SCR No 2 of 1981; Re S19(1)(f) Criminal Code (Ch 262) [1982] PGLawRp 420; [1982] PNGLR 150 (26 March 1982)

SUPREME COURT REFERENCE NO. 2 OF 1981 IN THE MATTER OF A REFERENCE UNDER S. 18(2) OF THE CONSTITUTION

AND IN THE MATTER OF S. 19(1)(F) OF THE CRIMINAL CODE AND S. 155(4) OF THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA

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CRIMINAL LAW - Punishment - Powers of disposition - National Court - Charge proved - No power to dismiss without proceeding to conviction - Criminal Code, s. 19(1)(f)[xxviii]¹ formerly s. 19(h) - Constitution, s. 155(4)[xxix]².

N1>CONSTITUTIONAL LAW - Judicial powers - National Court - Powers of disposition - Charge proved - No power to dismiss without proceeding to conviction - Power to make such other orders as necessary to do justice - Criminal Code, s. 19(1)(f)[xxx]³ formerly s. 19(h) - Constitution, s. 155(4)[xxxi]⁴.

N1>JUDGMENTS AND ORDERS - Judicial powers - Such other orders as are necessary to do justice - Of adjectival or remedial character - Must be within judicial power - Constitution, s. 155(4)[xxxii]⁵.

A question relating to the interpretation of the Criminal Code Act 1974 is not a question “relating to the interpretation or application of any provision of a Constitutional Law” and cannot be referred to the Supreme Court pursuant to s. 18(2) of the Constitution.

The Criminal Code Act 1974, and in particular s. 19(h), (s. 19(1)(f) under the revised law), does not empower the National Court, where it has found an offence proved, to dismiss it without convicting.

The Constitution, s. 155(4), does not empower the National Court, where it has found an offence proved to dismiss it without convicting: the power of disposition of offenders dealt with under the Criminal Code is exclusively and exhaustively provided for therein.

(Kapi J. not deciding) When a constitutional question is referred to the Supreme Court under s. 18(2) of the Constitution, the court or tribunal should defer making any final order disposing of the matter out of which it arises until it has the decision of the Supreme Court on the question referred.

As to the interpretation of s. 155(4) of the Constitution which provides that;

“Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.”

N1>(1) (Per Kidu C.J.) Section 155(4) exists only to ensure that persons’ rights or interests as determined by law are properly enforced or protected if existing laws are deficient in that respect.

N1>(2) (Per Kearney Dep. C.J.) Section 155(4) is directed solely to the power of the Court to issue preventive or remedial judicial process within judicial power, e.g. an injunction, for the purpose of protecting or enforcing a party’s primary rights.

N1>(3) (Per Greville Smith J.) The “other” orders in s. 155(4) must be procedural in nature and designed to enforce the substantive law as established in s. 9 of the Constitution: the “inherent” power can not extend to the making of orders with the character of “law”.

N1>(4) (Per Kapi J.) The “other” orders in s. 155(4) must be orders of a character similar to prerogative writs in the sense that they are remedial in nature.

N1>(5) (Per Pratt J.) The “other” orders in s. 155(4) need not be orders similar in nature to prerogative writs: where the law is silent and where the making of an order would not conflict with any statutory provisions or any principle of the underlying law, an order may be made under s. 155(4) to fill the gap in such a way that justice will be served.

Mauga Logging Company Pty. Ltd. v. South Pacific Oil Palm Development Pty. Ltd. (No. 1) [1977] P.N.G.L.R. 80.

R. v. Ambaidunga Kinde (Unreported pre-Independence S.C. judgment No. 799, 13th June, 1974).

S.C.R. No. 1 of 1979; Premdas v. The Independent State of Papua New Guinea [1979] P.N.G.L.R. 329.

This was a reference to the Supreme Court pursuant to s. 18(2) of the Constitution by Andrew J. of two questions which appear at the beginning of the reasons for judgment of Kidu C.J. hereunder.

N2>“1. Did I err in law in finding that the Criminal Code Act 1974 and in particular s. 19(h) (now s. 19 (1)(f)) thereof does not empower the National Court to proceed to the finding of a charge or charges proved against an accused person and to then make an order dismissing the charge or any other order, without proceeding to conviction?

N2>2. Did I err in law in finding that s. 155(4) of the Constitution of the Independent State of Papua New Guinea empowers the National Court to proceed to the finding of a charge or charges proved against an accused person and to then make an order dismissing the charge or any other order, without proceeding to conviction?”

The Reference arose out of a case in which a person had been charged with forgery and uttering. The learned trial judge found that the charge was proved but did not consider that the case warranted the recording of a conviction. He, therefore, used the Constitution, s. 155(4), and discharged the accused without recording a conviction.

A Reference to this Court under s. 18(2) of the Constitution must relate to the interpretation or application of a provision of a Constitutional Law. Question 1 in the Reference does not so relate and therefore is not properly before this Court. However, if it had been properly put to the court I would have answered it “No”. Neither s. 19(1)(f) nor any other provision in the Criminal Code allows the National Court not to record a conviction and discharge an offender. As far as I am aware s. 138 of the District Courts Act 1963 and s. 20 of the Local Courts Act 1963 are the only provisions that provide for this to be done. The former provision reads:

N2>“138(1) Where a person is charged before a court with a simple offence, and the court thinks that, having regard to the character, antecedents, age, health or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict punishment, or other than a nominal punishment, or that it is expedient to release the offender on probation, the court may, without proceeding to conviction, make an order either:

(b) discharging the offender conditionally on his entering into a recognizance, with or without sureties, to be of good behaviour and to appear for conviction and sentence when called on at any time during such period, not exceeding three years, as is specified in the order.

N2>(2) Where an order is made under the last preceding subsection, the order shall, for the purpose of:

(b) enabling the court to make orders as to the restitution or delivery of property to the owner;

Question 2 is a proper one for this Court. Before I deal with it I make the following comments.

When a judge, a magistrate or a tribunal finds it necessary to refer a constitutional question to this Court the proper procedure, in my view, is to defer making any order disposing of the case and refer the question to this Court. The final disposition of the case should await the decision of this Court on the constitutional question or questions referred. Although s. 18(2) of the Constitution does not specifically say this, the Constitutional Planning Committee certainly meant this to be so. In its report it said:

“We recommend whenever, in proceedings before a court other than the Supreme Court, a justiciable constitutional issue other than one concerning the human rights provisions of the Constitution, arises, that court shall refer the issue to the Supreme Court for determination. Once the Supreme Court has decided the constitutional issue, the court which was originally dealing with the case must determine it in accordance with the ruling of the Supreme Court” C.P.C. Report p. 16, par. 147.

“Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case” (Emphasis mine).

N2>(2) power to make such other orders as are necessary to do justice in the circumstances of a particular case.

The court is concerned with the second head of power. (I refer to this head of power from hereon as “the provision under reference”.)

Mauga Logging Company Pty. Ltd. v. South Pacific Oil Palm Development Pty. Ltd. (No. 1) [1977] P.N.G.L.R. 80 is the first case in which the provision under reference was applied. In this case the plaintiff company applied for an interlocutory injunction restraining the defendant company from sending funds out of Papua New Guinea before the court made a final decision on the case, a claim for damages for breach of contract. Such an injunction could not be granted under the adopted equity rules. The then Chief Justice (Sir Sydney Frost) granted the interlocutory injunction applied for by the plaintiff. His Honour did this under the power given to him by the provision under reference. In doing so he said, at p. 85:

“It is plain that s. 155(4) cannot be taken so far as to enable a court to make a final decision upon the circumstances of a particular case without regard to the principles of law or equity applicable for its determination.

