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Wapele v Sepa [1981] PGNC 18; N292 (26 March 1981)

Unreported National Court Decisions

N292

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

(APPEAL NO. 251 OF 1980)
BETWEEN: KONIARE WAPELE
(APPELLANT)
AND: CONSTABLE SEPA
(RESPONDENT)

Wabag

Narokobi AJ
20 October 1980
26 March 1981

NAROKOBI AJ:

INTRODUCTION

Who owns the gun once its registration has expired? The appellant owned a gun which he registered under the Fire Arms Regulation Act 1963-1969. For over one year that gun was un-registered. Upon his conviction, that gun was confiscated under s.21(1)(b) of that Act. That Act has since been repealed and replaced with a new Act, Fire Arms Act 1978 (see Reuben Iniveko v. P.R. GiddingsN292.html#_edn517" title="">[dxvii]¹).

This appeal first came before me on 20th October 1980, in Wabag. The magistrate’s reasons for his decision were that the defendant (appellant) was too old. I stood the appeal over to enable the Public Solicitor to find out the age of the appellant. It is now evident that the appellant is about thirty-five years old and not an old man at all.

BASIC FACTS

The appellant comes from Kompiam, a very remote part of Wabag. It can be reached only by VHF radio and by small mission aircraft, infrequently. The appellant had a shotgun for which he was registered and licenced to shoot. His licence expired and for some twelve months and nineteen days the appellant was unlicenced. At some time, the dates are not clear, the appellant paid a K2.00 fee to the District Officer. This fee was strictly an application fee for renewal of licence, although it is argued he believed it was a fee which entitled him to hold the gun.

He was summoned to appear in the District Court, but due to transport difficulties he turned up a few weeks late for his trial. He was arrested, tried and ordered to pay a fine of K50.00 and in addition the gun in his possession was forfeited.

THE APPELLANT’S ARGUMENTS

The appellant says when asked if he had anything to say on sentence, that he had paid K2.00 renewal fee for his gun. This statement would suggest that the appellant had an honest belief, even though mistaken, that he was holding the gun legally. On this basis, a plea of guilty was wrongly entered.

The other argument of the appellant is that the magistrate has overstepped his mark in the use of his discretion in making the order for a fine and for the forfeiture of the gun, pursuant to s.58(2) of the Firearms Regulation Act 1963, Act No. 61 of 1963. The excess comes first from the wrong estimation of the appellant’s age and secondly in the making of a forfeiture on top of the fine.

THE RESPONDENT’S ARGUMENTS

As long as the gun remains unlicenced, the offence remains continuing. In this case, the offence continued for twelve months and nineteen days. Thus, even if the appellant had an honest belief that he was licenced, there is nothing on the face of the plea that the appellant believed his gun was registered. The offence is that the appellant had no licence to hold a gun and the appellant concedes his gun is unregistered.

Section 58(1) of the Firearms Regulation Act says in part that “all unregistered firearms ... are forfeited to the Administration”. But s.58(2) says in part that a court which convicts a person for holding an unregistered firearm “may” order the forfeiture of that firearm to the Administration.

There is a conflict between the two provisions which should be resolved in favour of an automatic forfeiture because of the continuing nature of the offence. Besides, s.60 of the Act says that such forfeited firearms shall be disposed of or destroyed.

Furthermore, sub-s. (2) of s.58 is to be read in a way that is restricted to offences other than having unregistered firearms, for example, discharge of unregistered firearms, or discharge of firearms within prohibited areas.

Thus, sub-s. (1) would apply wherever there is an unregistered firearm. The moment the gun is unregistered, it remains automatically forfeited to the State. But sub-s. (2) permits a Court discretion in the handling of firearms type offences. This reading is sensible because the whole objective of the legislation is to control the use of unregistered firearms.

Even if this reading of the Act is wrong, the imposition of the fine and forfeiture are not excessive as K50.00 fine represents one-eighth of a K400.00 fine under s.9 of the Act (Amendment No. 35 of 1969).

DECISION AND REASONS FOR DECISION

This Act has been repealed and replaced by Act No. 46 of 1978, Firearms Act 1978. But information was laid under the old 1963 Act and the appeal proceeds under the old Act. It seems that under the new Act, s.71(1), (2) contains the same provisions of the old Act (s.58(1), (2)). The conflict has not been resolved under the new Act.

