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Kembu v Mason [1971] PGSC 28; [1971-72] PNGLR 407 (28 October 1971)

Papua New Guinea Law Reports - 1971-72

[1971-72] PNGLR 407 - Joseph Kembu v Eko Mason

[1971-72] PNGLR 407

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

JOSEPH KEMBU

V.

EKO MASON

Rabaul & Port Moresby

Kelly J

22 September 1971

28 October 1971

APPEAL - Jurisdiction of District Court - Penalty in excess of maximum prescribed - District Courts Ordinance 1963-1969 s. 28 (1)[cdl]¹�- Local Courts Ordinance 1963-1966, ss. 13 (1), 15[cdli]², 52, 53[cdlii]³�- Native Administration (New Guinea) Ordinance 1951-1963.

Section 28 (1) of the District Courts Ordinance 1963-1969 provides:

�Where, by a law in force in the Territory or a part of the Territory�

N2>(a)����� an offence is punishable on summary conviction or a person is made liable to a penalty or punishment or to pay a sum of money for an offence, act or omission; and

N2>(b)����� the offence, act or omission is not an indictable offence, the matter may be heard and determined by a District Court in a summary manner under this Ordinance.�

Held:

That by virtue of s. 28 (1), the District Court is invested with jurisdiction to deal with offences under the Native Administration Regulations (New Guinea), and the jurisdiction for this purpose formerly vested exclusively in the Court for Native Affairs is not now vested exclusively in the Local Court.

Where a penalty in excess of the maximum pecuniary penalty provided by regulation, is imposed, there is a substantial miscarriage of justice.

The following cases are referred to in the judgment:

Barker v. Edger, [1898] UKLawRpAC 50; [1898] A.C. 748; Kakaeto Orela (Mirakakari) v. George Orela (Unreported. Mann J.�22nd October, 1968).

Appeal.

The appellant had been convicted by the District Court at Kimbe of inducing a woman to have sexual intercourse with a man who was not her husband. He appealed on the grounds that the District Court had no jurisdiction to hear and determine the matter, that there was no evidence or insufficient evidence to support the conviction, and that the fine imposed was in excess of the maximum pecuniary penalty provided by the statute. The facts, and the arguments of counsel, are set out in the judgment.

Counsel:

Keenan, for the appellant.

Pierce, for the respondent.

Cur. adv. vult.

28 October 1971

KELLY J:� This is an appeal against a conviction in the District Court at Kimbe whereby the appellant was convicted under the provisions of reg. 85 of the Native Administration Regulations (New Guinea) of inducing a woman to have sexual intercourse with a man who was not her husband and fined twenty dollars in default two weeks imprisonment. The penalty for the offence as provided by reg. 85 is three pounds (that is, six dollars) or imprisonment for six months or both.

The grounds of appeal are that the District Court had no jurisdiction to hear and determine the matter, that there was no evidence or not sufficient evidence to support the conviction and that the fine imposed was in excess of the maximum pecuniary penalty provided by the statute. The appeal must obviously succeed on the last ground but that does not of course dispose of the matter as it is necessary to determine what order should then be be made, so that the question of the jurisdiction of the District Court to deal with the matter immediately arises.

The basis on which it is claimed that the District Court had no jurisdiction to hear and determine the matter is that jurisdiction to deal with offences under the Native Administration Regulations is now vested exclusively in the Local Court which it is said has succeeded to the exclusive jurisdiction for this purpose formerly vested in the Court for Native Affairs.

The District Courts Ordinance 1963 was assented to on 19th March, 1964, and came into operation on 4th January, 1966. Section 28 (1) of that Ordinance provides:

�Where, by a law in force in the Territory or a part of the Territory�

(a)����� an offence is punishable on summary conviction or a person is made liable to a penalty or punishment or to pay a sum of money for an offence, act or omission; and

(b)����� the offence, act or omission is not an indictable offence,

the matter may be heard and determined by a District Court in a summary manner under this Ordinance.�

