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SCR No 6 of 1984; Re Provocation [1985] PGSC 21; [1985] PNGLR 31 (28 February 1985)

Papua New Guinea Law Reports - 1985

[1985] PNGLR 31 - SCR No 6 of 1984; Re Provocation�

[1985] PNGLR 31

SC286

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REFERENCE NO 6 OF 1984 (RE PROVOCATION AND SUMMARY OFFENCES ACT 1977, S 6)

Waigani

McDermott Amet Los JJ

28 February 1985

CRIMINAL LAW - Defences - Provocation - Application of Code provisions to summary offences - Criminal Code (Ch No 262), s 22, Pt V - Summary Offences Act 1977, s 6.

SUMMARY OFFENCES - Defences - Provocation - Application of Code provisions to - Criminal Code (Ch No 262), s 22, Pt V - Summary Offences Act 1977, s 6.

Held

The defence of provocation is available to a defendant charged with unlawful assault contrary to the Summary Offences Act 1977, s 6.

Cases Cited

Acting Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299.

Aipa Peter v James Kapriko [1984] PNGLR 179.

Aisi, Henry v Malaita Hoala [1981] PNGLR 199.

Brunton v The Acting Commissioner of Stamp Duties for New South Wales [1913] UKLawRpAC 22; [1913] AC 747.

Colquhoun v Brooks [1889] UKLawRpAC 43; (1888) 21 QBD 52.

Dean v Wiesengrund [1955] 2 QB 120.

Freda Nup v Chris Hambuga [1984] PNGLR 206.

John Mongo and Lazarus Pisu v Simon Saun (Unreported judgment No N 470(M), Pratt J, 13 July 1984).

Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209.

Kereku v Dodd [1969-1970] P&NGLR 176.

Leonard Eliza v Mandina [1971-1972] P&NGLR 422.

Mogia Widu v Koda Ubia (Unreported judgment, Pratt J, N 473(M), 11 May 1984).

Notham v Barnet London Borough Council [1978] 1 WLR 220.

O�Rourke v Boxhall [1958] Tas R 8.

PLAR No 1 of 1980 [1980] PNGLR 326.

R v Danes [1965] Qd R 338.

R v Rumints-Gorok [1963] P&NGLR 81.

R v Sleep [1966] Qd R 47.

Sangumu Wauta v The State [1978] PNGLR 326.

Wemay, Anna v Kepas Tumdual [1978] PNGLR 173.

Wieden, Peter Roy v Bogunu Di�i [1976] PNGLR 101.

Reference

This was a reference to the Supreme Court pursuant to the Supreme Court Act (Ch No 37), s 15, of the following question:

�Is the defence of provocation available to a defendant charged with unlawful assault contrary to s 6 of the Summary Offences Act?�

Counsel

S Injia, to argue the affirmative case.

G Salika, to argue the negative case.

Cur adv vult

29 March 1985

MCDERMOTT J: On 28 February 1985, the Court answered in the affirmative the following question which was originally referred by the Principal Magistrate Lae to the National Court and thence to this Court pursuant to the Supreme Court Act (Ch No 37), s 15.

�Is the defence of provocation available to a defendant charged with unlawful assault contrary to s 6 of the Summary Offences Act?�

The reasons for such decision are now given.

The question arose from two decisions of Bredmeyer J, Aipa Peter v James Kapriko [1984] PNGLR 179 and Fredu Nup v Chris Hambuga [1984] PNGLR 206. Both decisions were made on appeal from lower court convictions for offences under s 6(1) of the Summary Offences Act 1977. Those decisions are in conflict with the decision of Pratt J in Mogia Widu v Koda Ubia (Unreported judgment Pratt J, N 473(M), 11 May 1984).

The Criminal Code (Ch No 262) has always contained a common assault section � s 335:

�A person who unlawfully assaults another person is guilty of a misdemeanour.

Penalty: If no greater punishment is provided, imprisonment for a term not exceeding one year.�

This is one of the sections in Pt V dealing with inter alia offences against the person. It is preceded by definition sections of assault (s 243), unlawful (s 244) and a whole series of exculpatory provisions applicable to that part. In my view it is no coincidence that these provisions take into account five of the common law defences cited in Archbold Criminal Pleading Evidence and Practice (1970) (40th ed) pars 2642-2650 and quoted by Bredmeyer J in Aipa Peter. Misadventure and lawful sport are further defences mentioned. The accident (s 24) definition takes care of misadventure and the sport provision is covered by s 244 already mentioned. The prosecutor only hinted at the possibility that the common law (only according to Archbold) may be inappropriate. What the applicable common law is could well be another problem, inquiry is unnecessary here. To hazard a guess, it seems that the common law, as it was until the time of passing of the Criminal Code Act 1899 (Qld), has been accommodated. It was the wisdom of Sir Samuel Griffith to go further and he did, with the provocation provisions, nicely placed between the defence of a dwelling house (s 265) and self defence against unprovoked assault (s 269).

