_edn1076" title="">[mlxxvi]³⁹; West v. SuzukaN99.html#_edn1077" title="">[mlxxvii]<⁴⁰. But in Papua New Guinea in cases where the defendant is not shown to have done the act or made the omission which is prohibited, responsibility for participation in statutory offences is to be determined under the Acts Interpretation (Interim Provisions) Act, s.23, a provision which was first introduced into the Act in 1957. (That section cannot apply to offences created under the Code, for which special provision is made in s.7). It is in the following terms:

“23. &#AIDER ABETTORSTTORS. A pe A person who aids, abets, counsels or procures or by an act or omission is in any way directly or indirectly concerned in the commission of an offence against or conttion y law in force ince in the the State shall be deemed to have committed the offence or contravention and shall be punishable accordingly.”

The section is derived from the Australian Crimes Act, s.5, although it is not in the same terms for the element of “knowingly” in relation to the last limb of the section is excluded. The construction of the section generally is referred to in The King v. Goldie; Ex parte PicklumN99.html#_edn1078" title="">[mlxxviii]⁴¹, a decision of the High Court of Australia. I would apply to s.23 what was held in that case, that before a person can be convicted under such a section it is clearly necessary first that the actual commission of the offence should be established. The present case, of course, meets that test. I would also adopt the following passage from the judgment of Evatt J. as applicable to s.23 of the Act:

“Accordingly sec.5 deems the aider &c. himself to have committed the offence which he has aided. But this ‘deeming’ is for the purpose of making the aider punishable to the same extent as if he had committed the ‘principal’ offence. If, for instance, the offence aided is a crime which can be committed only by a bankrupt, sec.5 makes the aider liable to the same punishment as is provided in the case of a bankrupt committing the offence; it does not attempt to perpetrate the absurdity of declaring the aider a bankrupt.” (at p.271).

Thus again to apply the words of Evatt J., the fact that an offence can be committed only by a person who dumps etc. rubbish, does not mean, except for the purposes of punishment, that a person who aids or is concerned in the commission of the offence, is to be regarded as having dumped rubbish.

Section 23 is also in similar terms to s.54(1) of the Forestry Act (1918-1954), which was considered by the Full Court of Western Australia in Ashbury v. ReidN99.html#_edn1079" title="">[mlxxix]⁴². The case is helpful in this jurisdiction because the meaning of the word “concerned” was considered. It was held to have its dictionary meaning of “to be in a relation of practical connexion with”, “to have to do with”, “to have a part in”, “to be implicated or involved in”, and “to have to do with something, especially something culpable”.

Now upon the magistrate’s findings, in stopping and leaving the truck stationary upon the road to enable the rubbish to be dumped, the only conclusion open, in my opinion, is that the driver aided and abetted the commission of the offence. So I uphold the submission upon this point by counsel for the respondent. I consider that the effect of the findings is also that the driver was directly concerned in the commission of the offence. But it does not necessarily follow that if s.5(1) creates an absolute offence, a similar construction should be given to s.23 in its application to a charge under s.5(1).

On the whole I have decided that the section does not, in respect of any of the modes of participation provided for, create an absolute prohibition. I have been much assisted in reaching this conclusion by the reasoning of Lord Parker C.J. in Gardner v. AkeroydN99.html#_edn1080" title="">[mlxxx]⁴³ (supra), a case relied on by counsel for the appellant and in which the legislation involved the same problem as that before this Court. In that case Article 2 of an Order under the Defence (General) Regulations made it aence to sell meat at a pric price exceeding the maximum price applicable. Regulation 90(1) made it an offence without prejudice to the aiders and abettors legislation etc. to attempt to commit or do any act preparatory to the commission of an offence against any of the regulations, and was thus applicable to all offences created under the Regulations. It was held that although Article 2 created an absolute prohibition the master could not be held vicariously liable, without knowledge on his part, for his servant’s attempt or act preparatory to the commission of the offence under Regulation 90(1).