However, I do not consider that the power to make ‘such other orders as are necessary to do justice in the circumstances of a particular case’ can be confined to matters of procedure only. Giving the words their fair and liberal meaning as required by the Constitution, Sch. 1.5.(2), the provision, in my opinion, extends to jurisdiction also, and enables a court to make an order in the nature of an interlocutory injunction, if the requirements of the section are met, even although no jurisdiction to make the order exists under the principles of common law or equity. The express reference ‘to the circumstances of a particular case’, in my opinion, leave no room for a more restrictive construction to be adopted.

Where a case for interlocutory relief falls within the well established principles of equity, there is no need for the claimant to have recourse to s. 155(4). It is sufficient for the purpose of this case to hold that full regard must be given to the balance of considerations affecting each party in reaching a conclusion whether or not a particular order is necessary under the section to do justice in the circumstances of a particular case. On the facts, in my opinion it has been shown by the plaintiff that the Court’s power should be exercised in its favour.”

The provision under reference was commented upon in the Supreme Court case of Avia Aihi v. The State (No. 1) [1981] P.N.G.L.R. 81. The Deputy Chief Justice at p. 91 said:

“I agree with the views of Prentice C.J. and Andrew J. in Constitutional Reference No. 1 of 1979 [1979] P.N.G.L.R. 329 that the Constitution, s. 155(4), involves at least a grant of power to the courts. I consider that the sub-section gives unfettered discretionary power both to this Court and the National Court so to tailor their remedial process to the circumstances of the individual case as to ensure that the primary rights of parties before them are protected. And so, for example, the development of remedial process such as the Mareva injunction need not be as tortuous here as in England. But the Constitution, s. 155(4) cannot affect the primary rights of parties; these are determined by law. In the circumstances of this case, the applicant now has the right to have her sentence reviewed. That extinction of her primary right comes about by operation of law; that is, by her failure to comply with s. 27 of the Act. The Constitution, s. 155(4), cannot be used to re-create a primary right, once extinguished”.

“In my view this section does not assist the applicant’s case either. This section cannot and does not give this Court the power to do anything contrary to what the law says. The orders referred to in this provision can be made only pursuant to a principle of law and cannot disregard a provision of the Constitution or a statute.

The orders that can be given under s. 155(4) of the Constitution are based on two assumptions. Firstly the person who seeks the order has the right (or standing) to apply for the order and secondly, the Supreme Court has the power of jurisdiction to make the order sought. The provision itself does not give the right and the power.

In determining whether a person has the right and whether the Supreme Court has the power, this has to be determined in accordance with the law on the subject. In my opinion these matters cannot be determined under s. 155(4). The orders that can be sought under such general provision are too numerous; it is difficult to see how this provision can cover all of them.”

The provision under reference is worded in very wide terms. It does not, however, vest in the National Court or the Supreme Court the power to make orders which confer rights or interests on people. Such rights or interests are determined by other constitutional laws, statutes and the underlying law. Section 155(4) exists to ensure that these rights or interests are enforced or protected if existing laws are deficient to render protection or enforcement. Frost C.J. in Mauga Logging (supra) and Kearney Dep. C.J. and Kapi J. in Avia Aihi (No. 1) (supra) expressed this same view although in different terminology. I consider, however, that Kearney Dep. C.J.’s statement quoted above of the nature of the power conferred by the provision is the most explicit.

As to whether the provision under reference applied in the case out of which this reference arose, I have read the judgment in draft of my brother Pratt and I agree with him, for the reasons he gives, that it was not applicable.

KEARNEY DCJ: I have had the benefit of reading in draft the opinions of my brethren.

The facts, the questions which arose in the National Court, and the questions referred, are quoted by Greville Smith J. at p. 160 herein; and Kapi J. sets out part of the judgment, at p. 168. Reference to Code sections are as renumbered in the Revision of the Laws.

The first question referred is one which does not fall within the jurisdiction of this Court to answer, under the Constitution, s. 18. For that reason, in my opinion, the court should decline to answer it. As my brethren do not share that opinion, I indicate that in my opinion, if the question should be answered, the answer is clearly “No”, for the reasons stated by Greville Smith J. at pp. 162, 163.

Before coming to the second question, I note some apparent confusion in this reference. From what the trial judge said, as quoted by Greville Smith J. at p. 160, it appears that the question raised in the National Court was whether that court had:

“Powers in relation to the passing of sentence and... whether (the Constitution) s. 155(4) empowers... the National Court to proceed to pass sentence upon a convicted person...” (Emphasis mine).

That does not accord with the questions actually referred. Further, in his “judgment on sentence”, his Honour considered that what the accused did “amounts only to a technical offence of forgery”, that it did “constitute the offence charged”, but that “it would be unjust if a conviction were recorded against you”. His Honour throughout that judgment was clearly directing his mind to the questions whether the Code, s. 19(1)(f), and the Constitution, s. 155(4), allowed him not to record a conviction against the accused. His Honour concluded that, proceeding under the Constitution, s. 155(4)—”... I can only do justice in the circumstances of this case if I do not proceed to record a conviction.” His Honour clearly has here in mind the question of whether he should proceed to conviction; this is made quite clear in the final paragraph of the judgment. Nothing turns on the wording “proceeding to a conviction”, or “recording a conviction”; see Oaten v. Auty [1919] 2 K.B. 278 per Avory J. at p. 287, and the comment by Mr. Eddy at (1949) 65 L.Q.R. 54. Clearly, it is from this judgment that the questions actually referred, flow.

The second question referred queries whether there is power in the National Court to dispose of a case “without proceeding to conviction”. Such a question does not square with the question said to have been raised in the National Court hearing, which went to its power to sentence following conviction.

The term “conviction” is notoriously ambiguous in the criminal law. It may refer to the whole judicial determination of a case, that is, the finding of guilt plus sentence. It may refer only to the finding of guilt; that is, to the act of the court in returning a verdict of guilty after a trial, or in finally accepting a plea of guilty. See the old case law on “conviction” in R. v. Tonks and Goss [1963] VicRp 19; [1963] V.R. 121 at pp. 124-128 (F.C.); and the historical analysis in Cobiac v. Liddy [1969] HCA 26; (1969) 119 C.L.R. 257 at pp. 271-273, per Windeyer J.

In the Code, “conviction” is used in the sense of a finding of guilt alone, in some eighty-two sections, including all provisions relevant hereto.

The effect of a plea of guilty was considered by Denton A.J. in R. v. Ambaidunga Kinde Unreported pre-Independence S.C. judgment No. 799, 13th June, 1974 at pp. 6, 7. His Honour made it clear that the court had to indicate, in some way, that the accused was convicted on his plea. I consider that a person is convicted on his plea only when the court indicates that it finally accepts his plea as safe to act upon, as a full, free, clear and informed admission of all the facts essential to establish the elements of the offence charged. Such a final acceptance is a “conviction”, a determination by the court that the accused is guilty of the offence charged. Such an acceptance should be stated explicitly—see Griffiths v. The Queen (1977) 137 C.L.R. 293 at pp. 302, 303 per Barwick C.J.; [1908] ArgusLawRp 130; 15 A.L.R. 1 at pp. 10, 11, and Barila v. Huffa (1978) 18 S.A.S.R. 226 at p. 230 per Bray C.J.; but may be implicit in what the court does—see R. v. Jerome and McMahon [1964] Qd R. 595 at p. 604, per Gibbs J.

The Code is stated to be the law of the country, with respect to the matters dealt with in it: see s. 2 of the Criminal Code Act (Ch. 262). Among the “matters” with which it deals, are provisions for the conduct of criminal trials. I respectfully agree with Greville Smith J. that a trial judge is bound to observe the requirements of ss. 593, 594 and 596 of the Code.