Provision was made in Divn 6 of this Part of the Criminal Code for minor assaults to be dealt with summarily, with a penalty of a maximum term of imprisonment of six months or a maximum fine of K200. This remained the situation until the following offence was inserted in both the Police Offences Ordinance (Papua) 1912 and the Police Offences Ordinance (New Guinea) 1925 as amended in 1963:

N2>�s30.�� A person who:

(a)����� unlawfully lays hold of, strikes or uses violence towards any other person ...

is guilty of an offence.

Penalty: K100 or imprisonment for six months, or both.�

Clearly it was an offence created to deal with minor assaults. This subsection was part of composite provisions in Pt IV entitled Offences Generally. Other subsections dealt with obscene language, false reports, indecent, offensive or threatening behaviour and also behaving in a riotous manner. Generally, the offences in this part can best be described as a mixed bag of minor offences. This legislation continued until its repeal and replacement by the Summary Offences Act 1977, which provided a specific assault provision in these terms:

N2>�6(1)�� A person who unlawfully assaults another person is guilty of an offence.

Penalty: A fine not exceeding K200.00 or imprisonment for a term not exceeding six months.

N2>(2)����� For the purposes of this section, a person who:

(a)����� strikes, touches, moves or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud; or

(b)����� by any bodily act or gesture, attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has an actual or apparent presentability to apply such force,

is deemed to assault that person.�

Subsection (4) refers to the meaning of �applies force�. The subsection is almost identical with the definition of assault in the Criminal Code, s 243. The new act was an update of the offences covered in the old Ordinances though vagrants were covered by other legislation. The Act did not escape the introduction of minimum penalties for certain offences � the penalty for assault is now �imprisonment for a term not less than six months and not exceeding two years�.

With this brief history of the legislation it is no wonder that Pratt J, made the following remarks in Mogia Widu:

�It has been suggested I understand elsewhere, that as the assault covered in the charge before the magistrate was not contained in the Criminal Code it may be doubtful whether the defence of provocation under the Criminal Code is available to those charged with the summary offence. During argument I made it quite clear that in my view such a proposition was entirely without merit and seemed to be against all principles enunciated in this jurisdiction for many years. The fact that provocation is not contained in the offences covered by (Code) Div 5, Pt 1, which is applicable to all offences in the State by virtue of s 22 is quite beside the point. There is nothing contained in the wording of s 266 and s 267 to justify any attempt at limiting the application of the section to those assaults only mentioned in the Code.�

There are weighty reasons for this view. Clearly Pt 1, Div 5 of the Criminal Code dealing with criminal responsibility is not the be all and end all in the application of the Code to assault. The matters set out in that division apply to offences against any law, but in relation to assault there are further additional considerations relating to criminal responsibility and these are contained in Pt V, Div 1 of the Code, dealing generally with justification and excuse. They do not relate to any law, they relate only to offences against the person � precisely where the draftsman placed them. There is nothing restrictive in this part to prevent its application to other laws relating to offences against the person. The Public Prosecutor has restricted his view to s 22. This is the same error I perceive Bredmeyer J to have made. That the Code is a comprehensive summation of the criminal law in this country seems to be ignored.

When the Code was introduced into Papua in 1902, it was then a new approach to and summation of the criminal law, thought eminently suitable for a fledgling colony with almost no lawyers. The Code made a fundamental change in the approach to criminal law. The end result of the Bredmeyer view is to make another fundamental change by, very selectively, introducing in 1984, the common law of England into the developed criminal law of this country. With respect, such a result from an interpretation of the statutes in question would lead to absurdity. The following is the example used in argument. Presuming provocation is no defence under the Summary Offences Act 1977, a magistrate on day one, bearing an assault charge laid under the Act, would not be able to apply the law relating to provocation: on day two he, bearing an assault charge laid under the Criminal Code, could apply the law relating to provocation. It is nonsense to say that provocation can be applied as an extenuating circumstance on sentence when there may well have been no conviction because of it. To leave the selection of the applicable law in the hands of a police prosecutor who lays the assault charge is a horrifying prospect.

