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Mitchell and Ijahujo; ex parte Wafing, Regina v [1973] PGSC 34; [1973] PNGLR 461 (3 August 1973)

Papua New Guinea Law Reports - 1973

[1973] PNGLR 461 - Regina v Mitchell and Ijahujo; ex parte Alios Wafing

[1973] PNGLR 461

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

MITCHELL AND IJAHUJO

EX PARTE ALIOS WAFING

Port Moresby

Minogue CJ Frost SPJ Prentice J

1-3 May 1973

3 August 1973

HUMAN RIGHTS - Trial not to take place in absence of defendant - Procedure for ex Parte determination of summary offences where defendant does not appear after being served with summons - Whether procedure infringes guaranteed human rights - Human Rights Ordinance, 1971, s. 5 (2)[dxxiv]¹, 16 (3)[dxxv]²�- District Courts Ordinance, (1963-1970), s. 131[dxxvi]³.

Section 5 (2) of the Human Rights Ordinance 1971 provides: �Unless the contrary intention appears, whether by express inference or necessary implication, each law of the Territory, whether made before or after the commencement of this Ordinance, shall be read and construed as being subject to the provisions of this Ordinance.�

Held

(By Frost SPJ and Prentice J, Minogue CJ dissenting) That s. 5 (2) embodies a rule of construction that past and future legislation is to be construed as being subject to the provisions of the Human Rights Ordinance. However, it does not operate to effect an implied repeal of an existing enacted law. If such a law cannot be construed as being subject to the Human Rights Ordinance without effecting a repeal, or without depriving that law of sensible operation, the effect of the subsection is exhausted and the prior law remains unaffected in its operation according to its plain meaning.

Section 131 of the District Courts Ordinance (1963-1970) provides inter alia that a court can hear and determine an information for a simple offence in the absence of a defendant who does not appear after being duly served with a summons. Section 16 (3) of the subsequently-enacted Human Rights Ordinance provides inter alia that �. . . except with his own consent, the trial shall not take place in (the defendant�s) absence�, unless his behaviour renders the continuation of the proceedings in his presence impracticable.

W. was duly served with a summons for driving a motor vehicle without being licensed for that purpose, but did not appear at court. The magistrate, considering that s. 16 (3) of the Human Rights Ordinance so required, refused to proceed to hear the case ex parte on the ground that W. had not consented to the trial taking place in his absence. On the return of an order nisi in lieu of mandamus�

Held

N1>(1)�� (by Frost SPJ and Prentice J, Minogue CJ dissenting), the magistrate had erred and should be ordered to proceed to hear and determine the information ex parte.

Per Frost SPJ and Prentice J:

N1>(2)�� Section 16 (3) of the Human Rights Ordinance, 1971 is not to be read so as to effect an implied repeal of s. 131 of the District Courts Ordinance (1963-1970) or to deprive it of sensible operation;

N1>(3)�� Section 131 of the District Courts Ordinance (1963-1970) is not to be read and construed as subject to s. 16 (3) of the Human Rights Ordinance 1971 since a �contrary intention� appears by necessary implication. Although the right to the protection of the law as embodied in the Human Rights Ordinance might be supposed to be universally applicable, the procedure laid down by s. 131 is a well-established and unobjectionable procedure for the hearing of prosecutions for summary matters where the defendant fails to appear, and the practice does not involve a denial of the fundamental rights of the protection of the law.

Per Prentice J:

Where it is shown that a summons in due form has been duly served, and there is no appearance of the accused, the accused�s consent to the hearing taking place in his absence should be inferred until the reverse is shown. This in itself constitutes a sufficient ground upon which to grant the relief sought.

Mandamus

The Secretary for Law applied to the Full Court pursuant to s. 21 of the District Courts Ordinance for an order absolute in lieu of mandamus directing the stipendiary magistrate at Goroka to proceed to hear and determine ex parte an information laid against Alios Wafing, who had not appeared even though he had been duly served with a summons for driving a motor vehicle without being licensed for that purpose. The magistrate was of the opinion that an ex parte hearing would be contrary to the provisions of s. 16 (3) (f) of the Human Rights Ordinance 1971, which provides that a person charged with an offence shall ... �and except with his own consent, the Trial shall not take place in his absence ...� and refused to proceed ex parte. The arguments of counsel, and the relevant statutory provisions, are referred to in the judgments.

Counsel

J Greville-Smith, for the applicant.

N Gregory, amicus curiae.

Cur. adv. vult.

3 August 1973

MINOGUE CJ: This was the return of an order nisi in lieu of mandamus referred into the Full Court and directed to Mr. Terrence Mitchell, the stipendiary magistrate at Goroka, and to one Ohuma Ijahujo to show cause why the former should not proceed to hear and determine ex parte an information laid before the Clerk of the District Court at Goroka charging the latter with driving a motor vehicle without being licensed for that purpose.

The defendant was proceeded against by information and summons and it was proved that the summons was served on him in ample time for him to have appeared to answer to it. He did not appear on the return date and the learned magistrate holding himself bound by s. 16 (3) of the Human Rights Ordinance 1971 refused to proceed ex parte, it not having been shown to him that the defendant had consented to the trial taking place in his absence. Section 16 (3) is as follows:

N2>�16(3) A person charged with an offence:

(a)�� shall be presumed innocent until proved guilty according to law;

(b)�� shall be informed promptly in a language which he understands and in detail, of the nature of the offence with which he is charged;

(c)�� shall be given adequate time and facilities for the preparation of his defence;

(d)�� shall be permitted to have without payment the assistance of an interpreter if he cannot understand or speak the language used at the trial of the charge;

(e)�� shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or to have a legal representative assigned to him in a case where in the opinion of the court the interests of justice so require, and without payment by him in any such case if he does not, in the opinion of the court, have sufficient means to pay the costs involved; and

(f)�� shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution,

and, except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence.�

The Crown contends that this section is not applicable in this case, that the procedure applicable is laid down in the District Courts Ordinance and that the learned magistrate in the proper exercise of his discretion should have proceeded ex parte to hear the case against the defendant.