The question of whether or not I have jurisdiction to hear this appeal was not raised. The 1963 Act states at s.37(2) that the District Court’s decision in an appeal under s.37, that is, from an order of the Registrar, is final. The District Court’s hearing was not by way of an appeal. It was an original hearing under s.58. There appears to be no provision under the Firearms Regulation Act 1963 for an appeal to the National Court. The new Act provides for appeals from the Registrar to the District Court. But there is no mention of an appeal from the District Court in the exercise of its original jurisdiction under s.71.

As there was no argument on this point (appeal from District Court under s.58 of the 1963 Act; s.71 o 1978 Act), I assumessume my jurisdiction is derived from the National Constitution, s.155(3). This is a different situation to an appeal from a Registrar to the District Court. An appellant should not side step the District Court and appeal to the National Court directly (see Quinlivan A.J. in Reuben Iniveko v. P.R. Giddings (supra)N292.html#_edn518" title="">[dxviii]². But, I would think that the decision of the District Court is not so final as the 1963 and 1978 Acts say they are, because under s.155(5) of the Constitution, the National Court has an inherent power of review. This is so, even though sub-s. 3(e) of s.155 of the National Constitution allows for the removal of the Court’s power of review.

In this case, I am of the opinion that s.58(2) does not bear the restrictive meaning counsel for the respondent seeks to give to it. The word “may” as used in sub-s. (2) of s.58 cannot be read to mean compulsory forfeiture in the case of unregistered firearms and discretionary forfeiture for other offences relating to firearms.

Sub-s. (2) follows from sub-s. (1). It clearly gives the magistrate a choice as to whether he should order forfeiture. It does not even combine forfeiture with any other penalty, such as a fine as prescribed under s.9 of the 1969 amendment (No. 35 of 1969). It is a fair reading of the Act however to say that forfeiture under s.58(2) is in truth an additional penalty which may or may not be imposed on an offender under this Act.

For example, an offender under s.8 of the Act can expect the maximum punishment of a fine of K600.00 or six months imprisonment, while an offender under s.9 can expect a fine of K400.00 or four months.

The operative word in sub-s. (1) of s.58 is the verb “are”. In a simple sentence such as this: “They are gone”, the use of the verb “are” is final and conclusive. They are gone. In its ordinary use, it suggests that upon a firearm being unregistered, it is or they are forfeited to the Administration.

But, in fact, the structure and the contents of the Act suggest that there is no forfeiture until a court of law says there is to be one. Section 56 of the Act gives certain powers to police officers. They may seize firearms they suspect on reasonable grounds to be unlicenced (s.56(e)), or they may seize firearms used by or in possession of a person in apparent contravention of the Act.

It is then left to the court to determine guilt or innocence and what punishment, if any, including forfeiture, depending on facts, on merits and on what, if any, legal defences as are available to the alleged offender.

I am led to the conclusion that forfeiture to the Administration of an unregistered and unlicenced gun is not automatic, unless the holder surrenders it and admits he has no legal defences or a court of law in the proper exercise of its discretion under s.58(2) orders a forfeiture.

Although firearms are dealt with under a special statute, in essence they are no different from a motor vehicle for example. An unregistered motor vehicle does not become State property one second after registration expires. Under normal contract law, the entire bundle of rights attached to that gun vest in the purchaser upon his payment of the consideration.

It is true that the rights to use the gun extinguish upon the date the licence to use the gun expires. But I doubt if legislation intends to extinguish all proprietary or possession rights vested in the rightful owner. If that was the intention of the legislature, it has not stated it clearly.

Even if I were erring in this aspect of the law, I would allow the appeal on a different point. In my opinion the payment of a K2.00 fee which the appellant referred to in his allocutus raises a clear defence that was open to the appellant. The tentative plea of guilty should have been changed to a plea of not guilty and the case should have gone to trial on its merits. Failure to do so, in my opinion, amounts to a miscarriage of justice.

The conviction and sentence are a total nullity. This means that it is open to me either to send the case back for a retrial or to make an order which, on the face of the records, could have been made. In the circumstances and conditions of the appellant, I see no benefit in a retrial. Instead, I make the following order:

The appeal is allowed. The appellant is at liberty to apply for fresh registration of the shotgun. The Registrar is similarly at liberty to accept or refuse the application, and the appellant is to be reimbursed his K50.00 paid to the State under District Court order.

Solicitor for the Appellant: Public Solicitor

Counsel: K. Wilson P. Kopunye

Solicitor for the Respondent: Public Prosecutor

Counsel: W. Karczewski F. Damien

N292.html#_ednref517" title="">[dxvii]^{(Unreported) National Court Judgment N282 dated 19 February 1981}

N292.html#_ednref518" title="">[dxviii]^{(Unreported) National Court Judgment N282 dated 19 February 1981}