The Local Courts Ordinance 1963 was assented to on 24th October, 1963, and it also came into operation on 4th January, 1966. By s. 13 (1) jurisdiction was conferred on a Local Court, inter alia, over all offences against a law in force in the Territory or a part of the Territory which may be dealt with summarily, but this must be read subject to the provisions of s. 15 which deals with the case where jurisdiction is vested in a Local Court and also in some other court and provides that in such case proceedings may be commenced in and heard and determined by the Local Court where that court certifies that it is expedient that the matter should be so heard and determined. Part VIII of the Ordinance contains transitional provisions of which ss. 52 and 53 are material for the present purposes. These sections are as follows:

N2>�52.��� On and after the date of commencement of this Ordinance the jurisdiction, powers, authority and functions of the Courts for Native Matters and Courts for Native Affairs, and of members and Magistrates of any such Courts, shall, subject to this Part, absolutely cease and determine.

N2>53.���� A reference in any other law in force in the Territory or a part of the Territory to a Court for Native Matters or a Court for Native Affairs, or to a member or Magistrate of any such Court, shall be read as a reference to a Local Court, or to a Magistrate of a Local Court, as the case may be.�

The Native Administration Ordinance 1921-1962 (New Guinea), had provided by s. 2 for the establishment of Courts for Native Affairs with jurisdiction to be as prescribed and by s. 4 (1) (e) for the making of regulations affecting the affairs of natives with regard to the jurisdiction, powers and procedure of Courts for Native Affairs in civil and criminal matters. By s. 6 the authority of a Court for Native Affairs was limited to matters as between natives and over natives. By the Native Administration Regulations made pursuant to the regulation-making power referred to above, in reg. 3 �court� is defined as meaning a Courts for Native Affairs, by reg. 7, subject to s. 6 of the Ordinance, jurisdiction was conferred on such a court, inter alia, in respect of all offences against the regulations. Until the District Courts Ordinance 1963 came into operation the jurisdiction of Court for Native Affairs in respect of such offences was exclusive by reason of s. 28 (1) of the District Courts Ordinance 1924, which was repealed by the 1963 Ordinance, and which conferred jurisdiction on District Courts in respect of offences punishable on summary conviction or whereby any person is made liable to a penalty or punishment or to pay a sum of money for any offence, act or omission, subject to certain exceptions, one of which was that no other provision was made for the trial of the person committing the offence.

The Native Administration Ordinance 1921-1962 was amended by the Native Administration (New Guinea) Ordinance 1963 which likewise came into operation on 4th January, 1966. That Ordinance repealed various sections of the principal Ordinance, including ss. 2, 4 (1) (e) and 6. The effect of this repeal was to remove all references in the Native Administration Ordinance to a Court for Native Affairs, although it may be noted that reference to such courts remained in the Native Administration Regulations until those regulations were amended by statutory instrument No. 8 of 1968 dated 8th February, 1968.

The effect of the Native Administration (New Guinea) Ordinance 1963 and the Local Courts Ordinance 1963 both coming into operation on the same date (namely 4th January, 1966) is that s. 53 of the latter Ordinance would have no operation in relation to the Native Administration Ordinance although it would have continued to operate until 8th February, 1968, in so far as references to Courts for Native Affairs in the Native Administration Regulations were concerned, so that by the operation of regs. 2 and 7 of those regulations the Local Courts had jurisdiction in respect of all offences against the regulations.

However, also on 4th January, 1966, the proviso contained in s. 28 (1) of the District Courts Ordinance 1924 which operated to make the jurisdiction of Courts for Native Affairs exclusive in respect of offences against the Native Administration Regulations ceased to have effect so that the overall result was that while the Local Courts succeeded to the jurisdiction of the now non-existent Courts for Native Affairs it was no longer an exclusive jurisdiction but one which was to be exercised concurrently with the District Court. I do not consider that it is correct to infer an intention to the legislature by reason of the enactment of the transitional provision contained in s. 53 of the Local Courts Ordinance to continue in the Local Courts, after the coming into operation of the District Courts Ordinance 1963, the exclusive jurisdiction formerly enjoyed by Courts for Native Affairs in respect of offences against the Native Administration Regulations. By the enactment of the District Courts Ordinance 1963, which was later in time than the Local Courts Ordinance even though both came into operation on the same date, the legislature clearly intended to give more extensive jurisdiction to District Courts than had formerly been the case, as the limitation imposed by the former s. 28 in the repealed Ordinance was removed and for this reason I do not consider that the transitional provisions in the Local Courts Ordinance 1963, which is the earlier Ordinance, should be given an operation based on an imputed intent on the part of the legislature to cut down the extended jurisdiction which it was conferring on the District Court, by excluding from it jurisdiction over offences against the Native Administration Regulations.