In this case, from what the trial judge says in the reference and in his judgment, he had finally accepted the plea and thus, as Mr. Gavara submitted, as far as the Code is concerned, he had convicted, and was about to embark upon the sentencing stage. However, the constitutional power may override the Code, so I now turn to the second question referred.

The question is whether, having accepted a plea, found guilt proved, the court may in reliance on the Constitution, s. 155(4), decline to convict. That raises the question of the ambit and scope of the Constitution, s. 155(4).

Section 155(4) is clearly a grant of power to the court: see Premdas v. The Independent State of Papua New Guinea [1979] P.N.G.L.R. 329 at pp. 337, 338, 401. The question is, the extent of the power. In Mauga Logging Company Pty. Ltd. v. South Pacific Oil Palm Development Ltd. (supra), Frost C.J. at p. 85 considered it plain that s. 155(4):

“... cannot be taken so far as to enable a court to make a final decision upon the circumstances of a particular case without regard to the principles of law or equity applicable for its determination.”

I respectfully agree. It is a matter of paramount importance. The Constitution envisages a government of laws, not of men.

That is a limit upon the power in s. 155(4) but the Chief Justice pointed out at p. 85 that on the other hand, the power in s. 155(4) could not:

“... be confined to matters of procedure only... the provision... extends to jurisdiction also...”.

The point before the Chief Justice fell to be decided by one element of the law under the Constitution, s. 9, namely, the underlying law. And so the reference to applicable “principles of law or equity”, as the relevant part of the underlying law applicable to the case.

His Honour had pointed out at pp. 84-85 that so far as concerned English common law and equity, an interlocutory injunction of the type sought could not be granted, because power under the relevant English Act went only to procedure and not jurisdiction. (In point of law that is not so: see Mareva Compania Naviera S.A. v. International Bulk Carriers S.A. (1975) 2 Lloyds Rep. 509; [1980] 1 All E.R. 213n (C.A.), a decision not then available to his Honour, which over-turned the previously-accepted view.) It is clear, I think, in the context of the discussion at pp. 84-85, which was confined to whether there was a power to issue the process sought, his Honour’s reference to “jurisdiction” is a reference to jurisdiction to issue preventive process in certain circumstances.

I respectfully agree with what I conceive to be the approach of Frost C.J., I adhere to the view of s. 155(4) I expressed in Avia Aihi v. The State (No. 1) [1981] P.N.G.L.R. 81, a case which turned on s. 155(2)(b). I consider that s. 155(4) is directed solely to the power of the court to issue preventive or remedial judicial process for the purpose of protecting or enforcing a party’s primary rights. It is concerned with a party’s secondary rights. For this categorization of rights see e.g. Jowitt (2nd ed.) Vol. 2, pp. 1581-2. The process must be within judicial power e.g. an injunction. See Mikasa (N.S.W.) Pty. Ltd. v. Festival Stores [1972] HCA 69; (1972) 127 C.L.R. 617 at p. 631.

I might add that I agree with Pratt J. that there is no reason why the term “other orders” referred to in s. 155(4), should be construed ejusdem generis with “orders in the nature of prerogative writs”. That was also I think the view of Frost C.J. in Mauga Logging (supra) at p. 85. The linking phrase is “... such... as...”; this is to be read as a phrase and given its ordinary meaning which does not connote any referral back to a category of orders already described. Provided the “other orders”, of an adjectival character and within judicial power to make, are properly characterized as “necessary to do justice in the circumstances of (the) particular case”, the court is competent to make them. I would reserve for further consideration the question of the power of the court under s. 155(4) in a case where a law limits the permissible adjectival process; but in principle no law can detract from the court’s stated inherent power to issue such orders. It is, however, unnecessary to decide whether the order made here is adjectival.

As to the criminal law, it is considered of the essence of the legislative function of Parliament in a democracy to provide both for the type of behaviour which is to be subject to criminal sanction, and the punishment which conviction is to attract. It is of the essence of judicial power, as regards the criminal law, to decide whether an accused has contravened the law; and, if so, to assess the proper disposition within whatever range and type of disposition Parliament permits. The Criminal Code Act 1974 is an adopted Act of the Parliament, under the Constitution, Sch. 2.6. It provides exhaustively for the punishment of Code offences: see s. 2 of the Act, and ss. 18, 19 and many provisions of the Code. It does not provide anywhere for a disposition along the lines of s. 20 of the Local Courts Act 1963, or s. 657a of the Queensland Criminal Code. It does occasionally provide for discharge without punishment, after conviction e.g. s. 602. On criminal law and separation of powers see In re Quinn; Ex parte Consolidated Foods Corporation [1977] HCA 62; (1978) 52 A.L.J.R. 117 at p. 120, per Jacobs J.

In this case the trial judge has effected a disposition of the case in a way not permitted by the law. I consider that he has, with respect, strayed beyond the field of judicial competence into a field reserved to the Parliament. The principle of separation of powers permeates the Constitution. I adhere to what I said in S.C.R. No. 1a of 1981 [1982] P.N.G.L.R. 122, the Traffic Infringement Summons case. In that case the legislation in question was invalid because it usurped a function essentially judicial in nature; in this case the action of the court was invalid, in that it usurped the legislative function of the Parliament. The Constitution, s. 155(4), must be read in the light of the separation of powers; and cannot authorize the making of an order other than one within the judicial power. I respectfully agree with Greville Smith J. that “justice” means “justice according to law”.

The point at issue in this reference was really answered by Kapi J. in Acting Public Prosecutor v. Uname Aumane and Ors [1980] P.N.G.L.R. 510 at p. 530, with whom I agreed. I respectfully agree with his Honour’s expressed views at p. 173 herein on the need for the permissible range of penalties for offences to be defined and prescribed by written law, under the Constitution, s. 37(2). It follows that any penalty imposed must be within that range.

In accordance with the views I have expressed, I would answer the second question: “Yes”.

I have considerable sympathy with the difficulty in which the trial judge found himself. He thought it surprising that the accused had been charged. I was similarly surprised in The State v. Meli Heti, [1977] P.N.G.L.R. 173 at p. 175; but I think that the most that can be done, in the absence of some provision such as the Queensland Criminal Code s. 657a, is to apply the Criminal Code, s. 19(i)(f). Unfortunately, that leaves the accused with the stain of a conviction, for what was, on the facts, an offence of a trivial nature. Technical breach is a good reason not to prosecute: (see Wilcox Discretion to Prosecute (1972). At p. 123 are listed twenty reasons for not prosecuting, though prima facie evidence of guilt be available).

I should add that I respectfully agree with the comments by Greville Smith J. at pp. 163-164 to the effect that the trial judge should have referred the constitutional question and refrained from making any dispositive order. Such a disposition as was effected here cannot be appropriate action, in terms of the Constitution, s. 18(2). I also agree that the purported disposition is a legal nullity, as it contravenes the Constitution. However, with respect, I do not agree with the course proposed by his Honour to correct matters. The accused has stood his trial. His case has been heard and purportedly disposed of. What was involved was an offence clearly of a trivial character. A judgment by a competent criminal court should only be reconsidered by a higher court, where that is expressly permitted by law; as, for example under s. 20(5) of the Supreme Court Act 1975, on a point reserved under s. 20(1). There is provision for appeal against sentence by the Public Prosecutor under s. 23 of that Act, but no such appeal has been lodged in this case. No one has sought to have this Court exercise its inherent power, and its exercise in these circumstances would I think be contrary to basic precepts of the criminal law and may raise issues involving the Constitution, s. 37(8). Any further disposition of the case is I think a matter for the National Court, in the light of the answers given. This Court’s duty is to answer certain questions, not review a criminal trial. See restrictions on a reference under s. 41 of the Supreme Court Act 1975.

