Sevese v Cutmore [2020] PGDC 21; DC4077 (8 October 2020)

DC 4077

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (COMMITTAL) JURISDICTION]

CCC 125 of 2020
BETWEEN

SERGEANT ANTHONY SEVESE JUNIOR

Informant

AND

DAVID JOHN CUTMORE
Defendant

Waigani: L Wawun-Kuvi

2020: 7, 8, 24 September, 2, 8 October
      

CRIMINAL LAW- PRACTICE AND PROCEDURE- PANDEMIC ACT 2020- Whether the charges under section 47 (1) (a) are administrative? Whether the charge is indictable or simple offence? Mode of prosecution under the Pandemic Act 2020?

CRIMINAL LAW- PRACTICE AND PROCEDURE -requirement to identify informant and specify authority to lay charges- authority by police to prosecute under Pandemic Act 2020

CRIMINAL LAW-PRACTICE AND PROCEDURE- power to prosecute under Pandemic Act 2020- Whether the police are empowered to prosecute under the Pandemic Act 2020.

Cases Cited
State v Paraka (2020) N8229
Wartoto v The State (2015) SC144
Wama v Palme [2012] PGNC 85; N4714 (22 May 2012)
Bank of Papua New Guinea v Eddie Oruba Mai (2007) SC 862
Kamit v Aus-PNG Research & Resources Impex Ltd [2007] PGNC 4: N3112
Shem Emmanuel v Elizabeth Iga [2003] PNGLR 20
Aviat Social & Sporting Club (Lae) Inc v Anthony Meehan Ltd [2001] PGNC 118; N2071 (8 March 2001)
William Moses v. Otto Benal Magiten (01/12/00) N2023
Rabaul Shipping Limited v. Rita Ruru (08/12/00) N2022
Chia He Jia and Huang Ming Xian v Gisa Komagin [1998] PGNC 20; N1702
ABCO Transport Pty Ltd v. Timothy Sakaip [1997] N1577
State v Tulong [1994] PGNC 165; [1995] PNGLR 329
Koai Keke V Papua New Guinea Colour Laboratories Pty Limited (1992) NI056
The State v Esorom Burege (No 1) [1992] PNGLR 481
The State v Gene [1991] PNGLR 33
Kiau Nekints v. Moki Rumints [1990] PNGLR 123
John Worofang v Patrick Wallace [1984] PNGLR 144
The State v Principal Magistrate, District Court, Port Moresby; Ex Parte the Public Prosecutor [1983] PNGLR 43
Buka v Lenny [1978] P.N.G.L.R 510
The Senior Stipendiary Magistrate, Ex parte The Acting Public Prosecutor [1976] PNGLR
Asia v Eko (1972) No708

Constitutional Laws
Constitution of the Independent State of Papua New Guinea

Legislations
National Pandemic Act 2000
Arrest Act (Chapter 339) consolidated to number 17 of 2015
Criminal Code Act (Chapter 262) consolidated to number 34 of 2016
District Court Act (Chapter 40) consolidated to number 8 of 2000
Interpretation Act (Chapter 2) consolidated to number 52 of 2015
Public Prosecutor (Office and Functions) Act (Chapter 338)

References
N.K.F O’neill and R.N Desailly ,The Criminal Jurisdiction of Magistrates in Papua New Guinea New South Wales Institute of Technology Sydney,1982

Counsel

Inspector Binuali Boas for the Police

Ms Agnes Peter for the Applicant

8 October 2020

RULING

L Wawun-Kuvi, Magistrate:

JURISDICTION OF THE COURT GENERALLY

1. This is a matter where the Court has asked the parties to make submissions that relate to the Court’s jurisdiction.
2. As a Magistrate, I derive my powers from the District Court Act 1963 and from any other law that expressly gives me powers.^[1]
3. It is well established that the Magistrates Courts or District Courts are created by statue and are therefore bound by the laws that govern them. To act outside of any powers conferred by law renders any decision or order null and void.^[2]
4. As was clearly stated by Kirriwom J in Shem Emmanuel v Elizabeth Iga [2003] PNGLR 20 at page 2117:

