Maniwokin v Toburua [1973] PGLawRp 739; [1973] PNGLR 710 (9 November 1973)

[1973] PNGLR 710

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

MANIWOKIN

V

TOBURUA

Rabaul
Prentice J

6 November 1973
9 November 1973

VEHICLES AND TRAFFIC - Driving under influence of liquor or a drug - Duplicity in information - Whether improper exercise of discretion by magistrate - Motor Traffic Ordinance s. 9 (1) (a)[dccxlvi]1.

APPEAL - Vehicles and traffic - Driving under influence of liquor or a drug - Duplicity in information - Whether improper exercise of discretion by magistrate - District Courts Ordinance s. 225[dccxlvii]2.

WORDS AND PHRASES - “Adjudication” - District Courts Ordinance s. 225[dccxlviii]3.

The appellant, a policeman, was charged under s. 9 (1) (a) of the Motor Traffic Ordinance with driving “a motor vehicle ... whilst under the influence of intoxicating liquor or a drug.” He was convicted, fined and had his provisional driving licence suspended for 3 months; in addition the magistrate recommended that he be dismissed from the police force. On appeal against conviction and sentence.

Held

(i) &ـ A6thougthough it i it is desirable to charge unfitness to drive either through drink or through drugs or to put two counts, this is not mandatory and accordingly the information and coion wot ba duplicuplicity oity or uncr uncertainty.

Thomson v. Knights, [1947] 1 All E.R. 112 and G. Newton Ltd. v. Smith, [1962] 2 All E.R. 19 followed.

(ii) &#160re ceuld not be an appn appeal against that portion of the magistrate’s order recommending dismissal from the police force. Section 225 of the Districtts Orce

(iii) &&#160rong exercexercise ofse of discretion was not involved in recommending dismissal from the police force in respect of a constable who was in uniform and drinking a considerable amount of bver aificant period ofod of time time.

Appeal

This was an appeal pursuant to s. 225 of the District Courts Ordinance against conviction and sentence, where the offence charged was driving a motor vehicle whilst under the influence of intoxicating liquor or a drug.

Counsel

Kubulan Los, for the appellant.
Buri Kidu, for the respondent.
Cur. adv. vult.

9 November 1973

PRENTICE J: The appellant, having been convicted in the District Court, Kimbe, of an offence under s. 9 (1) (a) of the Motor Traffic Ordinance, was fined $40, had his provisional driving licence suspended for three months, and incurred magisterial recommendation that he be dismissed from the police force. He appeals to this Court under s. 225 of the District Courts Ordinance, on three grounds which I shall deal with severally.

DUPLICITY IN THE INFORMATION AND CONVICTION

Counsel urges that inasmuch as the charge was preferred in the following terms: “Did drive a motor vehicle ... whilst under the influence of intoxicating liquor or a drug,”—that constituted an alternative. That the prosecution should have been required to elect between drink or drug as an ingredient. That the information was bad for duplicity (and presumably the conviction for uncertainty). I may interpolate that the only mischievous influence alleged in the course of the evidence, was alcoholic drink. Appellant’s counsel stood upon a mere allegation of duplicity without citation of authority. Mr. Kidu for the respondent has cited Thomson v. Knights[dccxlix]4, a decision of a Divisional Court of King’s Bench presided over by Lord Goddard C.J sitting with Humphreys J, as he then was, and Lewis J That Court unanimously held a conviction framed in such a form not bad for uncertainty. It held that the offence stated by the U.K. section as it then read, was one offence—the words “under the influence of drink or a drug being adjectival”—the offence being that of driving a vehicle when incapable of having proper control—the incapacity being caused by drink or a drug. One finds the decision of this strong Court applied in a somewhat different connection to the words “wilfully or negligently fails ...” (to comply with Road Transport Licensing conditions); by another Divisional Court (Lord Parker C.J, Ashworth and Fenton Atkinson JJ) in 1962[dccl]5. No decisions to the contrary have been cited me. I should respectfully adopt the suggestion of the learned author of the 37th ed. of Archbold (at p. 928) that it is desirable to charge either unfitness to drive through drink, or unfitness to drive through drug; or to put two counts. However, I can see no warrant for departing from the law as laid down in the above U.K. decisions. I therefore hold that the information and conviction were not bad for duplicity or uncertainty and I would refuse the appeal on this ground.