The question thus raised is one of some difficulty. Before the enactment of the Human Rights Ordinance the procedure in default of appearance was governed by s. 131 of the District Courts Ordinance which reads as follows:

N2>�131.�� If, at the time and place appointed by a summons for hearing and determining an information of a simple offence, the defendant does not appear when called, and proof is made to the court upon oath, or by deposition made as prescribed by section 55 of this Ordinance, of due service of the summons upon the defendant a reasonable time before the time appointed for his appearance, the court may either:

(a)�� proceed ex parte to hear and determine the case in the absence of the defendant; or

(b)�� upon oath being made before it, substantiating the matter of the information to its satisfaction, issue its warrant for the arrest of the defendant to bring him before a court to answer to the information and to be further dealt with according to law.�

The section appears to be a direct transcription of s. 142 of the Justices Act of Queensland 1886-1949 which in turn is taken from the English Summary Jurisdiction Act of 1848. If under this section a court proceeds to hear a summons ex parte s. 33 of the Ordinance provides that an order made ex parte may be set aside on terms. The procedure appears to be a convenient one and does allow for the speedy disposition of court business in the multitude of cases where one would not expect a defendant to wish to appear. I have in mind cases arising from charges of drunkenness and the multiplicity of minor traffic offences where a defendant realizing his guilt and not feeling in danger of severe penalty prefers to use his time more suitably and conveniently to himself than to spend it waiting in court for his case to be called on for a result which to him seems entirely predictable.

However, s. 16 (3) of the Human Rights Ordinance is quite mandatory in its terms. It is headed �Provision to Secure Protection of Law� and contains provisions all of which can be said to be supplementary to the rights of defendants set out in the existing legislation and most of which have long been observed by magistrates as conventions binding upon them.

The difficulty lies in deciding what operation is to be given to the section in the light of s. 5 of the Human Rights Ordinance. This can only be characterized as a most puzzling piece of drafting. The section reads:

N2>�5.�� Application of Ordinance

(1)�� Notwithstanding anything in this Ordinance, but subject to subsection (2) of this section, nothing in this Ordinance affects the operation of any law of the Territory in force in the Territory at the commencement of this Ordinance.

(2)�� Unless the contrary intention appears, whether by express reference or necessary implication, each law of the Territory, whether made before or after the commencement of this Ordinance, shall be read and construed as being subject to the provisions of this Ordinance.

(3)�� In this section, �law of the Territory� includes a subordinate enactment.�

The section has been subjected to most rigorous analysis by Mr. Greville Smith, for the Crown, and he sought primarily to construe it so that it would operate only on laws brought into force after the coming into operation of the Human Rights Ordinance. In the alternative he sought to construe the section as merely providing a canon of interpretation and to argue that the effect of the section is that earlier legislation is to operate according to its terms although those terms are to be read and construed where possible so as not to derogate from the general rights freedoms and protections provided in the Human Rights Ordinance. If the earlier legislation cannot be so read and construed sensibly then, so he submitted, the effect of sub-s. (2) is exhausted and the earlier legislation must prevail according to its plain meaning.

I do not think these arguments can succeed. By s. 4 it is enacted that in the interpretation and application of the Ordinance the provisions of the preamble are to be taken fully into account in all cases and each provision of the Ordinance is to be read and construed as being intended to effectuate the provisions of the preamble. The preamble states that �the House of Assembly has solemnly resolved that it is necessary to give greater protection to the fundamental rights and freedoms of the individual by a basic law subject to which all other laws are to be read and administered�. (The underlining is mine.) The Ordinance allows for the fact that the body of law already in existence gives protection but it is expressed to be the intention to give greater protection. This must in my opinion be read as meaning greater protection than that already given. It seems to me that were it not for s. 5 the intention of the legislature that �all other laws� means all other laws whether already existing or to be enacted in the future could not be more clearly expressed. My view is strengthened by the provision of s. 8 where there is a specific exclusion of ordinances (which must refer to both existing and future ordinances) relating to the powers privileges or immunities of the House of Assembly, and where there is a specific preservation of the validity of action taken before the commencement of the ordinance under any law in force before that commencement and of any right or liability acquired before that commencement under any such law.

How then does one penetrate the murk created by s. 5? One can hardly suppose that it was inserted to defeat what otherwise is apparent as a clearly-expressed legislative intention. As I see it the section is an expression of an intention to direct those charged with the duty of administering or interpreting the legislation of Papua New Guinea to give as full effect as possible to that legislation whether existing or in future but at the same time where that legislation appears to be or likely to be in conflict with the provisions of the Human Rights Ordinance to make sure that there is clearly discernible in the legislation an over-riding intention that it shall take effect notwithstanding or despite the Human Rights Ordinance. Whatever effect can be given to s. 5 (1) it must be given effect subject to s. 5 (2). To discover that over-riding intention in legislation in force at the time of the coming into operation of the Ordinance may be a difficult if not generally impossible task and one which could place a court in an invidious situation. I would commend the section to the further attention of the legislature.

However, in the view that I have taken the District Courts Ordinance must be read and construed as being subject to the provisions of the Human Rights Ordinance and those provisions include s. 16. I cannot see any indications of a contrary intention in the former Ordinance. In this particular case it does seem in any event the two sections can be read sensibly together and that s. 16 (3) merely adds another prerequisite to a court proceeding to hear a summons ex parte. At first sight it might seem odd that the legislation in fact appears to deprive a defendant of a freedom not to appear at a trial if he does not wish to do so, but the difficulty is more apparent than real. There is no reason why he should not notify the court either verbally or otherwise that he does not wish to appear and is content to have the case dealt with in his absence. The learned magistrate himself has suggested one way in which this might be done, although I do not for myself think it altogether a satisfactory way. However, I am confident that a simple and satisfactory method of notifying a court could be devised.

In my opinion the learned stipendiary magistrate has shown cause why he should not proceed to hear and determine the information against Ohuma Ijahujo and I would discharge the order nisi.

