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SCR No 1 of 1980; Re S22A(b) Police Offences Act; Biyang v Liri Haro [1981] PGSC 19; [1981] PNGLR 28 (6 March 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 28 - SCR No 1 of 1980; Re S22A(b) Police Offences Act; Biyang v Liri Haro�

[1981] PNGLR 28

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REFERENCE NO. 1 OF 1980

IN THE MATTER OF A REFERENCE UNDER S. 18 OF THE CONSTITUTION AND IN THE MATTER OF S. 22A(B) OF THE POLICE OFFENCES ACT (PAPUA) 1912 (REPEALED), AND S. 37(4) OF THE CONSTITUTION AND IN THE MATTER OF V. BIYANG (INFORMANT) AGAINST LIRI HARO (DEFENDANT)

Waigani

Greville Smith Andrew Miles JJ

25 August 1980

6 March 1981

CRIMINAL LAW - Evidence - Onus of proof - Presumption of innocence - Proof of facts peculiarly within knowledge of accused - Passing cheque not paid on presentation - Accused guilty �unless he proves� inter alia �that he had no intent to defraud� - Provision not unconstitutional - Lack of intent a fact peculiarly within knowledge of accused - �According to law� - Constitution s. 37(4)(a)[li]¹�- Police Offences Act (Papua) 1912 (repealed), s. 22a[lii]².

CRIMINAL LAW - Particular offences - Passing cheque not paid on presentation - Accused guilty �unless he proves� inter alia �that he had no intent to defraud� - Onus of proof - Lack of intent fact peculiarly within knowledge of accused - Constitution - s. 37(4)(a)[liii]³�- Police Offences Act (Papua) 1912 (repealed), s. 22a[liv]⁴.

CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Onus of proof in criminal matters - Presumption of innocence - Innocent until proved guilty �according to law� - According to common law in force at Independence - Facts peculiarly within knowledge of accused - Persuasive burden on accused - Constitution s. 37(4)(a)[lv]⁵�- Police Offences Act (Papua) 1912 (repealed) s. 22a[lvi]⁶.

POLICE OFFENCES - Passing cheque not paid on presentation - Accused guilty �unless he proves� inter alia �that he had no intent to defraud� - Onus of proof - Lack of intent fact peculiarly within knowledge of accused - Constitution s. 37(4)(a)[lvii]⁷�- Police Offences Act (Papua) 1912 (repealed), s. 22a[lviii]⁸.

Section 22a(b) of the Police Offences Act (Papua) 1912 (repealed), which provides that a defendant charged with passing a cheque not paid on presentation under s. 22a, is guilty unless he proves, inter alia, a �lack of intent to defraud�, is not unconstitutional in the light of the provisions of guaranteed rights of s. 37(4)(a) of the Constitution of the Independent State of Papua New Guinea, which provides:

�A person charged with an offence shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would with the exercise of reasonable care be, peculiarly within his knowledge.�

Per Greville Smith J:

�As a result of s. 37(4)(a) the law in Papua New Guinea relating to the proof of guilt in criminal cases is that the onus is on the prosecution to prove each element of the offence charged beyond reasonable doubt, subject to the following exceptions; namely:

(a)����� In the case of a defence of insanity, where there is a presumption of sound mind until the contrary is proved.

(b)����� Where an enactment prohibits the doing of an act save in specified circumstances, or by persons of specified classes, or with special qualifications or with the licence or persuasion of specified authorities, then once the prosecutor has proved beyond reasonable doubt the doing of the act the burden is on the person charged to bring himself within the exception or proviso, that is, to prove that he was entitled to do the prohibited act, independently of whether the facts he must prove to do so are, or would with the exercise of reasonable care be, peculiarly within his knowledge.

(c)����� In the case of an enactment which places upon the person charged the burden of proving particular facts which are, or would with the exercise of reasonable care be, peculiarly within his knowledge.

In the case of each exception the burden that rests on the accused is the legal, or as it is sometimes called the persuasive burden, not an evidentiary burden, and it is a burden of satisfying the court on a balance of probabilities, of persuading the court, on the probabilities, of the matter alleged by way of defence.�

The presence or absence of lack of intent to defraud in s. 22a of the Police Offences Act (Papua) 1912 (repealed), is one which is peculiarly within the knowledge of the person concerned, and the onus is on the person charged under s. 22a of proving lack of intention to defraud as a particular fact.

The expression �according to law� in s. 37(4)(a) of the Constitution encompasses all the laws of Papua New Guinea as set out in s. 9 of the Constitution including the underlying law of which the common law is a part under s. 20 and Sch. 2.2(1), and means in the context of the section according to the common law in England at the time of coming into force of the Constitution and which embodied the concept of the presumption of innocence.

Reference

This was a reference under s. 18 of the Constitution of the Independent State of Papua New Guinea of a �question relating to the interpretation or application of any provision of a Constitutional law� by a magistrate hearing a charge under s. 22a of the Police Offences Act (Papua) 1912, now repealed. The question referred to is set out hereunder.

Counsel

J. Karczewski, for the informant.

A. Amet, for the defendant.

A. Pert, for the Principal Legal Adviser to the National Executive Council.

Cur. adv. vult.

6 March 1981

GREVILLE SMITH J:� This is a reference under s. 18 of the Constitution from a magistrate sitting in the Boroko District Court to determine a charge brought by the informant Constable Biyang against the defendant Patrick Liri Haro under s. 22a of the Police Offences Act (Papua) 1912, now repealed. The charge against the defendant remains outstanding until this Court makes a decision on the reference and remits the matter back to the District Court.