In my opinion, the order of the court should simply be that the questions referred be answered, as earlier indicated.

Clearly, a provision like s. 657a of the Queensland Code should be introduced into the Code.

GREVILLE SMITH J: The genesis of this reference and the questions referred are compendiously set out in the document of reference of his Honour the referring judge, which contains the following, viz.

This matter coming before me by way of indictment laid by the State against the accused, Peter Mel Poning, of charges of forging and uttering and whereas a question has been raised as to the court’s jurisdiction and powers in relation to the passing of sentence and as to the interpretation or application of a provision of the Constitution of the Independent State of Papua New Guinea namely whether s. 155(4) thereof empowers or grants jurisdiction to the National Court to proceed to pass sentence upon a convicted person as in its view is necessary to do justice in the circumstances of a particular case.

I hereby refer the matter to the Supreme Court and accordingly I set forth the questions to be referred and the facts admitted and found proper by me to be necessary for the proper consideration of the question.

N2>1. Did I err in law in finding that the Criminal Code Act 1974 and in particular s. 19 (h) thereof does, not empower the National Court to proceed to the finding of a charge or charges proved against an accused person and to then make an order dismissing the charge or any other order, without proceeding to conviction?

N2>1. On 9th June, 1981, in the National Court at Waigani, the accused, Peter Mel Poning, was charged upon indictment on two counts namely: first count: peter mel poning of kwinga stands charged that he on or about 17th day of August 1980 in papua new guinea forged a document purporting to be a reference letter drawn by one k. piande. second count: and also that the said peter mel poning of kwinga stands charged that he on a date unknown between 17th day of August, 1980, and 25th day of August, 1980, in Papua New Guinea knowingly and fraudulently uttered a false document purporting to be a reference letter drawn by one k. piande.

N2>2. The accused pleaded guilty to both counts as charged and the sentence of the court was, pursuant to s. 155(4) of the Constitution, that without proceeding to conviction, the charge was dismissed.

N2>3. The facts of the case as agreed by the Public Prosecutor and the Deputy Public Solicitor, who both appeared as counsel, were that the accused had been an employee of the Corrective Institutions Service. He wished to apply for a National Scholarship and he obtained a personal reference in writing from his superior officer, the Superintendent of the Bomana Corrective Institution. This reference was inadvertently destroyed by the accused’s wife and as the time for making his application had almost expired and as the Superintendent was absent from Port Moresby, the accused re-typed the reference in identical terms and placed the signature of the Superintendent on it. The reference and the application were then forwarded to the appropriate body with whom the accused was applying for a National Scholarship.”

N2>“20. A local court is not bound to convict if the offence complained of is, in the opinion of the Court, of so trivial a nature as not to merit punishment.”

Section 168 of the District Courts Act 1963 (as amended) contains a similar provision.

No such provision is available in the Criminal Code which lays down in detail the rules of procedure in criminal trials, and which thereby by implication excludes procedures not expressly provided.

(b) on trial, is convicted of any offence, the proper officer shall ask him whether he has anything to say why sentence should not be passed on him, but an omission to do so does not invalidate the judgment.

(1) A person convicted of an indictable offence, whether on his plea of guilty or otherwise, may at any time before sentence move the judgment be arrested on the ground that the indictment does not disclose an offence.

(2) On hearing of a motion under Subsection (1) the court may allow any amendment of the indictment that it might have allowed before verdict.

(3) The court may either hear and determine the motion under Sub-Section (1) immediately or may reserve the question of law for the consideration of the Supreme Court as if it were a question of law arising on the trial.

(1) If a motion to arrest the judgment is not made or is dismissed, the court may:

(b) discharge him on his recognizance, as provided for in this Code, conditioned that he shall appear and receive judgment:

(2) If sentence is not passed immediately, a Judge may at any subsequent sitting of the court at which the offender is present pass sentence on him.

(4) Before passing sentence, the court may receive such evidence as it thinks proper in order to inform itself as to the proper sentence to be passed.

In my view, the learned trial judge was, unless absolved by a power residing elsewhere, bound to proceed according to the provisions of s. 593 and s. 596. In such a case his Honour should have recorded a conviction and proceeded to sentence or discharge on recognizance. His Honour did not do so. Instead his Honour proceeded upon the assumption of a power analogous to that conferred upon local courts by s. 20 aforesaid. (See also s. 168 of the District Courts Act 1963.) His Honour thus, in effect, set at nought the provisions of the Code, the law passed by Parliament, and applied in substance, a provision applicable in lower courts which the legislature has seen fit not to apply to the National Court presumably because it considered such a procedure inappropriate to this jurisdiction in which the most serious offences are dealt with. Even in the case of lower courts dealing summarily with Code offences I would query whether the lower court provisions are not ousted by the Criminal Code provisions. Since his Honour based this course on his understanding of s. 155(4) of the Constitution, it would appear that his Honour understood himself to be authorized by that provision to vary the law in the particular case upon his Honour’s own concepts of justice.

In considering whether he had power to act as he did his Honour first considered and rejected s. 19(1)(f) of the Criminal Code as the source of such a power. Section 19(h) (which is now renumbered s. 19(1)(f)) provides as follows:

“When a person is convicted of an offence not punishable with death, the court may instead of passing sentence, discharge the offender on his entering into his own recognizance, with or without sureties, in such sum as the court thinks proper, conditioned that:

(i) he shall appear and receive judgment at some future sittings of the court or when called on within a period specified by the court; and

(ii) if the court thinks fit, he shall in the meantime keep the peace and be of good behaviour and comply with such other conditions as the court, in its discretion, imposed.”

This provision so clearly does not give any such power as his Honour purported to exercise that nothing more needs to be said than that his Honour was right in rejecting the provision as the source of such a power.

His Honour then turned to s. 155(4) of the Constitution and, upon his Honour’s understanding of the ambit of that provision, found the charges proved against the accused, and made an order dismissing the charges “without proceeding to conviction”. Section 155(4) of the Constitution provides as follows:

At this point it may be observed that, in my opinion, his Honour fell into an error quite divorced from his Honour’s understanding of s. 155(4).

(1) Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.

(2) Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.

It was under the provisions of this section that his Honour purported to make the reference with which this Court is now dealing. However, before doing so his Honour, if I may so put it, assumed the function of the Supreme Court. As soon as his Honour began to consider whether the provisions of s. 155(4) allowed him to deal with the case before him as he subsequently did, a question relating to the interpretation of a provision of a constitutional law within the meaning of s. 18(1) of the Constitution arose, a question in respect of which, under that provision, the Supreme Court had exclusive jurisdiction. It seems to me, with respect, that his Honour should at that point have decided whether the question was trivial, vexatious or irrelevant and if he considered, as he later did, that it was none of those things, he was obliged, in the words and plain meaning of s. 18(2), to refer the matter to the Supreme Court, and take such other action (including the adjournment of proceedings) as was appropriate. His Honour, instead, acted as has been set out hereinbefore. I shall take up later on further consideration of the course taken by his Honour and what to me seem to be the legal consequences thereof. In the meantime I shall now consider whether his Honour erred in the interpretation his Honour placed upon s. 154(4).