FROST SPJ: This case, which has been reserved for the Full Court, arises from a refusal by the first respondent, Mr. Mitchell, the learned stipendiary magistrate sitting in the District Court at Goroka, to proceed ex parte to hear and determine in the absence of the second respondent a summons upon information that he, the second respondent, had driven a motor vehicle upon the Highlands Highway without being licensed for that purpose contrary to s. 10 (i)(a) of the Motor Traffic Ordinance. An application was then made in the Supreme Court on behalf of the informant pursuant to s. 21 of the District Courts Ordinance, 1963 for an order in lieu of mandamus calling on the magistrate and second respondent to show cause why the magistrate should not proceed to hear and determine the information ex parte, and it is this case which this court has now to consider.

The relevant provision in the District Courts Ordinance is s. 131 which provides that if at the time and place appointed by a summons for hearing and determining an information of a simple offence, the defendant does not appear when called, and proof is made to the court in the manner provided, of due service of the summons upon the defendant a reasonable time before the time appointed for his appearance, the court may either:

N2>(a)�� proceed ex parte to hear and determine the case in the absence of the defendant; or

N2>(b)�� upon oath being made before it substantiating the matter of the information to its satisfaction, issue its warrant for the arrest of the defendant to bring him before a court to answer to the information, etc.

A �simple offence� is defined to mean �an offence punishable on summary conviction before a court by fine, imprisonment or otherwise�, District Courts Ordinance, 1963 s. 5. To effectuate this procedure provision is made for an ex parte conviction to be set aside on terms, and for the court to re-hear the information (ibid. s. 33).

From his reasons for decision it appears that the magistrate was satisfied as to the service of the summons, and he would have been inclined to exercise his discretion and proceed ex parte but ruled otherwise because of the provisions of the Human Rights Ordinance, 1971. The magistrate considered that s. 131 (supra) was to be read and construed as being subject to s. 16 (3) of the Human Rights Ordinance. That subsection provides for certain rights of a person charged with an offence, and proceeds:

�and, except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence.�

The magistrate held that the effect of the Human Rights Ordinance was to add as another condition for the operation of s. 131 (supra) proof that the defendant consented to the trial taking place in his absence. In the absence of any such proof, upon that construction the application could not succeed.

The first question argued was whether the Human Rights Ordinance has any application to the District Courts Ordinance as a prior law of the Territory, (as I shall refer to a law in force at the commencement of the Human Rights Ordinance). This depends on the provisions of the Human Rights Ordinance. The short title is, �An Ordinance�To declare and provide for the maintenance and enforcement of certain human rights and fundamental freedoms�. The preamble is important because under s. 4 its effect goes beyond the common law rule of construction that the preamble is to be looked at merely to remove any ambiguity. (Craies on Statute Law, 7th ed. 193.) Section 4 provides, �Notwithstanding anything in any other law or rule of statutory construction of the Territory, in the interpretation and application of this Ordinance the provisions of the preamble to this Ordinance shall be taken fully into account in all cases, and each provision of this Ordinance shall be read and construed as being intended to effectuate (as far as may be) the provisions of the preamble.� The preamble recites that every person in the Territory is entitled to certain stated fundamental rights and freedoms of the individual and proceeds, �And whereas the House of Assembly is solemnly resolved that it is necessary to give greater protection to those rights and freedoms by a basic law subject to which all other laws are to be read and administered ...� This provision clearly contemplates that both prior laws and future laws are to be read subject to the provisions of the Ordinance. Under Pt. II of the Ordinance, which is headed �Protection of fundamental Rights and Freedoms�, s. 9 provides that subject to s. 5 of the Ordinance, certain specified rights and freedoms are guaranteed to every person in the Territory. The scheme of the Ordinance (which appears to be derived from the fundamental rights provisions of the Constitution of Nigeria, 1960)[dxxvii]⁴is then for detailed provision to be made in separate sections for each of the fundamental rights and freedoms. Section 16, which is headed, �Provision to secure protection of law� contains in sub-s. (3) (supra), and succeeding subsections, a series of rights of persons charged with an offence. These rights are all expressed in general terms, wide enough to refer to the conduct of trials generally, whether summarily or upon indictment, and pursuant to prior or future laws.

The restriction on the application of the guarantee of the specified rights and freedoms is to be found in s. 5, and it is this provision which must determine whether the Ordinance is applicable, and to what extent, to prior laws. The section is as follows:

N2>�5.�� Application of Ordinance

(3)�� In this section, �law of the Territory� includes a subordinate enactment.�

The first submission of counsel for the applicant was that if read literally the effect of sub-s. (2) is to obliterate sub-s. (1) entirely because sub-s. (2) provides that each law of the Territory shall be read and construed as being subject to the provisions of the Human Rights Ordinance and sub-s. (1) is stated to be subject to sub-s. (2). Such a construction, counsel then argued, would appear to bring to naught the provision in sub-s. (1) �that nothing in this Ordinance affects the operation of any law of the Territory in force in the Territory at the commencement of this Ordinance.� Counsel for the applicant then went on to submit that such a construction could not have been the intention of the legislature. He submitted that the words in sub-s. (1) �. . . nothing in this Ordinance affects the operation of any law of the Territory in force in the Territory at the commencement of this Ordinance� constitute a clear, and, because the words have the effect of reversing a major canon of statutory construction, significant provision which, qualified to some degree, was intended by the legislature to be a principal enactment in respect of the only subject matter of sub-s. (1), viz. the effect of the Human Rights Ordinance on the laws of the Territory in force at the commencement of such Ordinance. Counsel then submitted that sub-s. (2), was intended to deal with the other necessary subject matter, viz. the application of the Human Rights Ordinance to laws of the Territory coming into force after the commencement of the Human Rights Ordinance, and the class of laws made before the commencement of that Ordinance, to which by its express terms the Human Rights Ordinance was applicable, was to be restricted to the obviously limited number of prior laws the coming into operation of which had been deferred until after the commencement of the Human Rights Ordinance. This submission was supported by reference to various sections of the Ordinances Interpretation Ordinance 1949-1970, and in particular to s. 29a of that Ordinance, which it was submitted, supported the interpretation of the word �made�, in relation to an ordinance, as referring merely to its passing by the House of Assembly and not connoting the subsequent procedures of assent and the bringing into operation of the Ordinance. Such a construction would also be consistent with the use of the word �made� in reference to laws made before assent in s. 21 (3). A further argument was based on the words of qualification in sub-s. (2) for, it was submitted, no contrary intention in relation to the Human Rights Ordinance could be found in any prior law. But this argument ignores the express inclusion in the purview of sub-s. (2), of laws made before the commencement of the Human Rights Ordinance. Reference was made also to s. 8 (3). However, that clause is a saving provision in typical form, designed to protect, for example, rights of property acquired under prior laws and is thus complementary to s. 5 (1).