Provocation is a well developed concept in this jurisdiction. Indeed the Supreme Court has seen fit to differ from interpretations of it elsewhere and has expanded the concept to include it as a defence in cases of unlawful killing: PLAR No 1 of 1980 [1980] PNGLR 326. It is one of those happy historical coincidences that Sir Samuel Griffith�s concept of provocation should prove to be so appropriate to the circumstances of this country when much of the colonial legacy is not.

Bredmeyer J was led to his position by following the �expressio unius� rule of interpretation. This is only an aid to interpretation � not a hard and fast rule which must be applied. As Lopes LJ said of the maxim in Colquhoun v Brooks [1889] UKLawRpAC 43; (1888) 21 QBD 52 at 65:

�It is often a valuable servant, but a dangerous master to follow in the construction of statutes or documents. The exclusion is often the result of inadvertence or accident ....�

It is only one of many considerations as Mr Injia shows in his submissions, and I mention these in turn:

N2>(1)����� If the applied maxim leads to inconsistency or injustice, it must not be applied: Colquhoun v Brooks and Dean v Wiesengrund [1955] 2 QB 120.

N2>(2)����� Statutes should be given their �fair and liberal meaning� � the �purposive� rule of construction as contrasted with the �literal� or �narrow or restricted� interpretation: PLAR No 1 of 1980.

N2>(5)����� If there is doubt as to which of a number of constructions should prevail in a penal statute that which is most favourable to the subject must be adopted: R v Danes [1965] Qd R 338.

N2>(6)����� A statute must be construed according to its expressed intention. If those words are precise and unambiguous, no more is necessary than to expound them in their ordinary and natural sense � without recourse to outside aids to interpretation: Anna Wemay v Kepas Tumdual [1978] PNGLR 173.

N2>(7)����� There is an over-riding constitutional consideration, particularly relevant to penal provisions � the court �in interpreting the law ... shall give paramount consideration to the dispensation of justice�: Constitution, s 158(2).

Each of these aids to construction is relevant in the interpretation of the Criminal Code, vis-�-vis the Summary Offences Act 1977. I accept Mr Injia�s submission as to the nexus of the assault provisions in these two statutes. That being so, there can be but one set of criminal law principles applied to similar charges.

Thus I answer the question, yes.

AMET J: The issue has arisen because of conflicting decisions by the National Court on the subject. The conflicting decisions are of Bredmeyer J in three judgments: Aipa Peter v James Kapriko [1984] PNGLR 179, John Mongo and Lazarus Pisu v Simon Saun (Unreported judgment, Bredmeyer J N 470(M), 13 July 1984) and Freda Nup v Chris Hambuga [1984] PNGLR 206 and that of Pratt J in Mogia Widu v Koda Ubia (Unreported judgment, Pratt J, N 473(M), 11 May 1984).

Bredmeyer J has held in these judgments that the Criminal Code (Ch No 262) sections on provocation, s 266 and s 267 do not apply to a charge of assault under s 6(1) of the Summary Offences Act 1977.

His Honour�s decision in Aipa Peter, has clearly set out the basis for this opinion at 180-181:

�... It is clear from the Code, because of the express words of s 22, that a number of specified defences � honest claim of right, mistake of fact, extraordinary emergency, insanity, intoxication, underage, and compulsion � apply to all statutory offences in Papua New Guinea but on the rule expressio unius personae vel rei, est exclusio alterius, the express application of those general defences to all offences means that the provocation defence which is not contained in Div 5 (ss 22-36 of the Code) does not apply to offences created outside the Code. Provocation is not a defence to assault under the Summary Offences Act, but it is an important mitigating factor....� (Emphasis mine.)