INSUFFICIENCY OF EVIDENCE

The second ground was amended from alleging “no evidence”, to that of the verdict being against the evidence and the weight of the evidence. I have carefully canvassed the evidence and it suffices I think, to say that it abundantly appears therefrom, that the appellant had had a lot of beer to drink (at least five bottles and most probably more) and that he exhibited symptoms of being frankly under the influence of liquor while driving. I reject the appeal on this ground.

IMPROPER EXERCISE OF DISCRETION

It is thirdly argued that the magistrate wrongly exercised his discretion under s. 111 (2) of the R.P.N.G. Constabulary Ordinance, in recommending dismissal of the appellant, a constable, from the force. It was submitted that no police officer had applied for such a recommendation to be made. And I was informed by appellant’s counsel that it is the practice not to make such a recommendation unless a request for that action has been made by the police. Mr. Kidu has drawn my attention to the magistrate’s notes which read “The Court further upon application, recommends ...” (emphasis mine). One would be left therefore to consider whether in the actual circumstances, despite the application which does appear to have been made, the magistrate exercised his discretion upon wrong principles. The particular matter argued is that, despite his being in uniform at the time, and seemingly on duty, the appellant had been allowed by a constable first class to go to a drinking party. Mr. Kidu objects to my entertaining such a ground of appeal. He submits that the District Courts Ordinance by s. 225 allows appeal only by a “person aggrieved by a conviction order or adjudication of a court”. A recommendation to the Commissioner of Police is not an order or adjudication he says. Appellant’s counsel replies by submitting that such a recommendation involves a decision to recommend, which is an “adjudication”. No authority has been cited me and I am faced with deciding the point upon general principles. The (Concise) Oxford English Dictionary gives the following meaning for “adjudicate”:

“(of a judge or court) decide upon (claim etc.); pronounce (person to be something); condemn (person to penalty or to do); sit in judgment and pronounce sentence.”

I note that Professor de Smith (Administrative Law 2nd ed. 91) states that the characteristic attribute of a judicial act or decision is that it binds, whether it be right or wrong. In my opinion one must construe the word “adjudicate” here with the natural meaning of a decision upon consideration of facts or upon submissions as to law. It connotes a finality of decision binding the parties upon a point argued between them. It appears to me an unnatural construction to apply the word to a recommendation by a court to a non-legal authority, a recommendation which carries no decisive result.

I am therefore of the opinion that an appeal does not lie against this portion of the magistrate’s order. In any event, I am not persuaded that in making such a recommendation in respect of a constable who was in uniform and drinking a considerable amount of beer over a significant period of time, a wrong exercise of discretion was involved.

I am not to be taken as necessarily supporting the recommendation. I note that it appears probable that the appellant’s senior, the first class constable concerned, should probably shoulder his portion of responsibility for the appellant’s misdemeanour. A weak piece of man-management is perhaps discoverable. The Commissioner will no doubt make his own assessment upon all the circumstances, the constable’s record, the disciplinary necessities and requirement of publicly good behaviour of the force.

I come to the conclusion that the appeal should be, and it consequently is, dismissed.

Appeal dismissed.

Solicitor for the appellant: G. R. Keenan, Acting Public Solicitor.
Solicitor for the respondent: P. J Clay, Crown Solicitor.

[dccxlvi]Section 9 (1) (a) of the Motor Traffic Ordinance creates the offence of driving a motor vehicle whilst under the influence of intoxicating liquor or a drug.

[dccxlvii]The effect of s. 225 is set out at p. 712.
[dccxlviii]The effect of s. 225 is set out at p. 712.
[dccxlix] [1947] 1 All ER. 112.
[dccl] [1962] 2 All ER. 10.