The question referred is as follows:

�Is s. 22A(b) of the Police Offences Act (Papua) 1926-1977 [sic] (repealed), which requires a defendant charged under s. 22a of the Act, to �prove a lack of intent to defraud�, unconstitutional, given the provisions of guaranteed rights of s. 37(4)(a) of the Constitution of the Independent State of Papua New Guinea?�

The section under consideration is in these terms:

N2>�22A.� A person who obtains any chattel, money or valuable security by passing a cheque which is not paid on presentation, or who passes any such cheque in payment or part-payment for services rendered or to be rendered to himself or to any other person, or partly in such payment or part-payment and partly for some other purpose, shall, notwithstanding that there may have been some funds to the credit of the account on which the cheque was drawn at the time it was passed, be guilty of an offence, unless he proves:

(a)����� that he had reasonable grounds for believing that the cheque would be paid in full on presentation; and

(b)����� that he had no intent to defraud.

Penalty: Imprisonment for twelve months.�

At this point it is convenient, in juxtaposition with s. 22a, to set out, simply as a contrasting form of legislation, to which I shall refer by way of example later, the provisions of s. 209 of the Criminal Code which provides as follows:

�DISOBEDIENCE TO LAWFUL ORDER ISSUED BY STATUTORY AUTHORITY

Any person who without lawful excuse, the proof of which lies on him, disobeys any lawful order issued by any court of justice or by any person authorized by any law of Papua New Guinea to make the order, is guilty of a misdemeanour, unless some mode of proceedings against him for such disobedience is expressly provided by any law of Papua New Guinea, and is intended to be exclusive of all other punishment.

The offender is liable to imprisonment for one year.�

Looking at the contents of s. 22a and the fact that the words �prove a lack of intent to defraud� in the referred question are enclosed in single raised commas it is clear that those words are a shortened form of the following, namely,

�prove a lack of intent to defraud if he is to escape conviction once the matters set out before the words �unless he proves� have been proved against him beyond a reasonable doubt, and he himself has satisfied the court on a balance of probabilities of the matter referred to in the proviso.�

I shall so treat them.

Sub-section (4)(a) of s. 37 of the Constitution provides as follows:

N2>�(4)��� A person charged with an offence:

(a)����� shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would with the exercise of reasonable care be, peculiarly within his knowledge;�

A convenient starting point in an examination of the meaning and effect of this sub-section are the words �according to law�. For that purpose it is necessary to refer to s. 20, (1) and (2) of the Constitution, and to Sch. 2.2(1) of the Constitution, which provide as follows:

N2>�20.��� UNDERLYING LAW AND PRE-INDEPENDENCE STATUTES

(1)����� An Act of Parliament shall:

(a)����� declare the underlying law of Papua New Guinea; and

(b)����� provide for the development of the underlying law of Papua New Guinea.

(2)����� Until such time as an Act of Parliament provides otherwise:

(a)����� the underlying law of Papua New Guinea shall be as prescribed in Schedule 2 (adoption, etc., of certain laws); and

(b)����� the manner of development of the underlying law shall be as prescribed by Schedule 2 (adoption, etc., of certain laws).�

Schedule 2.2 provides as follows:

N2>�Sch. 2.2.����� ADOPTION OF A COMMON LAW

(1)����� Subject to this Part, the principles and rules that formed, immediately before Independence Day, the principles and rules of common law and equity in England are adopted, and shall be applied and enforced, as part of the underlying law, except if, and to the extent that:

(a)����� they are inconsistent with a Constitutional Law or a statute; or

(b)����� they are inapplicable or inappropriate to the circumstances of the country from time to time; or

(c)����� in their application to any particular matter they are inconsistent with custom as adopted by Part 1.�

The purpose of the insertion in s. 37(4)(a) of the Constitution of the words �according to law� could not have been to vacate expressly, subject to the provisos contained therein, this fundamental and highly important field to the ordinary or other law; and its presence could not have been intended merely to preclude a �literal� interpretation of the preceding words without providing anything else in its place. It seems clear to me that the intention of the Legislature must have been, subject to the proviso contained in the section, to adopt for the purposes of the Constitution the concept of the so-called presumption of innocence as it stood in the common law of England at the time of coming into force of the Constitution, a concept with which, in its generality, the framers of the Constitution, and the people of this country were familiar, and which had in its generality been in force in this country for a very long time. In my opinion �according to law� means in the context of s. 37(4)(a) according to the common law in England which embodied that concept, and it was appropriate to use the expression �according to law� because the relevant law, was part of the common law in England which simultaneously with the coming into effect of s. 37(4)(a) (together with the rest of the Constitution) became part of the �underlying law� of this country by way of s. 20(2) of the Constitution and Sch. 2.2(1) thereto. It is not that that part of the �Common Law in England� of which I speak became �the law� by way of s. 20(2) and Sch. 2.2(1), it became so directly by way of s. 37(4)(a) of the Constitution. In the absence of s. 37(4)(a) it would have become so by way of Sch. 2.2(1). In such a case it would have been subject to the exceptions incorporated in Sch. 2.2(1), inter alia, the second part of exception (a), and also to the provisions of s. 21 of the Constitution which, as things are, it is not. It is subject only (except to the extent that provisions of the Constitution itself may be changed) to the proviso contained in s. 37(4)(a).

I propose now to examine what the relevant principles and rules of common law were at the relevant time. At the outset, it is convenient to deal, before coming to the heart of such examination, with the distinction, once thought to be of significance, and in practice treated as of significance, between an �exception� and a �proviso�. Provisions were �exceptions� if they were embodied in the main enacting clause as part of the definition of the offence, and on the other hand whatever was superadded to such clause by way of exemption, whether by a formal proviso, or by a separate section or sub-section, was a �proviso�.

The rule of common law was for a long time thought to be that in the case of exceptions the onus was on the prosecution to negative the application of the exception, but in the case of provisos the onus was on the accused to bring himself within the exception thereof.