In John Mongo and Lazarus Pisu his Honour reaffirmed this opinion and added at 2:

�The offence under that section (s 6(1) of the Summary Offences Act) is �unlawful assault� and whether an assault is lawful or unlawful is to be determined by the common law of England pre-Independence. Under the common law provocation is not a defence to assault but is an important and common mitigating factor to reduce the penalty. This contrasts with the Code offence of assault (s 335) where provocation is a complete defence under ss 266 and 267.�

Pratt J in Mogia Widu v Koda Ubia held the view that provocation under s 266 and s 267 is a defence to assault under the Summary Offences Act. When it was suggested to his Honour that it may be doubtful whether the defence of provocation under the Criminal Code is available to those charged with the summary offence, his Honour said at 2:

�... in my view such a proposition was entirely without merit and seemed to me to be against all principles enunciated in this jurisdiction for many years. The fact that provocation is not contained in the offences covered by Div 5 Pt 1 which is applicable to all offences in the State by virtue of s 22 is quite beside the point. There is nothing contained in the wording of s 266 and s 267 to justify any attempt at limiting the application of the section to those assaults only mentioned in the Code.�

A brief history of the origin of the Summary Offences Act 1977, s 6, is this. The Summary Offences Act 1977 amalgamated and replaced the Police Offences Act (Papua) 1912 and the Police Offences Act (New Guinea) 1925. It came into force on 23 March 1978. There was no offence of assault as such under either of the former Police Offences Acts. The only offence of assault was created by the Criminal Code and was triable summarily in the Local and District Courts. The defence of provocation under the Code was applicable to such summary prosecution. In 1980 common assault in the Code became an offence triable by a magistrate grade V by virtue of Sch 1A of the Criminal Code (Indictable Offences) Act 1980. The Code defence of provocation continues to apply.

What results follow from this history and the reasoning of Bredmeyer J? Several anomalous situations arise. If a charge of assault is brought under s 335 of the Criminal Code and tried summarily before the District Court, the defendant can rely on the defence of provocation under the Code. And if the prosecution elected to bring the charge under s 6(1) of the Summary Offences Act 1977, on the same factual basis, the defendant cannot avail himself of the defence of provocation. The end result is that defendants charged with the same offence, under same factual circumstances, but under two different statutes, and appearing before the same court or indeed the same magistrate, will be dealt with quite differently. The defendant charged under the Code has the chance of a complete acquittal if he pleads provocation successfully, whilst the defendant charged under the Summary Offences Act 1977 does not. An absurd result in my view, which ought not to prevail.

It is not to the point to suggest that the latter defendant may nevertheless be discharged under the District Court Act 1963, s 138, because provocation is a very strong mitigating factor.

Yet another anomaly that arises under the present minimum penalty provision in s 6(1) is that following conviction, the mandatory minimum sentence of six months imprisonment is imposed, whilst in a summary conviction of an offence under s 335 of the Code, the full discretionary powers of court are available and the sentence may be less than six months or merely a fine.

The most unjust result which can follow from Bredmeyer J�s construction is this. Let us assume that A, under extreme provocation strikes a hard fist blow to V�s abdominal area. Unknown to A, V had a grossly enlarged spleen which is ruptured as a result of the blow by A. V dies of loss of blood and shock. A is charged with manslaughter but is acquitted because provocation is available as a complete defence. Let us assume that B, in exactly similar circumstances of provocation, strikes a hard fist blow at V, but on the shoulder knocking V sprawling to the ground. No physical injury is caused to the person of V, B is charged under s 6(1), he cannot rely on the defence of provocation, s 138 is not applicable and so he is sentenced to a mandatory minimum term of six months imprisonment.

I cannot imagine that such unjust and capricious results could possibly have been the intention of the legislators, if they exercised their minds at all. Given the legislative history I described and that s 6(1) is a new offence not formerly in the Police Offences Act, and contained in a statute later in time to the Criminal Code, if indeed the construction given by Bredmeyer J was the intention of the legislators, if they addressed their minds to it at all, then I would expect to find such a qualification in the Summary Offences Act 1977, on the principle that Parliament is presumed to be fully conversant with laws already on the statute books, and their effects.

This is expecting much too much of our legislators. I do not believe these unjust and absurd results would have been their intention, if their minds were drawn to them.

Bredmeyer J relies entirely on the application of the maxim of legal interpretation expressio unius personae vel rei, est exclusio alterius which means the express mention of one person or thing is the exclusion of the other.

The argument, which was adopted by counsel arguing the negative case supporting his Honour�s view, is that the express application of those general defences, in Div 5, Pt 1, ss 22-36 of the Criminal Code, to all offences compels the conclusion that the defence of provocation which is not expressly mentioned in Div 5, Pt 1, does not apply to offences created by Statute outside the Code.

Authorities have cautioned against the literal application of this maxim. It is said to be a valuable servant but a dangerous master in the construction of statutes or documents.