“The power of the District Court is limited to what the enabling Act expressly provides. Generally all courts of summary jurisdiction exercise their powers within the limitation imposed upon the court as creatures of Statute. They are not court of records. Their first source of power is the law under which the District Court is given the jurisdiction to deal with a matter, for example in this case the Adultery and Enticement Act. If a remedy sought under that Act is unavailable the next reference point is the District Court Act, which is the overall law that creates the Court and gives it power. If that Act is silent or makes no provision for the type of relief that a party seeks, there is no other source. That is why the District Court and all other subordinate courts are courts of limited jurisdiction to the matters specifically granted to them by statute”.

5. The National Control Centre is created by the National Pandemic Act 2020. Under section 6(3), it consists of the Controller, a Deputy Controller, Authorised Persons, and other persons approved by the Controller to provide operational, administrative and ancillary support.
6. The only person that is conferred powers under the Act is the Controller. He delegates his powers by notice in the National Gazette.
7. All the powers of the Controller are prescribed under section 9 of the Act. The Controller does not have powers to arrest, charge or prosecute.

JURISDICITON AS IT RELATES TO DEFECTS AND PROCEDURAL IRREGULARITIES

Do I have Jurisdiction to determine the Application relating to procedural irregularity or defect?

8. Yes.
9. The statement by Brunton, J in The State v Gene [1991] PNGLR 33, resonates true for informations although it was made in regard to indictments, when he said :

“In my view, it is improper for this Court to close its eyes to defect, to say well, defence counsel did not raise it, and we ignore it, on Appeal, the Supreme Court may well say no substantial miscarriage of Justice. An Accused is entitled to the full protection of the law (Constitution, s 37 (1), and that includes the proper application of the rules of criminal procedure and practice.”

10. In the present matter, the Supreme Court in Wartoto v The State (2015) SC144 and recently in State v Paraka (2020) N8229 empowers the District Court to deal with issues of defect and procedural irregularity when it arises before it.
11. Sakora J and Kandakasi J as he was then stated at paragraph 41:

“When an information is presented, the District Court has the power to deal with any issue that concerns both the form and substance of the information presented before it. If for example, an information is defective for whatever reason, this can be raised and dealt with by the District Court. If it can be corrected it could be done by way of an amendment to the information. But if it is so serious that no amendment could fix the problem, the information can be struck out. This would apply to both indictable and summary offences. It would also be appropriate to deal with any abuse of process at the investigation state and at the District Court level by the District Court.”

12. I therefore have jurisdiction to determine issues of defect and irregularity both at the Investigation stage and District Court stage.
13. I will now proceed to determine the matters I have invited submissions on.

The Charge

14. The defendant is charged as follows:

Being the pilot of a Cessna 402C, a twin engine aircraft, registration number VH-TSI, failed to comply with international travel measure Number 3 not to travel into PNG from another country unless the aircraft departed from Cairns, North Queensland, Australia or exempted in writing by the Controller, thereby contravening section 47 (1) (a) of the National Pandemic Act 2020.

Is the charge Administrative?

15. No.
16. Although the heading of the charge says Administrative, as correctly submitted by the Inspector Boas for the prosecution, s 26 (3) of the Interpretation Act (Chapter 2) provides that headings to the section do not form part of the provision.
17. Administrative offences do not impose imprisonment.
18. In the present case, the penalty imposes imprisonment and is therefore a criminal offence.
19. I must say that the drafting is poor as the penalty provision under s47 should have been a different subsection rather than two paragraphs. Penalty provisions create the offence and must be clearly prescribed, failure to do so may prove fatal.

Is this matter a committal or a matter to be tried summarily?