In the case of s. 209 aforesaid of the Criminal Code the words �without lawful excuse� would have been regarded as an exception the applicability of which, in the absence of the express statutory proviso contained in the words �the proof of which lies upon him� it would have been necessary for the prosecutor to negative. The statutory provision of course overrides the common law rule.

In the case of s. 22a aforementioned, if in the final part of the provision, after the words �shall be guilty of an offence, unless� the words �he proves�, and the word �that� where it twice appears, firstly, after the letter (a) and secondly after the letter (b), had been absent, that part of s. 22a would have been a proviso and the onus of bringing himself within its exculpatory provisions, once the matters set out within the earlier part of the section had been proved against him, would have been on the accused, so that the express statutory provision placing the onus on the accused would have been unnecessary.

There was also substantial authority that even in the case of an �exception� the common law rule was, in respect of matters peculiarly within the knowledge of the accused and in respect of which there were practical reasons for casting the onus upon him, that in such case the onus was, as in the case of provisos, upon the accused.

What now can be seen as misconceptions concerning the distinction between �exceptions� and �provisos�, so far as relates to matters of onus of proof, and concerning the case of �exceptions� relating to matters peculiarly within the knowledge of the accused, were swept away by the English Court of Appeal, Criminal Division in R. v. Edwards[lix]⁹.

The judgment of the court in that case was read by Lawton L.J. who, speaking of the judgment of the Court of Criminal Appeal in R. v. Oliver[lx]¹⁰�said as follows:

�... in his judgment Viscount Caldecote CJ dealt with two points which counsel for the appellant had put forward in support of his main submission. Both had been canvassed in the 18th century and had echoed through the courts in the 19th; first, that although there was no need for the prosecution to prove that a proviso in a statute did not apply, this was not so with an exception; and secondly, the prosecution should have given prima facie evidence of the non-existence of a licence. As we have sought to show in this judgment the old distinction between provisos and exceptions had been moribund if not dead, for well over a century ...�

His Lordship continued later as follows[lxi]¹¹:

�In our judgment this line of authority establishes that over the centuries the common law, as a result of experience and the need to ensure that justice is done both to the community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This exception, like so much else in the common law, was hammered out on the anvil of pleading. It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisos, exemptions and the like, then the prosecution can rely on the exception.

In our judgment its application does not depend on either the fact, or the presumption, that the defendant has peculiar knowledge enabling him to prove the positive of any negative averment. As Wigmore pointed out in his great Treatise on Evidence (1905), vol. 4, p. 3525, this concept of peculiar knowledge furnishes no working rule. If it did, defendants would have to prove lack of intent. What does provide a working rule is what the common law evolved from a rule of pleading. We have striven to identify it in this judgment. Like nearly all rules it could be applied oppressively; but the courts have ample powers to curb and discourage oppressive prosecutors and do not hesitate to use them.

Two consequences follow from the view we have taken as to the evolution and nature of this exception. First, as it comes into operation on an enactment being construed in a particular way, there is no need for the prosecution to prove a prima facie case of lack of excuse, qualification or the like; and secondly, what shifts is the onus: it is for the defendant to prove that he was entitled to do the prohibited act. What rests on him is the legal or, as it is sometimes called, the persuasive burden of proof. It is not the evidential burden.� (Emphasis mine.)

I now turn to more general matters. The general rule is that in criminal cases it is for the prosecution to prove, and to prove beyond reasonable doubt, every element of the alleged offence (Woolmington v. Director of Public Prosecutions[lxii]¹²). The rule applies equally to negative elements as well as, for instance, absence of consent in cases of rape. Accordingly, the Crown must prove every fact, whether affirmative or negative, which forms an ingredient of the offence. Matters of defence, as distinguished from mere denials of allegations requiring to be made by the prosecution, do not arise for consideration unless there be, either in the evidence for the prosecution or the evidence adduced by the accused something which raises the question of such a defence. Once this occurs the onus is on the prosecution to negative the defence beyond a reasonable doubt. Woolmington�s case (supra) applied directly to a defence of accident put forward to a charge of murder, though the judgment coupled provocation with accident. The defence of accident is specifically dealt with in R. v. Julien[lxiii]¹³. Self-defence in R. v. Lobell[lxiv]¹⁴�and alibi in R. v. Johnson[lxv]¹⁵�are further examples and the rule is of general application to all charges under the criminal law. (Mancini v. Director of Public Prosecutions[lxvi]¹⁶). Dealing with the specific point at issue Lord Sankey in Woolmington�s case said (supra):

�If the jury are ... left in reasonable doubt whether, ... the act was intentional or provoked, the prisoner is entitled to be acquitted.�

His Lordship also said more generally:

�Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner�s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception.� (Emphasis mine.)

It will be noted that the rule in Woolmington�s case[lxvii]¹⁷�was expressly laid down as being subject to the common law rule, in Papua New Guinea now a statutory provision in the Criminal Code, that every person is presumed sane and that the burden of proving the defence of insanity is on the accused; and �subject to any statutory exceptions�. In restating the law with the concurrence, amongst others, of Viscount Sankey L.C. who wrote the judgment in Woolmington�s case (supra), and of Lord Wright who was also a party thereto Viscount Lord Simon L.C. in Mancini�s case[lxviii]¹⁸�substituted the words �in offences where the onus of proof is specially dealt with in statute�. Clearly this means where the statute has expressly put the onus of proof on the accused, where the statute makes it clear that the ultimate persuasive onus, is intended to lie on the defence.