In Colquhoun v Brooks [1889] UKLawRpAC 43; (1888) 21 QBD 52, Lopes LJ said at 65:

�It is often a valuable servant, but a dangerous master to follow in the construction of statutes or documents. The exclusio is often the result of inadvertence or accident, and the maxim ought not to be applied, when its application, having regard to the subject matter to which it is to be applied, leads to inconsistency or injustice.

I think a rigid observance of the maxim in this case would make other provisions of the statute inconsistent and absurd, and result in injustice. I cannot, therefore, permit it to govern my decision.� (Emphasis mine.)

In Dean v Wiesengrund [1955] 2 QB 120, Jenkins LJ said at 130-131:

�But this maxim is, after all, no more than an aid to construction, and has little, if any, weight where it is possible, as I think it is in the present case, to account for the �inclusio unius� on grounds other than an intention to effect the �exclusio alterius�.�

I too would, with respect, accept these cautions as sound and indeed most applicable to the present case.

I also find that the following considerations urged upon us by Mr Injia for the affirmative case, prevail against the construction preferred by Bredmeyer J.

Where the words in a statute are capable of more than one meaning, the results which would follow from the adoption of each particular construction are relevant and may be considered in deciding which construction should prevail: Brunton v The Acting Commissioner of Stamp Duties of New South Wales [1913] UKLawRpAC 22; [1913] AC 747 at 759; PLAR No 1 of 1980 [1980] PNGLR 326 at 332. The court should avoid the construction which would result in injustice or capricious results: Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209, per Gibbs J at 238. If there is some doubt as to which of a number of constructions prevails particularly in the construction of a penal statute, then the construction most favourable to the subject must be adopted: R v Sleep [1966] Qd R 47, 54.

The Constitution, s 158(2), was also urged to support the affirmative case. It reads:

�In interpreting the law the courts shall give paramount consideration to the dispensation of justice.�

Mr Salika for the negative proposition, conceded that the construction applied by Bredmeyer J did lead to the unjust and capricious results I have illustrated. He suggested, however that that was most unfortunate, that it was the result of Parliament exercising its prerogative power to enact laws for the State and only it can rectify the anomaly, inconsistency or injustice caused by such a law.

Well, suffice it to say, I reject this contention. It is an approach which is out of date. In the words of Lord Denning in Nothman v Barnet London Borough Council [1978] 1 WLR 220 at 222, �... it sounds to me like a voice from the past�.

Wilson J in PLAR No 1 of 1980 at 331, in the words of Lord Denning repudiated a similar expression by Walsh J in Kaporonovski v The Queen.

I consider the expressions of Lord Denning referred to and quoted by Wilson J applicable and I adopt them also. The passage under consideration by his Lordship from the Employment Appeal Tribunal in Nothman v Barnet London Borough Council was:

�Clearly someone has a duty to do something about this absurd and unjust situation. It may well be, however, that there is nothing we can do about it. We are bound to apply provisions of an Act of Parliament however absurd, out of date and unfair they may appear to be. The duty of making or altering the law is the function of Parliament and is not, as many mistaken persons seem to imagine, the privilege of the judges or the judicial tribunals.�

His Lordship said at 228:

�I have read that passage at large because I wish to repudiate it. It sounds to me like a voice from the past. I heard many such words twenty-five years ago. It is the voice of the strict constructionist. It is the voice of those who go by the letter. It is the voice of those who adopt the strict literal and grammatical construction of the words, heedless of the consequences. Faced with glaring injustice, the judges are, it is said, impotent, incapable and sterile. Not so with us in this Court. The literal method is now completely out of date. It has been replaced by the approach which Lord Diplock described as the �purposive approach.�... In all cases now in the interpretation of statutes we adopt such a construction as will �promote the general legislative purpose� underlying the provision. It is no longer necessary for the judges to wring their hands and say: �There is nothing we can do about it.� Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the judges can and should use their good sense to remedy it � by reading words in, if necessary � so as to do what Parliament would have done, had they had the situation in mind.�

The end results of these discussions are my following conclusions. I agree with Pratt J�s view that there is nothing contained in the wording of s 266 and s 267 to justify limiting their application to those assaults mentioned in the Criminal Code. I do not accept that because the defence of provocation is not mentioned in Div 5, Pt 1, it therefore by the expressio unius rule does not apply to other statutory offences outside the Code. I do not accept that this maxim expressio unius personae vel rei, est exclusio alterius should be slavishly followed.

I do not consider that it was the intention of Parliament that the same offence under two separate pieces of legislation should be governed by different laws with totally different results ensuing in the same circumstances, leading to unjust, absurd and capricious results.

