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Whitney v Kasap [2012] PGNC 17; N4613 (16 March 2012)

N4613

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 48 0F 2011

JAMES WHITNEY
Appellant

V

BETHLEEN KASAP
Respondent

Madang: Cannings J
2011: 18 November,
2012: 16 March

COURTS AND ORDERS – District Court – power to order a person to be of good behaviour – District Courts Act, Part X: Surety of the Peace and Good Behaviour.

The District Court conducted a hearing into allegations that the appellant had committed physical violence against his wife, and then convicted him of being a "man of evil frame" and made an order placing him on a 12-month good behaviour bond, restraining him from going within 100 metres of his wife and their two children and granting custody of the children to his wife. The order was expressed to be made under Sections 209 and 210, which are in Part X (surety of the peace and good behaviour), of the District Courts Act. The appellant appealed on five grounds, arguing that (1): he had been convicted and sentenced without being granted the full protection of the law under Sections 37(3), (4) and (5) of the Constitution; (2) and (3): the District Court proceedings had not been instituted by "written information" as required by Sections 209 and 210 of the District Courts Act; and (4) and (5): the order for custody of the children was contrary to the Deserted Wives and Children Act and the Infants Act.

Held:

(1) Ground (1) was dismissed as, despite the use of the word "convicted" in the order of the District Court, the appellant was not in fact or law convicted or sentenced of any criminal offence.

(2) Grounds (2) and (3) were upheld as the District Court's power to make the sort of order that it did is conditional on a written information being laid before a Magistrate under Sections 209 or 210 of the District Courts Act and here there was no such information.

(3) Grounds (4) and (5) were upheld as the District Court has no power, when making an order under Part X of the District Courts Act, to make an order for custody of children; and furthermore such an order could only be made in proceedings instituted under the Deserted Wives and Children Act.

(4) There was a substantial miscarriage of justice so the appeal was allowed and the order of the District Court was quashed.

Cases cited

The following cases are cited in the judgment:

Public Employees Association of PNG v Napoleon Liosi [1988-89] PNGLR 585
Public Employees Association of PNG v Public Services Commission [1983] PNGLR 206
Shem Emmanuel v Elizabeth Norman (2003) N2427
Simon Nanua and Robert Suckling v Gend Dinima (2004) N2633
Wali v Wali (2006) N3051

APPEAL

This was an appeal from a decision of the District Court made under Part X (surety of the peace and good behaviour) of the District Courts Act.

Counsel

B W Meten, for the appellant
T M Ilaisa, for the respondent

16 March, 2012

1. CANNINGS J: The Madang District Court constituted by Magistrate Mr M Samala conducted a hearing into allegations that the appellant, James Whitney, had committed prolonged physical violence against his wife, Bethleen Kasap, and then convicted him of being a "man of evil frame" and made an order placing him on a 12-month good behaviour bond, restraining him from going within 100 metres of his wife and their two children and granting custody of the children to his wife. The order was expressed to be made under Sections 209 and 210, which are in Part X (surety of the peace and good behaviour), of the District Courts Act.

2. The appellant has appealed against the order, made on 18 March 2011, on five grounds, arguing that:

• (1) he was convicted and sentenced without being granted the full protection of the law under Sections 37(3), (4) and (5) of the Constitution;
  
• (2) and (3) the District Court proceedings were not instituted by "written information" as required by Sections 209 and 210 of the District Courts Act; and
  
• (4) and (5) the order for custody of the children was contrary to the Deserted Wives and Children Act and the Infants Act.
  

GROUND (1): CONVICTION AND SENTENCE WITHOUT BEING GRANTED FULL PROTECTION OF THE LAW

3. To appreciate this argument it is necessary to quote the full text of the District Court order. It stated:

PAPUA NEW GUINEA

Case No: IPO 4/2011

District Courts Act Chapter 40

Sec 209(a)(b) & 210

GOOD BEHAVIOUR BOND

(Recognizance)

TO: JAMES WHITNEY of 26 BUS STOP, AIRPORT ROAD, MADANG,

Madang Province

WHEREAS on the 18th March, 2011 you personally appeared before the undersigned, a Magistrate of the District Court at Madang, having been SINCE FEBRUARY, 2011, at Madang:

Did unlawfully assaulted forcefully, harassing, intimidating and threatening the Complainant, took away the two under aged children of hers illegally and living with another third woman.

Thereby you are a man of evil frame and the surety of peace orders made against you pursuant to section 209 of the District Courts Act, Chapter 40 for you to preserve peace.

WHEREAS you (James Whitney) is convicted and placed on twelve (12) months Good Behaviour Bond without sureties.