The principle of construction applicable where there is an apparent inconsistency is stated by Halsbury, as follows:

�A statute should be construed as a whole so as, as far as possible, to avoid any inconsistency or repugnancy either within the section to be construed or as between that section and other parts of the statute. The literal meaning of a particular section may in this way be extended or restricted by reference to other sections and to the general purview of the statute.�[dxxviii]⁵

However, I have come to the conclusion that there is no inconsistency between sub-ss. (1) and (2). In my opinion, the applicant�s submission cannot be accepted because it does not provide any explanation for making sub-s. (1) subject to sub-s. (2) or any real restriction upon sub-s. (1), as laws made before the commencement of the Human Rights Ordinance and coming into force thereafter are not included in the subject matter of sub-s. (1), viz., laws in force in the Territory at the commencement of the Human Rights Ordinance; and further it is unlikely that the intention of the legislature was to limit the operation of sub-s. (2), so far as laws made before the commencement of the Human Rights Ordinance are concerned, to the very restricted class of those laws which come into force after the Human Rights Ordinance.

Upon an analysis of s. 5, generally the subject matter of that section would appear to be laws in the sense of legislation, including subordinate legislation. The rights and freedoms guaranteed by s. 9 thus prevail over the unwritten law, (although it is unlikely that any principle of common law or equity could be found to conflict with any of those rights or freedoms). Further the preamble cannot affect the construction of s. 5 (1) because that section is expressed to apply notwithstanding anything in the Human Rights Ordinance and is subject only to sub-s. (2).

Subsection (2) can, of course, operate only on laws which have come into operation, but, in my opinion, as sub-s. (1) is expressed to be subject to sub-s. (2), the class of laws in force in the Territory at the commencement of the Ordinance must be necessarily included in the class of laws the subject matter of sub-s. (2). The reference to laws made before the commencement of the Ordinance in sub-s. (2) is thus not to be given the narrow interpretation argued for by counsel for the applicant.

The conclusion I have reached is that sub-ss. (1) and (2) are capable of being reconciled only by giving the words in sub-s. (2) to the effect that each law shall be read and construed as being subject to the provisions of the Ordinance, a meaning in relation to prior laws which stops short of affecting their operation. Upon this point I have found some assistance in the construction of the very different provisions of the Canadian Bill of Rights, 1960 adopted by Davey JA. in a case relied upon by counsel for the applicant, Regina v. Gonzales[dxxix]⁶, although it was subsequently rejected by the Supreme Court of Canada in Regina v. Drybones[dxxx]⁷. Thus the effect of sub-s. (1) is that prior laws are not repealed, expressly or by implication, by the Ordinance, but their continued operation is recognized and the effect of sub-s. (2) is to provide, subject to the express qualification to be found therein, a rule of construction for all prior and future laws. But, in relation to a prior law, if sub-s. (2) is not excluded, and if that prior law cannot be read or construed as being subject to the Ordinance without affecting a repeal, or without depriving that law of sensible operation, the effect of sub-s. (2) is exhausted and the prior law remains unaffected in its operation according to its plain meaning.

In this case the magistrate considered that the two Ordinances were capable of being read together by importing into s. 131 a further condition for the exercise of the court�s discretion. Whilst such a construction may be strictly inconsistent with the notion of a hearing ex parte, i.e. without previous notice to the party to be affected thereby, (cf. the Rules of the Supreme Court, O. 62, r. 8), as it will appear, I do not find it necessary to decide this issue, so I merely state that I am inclined to the view that the two provisions could be so read and construed without affecting the operation of the jurisdiction of the District Court generally to hear and determine the case.

The final issue, upon which, in my opinion, the case can be decided, is whether the contrary intention has been shown that s. 131 is to be read and construed subject to the provisions of the Human Rights Ordinance. Such an intention can only appear from the latter Ordinance for, as I have indicated, at the time of passing s. 131 the legislature could have had no intention in relation to the Human Rights Ordinance which was not then enacted. In the absence of any express reference the intention can appear only by necessary implication. The rule of construction submitted to be applicable by counsel for the applicant in his second submission is that expressed in the maxim, generalia specialibus non derogant. He relied on the expression of that rule as follows: �... wherever Parliament in an earlier Statute has directed its attention to an individual case and has made provision for it unambiguously, there arises a presumption that if in a subsequent Statute the Legislature lays down a general principle, that general principle is not to be taken as meant to rip up what the Legislature had before provided for individually, unless an intention to do so is specially declared.� Blackpool Corporation v. Starr Estate Company Limited [dxxxi]⁸.