20. A further issue that requires addressing prior to the determination of the application is whether the charge is to be prosecuted summarily or proceed by committal?
21. Cannings J in Kamit v Aus-PNG Research & Resources Impex Ltd [2007] PGNC 4: N3112 at paragraph 129 and 130 sufficiently address this when he says:

“130. Subject to the exceptions specifically created by the Criminal Code, prosecution of an indictable offence must, because of the nature of the offence, be preceded by committal proceedings in the District Court. It is the nature and categorisation of the offence that determines whether it must be tried summarily or by indictment (ie subject to committal proceedings) or whether there is a discretion. In most cases the Public Prosecutor has no discretion. He cannot, for example, decide to summarily prosecute a person for murder. It is an indictable offence. The law does not allow it to be tried summarily in any court. The prosecution must be by indictment. There must be a committal proceeding in the District Court. If the District Court refuses to commit, the Public Prosecutor can indict under Section 526 of the Criminal Code. But the requirement for a committal proceeding cannot be avoided.........

.......the distinction between indictable and summary offences is drawn by Sections 21 and 22 of the Interpretation Act. If an offence is punishable by imprisonment for a term exceeding 12 months, it is an indictable offence. Any offence that is not an indictable offence is punishable on summary conviction.

133. It is necessary to look at the nature of an offence – more particularly its penalty provision – to determine whether it is an indictable offence (tried by an indictment, following committal proceedings) or a summary offence (tried summarily). The prosecuting authority’s decision whether to prosecute by indictment or summarily is driven by the categorisation of the offence, which is determined by operation of law. An indictable offence can only be tried summarily, if the law expressly provides for it.

22. This statement by Cannings J was confirmed, three months later in the Supreme Court case of Bank of Papua New Guinea v Eddie Oruba Mai (2007) SC 862. In discussing section 21 and 22 of the Interpretation Act^[3], it held that Indictable offences must be preceded by a committal proceeding.
23. In the case of this defendant, he has been charged for failure to comply with the controllers directions; the maximum penalty under s 47 is five years.
24. Therefore the charge for which the defendant is presently charge with is an indictable offence and must be preceded by a committal hearing.

Does the Act permit the matter to be tried summarily?

25. No.
26. The National Pandemic Act 2020 is silent and makes no provisions.
27. As Kirriwom J in Shem Emmanuel v Elizabeth Iga^[4] as creatures of statue the District Courts need to look first at the law conferring jurisdiction. In this case it is the National Pandemic Act 2020. When that Act is silent, then we proceed to look at the District Courts Act.
28. The District Court Act only makes provision for schedule 2 offences provide by s420 of the Criminal Code Act.

THE POWER OF ARREST, CHARGE AND PROSECUTION UNDER THE NATIONAL PANDEMIC ACT 2020

Can the Controller delegate his powers?

29. Yes.
30. Section 10 of the Act provides that the Controller may delegate his powers to the Deputy Controller or an authorised person which includes a Provincial Administrator.
31. However, he must specify the powers and have those powers published in the National Gazette.

Does the Controller possess powers to arrest, charge and Prosecute?

32. No.
33. Section 9 does not confer powers of arrest, charge and prosecution to the Controller.
34. The Act is silent on the powers of arrest, charge and prosecution.

Who has the authority to arrest and lay charges under the National Pandemic 2020?

35. The Act is silent.
36. The only rationale is that if the powers of arrest, charge and prosecution are not the powers of the Controller, than he cannot delegate such powers.
37. The Prosecution seeks to rely on section 28 of the District Court Act 1963. And further on s 2 and 3 of the Arrest Act and section 197 (2) of the Constitution.