As it seems to me that this legislative intent is clear it is not really necessary to have recourse to the principle of statutory interpretation whereby, where two statutes are inconsistent or repugnant, a later statute will be read as having impliedly repealed the earlier as the position simply is that because of the substantial alteration in the jurisdiction of the District Court effected by the later enactment (that is, the District Courts Ordinance 1963) a transitional provision contained in the earlier enactment (the Local Courts Ordinance 1963) cannot be given an operation which would negate the legislative intent apparent in the latter. Nor is there any occasion for the application of the maxim generalia specialibus non derogant, that is, general provisions will not abrogate special provisions, this principle being expressed in Barker v. Edger[cdliii]⁴�in these words: �When the Legislature has given its attention to a separate subject, and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its own terms.� In this case it could not be said that by the enactment of the transitional provision in s. 53 of the Local Courts Ordinance which is a provision of a general nature the legislature had specifically given its attention to jurisdiction in respect of offences against the Native Administration Regulations. On the other hand when it subsequently enacted the District Courts Ordinance it clearly was directing its attention to the question of limitations in the jurisdiction of the District Court by changing the previous law and showing that it intended that, irrespective of whether or not any other court otherwise had jurisdiction in a particular matter, if it was an offence punishable on summary conviction or if a person was made liable to a penalty or punishment or to pay a sum of money for an offence, act or omission and the offence, act or omission is not an indictable offence then the District Court should have jurisdiction in the matter.

I was referred to an unreported decision of Mann C.J. in Kakaeto Orela (Mirakakari) v. George Orela[cdliv]⁵�which was concerned with an offence under the Papuan Native Regulations in which the learned Chief Justice by way of a dictum took a contrary view to that which I have adopted. However, it would appear that his Honour did not consider it necessary to go into the matter at length as the appeal was allowed on another ground.

I therefore hold that the District Court had jurisdiction to hear and determine the matter so that the appeal on the first ground fails.

The second ground of appeal may be shortly disposed of. The court record shows that the charge was read and explained to the appellant who appeared to understand and a plea of guilty was then recorded and the appellant found guilty. In the statement of facts which was before the magistrate it was said that after being interviewed and cautioned by the police the appellant admitted the offence and stated that he did induce the woman in question to go to the man named in the information for the purpose of having sexual intercourse with him. It was submitted on behalf of the appellant that on the material before the Court there was no indication of what was said to have been the nature of the inducement and that the court should have some indication of what the inducement is alleged to have been so as to determine if it was an inducement in law. However, the record shows the charge was explained to the appellant before his plea was taken and it is reasonable to assume that the appellant understood what was meant by �induced� which after all is not a word which is difficult of explanation. The appellant had previously admitted to the police that he did induce the woman to go for this purpose. I do not think that anything further was necessary and on the material before him I consider that the magistrate properly accepted the plea of guilty and the appellant was rightly convicted. It would not be correct to say that on such a plea there was no evidence or not sufficient evidence to support the conviction and the appeal on the second ground therefore fails.

As I have already said the appeal must succeed on the third ground as the magistrate has imposed a penalty in excess of the maximum pecuniary penalty provided by the regulation and this must be regarded as a substantial miscarriage of justice. I think the proper course is for me to substitute for the fine imposed one which the District Court may properly have imposed. The maximum penalty provided by reg. 85 is so small by present day standards that I consider that I should not do otherwise than impose that penalty.

The appeal is therefore allowed and in lieu of the fine imposed by the District Court a fine of six dollars is substituted. As I note from the court record that the fine originally imposed was subsequently paid, so that the appellant will be receiving a refund of part of that fine, it is not necessary to provide for a penalty in default for payment.

Appeal allowed. Fine of six dollars substituted for that imposed by District Court.

Solicitor for the appellant: W. A. Lalor, Public Solicitor.

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