The same principle is stated in Halsbury�s Laws of England, as follows:

�If Parliament has considered all the circumstances of, and made special provision for, a particular case, the presumption is that a subsequent enactment of a purely general character would not have been intended to interfere with that provision; and if, therefore, such an enactment, though inconsistent in substance, is capable of reasonable and sensible application without extending to the case in question, it is prima facie to be construed as not so extending. The special provision stands as an exceptional proviso upon the general. If, however, it appears from a consideration of the general enactment in the light of admissible circumstances that Parliament�s true intention was to establish thereby a rule of universal application, then the special provision must give way thereto.�[dxxxii]⁹

The strongest consideration excluding any contrary intention is perhaps to be found in the nature of the Human Rights Ordinance for if a right or freedom, in this case the right to the protection of law, is declared to be fundamental it might naturally be supposed to be universally applicable. But there are considerations to the contrary. Section 131 deals with the particular case of summary offences, many of which�such as traffic offences and not all of the same minor character as the subject of the present case�are sufficiently lacking in seriousness for the defendant reasonably to choose, upon considerations of convenience and perhaps saving of embarrassment, to take the course of allowing the case to be decided in his absence, and also for the court to decide not to bring the defendant before the court by warrant. The procedure laid down by s. 131 is in conformity with the procedure well recognized in the legal systems of countries where the common law applies which enables such minor offences to be heard, upon proof of service, in the absence of the defendant, irrespective of proof of his consent. I do not think that it would occur to the reasonable citizens of this country that such a practice involved a denial of the fundamental rights of the protection of the law. It was said by counsel who argued in support of the magistrate�s decision that the main consideration involved was administrative convenience which could be met by a defendant, upon service of the summons, being asked to state, for the purposes of evidence, whether he consented to the hearing taking place in his absence. But a defendant might reasonably wish to leave the matter open until the day of hearing, and if he refused to commit himself or did not consent and later for some reason failed to appear, he would be exposed to arrest on warrant, which in the case of a minor summary offence would be seen to be a quite drastic procedure. To impose a general requirement of proof of consent in such cases seems to me not only unnecessary, but also to go so far as to constitute an infringement of the freedom of the citizen to choose not to attend. On the whole I have reached the conclusion that trial ex parte of summary offences is such a well established and unobjectionable procedure that it stands as an �exceptional proviso� even to this legislation concerned as it is with human rights. To read down s. 16 (3) by excluding its application to s. 131 is merely to remove the overstatement of the ambit of the fundamental right if construed as extending to trials over the entire range of offences from grave to minor offences. Thus, in my opinion, the applicant�s second submission succeeds for an implied intention has been shown that the general provision contained in s. 16 (3) does not apply to s. 131.

For these reasons, in my judgment, the applicant should be granted the relief sought.

PRENTICE J: The second-named respondent was summoned on 8th September, 1972, to the District Court at Goroka, to answer a charge of driving a motor vehicle while unlicensed. There was no appearance of that respondent (the defendant) on the return date. The matter was adjourned to a later date on which, there again being no appearance of the defendant, an affidavit of personal service of the summons was tendered, and pronounced satisfactory. An application was then made for the hearing to proceed ex parte. The learned magistrate refused the application, being of the opinion that an ex parte hearing would be contrary to the provisions of the Human Rights Ordinance, s. 16 (3) (f), that��A person charged with an offence shall ... and, except with his own consent, the trial shall not take place in his absence ...�.

The sole provision in the Human Rights Ordinance for the enforcement of the rights and freedoms which it declares, lies in s. 21, under which an application by a person interested in the enforcement of the right, or by certain persons on his behalf, may be brought to the Supreme Court (and only to the Full Court thereof, except for purposes of temporary relief). No powers or duties appear to be vested in other courts. No such application has been made here. The defendant (second-named respondent) appeared in these proceedings through counsel, but disclaimed any right to take part therein. It might have been thought and argued that subordinate courts should not be astute to the raising of their own motion, difficult points of construction in aid of rights not claimed by any person. One quails at the thought that a formidable task of law review and revision may be thus uncovered and added to the work of the Supreme Court�a task surely fitter for the legislature and committees than for the court.

The matter comes before this Court on an application by the Secretary for Law under s. 21 of the District Courts Ordinance for an order in lieu of mandamus, to the magistrate, requiring him to proceed to hear the information ex parte.

Section 131 of the District Courts Ordinance, providing as it does for ex parte hearings after proof of service and non-appearance of defendants, is a provision of the kind commonly to be found in statutes providing for the exercise of summary jurisdiction. It is hedged by the provision in s. 33 of the Ordinance, that an order made after such an ex parte hearing, may be set aside on application, on such terms as the court thinks just. The Local Courts Ordinance provides differently, that in a local court �a defendant shall be present throughout the trial, unless the court is satisfied that he does not wish to appear and that it is proper he be not compelled to appear�. The difference in the provisions of the two Ordinances may perhaps be accounted for by the expectation that persons of less sophistication and education and understanding of the nature of a summons, would be appearing in local courts whereas those appearing in District Courts might be expected to have a greater degree of understanding and experience.

I am of the opinion that where it is shown that a summons in due form, has been personally and properly served, and there is no appearance of the accused, and no material is before the court to the contrary, that it can, and should be inferred until the reverse is shown, that the accused has consented to the hearing being conducted in his absence. This was the position before the magistrate in this case. One may say that the vast majority of citizens would be horrified to learn that they must attend court in answer to any summons on the return day, and again on adjourned hearings, to avoid risk of their being arrested subsequently on warrant for, say, a traffic or perhaps quite minor offence. To my mind then, no question of a possible derogation of a right to be present at his trial as proclaimed by s. 16 (3) (f) of the Human Rights Ordinance appears in this case; and I would grant the order asked. On the other hand, if the Human Rights Ordinance can have effect under s. 5 (2) on past legislation (that is, laws in operation when it came into effect) then I would think the terms of s. 131 of the District Courts Ordinance sufficiently indicate a �contrary intention��dealing as they do, explicitly, with the topic of simplified procedures for lesser offences.

I say this, making the assumption that the Human Rights Ordinance contemplates such a contrary intention, may be found in the past legislation itself. And I think this must be so, as I find that the subsection which has reference to laws already made (s. 5 (2)), contains the phrase �unless a contrary intention appears��and no other section of the Ordinance touches the problem. In finding such a contrary intention by inference, as I do here, one must found, I suppose, on a spelling out of the maxim generalis specialibus non derogant.