Arrest

38. As to the reliance on the Arrest Act (Chapter 339), the Arrest Act is not an act specifically for Police. Section 2 of the Act provides that the Arrest is to be used for the process of Arrest under the Act itself and under any other Act [Emphasis mine]. Simply put, if any person is authorised to arrest under the Arrest Act or any other law, they are to be governed by the process of arrest under the Arrest Act.
39. The only two Acts which the Arrest Act is not applicable is the Civil Aviation Act 2000 and Migration Act (Chapter 16).^[5]
40. Persons empowered to do arrest under the Arrest Act are defined under section 1 as authorised persons. They are persons who are empowered to make an arrest under the Arrest Act or any other law or by a warrant.
41. Section 23 recognises that there are powers of arrest conferred by other laws. It specifically provides that where there are other laws that provide for arrest, they are in addition to and do not derogate from the Arrest Act.
42. Section 14 as such provides the process of arrest. It does not say where a policeman makes arrest but rather it says where an authorised person.
43. All this provisions under the Arrest Act show that in order for any person whether it be an appointed person under the Pandemic Act 2020 or police, the law creating the offence must first confer power.
44. The Prosecution’s contention that section 197 (2) of the Constitution provides for exclusive powers to lay, prosecute and withdraw charges is flawed. The learned prosecutor had failed to consider the first line of the provision which states “insofar as it is the function”. Section 197(2) does not confer exclusive powers of laying, prosecuting or withdrawing charges to police. It is merely stating that where it is the powers of police to do so they are not subject to the control or direction of anyone outside of the police force.
45. It is clear from Acts of Parliament such as Fisheries Management Act, Bank of Papua New Guinea, Internal Revenue Commission and the Customs Act amongst others, that specific legislation provides for bodies other than police to lay, prosecute and withdraw charges, see The State v Principal Magistrate, District Court, Port Moresby; Ex Parte the Public Prosecutor [1983] PNGLR 43 on discussion of s 197(2) of the Constitution.

Charging or Laying of Information

46. The case of Kamit v Aus-PNG, reaffirms the position further that the originating process for a criminal prosecution must be signed and presented by persons who are lawfully authorised to do so.
47. Cannings J in Kamit v Aus-PNG referred to the case of The State v Esorom Burege (No 1) [1992] PNGLR 481 by Jalina J. In Esorom Burege the Court held that the law must confer power to a person who seeks to initiate criminal proceedings. In Esorom Burege it was held that Criminal Code expressly provides that only the Public Prosecutor can sign an ex-officio indictment, a state prosecutor does not possess that power.
48. Likewise, in Kamit v Aus-PNG, where a private lawyer engaged by the Bank signed the information, it was held that he did not have the authority to do so because it was not expressly provided for under law.
49. As to the contention that Section 28 of the District Court Act expressly confers powers to police to lay charges under the Pandemic Act 2020, I find that it does not. The section prescribes for the category of persons who are permitted to lay an information in the District Court.
50. They are the Complainant, his legal representative or by an authorised person. Complainant has the same meaning as Informant.^[6]
51. In Buka v Lenny [1978] P.N.G.L.R 510, the Court stated that:

“It is a well-established general rule of law that any person may take proceedings to prosecute a person alleged to be guilty of a criminal offence. However, that right depends upon the intention of the legislature as expressed in the statute creating the offence.”

In order to prevent the application of the general rule, it must be shown that the statute in plain terms prevents anyone (except certain specified persons) from prosecuting for such an offence.”

52. In that case, the defendant was acquitted on appeal as it was held that the Magistrate had no jurisdiction because the person who laid the information was not a person defined by the law.
53. When an information is laid by someone who has no legal authority, the information cannot be cured by substituting the name of the person who does have authority. This was held by Prentice J in Asia v Eko (1972) No708.
54. In Asia v Eko the police officer laid the charge on the information. The Act provided that only the offended spouse or a near relative could lay the charge. The information showed on the face of it that an attempt was made to strike out the name of the police officer and replace it with the name of the offended spouse.
55. Prentice J held the view that it was not allowed by law, and that no power of amendment granted to a Magistrate could make the information lawfully laid.
56. In the present case, the law is silent on who has the authority to lay charges. The recourse is gained from the District Court Act. Section 28 of the District Court Act allows for the complainant to lay the information. The proper course in my view is for the Controller to sign the information as the Complainant and seek the assistance of the Public Prosecutor to appoint counsel or provide counsel.
57. For the present purpose, Sergeant Anthony Sevese Junior a Sergeant of the Police Force, does not have the legal authority to lay the information under the National Pandemic Act.
58. Does the Controller have the power to prosecute under the Pandemic Act 2020?
59. No.
60. It is not one of the functions of the Controller under s 9 of the Pandemic Act 2020.
61. It may be that the Public Prosecutor shall provide counsel pursuant to s 4(h) of the Public Prosecutors (Office and Functions Act) (Chapter 338).
62. However, the Act is silent and it is not my function to endeavour into this discussion or analysis.