I prefer the �fair and liberal� meaning rule or the �purposive approach� which would avoid a construction which would result in injustice or capricious results and which would enable the construction most favourable to the subject, to be adopted. In the final analysis, that is a construction which is consistent with the constitutional injunction to give paramount consideration to the dispensation of justice.

I, therefore, answer the question, yes.

LOS J: Bredmeyer J�s view as expressed in Aipa Peter v James Kapriko [1984] PNGLR 179 and Freda Nup v Chris Hambuga [1984] PNGLR 206 is that the defence of provocation provided in s 226 and s 227 in the Criminal Code Act (Ch No 262) does not apply to the offence of assault in the Summary Offences Act 1977. His Honour�s conclusion follows from the construction he has put upon the Criminal Code, s 22:

N2>�Section 22.�� Application of Division 5

�This Division applies to all persons charged with offences against any law�.� (Emphasis mine.)

This division is in Pt 1 of the Code and it contains fourteen defences, for example, s 23, ignorance of law; s 25, mistake of fact and s 29, intoxication. The defence of provocation is not among them. The defence of provocation is provided by the Criminal Code in s 266 and s 267. These sections are in Div 1 � Assaults and Violence to the person Generally: Justification and Excuse, under Pt V of the Criminal Code. No section in that division says that the defence of provocation applies to all persons charged with offences against any law. Upon the strict rule of construction of statutes, that is, a specific mention of a thing or category of things excludes all the unmentioned things (expressio unius personae vel rei, est exclusio alterius), his Honour said the defence of provocation could not apply outside the Code. The defence is unknown outside the Code so it could not apply by virtue of any other law, for example, it could not apply under the common law because under that law provocation is not a defence to an offence of assault.

The thrust of Mr Injia�s argument was that a strict construction put upon the Code results in absurdities which lead to injustice. Such a strict construction did not necessarily apply to the provisions of the Code. The court could not look outside the Code to see if the defence under common law or customary law applied to a charge of assault laid under the Summary Offences Act 1977. He submitted that first upon a �purposive� construction of the Code it would appear clear that the defence applied as it had always, and second, assault is an offence under a written law and so s 37(2) of the Constitution prohibits a court to look for an unwritten defence to apply to an offence under a written law.

Mr Salika�s argument in brief is that because of the express provisions of s 22 of the Code the defence of provocation cannot be available to a person who is charged for assault under the Summary Offences Act 1977. The court must resort to the common law. But at common law provocation is not a defence. Unless the legislation is changed the courts are stuck with this position. All is not lost, however, as he said provocation is a mitigating factor under the common law and with the use of this coupled with the use of �extenuating circumstances� under the District Court Act 1963, s 138, a court of summary jurisdiction can reach a just result.

With respect, this interpretation by Bredmeyer J leads to an absurd result as pointed out by Mr Injia. At the hearing my brothers McDermott and Amet JJ referred to various other absurdities. Such a construction gives the police a choice of laying a charge of assault either under the Criminal Code or the Summary Offences Act 1977. This choice would be dictated by what result might be expected rather than dictated by the nature of and the information collected by an investigating officer. A magistrate may reach different results in the same hour or on the same day depending upon the legislation under which a charge of assault has been laid. At the receiving end is the person charged with assault. He would be lucky if charged under the Criminal Code, where if a defence of provocation is made out by the evidence, he may be saved. On the other hand, if he is charged under the Summary Offences Act 1977 it does not matter what evidence he has produced, he may expect at least a minimum penalty provided for assault. This is absurd and I do not think that this is a kind of a result expected and intended by the legislators. If this was intended by the legislature, of course the court cannot do much about it except to apply the law and to recommend that the Legislature amend the law. I do not think it was intended. So I would respectfully adopt Wilson J�s view in PLAR No 1 of 1980 [1980] PNGLR 326 at 331-332:

�I wish to repudiate what Walsh J said in Kaporonovski v The Queen ((1973) [1973] HCA 35; 133 CLR 209 at 222-223). With all due respect, they are the words of a strict constructionist whose literal method is out of date. They are the words of one who has adopted �the strict, literal and grammatical construction of the words, heedless of the consequences�. Faced, as I am, with what I see as �a glaring injustice� or, as Gibbs J put it, �a quite capricious operation of the Code�, I would be neither impotent nor incapable nor sterile. The strict interpretation of the Criminal Code in this context giving rise to an anomalous and unjust situation, this Court can and should (on the authority of the Constitution itself) ... remedy it so as to do what Parliament would have done had they had the situation in mind.�

On the other hand, with respect, Bredmeyer J might just have applied the plain and ordinary meaning of the Criminal Code, s 22. It may not appear that one had to resort to any technical rule to see what that section meant. The Latin maxim used was just a description of what is there. The plain meaning of s 22 is that the defences in Div 5 of Pt 1 of the Criminal Code apply to persons charged under all statutory laws in Papua New Guinea. The defence of provocation is not one of the defences listed in the division. So there is no argument about it. So how can it be said that the defence of provocation does apply to a person charged with assault contrary to the Summary Offences Act 1977, s 6(1). This approach still does not avoid the absurdities. In this respect my approach would still be to avoid what may be a capricious result and in doing so I would respectfully follow the view of Lord Simon cited in PLAR No 1 of 1980 at 332:

�... a very full statement of the law regarding statutory interpretation, showing the extent to which the �literal� rule has been qualified, was made by Lord Simon of Glaisdale in Maunsell v Olins [1975] AC 373 at 391:

�... in statutes dealing with ordinary people in their everyday lives, the language is presumed to be used in its primary ordinary sense, unless this stultifies the purpose of the statute, or otherwise produces some injustice, absurdity, anomaly or contradictions, in which case some secondary ordinary sense may be preferred, so as to obviate the injustice, absurdity, anomaly or contradiction, or fulfil the purpose of the statute....�

There is nothing in the Code which says that s 22 is the leading provision which qualifies and guides the application of all the provisions especially the defences in the Code. The section appears in a different part of the Code and says: �This Division applies to all persons charged with an offence under any law.� It might have been different if the section said: �the defences provided in the Code apply to any law�, and that the defence of provocation had not been included in the Code. The provocation sections appear in a different part dealing with �Offences Against the Person�. The defence appears in the division which deals specifically with assaults:

�Division 1 � Assaults and Violence to the Person Generally: Justification and Excuse.�

This division opens with the definition of assault (s 243) and then creates an offence (s 244). It goes on and provides a permissive area. Included in this area is the defence of provocation (s 266 and s 267). So the part which deals with assaults and the defences is complete in itself. With respect therefore, in my view application of this part cannot be limited by a construction put upon a section in a different part of the Code.

This question had not risen before and the reasons are obvious. With respect, I agree with Pratt J that the defence of provocation had always applied to charges of assaults. Charges of assaults had been laid under the Criminal Code. The predecessors of the Summary Offences Act 1977, namely, the Police Offences Act (Papua) 1912, the Police Offences Act (New Guinea) 1925 and the Vagrancy Act (Papua) 1912, did not contain any assault provisions set out in the same way as in the Summary Offences Act 1977. But there is every reason to suggest that it is not a new kind of offence. Indeed, as Mr Injia pointed out in his submission, the definition of assault was adopted from the Code: see LRC Report on Summary Offences Report No 1 of September 1975 at 10. The Report also shows that other offences similar to assaults, that is, unlawful strike and unlawful laying hold of were incorporated into s 6 of the Summary Offences Act 1977. The hearings of these charges were very common before the lower courts and the defence of provocation as defined and provided in the Code was raised without any question. Of course, the lower courts were not final arbiters of law. But the point is that it was not an issue at all when the defence in the Code was raised time and time again as an answer to charges similar to assaults laid under similar statutes. Some of the cases found their way into the then Supreme Court: see Kereku v Dodd [1969-1970] P&NGLR 176. In other cases the definitions of the offences in the Criminal Code were adopted to define the offences under the legislation preceding the Summary Offences Act 1977. In Peter Roy Wieden v Bogunu Di�i [1976] PNGLR 101 at 103, Prentice Dep CJ (as he then was) said on an appeal from a conviction under Police Offences (New Guinea) Act 1925 for unlawfully laying hold, that the offence did not necessarily involve unlawful use of violence and the unlawful use of violence did not necessarily require infliction of an injury as required in an offence of assault occasioning bodily harm in s 349 of the old Criminal Code (now s 340). Earlier Kelly J in Leonard Eliza v Mandina [1971-1972] P&NGLR 422 at 429 interpreted the offence of behaving in a riotous manner under s 8 of the Police Offences (Papua) Act 1912 with reference to s 61 of the old Criminal Code (now s 63). No decision seemed to have been made directly on the point involving a defence of provocation upon a charge laid under either of the two Police Offences Acts. These offences were created outside the Code and they are now incorporated in the Summary Offences Act 1977, again outside the Code. But the definitions of the offences in the cases cited were adopted readily. In my view, by adopting the definitions readily it was intended that whatever defences applied to the offences in the Code whether referred to by s 22 in Div 5 or in other divisions would equally apply to the offences laid under the statutes outside the Code. In my view, with the introduction of the Summary Offences Act 1977 the position has not changed.