To state my reasons, first, it is beyond doubt that in the case of aiders and abettors, a person can only be convicted if he is aware of all the circumstances which constitute the offence, although it is immaterial whether he knows that those circumstances constitute an offence. Johnson v. YoudenN99.html#_edn1081" title="">[mlxxxi]⁴⁴; John Henshall (Quarries) Ltd. v. HarveyN99.html#_edn1082" title="">[mlxxxii]⁴⁵. The position is the same under the Code, s.7: R. v. Tovarula & Ors.N99.html#_edn1083" title="">[mlxxxiii]⁴⁶; R. v. SolomonN99.html#_edn1084" title="">[mlxxxiv]⁴⁷. (The relevant passages in the judgment of Philp J. in that case however require some qualification in the light of s.22 of the Code). Knowledge is required also in the case of one who counsels or procures the commission of an offence. Accordingly it seems to me unlikely that the position of a person who falls within the general category of those directly or indirectly concerned in the commission of an offence was intended by the legislature to be any different.

Secondly, it seems to me that s.23 should be given the same operation in relation to any offence, whether s.23 of the Code is applicable to it or it creates an absolute obligation. If the words are read as importing an absolute obligation a master might be rendered liable for the act of a servant whereby the latter is concerned in the commission of an offence, whilst he might not be liable for the substantive offence itself. As Lord Parker, C.J. observed, this would be an absurd result.

The third reason is founded on the objects of s.23 of the Act. If, contrary to my opinion, s.23 is to be read together with the particular statute creating the offence, in this case s.5(1) of the Rubbish Dumping Act, and that section is, as I have held, to be construed as creating an absolute prohibition, it does not seem to me necessary from the point of view of the protection of the public, to go further and read the very wide words involving a person who by an act or omission is in any way directly or indirectly concerned in the commission of an offence, as importing also an absolute obligation. In other words, the objects to be attained by s.23 do not, in my opinion, require such a construction of s.23 when applied in relation to s.5.

To apply the test suggested by Lord Devlin, as Lord Parker C.J. did, if employers are under an absolute obligation under s.5(1), that should be sufficient “to keep themselves and their organizations up to the mark”.

It follows that s.23 of the Code is not excluded from operation under s.23, and accordingly as it was not shown that the acts and omissions of the driver, or even that the truck was being used for dumping, were within the knowledge of any responsible officer of the Company, who was in control or had the direction of its operations, the Company could not be held criminally responsible for those acts and omissions.

In the end the case is entirely analogous to John Henshall (Quarries) Ltd. v. HarveyN99.html#_edn1085" title="">[mlxxxv]⁴⁸ (supthe headnote of which iich is set out in Carter’s Criminal Law, 4th Edition, at p.44 in the notes to s.7 of the Code, a case which was also relied on by counsel for the appellant. There the company was held vicariously responsible for the act and omission by an employee in the conduct of his duties as a weighbridge man, which amounted to aiding and abetting an offence committed by another, and the conviction was set aside by a Divisional Court on the ground that the knowledge of the employee, who was not one of the company’s responsible officers who could be described as the “brains of the company”, could not be imputed to the company. The principle applied was stated by Lord Parker, C.J., as follows:

“......there is fundamentally no difference between a master who is an individual and a master who is a limited company, save that in the case of a limited company their knowledge must be the knowledge of those whom, in Bolton (H.L.) (Engineering) Co. Ltd. v. T.J. Graham & Sons Ltd., ((1957) 1 Q.B. 159) Lord Denning referred (at p.172) to as the brains of the company. There is no doubt that there are many cases where the knowledge of somebody in the position of the brain, maybe the directors, the managing director, the secretary, the responsible officers of the company, has been held to be the knowledge of the company. It seems to me that that is a long way away from saying that a company is fixed with the knowledge of any servant: again to quote Lord Denning: the knowledge of the hands as opposed to the brain merely because it is the servant’s duty to perform that particular task.” (at p.241).

See also Tesco Supermarkets Ltd. v. NattrassN99.html#_edn1086" title="">[mlxxxvi]⁴⁹ (supra) per Lord Reid, at p.170-1.

For all these reasons the appeal is allowed and conviction quashed.

Order accordingly.

Solicitor for the Appellant: Ikenna Nwokolo &ao.

Counsel: I. Nwokolo and N. Kila.

Solicitorcitors for the Respondent: Craig Kirke & Wright.

Counsel: D.S. Awaita.