(e) laws made under or adopted by or under this Constitution or any of those laws, including subordinate legislative enactments made under this Constitution or any of those laws; and

What “the underlying law”, within the meaning of s. 9, presently is, and the manner in which such law may be “developed” by the courts, is specified in s. 20(2) of the Constitution, and by onward reference, in Sch. 2. Schedule 2.1 and 2.2 provide that “custom” as defined in Sch. 1.2(1) and “the principles and rules of common law and equity in England” are to be part of the underlying law, subject to certain conditions, one being that the particular custom, or the particular principle or rule is not inconsistent with a statute, another, which applies to the “principles and rules of common law of equity”, being that the particular principle or rule is not inapplicable or inappropriate to the circumstances of the country or inconsistent with that part of the underlying law constituted by custom.

Schedule 2.3 provides that if in a particular matter before a court there appears to be no rule of law that is applicable and appropriate to the circumstances of the country it is the duty of the National Judicial System to formulate an appropriate rule as part of the underlying law, and Sch. 2.4 provides that it is the duty of the National Judicial System to ensure that the underlying law develops “as a coherent system in a manner that is appropriate to the circumstances of the country from time to time, except in so far as it would not be proper to do so by judicial act”.

It follows from the foregoing that of what the Constitution in s. 9 declares to be, and declares to be exclusively, “the laws of Papua New Guinea”, the courts are expressly, in the provisions I have mentioned, given power to provide only a part, and that by formulation and development of what may be described as the non-legislative law, namely the “underlying law”. That the function of the courts should be confined even in this field is, I think, to be inferred from the following, namely, (1) the provision contained in Sch. 2.5 that the judges, in the reports they are required under the provisions of s. 187 of the Constitution to make to the Head of State for presentation to Parliament, shall comment upon the state, suitability and development of the underlying law, (2) the provision contained in Sch. 2.14 that it is the special responsibility of the Law Reform Commission to investigate and report to the Parliament and to the National Executive, on the development, and on the adaption to the circumstances of the country, of the underlying law, and on the appropriateness of the rules and principles of the underlying law to the circumstances of the country from time to time, and (3) the fact that the duty placed upon the National Judicial System (by the provisions of Sch. 2.4) to ensure the development of the underlying law in the way specified, is circumscribed by the words “except insofar as it would not be proper to do so by judicial act”.

As to the provision last mentioned, it is not proper by judicial act to invade the province of the legislature. In R. v. Coney [1882] UKLawRpKQB 30; (1882) 8 Q.B.D. 534 at pp. 550, 551, Stephen J. said as follows:

“A considerable part of the law of England consists of judicial decisions, and in the very nature of things this must be so. Every decision upon a debated point adds a little to the law by making that point certain for the future. Indeed, whichever way this case may be decided, it will settle the law upon the precise point involved, and it is this which gives to judicial decisions their great importance.

It seems to me, however, that in exercising the narrowly qualified power of quasi legislation which the very nature of our position confers upon us, we ought to confine ourselves as far as possible (there may be cases where such a course is not possible) to applying well-known principles and analogies to new combinations of facts, and to supplying to general definitions, and maxims, or to general statutory expressions qualifications, which though not expressed, are, in our opinion, implied... if we go further and extend the law upon considerations of general expediency, we are, I think, invading the province of the legislature.”

In my view it was the intention of the legislature to impose analogous restrictions upon the National Judicial System in the discharge of its duty to develop the underlying law.

It seems to me, in the light of the foregoing, that the People set out in the Constitution to supply for the time being, a system of laws as complete as possible for the needs of the new nation, to make provision, within the area of the underlying laws, and in the limited way specified, for the “ad hoc” remedying by the courts in matters which come before them of any deficiencies or incongruities, and to maintain the power of legislation as the chief and overriding source of law.

Since the laws of Papua New Guinea are to consist, as stated in s. 9 of the Constitution, of the categories set out in that section and no other, and since such law making powers as are given to the National Judicial System are, as we have seen, confined to the underlying law as set out in Sch. 2, it seems to me impossible to contend that the “inherent power” referred to in s. 155(4) is a power to make orders which have the effect of creating a “law” in the sense that the plural of that term is used in s. 9. The power in a court to create “laws” or rules of law which shall become part of the laws of Papua New Guinea is clearly, by the terms of s. 9, confined to the power conferred in Sch. 2.3(1).

It is inconceivable that the legislature intended to give any court the option, in any particular situation, of applying the “laws of Papua New Guinea” as set out in s. 9, or of resolving the situation before it according to the court’s own individual and independent notion of justice. This being so the word “justice” in s. 155(4) means justice according to law, namely the law specified in s. 9. It follows, in my opinion, that his Honour the referring judge acted in error, apart from the error I have already mentioned, in setting aside the provisions of the Criminal Code and proceeding by way of analogy with a provision of the Local Courts Act.

Fortification for the view I have expressed concerning the extent of the power referred to in s. 155(4) is to be found, in my opinion, in the following.

Firstly, the power referred to is referred to as an “inherent” power. An inherent power, as distinct from a conferred power, is one involved or arising out of the construction or essential character of the court. The essential character of a court is that it is an instrument for the enforcement of legal obligations and the protection of legal rights. On the great principle expressed in the Latin words, ubi ius, ibi remedium, (where there is a right there is a remedy) the courts themselves, where necessary, developed procedures to carry out the work of enforcing obligations and protecting rights. These included the prerogative writs such as mandamus, prohibition, habeas corpus and certiorari, and also other remedies such as the injunction, order for the interim preservation of property, attachment of debts or garnishment, summary proceedings for specific performance and the specific delivery of chattels. Amongst other inherent powers is the power in a court to correct its own errors (Backhouse v. Moderana [1904] HCA 26; (1904) 1 C.L.R. 675 at p. 677, per Griffith C.J.) and the power exercised by the Supreme Court in Saki v. The State [1980] P.N.G.L.R. 33. What is to be noted is that these powers are procedural in nature; to make substantive law or to resolve particular situations without reference to the law has never been regarded as a judicial power, inherent or otherwise.

Further, it seems to me that in considering the words “orders in the nature of prerogative writs and such other orders”, the ejusdem generis rule applies, and the general words “other orders” take their meaning from the particular and specific words “orders in the nature of prerogative writs” which precede them and comprehend only things of the same kind as those designated by the particular and specific words, namely procedural orders, such orders as may be necessary to enforce the substantive law in a particular case.

Again, Sch. 1.3(2) of the Constitution, inter alia, provides that whilst the headings or headnotes to the various sections of the Constitution do not form part of the law, other headings and notes do form part of the law. Section 9 of the Constitution falls within Div. 1 of Pt II of the Constitution. Part II is headed “The National Legal System” and Division 1 is headed “The Laws of Papua New Guinea”. Section 155 falls within Div. 5 Pt VI of the Constitution. Part VI is headed “The National Government” and Div. 5 is headed “The Administration of Justice”. In my view Div. 1 is concerned with what the laws of Papua New Guinea shall be, and Div. 5 is concerned with the “administration” of those laws, and the “justice” referred to in s. 155(4) in my view, as I have already said, means justice according to law, namely the laws of Papua New Guinea. To “administer” is to “dispense or serve out”, and the Administration of Justice with which Div. 5 is concerned is the implementing or the application of the laws of Papua New Guinea, not the providing of means for the making or the alteration of those laws, or the abrogation of those laws in favour of something else.

Seen in the light of the foregoing the provisions of s. 155(4) declare that the National and the Supreme Courts have power to make such orders as are necessary to implement the enforcement of the law, that is the law as established by s. 9.

I now return to consideration of the course taken by his Honour in not referring the constitutional question relating to s. 155(4) to the Supreme Court when such question arose, but in deciding such question, and then referring to the Supreme Court the question whether his decision on such question was a right decision. The proposition suggests itself that, although his Honour does not say so, his Honour took the view that as well as opening up the option of not applying the relevant provisions of the Criminal Code, the provisions of s. 155(4) opened up the option of not complying with the provisions of s. 18 of the Constitution. There would be a certain logic to such a further view, a logic which only goes to emphasize the untenability of the view relating to the provisions of the Code.