Do the police or the police prosecutors have authority to prosecute or make appearance under the Pandemic Act 2020?

63. No.
64. The Supreme Court in The State v Principal Magistrate, District Court, Port Moresby; Ex Parte the Public Prosecutor provides that there are other bodies that do prosecution other than the police. Pratt J with agreement from the other members of the Supreme Court held that:

........ “What s. 197(2) implies, quite apart from the common law position, is that the police will enforce the law not only by making arrests and bringing accused persons before the court as required under the law, but will also prosecute the matter so far as it is their function to do so, with all due speed.

There are certain Acts under which the prosecution of offences would not normally be a part of the functions of the police force. For example the Customs Act, the Health Acts and the Companies Acts give the prosecutorial function to certain other officers of government and are not police matters. [Emphasis mine]

65. What is interesting to note about the statement by the Supreme Court is that they refer not to Health Act, but Health Acts. Section 26 of the Pandemic Act 2020 provides that the Quarantine Act (Chapter 234) and the Public Health Act (Chapter 226) are applicable where the Pandemic Act does not provide for matters that relate to its purpose.
66. The purpose of the Act is:
    • (a) for the purpose of responding to a pandemic, pestilence or a Public Health Emergency; and
    • (b) to enable the delivery of a pandemic, pestilence or a National Response to a Public Health Emergency, and for related purposes.
67. It is clear therefore that the Pandemic Act 2020 is a Health Act.
68. However, I do not wish to enter into an analysis on whether there exists powers of prosecution under other health laws, suffice to say it is clear that the prosecution of Health laws is not conferred on police.
69. Whilst police have the powers to prosecute, that power is also conferred by the law. They fall under section 59 of the District Court Act as authorised persons.
70. Section 59 (2) allows for a police officer to appear for the informant. This is not mandatory but discretionary. The discretion is permissible where authority to appear is conferred by law.
71. In Koai Keke V Papua New Guinea Colour Laboratories Pty Limited (1992) N1056, the General Secretary appeared for the complainant and prosecuted an information laid in the District Court. On appeal the National Court held that in Criminal prosecutions under the Industrial Relations Act either the complainant had to appear in person or he needed the professional expertise of a qualified lawyer who is conversant with practice and procedure of the court and the code of ethics and the duties and responsibilities to the client and to the court.
72. In this case, the law expressly provides that the Complainant is the Controller. He issued directions and those directions allegedly were not complied with.
73. The Act does not confer prosecution powers and as such he does not have the power to delegate. The law is further silent on who is empowered to do prosecutions.
74. The drafters of the law must expressly provide for such processes because as it keeps being repeated, District Courts are creatures of statue. The law must provide the powers so that we can act on those powers.

Is the permission of the Public Prosecutor required?

75. In practice, yes.
76. The Constitution under ss 176 and 177 and s 4 of the Public Prosecutors (Office and Functions Act 1977 confers exclusive criminal powers to the Public Prosecutor.
77. The Public Prosecutor is the principal legal advisor to the State and all its instrumentalities. He is the person to provide advice to the Head of State, the Minister for Justice, the State Solicitor and the Law Reform Commission. He is also responsible for providing counsel in the National Court and Supreme Court for criminal matters, for any other matters that the State has an interest in, other than criminal matters and in committal matters.
78. There is nothing in the customs Pandemic Act that provides for the criminal prosecution powers
79. However as stated in Kamit v Aus-PNG Research & Resources Impex Ltd in discussing the approaches taken in the cases involving prosecution by other statutory bodies^[7], Canning J said “whatever procedure is adopted, the constitutional authority of the Public Prosecutor to control and supervise the prosecution function of the State, must be preserved.”
80. And the only way that the constitutional authority of the Public Prosecutor can be preserved is where he considers each case on its own merits and expressly gives his consent to commence prosecution.
81. This is something that may be considered by the drafters of the law should they consider including prosecution functions.