It is convenient at this point to refer to the following words of Lord Diplock in Public Prosecutor v. Yuvaraj[lxix]¹⁹:

�Generally speaking, no onus lies upon a defendant in criminal proceedings to prove or disprove any fact: it is sufficient for his acquittal if any of the facts which, if they existed, would constitute the offence with which he is charged, are �not proved.� But exceptionally, as in the present case, an enactment creating an offence expressly provides that if other facts are proved a particular fact, the existence of which is a necessary factual ingredient of the offence, shall be presumed or deemed to exist �unless the contrary is proved.� In such a case the consequence of finding that that particular fact is �disproved� will be an acquittal, whereas the absence of such a finding will have the consequence of a conviction. Where this is the consequence of a fact�s being �disproved� there can be no grounds in public policy for requiring that exceptional degree of certainty as excludes all reasonable doubt that the fact does not exist. In their Lordships� opinion the general rule applies in such a case and it is sufficient if the court considers that upon the evidence before it it is more likely than not that the fact does not exist. The test is the same as that applied in civil proceedings: the balance of probabilities.�

As to the weight, the quantum, of the persuasive onus of proof when it is thus placed on the accused see also R. v. Carr-Briant[lxx]²⁰�and The State v. John Rumet Kaputin[lxxi]²¹.

The principle of proof on the balance of probabilities applies to insanity, �statutory reversals of the onus� as Professor Glanville Williams (Criminal Law, General Part, (2nd ed., 19) par. 292) calls the �statutory exceptions� referred to by Lord Sankey in Woolmington�s case[lxxii]²², and to the exception in Edwards� case[lxxiii]²³. Of course the sort of statutory exception spoken of by Lord Diplock in Public Prosecutor v. Yuvaraj[lxxiv]²⁴�in the excerpt hereinbefore set out, that is, one providing for a statutory presumption in relation to a factual ingredient to arise on proof of other facts, is not the only sort of �statutory exception�. An example of another kind may be one such as contained in s. 209 of the Criminal Code, set out hereinbefore.

It will be appreciated that the rule established by Edwards� case[lxxv]²⁵�in effect added a third exception at common law to the two exceptions stated in Woolmington�s case[lxxvi]²⁶, and that was the state of the general law relating to proof of guilt in criminal cases at the time of the passing of the Constitution into law. Such was the state of the common law in England at the time and, by virtue of the provisions of the Constitution, upon Independence it became the general law relating to proof of guilt in criminal cases in Papua New Guinea. It became the law according to which, under the provisions of s. 37(4)(a) of the Constitution, guilt must be proved to displace the �presumption of innocence�. It will be seen that s. 37(4)(a) was thus designed implicitly to accommodate and also expressly to accommodate certain shifts in the onus of proof of factual ingredients of offences or, putting it somewhat differently, in the persuasive proof of ultimate facts. In my view it was not the intention or effect of the proviso to s. 37(4)(a), that part of the section commencing with the words �... but a law may place ...�, to cut down the law so as to confine such shifts in the onus of proof as have been discussed herein to shifts in relation to the onus of proof of the sorts of facts described in the proviso. To have this effect the proviso would require the insertion of the word �only� in the proviso, so that it read, for example, �... but a law may only place ...� I do not otherwise perceive in the section or elsewhere any indication in the Legislature of an intention to effect such a radical alteration in the law then being adopted. Nor can I imagine in the Legislature such a misconception of the common law as would lead to a view that there was no provision in the common law for shifts of onus.

In my opinion the explanation for the proviso contained in s. 37(4)(a) is as follows. As has been seen from Edwards� case[lxxvii]²⁷�the exceptions stated by Lord Sankey to the rule that it is the duty of the prosecution to prove the prisoner�s guilt were not exhaustive. In the case Huggins v. Ward[lxxviii]²⁸, a summary case, it was held that where an information charged a failure to �with all practicable speed give notice to a police constable� of the possession of diseased animals, the onus lay on the defendant to prove compliance, and that all the prosecution need do was to prove possession of animals known to be diseased. In such case there was no �proviso� or �exception� and the only stated ground for the decision was that there was �no necessity to give affirmative evidence to prove a negative�. Such a proposition would seem to be in clear conflict with Lord Sankey�s statement in Woolmington�s case[lxxix]²⁹�and not to fall within the additional exception later provided by Edwards� case (supra). Lord Sankeys� statement was no doubt regarded by the framers of the Constitution as the fountainhead of the common law rule, one formulation of which is that a person charged with an offence shall be presumed innocent until proved guilty. Huggins v. Ward (supra) is mentioned in Glanville Williams Criminal Law, The General Part, (2nd ed., 1961), p. 902 �The Burden of Proof:�Implied Statutory Reversal� and the author explains the case on the ground that whether the defendant had given notice lay peculiarly within his knowledge, and refers to the impracticability of calling every constable in the kingdom. In McLachlan v. Rendall; McLachlan v. LaGerche[lxxx]³⁰�Martin J. stated as follows:

�It has not been universally accepted that the fact that a particular matter is an essential ingredient of an offence charged casts the onus of proof on an informant. Thus on an information for breach of a regulation providing that every person, having in his possession an animal affected with a contagious or infectious disease, shall with all practicable speed give notice to a police constable, it was held that proof that, defendant did have animals so affected was prima facie evidence of the offence and that it lay on him to show, if he could, that he had given notice to a police constable, Blackburn J. saying: �There can be no doubt that there is no necessity to give affirmative evidence to prove the negative� (Huggins v. Ward (supra)). And in an action for penalties for practising as an apothecary where the statute provided if any person shall practise as an apothecary without having obtained a certificate he shall forfeit and pay the sum of twenty pounds it was held that the plaintiff need not prove the fact that the defendant did not hold a certificate since he did not have to prove a negative (Apothecaries Company v. Bentley[lxxxi]³¹.�

It is conceivable that a rule to the effect that in circumstances such as those in Huggins case[lxxxii]³²�and the Apothecaries Company case (supra) the onus should lie where it was held to lie in those cases was something that commended itself to some degree to the framers of the Constitution, confined, however, firmly by express delineation to the �peculiarly within his knowledge� category, the Legislature being left to finally determine the cases within that category to which such a rule should apply. I am of opinion that that or some other analogous reason is the explanation for the presence in s. 27(4)(a) of the Constitution of the proviso in question.