In my view, and with respect, when his Honour made the order “dismissing the charge without proceeding to conviction” his Honour not only acted without any foundation in law, but acted also, as I have already said, in breach of the provisions of s. 18 of the Constitution. In my view the order is a nullity and the conclusion of proceedings before his Honour is still pending. In my view, in addition to answering the questions referred, this Court should make an order quashing his Honour’s order dismissing the charge, and remitting the matter to his Honour so that his Honour may with all due despatch proceed in the matter according to law, that is, in accordance with the provisions of the Criminal Code. It seems to me that this Court is no more entitled to countenance the non-compliance with the law that has taken place than his Honour was entitled to embark upon it. The making of such an order by this Court would, in my opinion, provide a classic application of the inherent power of the Supreme Court to review judicial acts of the National Court as provided by s. 155(2)(b) of the Constitution and of the proper and intended use of the power referred to in s. 155(4) to make such orders as are necessary to do justice according to law.

Peter Mel Poning was brought before his Honour on 9th June, 1981, on two counts of forgery and uttering. The accused pleaded guilty to both counts and the trial judge found no reason to reject the pleas. He entered pleas of guilty on both counts. The trial judge however found that there was little criminality involved in the two offences and was minded not to impose any penalty under the Code. He went as far as to say:

“You have an excellent background and prior good record and I think it would be unjust if the conviction would be recorded against you”.

He found that he had no power to do this under s. 19(h) of the Criminal Code but proceeded not to record a conviction and discharged the accused under s. 155(4) of the Constitution.

N2>(1) Did I err in law in finding that the Criminal Code and in particular s. 19(h) thereof does not empower the National Court to proceed to the finding of a charge or charges proven against the accused person and to then make an order dismissing the charge or any other order without proceeding to the conviction.

N2>(2) Did I err in law in finding that s. 155(4) of the Constitution of the Independent State of Papua New Guinea empowers the National Court to proceed to the finding of a charge or charges proved against the accused person and then to make an order dismissing the charge or any other order without proceeding to the conviction.

The first question does not involve a question of an interpretation or an application of the Constitution and should not have been referred. It is clear from the proper interpretation of s. 19(h) of the Code that his Honour did not err in this regard.

The reference in this case raises the proper interpretation to be given to the words “such other orders” in the second limb of the provision. The second limb of s. 155(4) of the Constitution was raised in Avia Aihi v. The State (No. 1) [1981] P.N.G.L.R. 81. I must point out that the provision was not fully argued in that case. We were not referred to Mauga Logging Co. Pty. Ltd. v. South Pacific Oil Palm Development Pty. Ltd. [1977] P.N.G.L.R. 80. In the light of full arguments in this reference I now consider the provision again.

Section 155(4) of the Constitution is a grant of power to the National and the Supreme Courts. See Premdas v. The Independent State of Papua New Guinea [1979] P.N.G.L.R. 329; (see Prentice C.J. and Andrew J.); Avia Aihi v. The State (No. 1) (supra) per Kearney Dep. C.J. at p. 91.

The nature of this power is to be found in the provision of the Constitution itself. The provision is in the following terms:

N2>“s155(4) Both the Supreme Court and National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.”

The inherent power given under this provision is in relation to two types of orders. In the first limb of the provision the court has power to make orders in the nature of prerogative writs and in the second limb of the provision the court has power to make such other orders. The nature of the orders in the first limb of the provision is clearly indicated as orders in the nature of prerogative writs.

The nature of the orders in the second limb of the provision presents some difficulties because it is expressed in general words. It is significant to point out that the second limb of this provision must not be interpreted in isolation but in the light of the first limb of the provision which gives the nature of the order that can be made. Reading the second limb of the provision in this way, I cannot escape the conclusion that the second limb of the provision is dealing with a restricted category of orders in nature. The important word to be interpreted as indicating the nature of these orders is the word “such”. The word “such” is defined in the Concise Oxford Dictionary amongst others to mean the following:

N2>(2) of the kind or degree already described or implied or intelligible from the context or circumstances.

Where this word has been used in similar provisions as s. 155(4), the courts have given the same meaning as referred to in the Concise Oxford Dictionary. For example: in Drew v. Willis, [1891] UKLawRpKQB 41; [1891] 1 Q.B. 450. This case involved the consideration of s. 14 and s. 15 of the Judgments Act 1838 (1 & 2 Vict. c. 110(1)). These provisions made allowance for a judgment creditor to obtain an order from the court to the effect that any stock funds or immunities or shares of a judgment might be charged for the purposes of satisfying a judgment creditor. The sections provide that such an order may be obtained ex parte. Section 15 of the Act continues to provide:

“... and further, unless the judgment debtor shall within a time to be mentioned ... cause to the contrary, the said order shall, after proof of notice thereof to the judgment debtor, his attorney or agent, be made absolute: provided that any judge shall, upon the application of the judgment debtor, or any person interested, have full power to discharge or vary such order, and to award such costs upon such application as he may think fit.” (Emphasis mine.)

In this particular case the ex parte order was made and the order became absolute under this section. The question was whether under s. 15 the court had power to discharge or vary the order which had become absolute. It was argued before the court that s. 15 of the Act directs how the order may be made absolute and the proviso which I have quoted at the end of that section relates to the order absolute and gives the court power on application of any party to make the order or to discharge the order. Lord Esher M.R. at p. 452 said:

“It is said that in the present case s. 15 gives that power by the proviso, and the words ‘such order’ are relied on. It is clear to me that those words apply to the order nisi, and not to an order which has become absolute. That is the only enactment which is vouched as authorizing the judge at chambers to entertain this application.”

It is clear from this case that the words “such order” used in the proviso were related to the kind already referred to in s. 14 and s. 15 of the Act. They could not be interpreted to mean any order including order absolute.

In Mountifield v. Ward [1897] UKLawRpKQB 12; [1897] 1 Q.B. 326, the court there was concerned with s. 10 of the Licensing Act, 1874. It is in the following terms:

“Nothing in this Act or in the principal Act contained shall preclude a person licensed to sell intoxicating liquor to be consumed on the premises from selling such liquor at any time to bona fide travellers ...” (Emphasis mine.)

In this case Mr. Ward who owned premises licensed to sell liquor, sold liquor to two men who then took the liquor away from the licensed premises and drank it elsewhere. Mr. Ward had sold the liquor at the time when the premises were directed by law to be closed. The question was whether Mr. Ward was exempted by s. 10 of the Act. In considering this, Wright J. said at p. 328:

“As to the construction of this section I do not think that there can be any real doubt; Mr. Danckwerts’ contention must prevail. The necessity of the case points to the conclusion that the section contemplated a sale for consumption on the premises only; for if the liquor might be sold under it to be consumed off the premises it would be impossible to ensure that it should be consumed only by bona fide travellers. I think that the words ‘such liquor’ refer not merely to ‘intoxicating liquor’, but to ‘intoxicating liquor to be consumed on the premises’.”

Again it is illustrated in this case that the use of the word “such” confined the type of liquor described in the provisions. See also Ex parte George Stapylton Barnes [1896] UKLawRpAC 6; [1896] A.C. 146.