In deference to the important questions argued as to the interpretation and effect of this most crucial Ordinance, the Human Rights Ordinance, and to the fact that my brothers may not share my view as to consent having been established in fact, I proceed to consider the matter further.

Most difficult questions arise in the interpretation of this Ordinance. After many hours of study of it, one can remain frustrated both as to its intention regarding retrospectivity of effect, and as to the intended nature of its operation. Was it intended to operate on the laws of the future, on laws already then passed by the House (even assented to by the Sovereign) but not promulgated by the Executive, and on laws brought into operation even before its commencement? Was it intended to work repeal of enactments or portions of enactments which did not accord with it; or was it intended to provide merely a canon of construction, so that where a law allowed of an interpretation in accord with it�that interpretation must be preferred; but so that when it did not allow of such an interpretation, then that other law stood, despite the Human Rights Ordinance?

The preamble recites a resolve to create a basic law �subject to which all other laws are to be read and administered . . .�. In what constitutes a departure from the ordinary common law rule of construction, it is specially enacted that the provisions of the preamble �shall be taken fully into account in all cases, and that the provisions of this Ordinance shall be read and construed as being intended to effectuate (as far as may be) the provisions of the preamble�.

Special perplexities arise from s. 5 of the Ordinance which is in the following terms:

N2>�(1)�� Notwithstanding anything in this Ordinance, but subject to subsection (2) of this section, nothing in this Ordinance affects the operation of any law of the Territory in force in the Territory at the commencement of this Ordinance.

N2>(2)�� Unless the contrary intention appears, whether by express reference or necessary implication, each law of the Territory, whether made before or after the commencement of this Ordinance, shall be read and construed as being subject to the provisions of this Ordinance.

N2>(3)�� In this section, �law of the Territory� includes a subordinate enactment.�

If the words �whether made before or after the commencement of this Ordinance� are to be read as including all laws whenever made and brought into operation, then they would cover �a law in force at the commencement of this Ordinance� (sub-s. (1)), and prima facie sub-s. (2) would be vitiating sub-s. (1). One notes that s. 5 (1) is the first enabling section to follow the provisions regarding the preamble.

If the words �whether made before or after the commencement of this Ordinance� are to be read as indicating a category of laws other than those covered by the phrase �a law in force at the commencement of this Ordinance��then the words �but subject to sub-s. (2)� in sub-s. (1), prima facie appear otiose.

Mr. Greville Smith submits that the draftsman was mindful that for certain purposes laws �in gremio� the Executive�that is laws passed by the House, even assented to by the Crown, but not yet brought into operation by promulgation (for example, the Parliamentary Integrity Bill of 1971), could be regarded as �in force�. (He points to Mann CJ�s opinion in R. v. Ebulya [dxxxiii]¹⁰, and to the effect of s. 31 of the Ordinances Interpretation Ordinance.) Subsection (1) should be read, as touching such �laws�, as well as those in operation by passage, assent and proclamation. Subsection (2) has been framed carefully he says by the use of the word �made� rather than �brought into operation� so as to give a measure only of retrospectivity, namely to those laws enacted but not yet brought into effect at the time of commencement of the Human Rights Ordinance. He submits that the Human Rights Ordinance then operates not at all on laws �in force� at its commencement other than those laws (which could be said to be �in force�) which were made before but not brought into operation until after its commencement. Subsection (2) would then be read as with the italicized words interposed:

N2>�(2)�� Unless the contrary intention appears, whether by express reference or necessary implication, each law of the Territory coming into force after the commencement of this Ordinance, whether made before or after the commencement of this Ordinance, shall be read and construed as being subject to the provisions of this Ordinance.�

He submits this interpretation may be reached by a comparison of the use of the phrase �in force�, s. 5 sub-s. (1)�when the usual phrase for an Ordinance is �in operation� (see s. 29a of the Ordinances Interpretation Ordinance), and that for a regulation� �take effect� (see s. 37 of the same Ordinance); with the phrase �in operation� in s. 2 of the Human Rights Ordinance. The use in s. 5 sub-s. (1) of �in force� was intended to cover both Ordinances and regulations. But it then became necessary to show that sub-s. (1) was not intended to exclude from the operation of the Ordinance those laws which were made but not �in operation�. In support of such an argument one notes that in the enforcement section, s. 21 sub-s. (3), �made� is used in the meaning of �passed�but not assented to�. He submits further that the use of the words �unless the contrary intention appears� is inapt for application to past legislation (that intention having to be sought for in that past legislation not in the Human Rights Ordinance itself)� but is appropriate to �in gremio� laws. I have already expressed my view on the contention as to where the �contrary intention� may be found.

One pauses to say that to read s. 5 (2) in this fashion seems to constitute a major surgical grafting operation on the section.

Mr. Gregory, in support of the magistrate, produced an extremely complex and lengthy argument which frankly I am not certain that I understand even now, after days of studying his written submissions. I hope I do not deny it justice if I state it as appearing to be as follows:

N2>1.�� Section 5 sub-s. (2) is (together with the preamble) to be read as requiring a reading down of all laws so as to comply with the Human Rights Ordinance;

N2>2.�� If a law cannot be so read down, it should be declared inoperative (the Drybones� case[dxxxiv]¹¹);

N2>3.�� This is the effect to be worked on all laws coming into effect after commencement of the Human Rights Ordinance;

N2>4.�� But for the presence of s. 5 (1), this effect would be produced on all laws past and future;

N2>5.�� The effect of s. 5 (1) is that if a law in force prior to the commencement of the Human Rights Ordinance cannot be read down so as to comply with the Human Rights Ordinance�then it is saved;

N2>6.�� A �contrary intention� can appear in a �past� law so as to set aside s. 5 (2);

N2>7.�� No such contrary intention is to be held evinced here by the existence in the District Courts Ordinance of s. 33 or otherwise;

N2>8.�� The District Courts Ordinance can be construed so as to be read with an addition �provided the consent thereto of the defendant is shown to have been given.� It is submitted by him that the District Courts Ordinance could be implemented by requiring at the time of service that the accused indicate his consent or refusal to an ex parte hearing.