(1) Twelve (12) months Good Behaviour Bond without sureties.

(2) Whilst on GBB, Defendant not to go near the Complainant and her two children within 100 metres at any place and anywhere.

(3) Defendant not to assault, threaten and intimidate Complainant whilst on GBB.

(4) Defendant not to use his relatives and associates to threaten or intimidate the Complainant and the two children.

(5) Complainant retains the lawful custody of the under-aged children, James Whitney Jr (4 years) and Francisca Whitney (3 years) till such time custody issue is resolved by the National Court or by custom of parties.

Upon compliance with the above conditions, then the recognizance be void or else stand in full force and virtue. [sic]

...................................... ............................

JAMESWHITNEY MALCOLM SAMALA

Defendant Magistrate

4. It is argued for the appellant that by using the word "convicted" the District Court found him guilty of an offence and sentenced him by placing him on a good behaviour bond and subjecting him to other penalties. This has been done, it is argued, contrary to the rights of a person charged with an offence that are conferred by Sections 37(3), (4) and (5) of the Constitution.

5. I agree that at first glance the use of the word "convicted" gives the impression that the appellant has been found guilty of a criminal offence. But this is not what actually happened. The word "conviction" relates to the finding that the appellant is a person of "evil frame", which is a finding that is open to a Magistrate under Part X of the District Courts Act. The correct terminology is "evil fame", but the typographical error is insignificant. The order of 18 March 2011 did not impose criminal sanctions on the appellant. The appellant was not in fact or law convicted or sentenced of any criminal offence.

6. The rights that are conferred by Sections 37(3), (4) and (5) of the Constitution (a person charged with an offence shall be afforded a fair hearing within a reasonable time by an independent and impartial court and shall be presumed innocent until proved guilty according to law and shall not be tried in his absence etc) apply only to a person charged with a criminal offence (Public Employees Association of PNG v Public Services Commission [1983] PNGLR 206, Public Employees Association of PNG v Napoleon Liosi [1988-89] PNGLR 585). They do not apply to a person charged with a disciplinary offence or to a person, such as the appellant, against whom proceedings have been instituted under Part X of the District Courts Act.

7. Ground 1 of the appeal is therefore dismissed. Despite the use of the word "convicted" in the order of the District Court, the appellant was not convicted of any criminal offence, and he was not denied the full protection of the law under Sections 37(3), (4) and (5) of the Constitution.

GROUNDS (2) AND (3): PROCEEDINGS NOT INSTITUTED BY "WRITTEN INFORMATION"

8. Mr Meten, for the appellant, submits that the proceedings which resulted in the order of 18 March 2011 were improperly instituted, in that no "written information" was presented to the District Court as required by Sections 209 and 210 of the District Courts Act.

9. That is a valid submission as proceedings under Part X of the District Courts Act can only be properly instituted by laying a "written information" before a Magistrate under Sections 209 (information praying for surety of the peace) or 210 (information praying for surety to be of good behaviour).

10. Section 209 states:

Where a written information is laid before a Magistrate that a person has—

(a) threatened—

(i) to do to the complainant or to his wife or child, or a person under his care or charge, bodily injury; or

(ii) to burn or injure his house; or

(iii) to commit a breach of the peace towards him or his wife or child or that other person,

or to procure others to commit any such injury; or

(b) used language indicating an intention to commit any such breach of the peace or to do any such injury or procure it to be committed or done,

and that the complainant is in fear of the defendant, and the complainant prays that the defendant may be required to find sufficient sureties to keep the peace, proceedings may be had under this Part.

11. Section 210 states:

Where a written information on oath is laid before a Magistrate that a person is a person of evil fame and the complainant prays that the defendant may be required to find sufficient sureties to be of good behaviour, proceedings may be had under this Part.

12. The wording of a written information under Sections 209 or 210 is prescribed by Form 66 of the District Courts Regulation, which is in these terms:

INFORMATION TO REQUIRE SURETY OF THE PEACE

OR FOR GOOD BEHAVIOUR

The information of CD, of ..., laid on ..., 19.., before the undersigned, a Magistrate of a District Court, who says that AB of ... on ... 19.., at ... declared and threatened (state the defendant's threats), and that CD is therefore afraid that AB will do him/her* (or ... ) some bodily injury (or commit a breach of the peace towards him/her* (or ... ) or burn (or injure) his/her* house or procure some bodily injury to be done to him/her* (or as the case may be) (or that AB is a person of evil fame and character, making his/her* living by dishonest means or as the case may be); and CD therefore prays that AB may be required to find sureties to keep the peace towards him/her* (or ... ) (or to be of good behaviour).