It is interesting to note that in Queensland the originating place of the Papua New Guinea Criminal Code this issue never seemed to have arisen. The Criminal Code Act 1899 (Qld) and the Vagrants, Gaming and Other Offences Act 1931 (Qld) operate side by side. The latter is equivalent to the Papua New Guinea, Summary Offences Act. Similarly the Criminal Code 1913 (WA) and the Police Act 1892 (WA) operate side by side. The Criminal Code Act 1924 (Tas) does not contain an equivalent of our s 22. But by virtue of s 36 of the Acts Interpretation Act 1937 (Tas) the criminal responsibility provisions of the Tasmanian Code apply to other Acts including the Police Offences Act 1935 (Tas). A subsequent case indicates that it is not necessary to apply the provisions of the criminal responsibility provisions of the Code to other statutory offences by virtue of s 36 of the Acts Interpretation Act 1937 because the provisions apply in their own right: O�Rourke v Boxhall [1958] Tas R 8 at 11-12.

I am not at all sure whether Mr Injia was serious in arguing that because of the Constitution, s 37(2), the court could not look to either common law or customary law in order to formulate a defence of provocation. I appreciate however that this argument might have been raised as a matter of counsel�s strategy, making sure that the court was confined to the consideration of the provisions of the Criminal Code only for the defence of provocation. I am however of the strong view that the defence of provocation in s 226 and s 227 applies to a person charged with assault under s 6 of the Summary Offences Act 1977. So a detailed consideration of this point may not be necessary. At common law provocation is not a defence; it is a mitigating factor: Archbold Criminal Pleading Evidence and Practice (40th ed 1970) pars 2642-2650. Adoption of the common law position would produce the absurd results which I described earlier, that is, that a person charged under the Code may expect a better result than a person charged under the Summary Offences Act 1977, s 6. The extent to which customary law is applied now may also produce the same absurd results. A custom may be taken into account by virtue of s 3 and s 4 of the Customs Recognition Act (Ch No 19) for the purpose of sentence only. In order for a custom to be taken into account there has to be evidence of it before the court: see Henry Aisi v Malaita Hoala [1981] PNGLR 199; Acting Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299.

The answer to the question referred to the court can be found within the confines of the construction of the Criminal Code. Had there been no clear rule at all, the court pursuant to powers under the Constitution, Sch 2.3, would have created a rule. Indeed it would be the duty of the court to do so pursuant to the Constitution, Sch 2.4: s 37(2) bars conviction for an offence which is unknown under any written law. Therefore in my view Sangumu Wauta v The State [1978] PNGLR 326 referred to is not really on the point, though general guidance can be obtained from it. Assault is an offence under written laws � the Criminal Code and the Summary Offences Act 1977. What the court would have been required to do was to find a defence to the offence of assault. It seems the research of counsel arguing the affirmative failed to find an answer, in the customary law. My general observation would be that the idea of provocation is not unknown in Papua New Guinean society. Quite often people give reasons for doing things. For example, the following statements reveal the reasoning which is often the basis of the defence of provocation: �I chased him because he repeatedly rubbished me in front of everybody saying I did not own any pigs�; or, �I hit him because he hit my son�. The defence of provocation reflects frailty in human nature. Its application should not depend upon the law under which a person is charged. How the defence applies in Papua New Guinean society has been well discussed since the introduction of the Code. The Summary Offences Act 1977 deals with no other society than one, in which a member, has been described as �the man in laplap� in R v Rumints-Gorok [1963] P&NGLR 81 at 83 and to one where he is described merely as �an accused�: PLAR No 1 of 1980 at 326. Had there been a need to formulate a new defence to the offence of assault under the Summary Offences Act 1977 it would have been done easily without offending the provisions of the Constitution, Sch 2.3 and Sch 2.4, and other statutes, as the idea of provocation in the Papua New Guinean society has been well explored and is well recognised by the Constitution and other statutes.

Question answered Yes

Lawyer for affirmative argument: The Public Solicitor.

Lawyer for negative argument: The Public Prosecutor.