Once the rule in Woolmington�s case[lxxxiii]³³, together with the additional exception as established by Turner�s case[lxxxiv]³⁴�were incorporated, as in my opinion they were, in the law by s. 37(4)(2) of the Constitution, such rule was no longer susceptible to further qualification, by statute or by judicial decision, except to the extent that the section provided, and to the extent that the Constitution may be amended, and the statement in Woolmington�s case (supra) that the general rule was subject to �any statutory exception� was, for Papua New Guinea, no longer true, it being subject only to such statutory exceptions as the Constitution allowed.

In my opinion, as a result of s. 37(4)(a) the law in Papua New Guinea relating to the proof of guilt in criminal cases is that the onus is on the prosecution to prove each element of the offence charged beyond reasonable doubt, subject to the following exceptions; namely:

N2>�(a)��� In the case of a defence of insanity, where there is a presumption of sound mind until the contrary is proved.

N2>(b)����� Where an enactment prohibits the doing of an act save in specified circumstances, or by persons of specified classes, or with special qualification or with the licence or persuasion of specified authorities, then once the prosecutor has proved beyond reasonable doubt the doing of the act the burden is on the person charged to bring himself within the exception or proviso, that is, to prove that he was entitled to do the prohibited act, independently of whether the facts he must prove to do so are, or would with the exercise of reasonable care be, peculiarly within his knowledge.

N2>(c)����� In the case of an enactment which places upon the person charged the burden of proving particular facts which are, or would with the exercise of reasonable care be, peculiarly within his knowledge.�

In the case of each exception the burden that rests on the accused is the legal, or as it is sometimes called the persuasive burden, not an evidentiary burden, and it is a burden of satisfying the court on a balance of probabilities, of persuading the court, on the probabilities, of the matter alleged by way of defence.

Adverting now for a moment to s. 209 of the Criminal Code, it seems to me to follow from the foregoing that the words �the proof of which lies upon him� are redundant, because even in their absence the burden of proof of lawful excuse would rest upon the person charged in consequence of the exception (b) aforementioned to the general rule as to the burden of proof. Likewise if the words �he proves� together with the word �that� where it appears immediately after (a) and immediately after (b) were omitted from s. 22a of the Police Offences Act the burden of proof of the proviso would still be on the person charged. Both the Criminal Code and the Police Offences Act, of course, long predate R. v. Edwards[lxxxv]³⁵.

This being so, the presence of words expressly placing the same burden on the accused person cannot alter matters, and both provisions are constitutional.

As it happens, in my view, both the matter of �lawful excuse� referred to in s. 209 and the matter of intent to defraud referred to in s. 22a are matters which are or would with the exercise of reasonable care be, peculiarly within the knowledge of a person charged, in the latter case for the reasons, with which I respectfully agree, given by my brother Miles J. whose judgment I have had the advantage of reading. So even if they were not constitutional under exception (b) aforementioned to the general rule as to the burden of proof they would in each case be constitutional by virtue of the express placing of the burden of proof on a person charged, under exception (c) aforementioned.

I would therefore answer the question referred in the negative, and remit the matter to the District Court at Boroko for determination.

ANDREW J:� I have had the advantage of reading the reasons for judgment prepared by Miles J. I agree with those reasons and the conclusion and have nothing to add.

MILES J:� This is a reference under s. 18 of the Constitution from a magistrate sitting in the Boroko District Court to determine a charge brought by the informant Constable V. Biyang against the defendant Patrick Liri Haro under s. 22a of the Police Offences Act (Papua) 1912, now repealed. The charge against the defendant remains outstanding until this Court makes a decision on the reference and remits the matter back to the District Court.

The question referred is as follows:

�Is s. 22A(b) of the Police Offences Act (Papua) 1926-1977 (sic) (repealed), which requires a defendant charged under s. 22A of the Act, to �prove a lack of intent to defraud�, unconstitutional, given the provisions of guaranteed rights of s. 37(4)(a) of the Constitution of the Independent State of Papua New Guinea?�

The section under consideration is in these terms:

N2>�22A.� A person who obtains any chattel, money or valuable security by passing a cheque which is not paid on presentation, or who passes any such cheque in payment or part-payment for services rendered or to be rendered to himself or to any other person, or partly in such payment or part-payment and partly for some other purpose, shall, notwithstanding that there may have been some funds to the credit of the account on which the cheque was drawn at the time it was passed, be guilty of an offence, unless he proves�

(a)����� that he had reasonable grounds for believing that the cheque would be paid in full on presentation; and

(b)����� that he had no intent to defraud.

Penalty: Imprisonment for twelve months.�

It is to be observed that the terms of the reference to some extent beg the question. The section does not in a general sense �require� the person charged to do anything. Whether the provisions of pars. (a) and (b) are properly seen as affording an opportunity or imposing a requirement is really part of the question to be decided. They become relevant only when the court trying the case is satisfied of the matters set out in the earlier provisions of the section, that is to say when the prosecution has proved the matters which constitute the ingredients of the offence.