And CD says that he/she* does not lay this information from any malice or ill-will (in case of surety of the peace add but merely for the preservation of his/her* life and person (and property) (or the life and person of ... ) from injury).

Laid/Sworn* before me the day and year first above-mentioned, at ...

Magistrate.

*Strike out whichever is inapplicable.

13. An information that is not set out strictly in accordance with Form 66 is not for that reason alone defective or ineffective. Section 2 of the District Courts Regulation provides that a form that is in "similar form" shall be deemed sufficient in law and that the form may be varied for the purposes of adapting it to the circumstances. Some flexibility exists in the way in which a written information is drafted. It can safely be said that if an information complies generally with the requirements of Sections 209 or 210 of the Act and Form 66 of the Regulation the proceedings will be correctly instituted.

14. What happened here? The proceedings against the appellant were not instituted by laying before the Magistrate any document called an information. Instead, an "Application for Interim Protection Order" was filed, and then a Madang District Court file was opened, and the proceedings were given a file reference, alternatively marked as "Case No 04/2011" or "IPO 4/2011". The application was in the following terms:

APPLICATION FOR INTERIM PROTECTION ORDER

I, BETHLEEN KASAP of C/- MIRAP VILLAGE, NCR, MADANG

APPLY for the following orders:

(a) Restraining Order to Restrain Defendant from assault, harassing, intimidating and threatening the Complainant.

(b) Restraining order to restrain defendant from entering or coming to my place Of employment and resident

(c) For:

• (a) Myself (complainant)
• (b) My children Four (4) children Given names: Rayleen, Cholwie, James Whitney (Jnr) and Francisca.
  

THE GROUNDS are set out in the sworn statement attached, dated 10th day of MARCH, 2011.

I, BETHLEEN KASAP of C/-MIRAP VILLAGE, NCR, MADANG Agree to obey any order this court may make against me for costs and damages if the court finds that I should not have made this application.

......................................

Applicant Magistrate

15. Mr Ilaisa, for the respondent, submitted that the application was in a form approved by the Magisterial Service for the purpose of catering for domestic violence situations. The form was designed to give vulnerable people, especially women, immediate access to the District Court and obtain relief, including interim protection orders. The learned Magistrate's reasons for decision also highlighted the advantages of the interim protection order ("IPO") process: it is quick, easy and flexible and allows interim orders to be made as and when required, often in emergency situations.

16. Mr Ilaisa was unable, however, to demonstrate when or how these new procedures and forms were promulgated or by what lawful authority they have been introduced. I appreciate the problems faced by Magistrates and lawyers and their clients in using Part X of the District Courts Act to deal with the very real problem of domestic violence. Interim orders are necessary and they often have to be made in a hurry. However, I remain unconvinced that the application that was used to commence the proceedings in the present case was made in accordance with law. The application does not comply, even in a general way, with the requirements of Sections 209 or 210 of the Act and Form 66 of the Regulation. I conclude that the proceedings were not correctly instituted. Grounds (2) and (3) of the appeal are upheld.

GROUNDS (4) AND (5): CUSTODY ORDER CONTRARY TO OTHER LAWS

17. Mr Meten submitted that the order of 18 March 2011 included orders for the custody of the children of the marriage which were beyond the jurisdiction of the District Court as the proceedings against the appellant were purported to have been commenced under Part X of the District Courts Act, but that Part of the Act does not allow for making of custody orders. The District Court can only make custody orders under the Deserted Wives and Children Act. So the order was contrary to that Act, and it was also made contrary to the Infants Act, under which the National Court has expressly been conferred jurisdiction to make orders for the custody of children.

18. Mr Ilaisa in response submitted that the order of 18 March 2011 was only an interim order, which does not remove any jurisdiction from the National Court. Order No 5 simply states that the respondent retains custody of the children "till such time custody issue is resolved by the National Court or by custom or practice". Mr Ilaisa referred to the Reasons for Decision of the learned Magistrate, who considered that the custody order was justified by Sections 9 (presumption of jurisdiction) and 22 (general ancillary jurisdiction) of the District Courts Act.

19. Section 9 states:

An act done or purporting to have been done by or before a Magistrate shall be taken to have been done within his jurisdiction in the absence of proof to the contrary.

20. Section 22 states:

Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it—

(a) grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and

(b) give the same effect to every ground of defence or counterclaim, whether equitable or legal,

as ought to be granted or given in a similar case by the National Court and in as full and ample a manner.