Under the canon of construction ut res magis valeat quam pereat, a court should shun an interpretation which would leave any part of the provisions to be interpreted, without effect[dxxxv]¹². In argument then, two interpretations which are said to give effect to both sub-s. (1) and sub-s. (2) of s. 5 and to the Ordinance as a whole have been propounded.

The first, that contended for by Mr. Greville Smith, involves the importation of a significant phrase into parenthesis, in sub-s. (2) of s. 5.

The second involves a radical decision as to the over-all intention of the Ordinance as to its possible consequences and really as to the reading of the phrase �shall be read and construed as being subject to� in s. 5 (2) as meaning, in relation to laws in force at the commencement of the Ordinance, �if it can be without invoking a repeal.� For if s. 5 sub-s. (2) can work a repeal, (even of pre-existing law), how can it be said �nothing shall affect the operation� of such a law (s. 5 sub-s. (1))? If the Ordinance is intended to be more than one providing a canon of construction, then in appropriate instances it can be said to provide for working a repeal of pre-existing legislation. If such be the power given, sub-s. (2) makes nonsense of sub-s. (1) of s. 5. This second interpretation then, somewhat on the lines contended for by Mr. Gregory, involves a significant interpolation also, unless it appears from the remainder of the Ordinance that this was in any event, the intention of the legislation.

I am unable to see how the phrase �shall be read and construed� can be interpreted as providing merely a rule of construction qua past laws, while at the same time providing a power to declare void a future law.

What is the intention of the legislator as to the effect of the Human Rights Ordinance? Is it to be a canon of construction only or can it indeed empower the court to nullify an existing or future provision?

I am of the opinion that assistance can be gained from a consideration of the interpretation of the Canadian Bill of Rights. The Canadian Bill of Rights makes the following provisions:

N2>�1.�� It is hereby recognised and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms namely,

(a)�� the right of individual to life, liberty, security of the person in enjoyment of property, and the right not to be deprived thereof except by due process of law;

(b)�� the right of individual to equality before the law and the protection of the law;

(c)�� freedom of religion;

(d)�� freedom of speech;

(e)�� freedom of assembly and association; and

(f)�� freedom of the press.

N2>2.�� Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada, that it shall operate notwithstanding the Canadian Bill of Rights be so construed and applied as not to abrogate, abridge, or infringe, or to authorise the abrogation, abridgement, or infringement of any other rights or freedoms herein recognised and declared, and in particular no law of Canada shall be construed or applied so as to ...�.

That statute has been construed in several cases involving the right of Amerindians (known of course in Canada as �Indians�) to drink intoxicating liquor outside Indian reservations. In Regina v. Gonzales [dxxxvi]¹³, Davey J of the Court of Appeal of British Columbia stated:

�Insofar as existing legislation does not offend against any of the matters specifically mentioned in Clauses (a) to (g) of section 2 but is said to otherwise infringe upon some of the human rights and fundamental freedoms declared in section 1, in my opinion the section does not repeal such legislation either expressly or by implication. On the contrary, it expressly recognises the continued existence of such legislation, but provides that it shall be construed and applied� (underlining mine) �so as not to derogate from those rights and freedoms. By that it seems merely to provide a canon or a rule of interpretation for such legislation. The very language of section 2 �be so construed and applied as not to abrogate ...� assumes that the prior Act may be sensibly construed and applied in a way that will avoid derogating from the rights and freedoms declared in section 1. If the prior legislation cannot be so construed and applied sensibly then the effect of section 2 is exhausted and the prior legislation must prevail according to its plain meaning.�

In Regina v. Drybones[dxxxvii]¹⁴, Cartwright CJ in a dissenting judgment, said that �If that statute were intended to confer on courts the power of declaring inoperative any provision in a statute of Canada, although expressed in clear and unequivocal terms ... there would in my opinion have been added after �declared� in the seventh line of the opening paragraph of s. 2 of the Bill of Rights some such words as the following��and if any law of Canada cannot be so construed and applied it shall be regarded as inoperative or pro tanto repealed� �. I pause to say that one might well have expected a similar phraseology in the Papua New Guinea Human Rights Ordinance. The majority decision in the Drybones� case[dxxxviii]¹⁵, as seen in the judgment of Ritchie J held that s. 2 was intended to mean and does mean, that if the law of Canada cannot be sensibly construed and applied so that it does not abrogate, abridge, or infringe one of the rights and freedoms recognised and declared by the Bill, then such a law is inoperative �unless it is expressly declared by an Act of Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights.�

The Human Rights Ordinance provides (s. 4) that the preamble �shall be taken fully into account in all cases and each provision of this Ordinance shall be read and construed as being intended to effectuate (as far as may be) the provision of the preamble.� The preamble recites an intent to protect certain declared �rights and freedoms by a basic law subject to which all other laws are to be read and administered.� Section 5 provides that��Unless the contrary intention appears ... each law of the Territory ... shall be read and construed as being subject to the provisions of this Ordinance.� One finds in s. 21 (1) that��A right or freedom shall be protected and is enforceable by the Supreme Court;� and in sub-s. (3)� �The Supreme Court may make all such orders and declarations as are necessary or appropriate for the purposes of subsection (1) of this section, and has power to make such an order or declaration ...�.