Section 37 of the Constitution is entitled PROTECTION OF THE LAW and sub-s. (1) appears to make general provision as to the overall intendment of the remaining sub-sections. It provides as follows:

N2>�(1)��� Every person has the right to full protection of the law and the succeeding provisions of this section are intended to ensure that that right is fully available especially to persons in custody or charged with offences.�

Sub-sections (3) and (4) make provision with regard to persons charged with offences. Sub-section (4)(a) is in these terms:

N2>�(4)��� A person charged with an offence:

(a)����� shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would with the exercise of reasonable care be, peculiarly within his knowledge;�

The history of s. 37(4)(a) of the Constitution was traced by Saldhana J. in Constitutional Reference No. 3 of 1978; Re Inter-Group Fighting Act 1977[lxxxvi]³⁶�in the following passage:

�The history of s. 37(4)(a) of the Constitution is as follows. It started with the Human Rights Act, 1971, s. 16(3)(a) of which provided that:

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

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

The Final Report of the Constitutional Planning Committee Pt. I at p. 5/1/24 par. 6(3)(a) recommended that the following provision should be incorporated in the Constitution, that:

�6(3)�� A person charged with an offence:

(a)����� shall be presumed innocent until proved guilty according to law, provided that a law may place upon a person charged with an offence the burden of proving particular facts.�

The provision ultimately incorporated in s. 37(4)(a) of the Constitution is in the following terms:

�37(4)� A person charged with an offence:

(a)����� shall be presumed innocent until proved guilty according to law but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would with the exercise of reasonable care be, peculiarly within his knowledge.�

It will be noticed how the Human Rights Act provided for just the presumption of innocence, that the Constitutional Planning Committee elaborated on that by recommending that a proviso should be added to the effect that the burden of proving particular facts should be placed on the accused and s. 37(4)(a) of the Constitution narrowed down the proviso by allowing this burden to be placed upon the accused only in cases where particular facts were peculiarly within his knowledge. It is necessary therefore to be strict in the interpretation of s. 37(4)(a) of the Constitution and particularly careful not to assume that there are facts peculiarly within the knowledge of the accused when this may not be so.�

The other judges of the Court, Prentice C.J. and Andrew J., did not appear to disagree with this analysis of the background and effect of s. 37(4)(a).

In the present case the defence available to a defendant under s. 22a is proof that he had �a lack of intent to defraud�. Both parties agree that intent is a state of mind and that the state of mind of a person is a fact �and so it is. The problem is whether the relevant fact, namely a lack of intent to defraud, is peculiarly within the knowledge of the person concerned. It is a matter of looking at the whole of the phrase �lack of intent to defraud�, not merely at the word �intent�.

The decision as to whether a person has an intent to defraud in one sense is not solely a question of fact. It is a mixed question of fact and law which will be decided by the court trying the case. It is not merely a matter of the person�s own knowledge. But as was decided in Constitutional Reference No. 3 of 1978[lxxxvii]³⁷, the word �peculiarly� does not mean �solely� or �exclusively�. It has connotations of �especially� or �in the ordinary course of things likely to be�. In this sense although a person may be confused about his own psychological processes and may on a mistaken view of the law believe that he is acting honestly, ultimately the question of fact whether he has an intent to defraud is something about which he above all others, has a special knowledge. In this sense the presence or absence of a lack of intent to defraud as a question of fact is one which is peculiarly within the knowledge of the person charged.

It is sufficient for the purpose of answering the question in the reference to decide that a person charged under s. 22a of the Police Offences Act (Papua) 1912 (repealed) who wishes to raise the particular defence available under that section carries the burden of proving a particular fact, namely the lack of intention to defraud, which fact is peculiarly within the knowledge of the person charged. For that reason apart from any other, the section is not unconstitutional given the provisions of s. 37(4)(a) of the Constitution and the question posed in the reference may be answered in the negative.

However, a further argument was raised by Ms. Pert for the principal legal adviser to the National Executive that the provisions of s. 22a are such that they do not offend against s. 37(4)(a) regardless of whether or not they require proof of facts peculiarly within the knowledge of the defendant. In other words, so it is submitted, the Court would not on a proper construction of s. 22a as a whole, find it to be a law which removes the presumption of innocence until proven guilty according to law.

The presumption of innocence is established in the laws of Papua New Guinea by virtue of the Constitution, s. 37(4)(a), but even without the constitutional provision it would have formed part of the underlying law. And apart from the constitutional requirement that the prosecution carry the burden of proof, it is part of the underlying law that the prosecution may discharge that burden only if it proves the guilt of the accused beyond a reasonable doubt. The common law as to standard of proof is in symbiosis to the law of burden of proof. It has not been seen as inapplicable or inappropriate to the circumstances of the country, or inconsistent with custom: The State v. John Koe[lxxxviii]³⁸. The phrase �according to law� in s. 37(4)(a) encompasses, inter alia, the underlying law as to standard of proof.

The presumption of innocence in the common law is generally believed to have received its classic statement in the judgment of Lord Sankey in Woolmington v. Director of Public Prosecutions[lxxxix]³⁹. What Lord Sankey said was:

�Throughout the web of English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner�s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception.�

In commenting on Woolmington v. Director of Public Prosecutions (supra), Viscount Simon said with the concurrence of the other Law Lords in Mancini v. Director of Public Prosecutions[xc]⁴⁰: �The only exceptions arise ... in the defence of insanity and in offences where onus of proof is specially dealt with by statute.�

The presumption of innocence is not confined to legal systems derived from the English model. In recent decades there have been efforts to have it incorporated into the international law of mankind. Provisions aimed at guaranteeing the presumption of innocence first appeared in the Universal Declaration of Human Rights adopted by the United Nations on 10th December, 1948, and were expressed in the following terms:

�Article 11

1.������ Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.�

In 1966 there was a further development in this area when the International Covenant on Civil and Political Rights was opened for signature. Nations who become signatories to the Covenant undertake to ratify it and to give effect to it within their respective domestic legal systems. Article 14.2 of the Covenant is in terms practically identical to those of art. 11(1) of the Universal Declaration of Human Rights set out above. In 1971 when the then Territory of Papua and New Guinea was not self-governing, and when the metropolitan power, Australia, was not a signatory to the International Covenant, the Legislative Assembly passed the then Human Rights Ordinance. It is said[xci]⁴¹�that this was in response to governmental plans to enact laws to restrict the right of free speech and assembly. The provisions of s. 16(3)(a) of the Ordinance followed those of art. 14.2 of the International Covenant. Then upon Independence, as has already been pointed out, the Constitution went further, to secure in s. 37(4)(a) a constitutional guarantee of the right therein provided for, namely the presumption of innocence until proven guilty according to law, I understand that the Independent State of Papua New Guinea has not become a signatory to the International Covenant on Civil and Political Rights, and perhaps that would serve little purpose as many of the rights recognized by the International Covenant appear to be guaranteed by the Constitution. The constitutional guarantee of the presumption of innocence however is expressed to be subject to a proviso, which is absent from the International Covenant. The proviso is that a law may place upon a person charged with an offence the burden of proving particular facts which are, or would with the exercise of reasonable care, be peculiarly within his own knowledge. What then is the significance of the proviso?

It may be of assistance (having regard to the importance of the issue) to see how the presumption of innocence has fared in other countries with similar guarantees. Schedule 2.12(2) enables recourse to be had to the decisions of courts outside Papua New Guinea for their persuasive value.

Canada has been regarded as a country with a legal system similar to that of Papua New Guinea[xcii]⁴². Section 2(f) of the Canadian Bill of Rights 1960 is shortly in these terms:

N2>�2.����� ... no law of Canada shall be construed or applied so as to:

(f)����� deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law ...�

Like the Universal Declaration, the International Covenant and the Human Rights Act 1971, the Canadian legislation contains no proviso as in s. 37(4)(a) of the Papua New Guinea Constitution. Yet according to Pierre Francis Trudeau[xciii]⁴³:

�The presumption of innocence is a fundamental ingredient of Canadian criminal justice, and must be guaranteed. This is not to say that the various federal and provincial penal statutes which contain �reverse onus� clauses (clauses which take the existence of certain facts to be proof of other facts unless the accused can produce evidence to the contrary) will be declared unconstitutional. So far the courts have distinguished this kind of factual presumption from a presumption of guilt, and have allowed such federal statutory provisions to apply in spite of the Canadian Bill of Rights.�

In Regina v. Appleby[xciv]⁴⁴�which was cited by Ms. Pert in argument before us, the Supreme Court of Canada considered the provisions of a statute which made it an offence for a person to have care and control of a motor vehicle whilst his ability to drive was impaired by alcohol or a drug, and which provided that a person found to be occupying the driver�s seat was deemed to have care and control of the vehicle unless he established the contrary. It was held that this deeming provision did not deprive the accused of the right to be presumed innocent until proved guilty according to law. In the judgment of Ritchie J. (supra):

�... when Viscount Sankey used the words �subject also to any statutory exception� in relation to the burden of proof in criminal cases, he must be taken to have been referring to those statutory exceptions which reverse the ordinary onus of proof with respect to facts forming one or more ingredients of a criminal offence ... It seems to me, therefore that if the Woolmington case is to be accepted, the words �presumed innocent until proved guilty according to law� as they appear in s. 2(f) of the Canadian Bill of Rights, must be taken to envisage a law which recognises the existence of statutory exceptions reversing the onus of proof with respect to one or more ingredients of an offence in cases where certain specific facts have been proved by the Crown in relation to such ingredients.�

In Western Europe most of the countries there including the United Kingdom are parties to the European Convention of Human Rights. Article 6(2) of the Convention provides that �everyone charged with a criminal offence shall be deemed innocent until proved guilty according to law�.

According to one writer, the German courts have considered the effect of the Convention on the operation of an article in the German Penal Code which made possession of burglar�s tools by a convicted person an offence unless he proved they were not intended for the commission of punishable acts. In 1958 a lower German court refused to enforce this provision on the ground that it violated art. 6(2) of the Convention. In 1963 an appellate tribunal rejected this interpretation on the ground that it did not establish a presumption of guilt but merely a rebuttable evidentiary presumption[xcv]⁴⁵.

If then s. 37(4) of the Constitution had merely followed the provisions of the Human Rights Act 1971 and had not contained the proviso, it would be comparatively simple for this Court to use the Canadian and German examples and find that there is nothing in the legislation under review which displaces the presumption of innocence.

To so hold would be in accordance with recognized principles of statutory interpretation attributing to the Parliament �an intention which would conform not only generally with the fabric of the criminal law and its onus of proof� (see Johnson v. The Queen[xcvi]⁴⁶) but also with constitutional requirements. As it was put by Murphy J. in an Australian case dealing with the effect of a statute on the onus of proof of provocation in prosecutions for murder, the section under consideration �should be construed as operating within the general fabric of the fundamental principles (which are re-shaped from time to time) of the decisional law relating to crime. �It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness�.� (supra at p. 668 citing Murugiah v. Jainudeen[xcvii]⁴⁷.)

This Court is bound under Sch. 1.6 to give the provisions of the Constitution their fair and liberal meaning, when determining what it was that the makers of the Constitution intended. It would not be a fair and liberal interpretation of the proviso to s. 37(4) to say that it is mere surplusage, that it merely makes explicit what was implied in any event without the proviso. The history of the section as outlined by Saldhana J. in Constitutional Reference No. 3 of 1978[xcviii]⁴⁸�is sufficient answer to that.

A literal interpretation of the proviso to s. 37(4)(a) of the Constitution would yield results which the makers of the Constitution could hardly have intended. Suppose that a law established a curfew and provided that any person found in a public place between sunset and sunrise is guilty of an offence. (Leave aside possible constitutional objections under Constitution ss. 47 and 52.) Suppose further that the harshness of this hypothetical curfew law were reduced by a proviso that a person should not be guilty of the offence if he proved that the date on which he was found in the public place was a date on which the operation of that law was suspended by the Minister. The fact of the suspension would not be a matter peculiarly within the knowledge of the person charged. Yet it would be strange indeed if s. 37(4)(a)�which is part of a section broadly intended to confer an unqualified right to protection of the law for all people�were to allow the legislation in its absolute form but to strike it down where it provided for a defence, on the ground that the defence involved the proof of a fact not peculiarly within the knowledge of the person charged.