Did the Public Prosecutor grant consent?

82. No.
83. There is no instrument of consent from the Public Prosecutor.

IS THE INFORMATION DEFECTIVE?

84. Yes.
85. The information is defective because the informant had not authority to lay the information. The Defect cannot be cured by an amendment.
86. Furthermore, the Pandemic Act 2020 does not confer powers of arrest, charging and Prosecution to the police or to anyone for that matter. The District Court does not have any powers to deal with matters under the National Pandemic Act until the law makes it expressly clear.

ARE THERE PROCEDURAL IRREGULARITIES?

87. Yes.
88. The procedural irregularities are:
    1. The Pandemic Act does not prescribed powers of prosecution.
    2. The Police Prosecution do not have authority to prosecute; and
    3. The Public Prosecutor did not give his consent
89. These alone do not prove fatal but considering them in totality with the defects in the information demonstrates a serious deficiency in the law. One that renders this Court without juridiction.

WHAT IS THE CONSEQUENCE?

90. The analogy in this case can be drawn from cases where there is an express requirement in law and that requirement has not been met.
91. In the State v Tulong [1994] PGNC 165; [1995] PNGLR 329, where the defendant was arrested without a warrant when it was a mandatory requirement under the Criminal Code, Justice Doherty held that it is the duty of the court at committal to ensure that a person is arrested in accordance with the law. She stated that “the District Court committal proceedings are not automatic. It is incumbent on a Magistrate to check that the law has been complied with and not to rubber stamp every information before it.
92. It was held that there was an obligation of the District Court to discharge the defendant as he was not properly before the Court. The discharge of course meant that the defendant would still be arrested in accordance with correct process and be brought again before the Committal Court.
93. As Justice Doherty said “the Courts first duty is to the Constitution and to uphold the Constitution, and the Constitution makes it clear that a person can only be arrested in accordance with the law and held and deprived of their liberty in accordance with the law. That law was not complied with in this case and I am therefore obliged to find that the defendant is not properly before the Court...”
94. In applying that statement, the information is therefore struck out for defect and procedural irregularity and the defendant is discharged accordingly.
95. Because he has pending cases, he is remanded in custody until those matters are determined.

Lawyer for the Informant, Police Prosecution

Lawyer for David John Cutmore, Office of The Public Solicitor

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^[1] S 5 District Court Act 1963

^[2] Wama v Palme [2012] PGNC 85; N4714 (22 May 2012); Aviat Social & Sporting Club (Lae) Inc v Anthony Meehan Ltd [2001] PGNC 118; N2071 (8 March 2001), William Moses v. Otto Benal Magiten (01/12/00) N2023; Rabaul Shipping Limited v. Rita Ruru (08/12/00) N2022; ABCO Transport Pty Ltd v. Timothy Sakaip [1997] N1577; Kiau Nekints v. Moki Rumints [1990] PNGLR 123 and The Senior Stipendiary Magistrate, Ex parte The Acting Public Prosecutor [1976] PNGLR 344 at 349.
^[3] See Bank of Papua New Guinea v Eddie Oruba Mai (2007) SC 862 at paragraph 29-32
^[4] supra
^[5] Section 2(2) and 2(3) of the Arrest Act (Ch 339)
^[6] Section 1 District Court Act
^[7] Wilson Kamit v Michael Dowse Collins MP No 46 of 2002, 21.02.02, unreported, Investment Promotion Authority v Palpal Seoul Pty Ltd, Kook Myung Hee and Duk Young Kim SCRA No 13 of 1997, 29.10.97, unreported and BPNG v Eddie Orubu Mai, OS No 224 of 2004, 12.05.05 unreported. Note: The circumstances in Michael Collins and Palpal Seoul are found in Cannings J decision in Kamit v Aus-PNG. Eddie Oruba Mai was appealed and the Supreme Court unanimously upheld Mogish, J’s decision in Bank of Papua New Guinea v Eddie Oruba Mai (2007) SC 862