In my view the words “such other orders” are to be interpreted to relate to orders of a similar character as referred to in the first limb of s. 155(4) of the Constitution. The use of the word “such” in the provision compels me to come to such conclusion. As to what are these specific orders it is wise not to attempt an exhaustive list. However, these orders must have some resemblance in character or in nature to the prerogative writs. An essential character of prerogative writs in this context is that they are remedial in nature. That is to say they are processes by which the rights of parties are protected or enforced. The existence of a right is essential to the availability of a prerogative writ. The orders in the second limb must have these characteristics. That is the limitation to the types of orders that can be made under the second limb of s. 155(4). It cannot be read to mean any type of order whatsoever. This is a conclusion reached by a pure construction of the provision itself. The section does not set out such matters as persons who are entitled to apply for such orders (locus standi) and grounds upon which such orders may be given. These are matters which can be determined by reference to the principles of common law and equity under Sch. 2 of the Constitution. In my view this is what Frost C.J. meant where he said in Mauga Logging Co. Pty. Ltd. v. South Pacific Oil Palm Development Pty. Ltd. [1977] P.N.G.L.R. 80 at p. 85:

“It is plain that s. 155(4) cannot be taken so far as to enable a court to make a final decision upon the circumstances of a particular case without regard to principles of law or equity applicable for its determination.”

However, having said that I think it is important to point out that s. 155(4) of the Constitution itself gives the National and the Supreme Courts very wide powers to grant orders beyond the circumstances permitted by the principles of common law or equity. These wide powers are given to the court by the words—”in such circumstances as seem to them proper” in the first limb and “as are necessary to do justice in the circumstances of the particular case” in the second limb of the provision. This is a matter of construction of the provision. An illustration of this is to be found in Mauga Logging. In Mauga Logging, the Chief Justice found that under the principles of equity an injunction to restrain a man who is alleged to be a debtor from parting with his property, is not possible. However, his Honour found that he had wide powers under the second limb of s. 155(4) of the Constitution to extend the order in the nature of interlocutory injunction to do justice in the circumstances of the case. What the Chief Justice did in Mauga Logging was nothing less than what the Court of Appeal did in the case of Mareva Compania Naviera S.A. v. International Bulk Carriers S.A. The Mareva injunction was based on s. 45 of Supreme Court of Judicature (Consolidation) Act, 1925 which is in the following terms:

“A mandamus or an injunction may be granted or receiver appointed by an interlocutory Order of the Court in all cases in which it shall appear to the Court to be just or convenient...”

It is interesting that the Chief Justice in Mauga Logging did not proceed by way of formulating a new principle of equity under Sch. 2.3 of the Constitution or further development of the English principle of equity on injunctions under the Constitution, Sch. 2.4. It is clear that a principle of equity adopted or formulated under Sch. 2.2 or Sch. 2.3 or further development of such principle under Sch. 2.4 are alternatives to granting of an interlocutory injunction under s. 155(4) of the Constitution. This is made clear when he said on p. 85:

“Where a case for interlocutory relief falls within the well established principles of equity, there is no need for the claimant to have recourse to s. 155(4).”

In principle, the application of principles of common law and equity under Sch. 2 of the Constitution (underlying law) in relation to remedial orders is quite separate and they can only be developed under the condition set out under Sch. 2.3 and Sch. 2.4 of the Constitution and subject to change by statute. Whereas under s. 155(4) of the Constitution very wide powers are given to the Supreme Court and the National Court to make remedial orders of a similar nature. They can make these orders in any case whatsoever. They are only limited by the words “in such circumstances as seem proper to them” in the first limb and the words “as are necessary to do justice in the circumstances of a particular case” in the second limb.

Anybody who applies for any of these orders must have some right in existence according to law.

The order made by the learned trial judge in this matter could not be said to be of a similar nature to the orders intended under s. 155(4) of the Constitution. His Honour was faced with the question of the appropriate penalty to be imposed for a criminal offence under the Criminal Code. These are matters in respect of which the Parliament has unlimited power to legislate. The Legislature in its wisdom did not give to the courts power to do what the learned trial judge did. To make an order by way of penalty contrary to the provisions of the Criminal Code would be contrary to s. 37(2) of the Constitution. I discussed this section in Acting Public Prosecutor v. Uname Aumane and Ors [1980] P.N.G.L.R. 510 (Unreported judgment of the Supreme Court S.C. 190) and I adopt what I said in that case. The question of what is an offence and the manner in which it should be dealt with and the penalty for an offence are matters which must be defined and prescribed by written law. In the instant case the Criminal Code deals with the particular offence. The Code does not give such power to a judge to make the order which was made by the learned trial judge in this case. To interpret s. 155(4) of the Constitution in such a way as to give the court the power to determine penalty other than those provided, would be in conflict with the provisions of s. 37(2) of the Constitution. I do not think the framers of our Constitution intended this.

Furthermore, if such power was given to the court under s. 155(4) of the Constitution, it could be used by the courts to amend legislation if they considered that there was no justice in the legislation. Such an interpretation would make the courts superior to the power of the legislature and it could amend legislation to do justice in particular circumstances.

I agree with the Chief Justice that where a tribunal refers a question under s. 18 of the Constitution, the final disposition of the matter should await the ruling of the Supreme Court.

The end result of my reasoning is that the order made by the learned trial judge is null and void. The proper course in the circumstances is to send the matter back to the trial judge for sentence according to law.

PRATT J: I have read the draft judgments of the Chief Justice and Kapi J., and I agree that Question 1 under the reference, though not strictly before the court, would be properly answered in the negative. Further, I agree that the second question should be answered in the affirmative although my reasons are slightly different to those published by Kapi J. It was an error in law to rule that s. 155(4) of the Constitution permitted a court to find an accused guilty but not to proceed to conviction.

Certainly the provisions of s. 155(4) of the Constitution constitute a grant of power (Premdas v. The Independent State of Papua New Guinea [1979] P.N.G.L.R. 329 at pp. 337, 401), and I note Kearney Dep. C.J. says at p. 91 of Avia Aihi v. The State [1981] P.N.G.L.R. 81 that although the section grants a power, it “cannot affect the primary rights of parties; these are determined by law”. I do not think however there is any justification for restricting the words “and such other orders” appearing at the end of the subsection to orders of a nature similar to those covered in the prerogative writs. The words themselves are plain enough and, as Frost C.J. points out in Mauga Logging Company Pty. Ltd. v. South Pacific Oil Palm Development Pty. Ltd. (No. 1) [1977] P.N.G.L.R. 80 at p. 85, should be given their “fair and liberal meaning”. Perhaps this is another way of stating the basic rule expounded by Lord Upjohn in Stephens v. Cuckfield R.D.C. [1960] 2 Q.B. 373 at p. 382:

“But when Parliament uses ordinary words such as these, which are in common and general use in the English language, it seems inappropriate to try to define them further by judicial interpretation and to lay down as a rule of construction the meaning of such words unless the context requires that some special or particular meaning should be placed upon such words.”

It is only when this cannot be sensibly done that recourse should be had to the other canons of construction. Basically the words of a statute are to be interpreted as bearing their natural meaning: see Ogder’s Construction of Deeds and Statutes (5th ed., 1967), p. 329.

If the phrase under discussion were to be given a restricted meaning, it would seem the Legislature has simply engaged in tautology and that the section could have little operation outside the scope offered by the remaining prerogative writs not specifically mentioned, namely quo warranto, ne exeat regno, procedendo and habeas corpus. I have difficulty in accepting that there is any affinity between the prerogative writs and orders by way of injunction or declaration. They arose from different historical circumstances and have quite unrelated purposes as well as results. The phrase appears to direct the court to supply a remedy where there is a clear hiatus. Where the law deals with an issue, be it by way of statute or as part of the underlying law, that is an end to the matter. As the Chief Justice says in Avia Aihi’s case (supra) at p. 87, it is unrealistic to suggest that the framers of the Constitution would have vested power in the Supreme Court to override an Act of Parliament. But where the law is silent, where the making of an order would not conflict with any statutory provisions or any principle of the underlying law, then the court is directed to supply an answer in order to fill in the gap in such a way that justice will be served.