I am of the opinion that the provisions of the Ordinance are distinctly less stringent than those of s. 2 of the Canadian Ordinance which appears to be and has been interpreted as vetoing �the abrogation, abridgement or infringement� of any right, even by declaration of pro tanto repeal if necessary. Neither the words, �shall be read and construed as being subject to,� nor the words, �are to be read and administered� in the preamble, without the addition of words such as �and may be nullified by,� do not to my mind form a strong foundation from which a power to declare a repeal, could be interpreted. I find the interpretation enunciated by Davey J that which appears the most compelling under the Human Rights Ordinance�and I consider that Parliament here was doing no more than instructing the courts to construe and apply the laws in accordance with the principles enunciated in the Ordinance. If this be so, then room is left for giving force to both sub-s. (1) and sub-s. (2) of s. 5. Subsection (1) is to be read as meaning that laws already in operation at the commencement of the Human Rights Ordinance, are not to be affected, except to the extent provided for by sub-s. (2); that is, they may be read down if possible, but may not so be if that process cannot sensibly be done or if a repeal is thereby to be worked. This interpretation has the advantage of making clear sense of s. 8 (3). Mr. Greville Smith contends that that subsection can be given effect, even if s. 5 (2) be held inoperative on laws in operation at the commencement of the Human Rights Ordinance. He suggests it would operate to preserve rights and liabilities accrued or acquired, under laws which stand repealed at that commencement; whereas s. 5 (1) protected rights and liabilities under laws then still in force. That subsection uses the phrase �before the commencement� rather than �at the commencement�.

I appreciate that reading s. 5 sub-s. (2) as intending to create a canon of construction rather than as enabling a declaration of repeal, strikes down much of the effect of the Ordinance in future. One imagines this may be contrary to the actual intentions of the movers of the Bill.

A scrutiny of the debate on the Bill could be said to reveal certain opinions held by those speaking to the amendments which were introduced by the Government�opinions both as to the questions of whether the Bill was to do no more than provide a canon of construction, and as to its retrospectivity of operation. I have myself read those debates. It may seem strange to non-lawyers that courts do not have recourse to material such as that. There are one or two precedents in fact for doing so. Lord Nottingham once claimed to have some reason to know the meaning of the Statute of Frauds because, he said, it had its rise from him, he having brought it into the House of Lords! In declaring the meaning of a rubrick on vestments the Privy Council once looked at the Commons� expressed reasons for rejecting a Lords� amendment. But the modern rule is clear�the Parliamentary history of legislation is not a permissible aid to the courts in construing a statute (Denning L.J in Escoigne Properties v. Inland Revenue Commissioners[dxxxix]¹⁶�and in Letang v. Cooper [dxl]¹⁷). A modern exception seems to have been that of Lord Upjohn in Beswick v. Beswick [dxli]¹⁸. For myself, I have given consideration to whether the situation in Papua New Guinea warranted this Court�s seeking to suggest a modification of the ancient rules of construction for this country, under the �pruning the oak� of the common law concept (see Nyali�s case[dxlii]¹⁹). I do not think it justified. As the learned editor of Maxwell on Statutes, 12th ed., says at p. 51��The rule against reference being made to legislative material, while it admittedly excludes from consideration one possible source of relevant information, may, perhaps, be justified on two grounds. One is that a statute can only be regarded as the language of the three Estates of the realm, and the meaning attached to it by those who drafted it or by individual members of one of those Estates should not control its construction. The other is the danger that members of either House might, in the course of debate, attempt to influence the future interpretation of a statute by expressing their own �views� as to its probable effect in the hope that these would remain uncontradicted at the conclusion of its passage through Parliament.�

I therefore pay no regard to the Hansard report of the debate on the Bill.

I have come reluctantly to the conclusion that the powers given by the Ordinance are to make declarations as to construction and interpretation of laws, and in furtherance of rights consequent therein; but that the Ordinance does not authorize a declaration that a law is ineffective or repealed pro tanto.

And doing the best I can with the section, I consider the Ordinance is intended to operate both on past and future legislation, but only to the extent that it provide a canon of construction and not as allowing the working of a repeal.

The words of s. 131 of the District Courts Ordinance are clear and unambiguous. I see no warrant for reading them down, or interpreting them as containing the proviso �if the consent of the accused has been given thereto�. It has been suggested that the intent of the legislation to provide a ready summary procedure would not be unduly interfered with by such an insertion since the form of summons could be altered so as to require the recipient at the time of service, to indicate whether he agreed to an ex parte hearing. It appears to me it would be unreasonable to so �amend� the Ordinance by interpretation. Such a result would be to abrogate the accused�s right to consider the document, take stock of his position, and of his recollection of the facts, and to advise himself what he should do. Why should he be required at that point of time to commit himself to attend the court and thereby in breach of such attendance to render himself liable to the indignity of a factually unnecessary arrest on warrant.

Being satisfied that the words of s. 131 could not sensibly be read down, and being satisfied that the Human Rights Ordinance cannot work on that count a repeal of this section of the District Courts Ordinance; I would hold that on this ground also, an order in lieu of mandamus directing the magistrate to proceed with the hearing of the information ex parte should issue. I would add that I consider fresh notice of hearing should be given the defendant and an affidavit of service thereof filed, prior to the resumption of the hearing.

Since writing the above I have had the advantage of reading the judgments of my brothers, the Chief Justice and the Senior Puisne Judge. To the commendation of the Chief Justice regarding s. 5, I should like to add mine, that s. 21 also perhaps be reviewed. If it was the original intention that legislation could be struck down or repealed pro tanto by declaration of the Court, it seems that provision of such power should be made distinct.

Order absolute in lieu of mandamus that the first respondent hear and determine in accordance with the provisions of the District Courts Ordinance, section 131, the summons and information directed to the second respondent.

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

[dxxiv]Infra, p. 461.

[dxxv]Infra, p. 463.

[dxxvi]Infra, p. 464.

[dxxvii]Nigeria, The Development of its Laws and Constitution, Elias Chapter 8.

[dxxviii]Halsbury's Laws of England 3rd. ed. Vol. 36 at pp. 395-6.

[dxxix]37 W.W.R. 257 (British Columbia Court of Appeal), at pp. 259-260.

[dxxx]71 W.W.R. 161.

[dxxxi] [1922] 1 A.C. 27, at p. 34 per Viscount Haldane.

[dxxxii]Halsbury's Laws of England 3rd. ed. Vol. 36 pp. 467-8.

[dxxxiii][1964] P. & N.G.L.R. 200.

[dxxxiv](1969) 71 W.W.R. 161.