21. With respect, I see nothing in Sections 9 or 22 that allows the District Court, in proceedings under Part X of the District Courts Act, to make an order for custody of children. Proceedings under Part X are of a special character. The proceedings are commenced in a particular way. They must be commenced by written information under either Section 209 or 210; and the powers of the Court, having heard the evidence relating to an information, are prescribed in a particular way, by Section 214 (case to be dismissed, or surety of the peace, etc, required).

22. Section 214 states:

After hearing the evidence relating to an information under Section 209 or 210, the Court may—

(a) dismiss the case; or

(b) require the defendant immediately, or at some time to be specified by the Court, to enter into a recognizance, oral or in writing, with or without sureties, in such reasonable amount as the Court thinks fit, to keep the peace or be of good behaviour, as the case may be, for such time as it thinks fit, or in default—commit the defendant to a corrective institution or police lock-up for such time as the Court thinks fit, not exceeding six months, unless in the meantime the required recognizance is given.

23. Section 214 means that if the case is not dismissed the Court "may require the defendant immediately, or at some time to be specified by the Court, to enter into a recognizance, oral or in writing, with or without sureties, in such reasonable amount as the Court thinks fit, to keep the peace or be of good behaviour, as the case may be, for such time as it thinks fit". The form in which such an order should be made is set out in Form 68 of the District Courts Regulation:

RECOGNIZANCE OF THE PEACE OR FOR GOOD BEHAVIOUR

Be it remembered that, on ... 19.., AB of ..., and LM of ... personally came before the undersigned, a Magistrate (or Magistrates) of a District Court, and severally acknowledged themselves to owe to the State the several sums following, that is to say, AB the sum of K.., and LM the sum of K.., to be made and levied of their several goods and chattels, lands, and tenements respectively to the use of the State if AB fails in the condition endorsed.

Taken and acknowledged before me/us the day and year first above-mentioned at ...

..................................

Magistrate (or Magistrates)

Condition

The condition of the recognizance is such that, if AB shall keep the peace, and especially towards CD, of ... (or be of good behaviour) for the term of (six months) now next ensuing, then the recognizance to be void, or else to stand in full force and virtue.

24. The District Court can also make an ancillary order under Section 22 to give effect to the order under Section 214(b). However, an order for custody of children is a special type of order, which cannot properly be regarded as an ancillary order for the purposes of Section 22. This is not to say that the District Court cannot make orders for custody of children. Clearly it can, but it can only do so in appropriate proceedings commenced by complaint under Section 2 of the Deserted Wives and Children Act (Wali v Wali (2006) N3051). Custody orders can also be made by the National Court under the Infants Act and the Matrimonial Causes Act.

25. I conclude that in making custody orders in the present case the District Court exceeded its jurisdiction. Grounds (4) and (5) of the appeal are therefore upheld.

CONCLUSION

26. Four of the five grounds of appeal have been upheld. I am satisfied, for the purposes of Section 230(2) of the District Courts Act, that there has been a substantial miscarriage of justice, so the appeal will be allowed and the order of 18 March 2011 will under Section 230(1)(c) of the District Courts Act be quashed.

27. The District Court order was made for good reason and I can appreciate why the procedure that was used in this case has been developed. Domestic violence is a major social problem in Papua New Guinea, just as it is in many other countries, and there is an urgent need for court procedures to be simplified so that people in need of protection can approach courts easily and obtain relief quickly. However, a person in the position of the appellant, whose interests have been affected by the District Court's order, has a right to have due process followed. The District Court is a court of limited jurisdiction. Its jurisdiction is defined strictly by statute (Shem Emmanuel v Elizabeth Norman (2003) N2427, Simon Nanua and Robert Suckling v Gend Dinima (2004) N2633). In this case its jurisdiction was exceeded and the appellant, who has established that errors were made, is entitled to redress.

28. In the circumstances, however, to relieve any misunderstanding that might arise due to quashing of the District Court order – in that regard I am concerned about uncertainty as to custody of the children – I will stay the coming into effect of the order quashing the District Court order for 14 days. This will give the respondent time, if she is so minded, to institute fresh proceedings in the District Court (in accordance with the correct procedures), or perhaps in the National Court, aimed at obtaining the sort of relief that was granted to her on 18 March 2011.

ORDER

(1) The appeal is allowed.

(2) The order of the Madang District Court of 18 March 2011 in IPO No 4 of 2011 is quashed with effect from, and not before, 31 March 2012.

(3) The parties shall bear their own costs.

_____________________________________________________
Meten Lawyers: Lawyers for the Appellant
Thomas More Ilaisa Lawyers: Lawyers for the Respondent