I have been a little concerned with the approach taken by Frost C.J. at the beginning of his reasoning in Mauga Logging [1977] P.N.G.L.R. 80 where his Honour says, at p. 85:

“It is plain that s. 155(4) cannot be taken so far as to enable a court to make a final decision upon the circumstances of a particular case without regard to the principles of law or equity applicable for its determination.” (Emphasis mine.)

but I do not think on reflection that his Honour is drawing any distinction on the basis that what he was proposing to do was hand down an interlocutory decision only, pending final resolution of the dispute before another court. What his Honour says is that if a decision is to be final then it must take into account the principles of law and equity. The reasoning of the learned Chief Justice immediately following this statement above-quoted makes it clear that where a gap in the principles of law exists on interlocutory matters, power is vested in the courts under s. 155(4) of the Constitution to supply an interim remedy. I cannot see why the same reasoning cannot be applied to a final decision where such gap also exists. Obviously, as his Honour points out, if a remedy already lay under the existing law there would be no necessity to turn to s. 155(4). Thus although Mauga Logging (supra) deals with interlocutory matters, I do not think that it need be restricted to such matters.

It may be said with some degree of force that in the days before the Mareva decision (Mareva Compania Naviera S.A. v. International Bulk Carriers S.A. [1975] 2 Lloyd’s Rep. 509; [1980] 1 All E.R. 480, a case which was not cited to the Chief Justice in Mauga Logging (supra), the general view in equity prohibited the courts making orders against assets inside the jurisdiction owned by defendants residing outside the jurisdiction, and thus it is not a question of there being a mere gap in the law, a mere hiatus, but of a specific prohibition—that the law prevents a person from obtaining a desired remedy. In my view however, the “prevention” simply arose because the principles of equity had not been developed to a sufficient degree to cover the particular problem. That the principles were however capable of such extension is exemplified by the Mareva case (supra) itself. I do not think there was any barrier in existence. The principles simply did not contemplate such a factual possibility but after some hesitation, following a tremendous increase in international commerce, it seems to me that equity once more found it had not become absolutely fixed and immutable.

It follows from what I have said that when such a gap does occur, s. 155(4) would be used in conjunction with Sch. 2 Pt 3 of the Constitution, particularly Sch. 2.3. Indeed both the section and the schedule are complementary, but the schedule lays down in much greater detail how the power under s. 155(4) shall be exercised.

I am not sure I fully comprehend the term “primary rights of parties” as used by Kearney Dep. C.J., but it seems to me that if a person has any rights at all, such rights must find their genesis in either a statute or the underlying law. In Avia Aihi’s case, the appellant had a right of appeal only because a statute gave her such right but it had to be exercised within the terms laid down by the statute. I am uncertain however as to what secondary or other rights she may have had. Therefore I do not think I can accept in full this part of the line of reasoning by Kearney Dep. C.J. in Avia Aihi’s case, although I feel we may be both arriving at the same conclusion by slightly different routes. What is clear law now is that where a statute lays down a given period in which to perform an act, s. 155(4) does not permit such time to be extended or that act to be performed outside the specified period. The rights vested in a citizen by the law are there to be enforced by the courts and not to be created by the courts, save in the limited way I have already outlined.

The present case however is somewhat different. No mention is made in the Code of granting a court power to find an accused guilty, but without proceeding to conviction to impose certain conditions, as magistrates may do under s. 138 of the District Courts Act. It might be said that the Code is simply silent on the matter. Certainly no rights are granted under the Code for an individual to have this course considered by the court. The Code however is a complete entity in itself—that is implied in the very term “Code”. As Dr. Gledhill says in The Penal Codes of Northern Nigeria and the Sudan (1963, Sweet & Maxwell), at p. 15:

“The Indian, Sudan and Northern Nigerian Codes are not intended to be Amending Acts, assuming a pre-existing body of law. They are complete Codes in relation to the matters they deal with.”

The Code does of course work side by side with other Acts of Parliament and the defences for example set out in Ch. 5 of the Code are by virtue of s. 36 applicable to “all persons charged with any offence”. More particularly Ch. 4 which is headed “Punishments”, and especially ss. 18, 19, 20 and 21, deal exhaustively with the area of penalty. Of course s. 6 of the Criminal Code Act makes it quite clear that other Acts of Parliament may affect the form and nature of punishment as indeed is the case under the District Courts Act where s. 138 gives special power to magistrates in dealing with offenders who come within the magistrates’ jurisdiction. But I cannot see how Mr. Wilson can gain any comfort from this section in circumstances such as the present where the court is being asked to extend the provisions of s. 19 to give jurisdiction where none has been granted by Parliament (leaving aside s. 154 of the Constitution). If the legislature had considered it desirable for the National Court to be able to enter a verdict of guilty and pass “sentence” without recording conviction, I would expect to find it laid down quite clearly. It has not done so, and because we are dealing with an all embracing Code, I believe the Legislature has clearly and deliberately refrained from so doing. Sections 19, 612 and 613 are the major sections in the Code directing the National Court’s course of action on matters of sentence.

It is perhaps instructive to note that a magistrate has an alternative, for in respect of certain offences he may proceed under s. 614, in which case there is certainly a conviction, or he may prefer the provisions of s. 138 of the District Courts Act. It may be that where he is dealing with matters under the Code, he is prohibited from applying s. 138 or any other provisions of the District Courts Act, but I am not prepared to make any ruling on that aspect. The whole thrust of the legislation under the Code deals with persons who are “convicted”, whether on plea or after trial (for example ss. 19 and 605-618 inclusive). No mention is made of “not proceeding to conviction” as the learned trial judge has done in the present case. The accused has pleaded under ss. 475 and 476 of the Code and could only be dealt with under the provisions of the Code. The use of s. 155(4) in the manner adopted in this case amounts, in my view, to a piece of judicial legislation which cuts completely across everything contained in the Code itself.

I must say that I sympathize with the learned trial judge’s predicament. The facts before him highlight the need for a counterpart of s. 138 of the District Courts Act in the Code, especially now that a number of Code offences will be dealt with by senior District Court magistrates. I would not expect that on conviction for offences under the Code the application of an equivalent s. 138 provision would arise often. But the point is, there are occasions in which it will arise, and such occasions of course are very pressing ones in their circumstances. The case before his Honour I think works very hard on the accused and certainly I would agree that had such a section existed, this would have been a most appropriate case for its application.

Accordingly what his Honour did was without legal foundation and a nullity. The proceedings against the prisoner have not been concluded. In my view the unfortunate man must be brought back before his Honour and “dealt with according to law”. I would so direct.

N1>(2) That the purported disposition by the National Court being null and void, the learned trial judge is directed to now complete the proceedings, according to law.

[xxviii]Infra p. 162. The Revision of Laws affected the renumbering of the Criminal Code between the date of hearing and the date of the judgment. See p. XIX.

[xxix]Infra p. 153.

[xxx]Infra p. 162. The Revision of Laws affected the renumbering of the Criminal Code between the date of hearing and the date of the judgment. See p. XIX.

[xxxi]Infra p. 153.

[xxxii]Infra p. 153.

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Papua New Guinea Law Reports

SCR No 2 of 1981; Re S19(1)(f) Criminal Code (Ch 262) [1982] PGLawRp 420; [1982] PNGLR 150 (26 March 1982)

Papua New Guinea Law Reports - 1982