The way out of this impasse may be found by giving proper weight to the words �offence ... according to law� as they appear in s. 37(4)(a). The word �law� here encompasses all the laws of Papua New Guinea as set out in the Constitution, s. 9 and includes the underlying law. As already indicated, it is a principle of the underlying law that the presumption of innocence continues until a court is satisfied beyond reasonable doubt of the guilt of the accused. The court must be so satisfied in relation to all those elements or matters which go to constituting the offence charged. The effect of s. 37(2) of the Constitution, is that every offence (except contempt of court) must be defined by a written law. Thus a person is presumed innocent until the prosecution has proved against him beyond reasonable doubt the elements of the offence as defined in a written law. If the proviso to s. 37(4)(a) is taken to apply only to the essential ingredients or elements of the offence as they are defined and required to be proved according to law, the difficulty arising from the hypothetical curfew law just mentioned may be avoided.

The offence is defined without reference to a date: to provide that the accused may prove that the event occurred on a particular date and thus escape a finding of guilt does not place upon him an onus of proving a �particular fact� which has any relation to the elements of the offence to be proved �according to law�. Where the offence is defined without reference to the matter on which the accused bears an onus, there will simply be no room for the application of the proviso to s. 37(4)(a).

Similarly in the present case under s. 22a of the Police Offences Act (Papua) 1912, the offence contains a number of elements but an intent to defraud is not one of them. The offence may be proved without any consideration of whether the defendant possessed an intent to defraud or not. The defence provided for, namely a lack of intention to defraud, introduces new matter altogether unrelated to the elements of the offence, proof of which will enable the defendant to avoid a finding of guilt. The provision of such a defence does not affect the presumption of innocence having regard to what the prosecution is required to prove in order to establish the offence as defined.

In England there has been a good deal of case law on the subject of the so called shifting of the burden of proof, particularly in relation to �provisos� and �exceptions�. Unfortunately this area of the common law is one of considerable difficulty if not obscurity, although my own lack of understanding would hardly be a reason for suggesting that it was inapplicable or inappropriate to the circumstances of Papua New Guinea. Glanville Williams has written[xcix]⁴⁹:

�What lies at the bottom of the various rules shifting the burden of proof is the idea that it is impossible for the prosecution to give wholly convincing evidence on certain issues from its own hand, and it is therefore for the accused to give evidence on them if he wishes to escape. This idea is perfectly defensible and needs to be expressed in legal rules, but it is not the same as the burden of proof ... A clearer recognition of this difference between the evidential burden and the persuasive burden, on the part both of Parliament and the courts, would enable the rule resting the burden of persuasion on the Crown to be restored to its full vigour.�

Essentially it seems to me that for the purposes of the law in Papua New Guinea including the application of the Constitution, s. 37(4)(a) and its proviso, the question is one of statutory interpretation, of determining whether the legislation defining the offence shifts the persuasive burden and not merely the evidentiary burden to the accused.

Laskin J. (as he then was) in Regina v. Appleby[c]⁵⁰�put it in these terms:

�I do not construe s. 2(f) as self-defeating because of the phrase �according to law� which appears therein. Hence, it would be offensive to s. 2(f) for a federal criminal enactment to place upon the accused the ultimate burden of establishing his innocence with respect to any element of the offence charged. The �right to be presumed innocent�, of which s. 2(f) speaks, is, in popular terms, a way of expressing the fact that the Crown has the ultimate burden of establishing guilt; if there is any reasonable doubt at the conclusion of the case on any element of the offence charged, an accused person must be acquitted. In a more refined sense, the presumption of innocence gives an accused the initial benefit of a right of silence and the ultimate benefit (after the Crown�s evidence is in and as well any evidence tendered on behalf of the accused) of any reasonable doubt: see Coffin v. U.S.[ci]⁵¹.

What I have termed the initial benefit of a right of silence may be lost when evidence is adduced by the Crown which calls for a reply. This does not mean that the reply must necessarily be by the accused himself. However, if he alone can make it, he is competent to do so as a witness in his own behalf; and I see nothing in this that destroys the presumption of innocence. It would be strange, indeed, if the presumption of innocence was viewed as entitling an accused to refuse to make any answer to the evidence against him without accepting the consequences in a possible finding of guilt against him. The presumption does not preclude either any statutory or non-statutory burden upon an accused to adduce evidence to neutralize, or counter on a balance of probabilities, the effect of evidence presented by the Crown. Hence, I do not regard s. 3(f) as addressed to a burden of adducing evidence, arising upon proof of certain facts by the Crown, even though the result of a failure to adduce it would entitle the trier of fact to find the accused guilty.

In my opinion, the test for the invocation of s. 2(f) is whether the enactment against which it is measured calls for a finding of guilt of the accused when, at the conclusion of the case, and upon the evidence, if any, adduced by Crown and by accused, who have also satisfied any intermediate burden of adducing evidence, there is reasonable doubt of culpability ...�

In my view these words are well suited to the constitutional situation in Papua New Guinea. Section 22a of the Police Offences Act (Papua) 1912 was not of such a character as would meet this suggested test.

The question referred by the magistrate should therefore be answered �No� and the matter remitted to the District Court at Boroko for determination.

Question answered No.

Matter remitted to District Court for determination.

Solicitor for the informant: L. Gavara-Nanu, Acting Public Prosecutor.

Solicitor for the defendant: D. McDermott, Acting Public Solicitor.