Diro v Reeve [1988] PGLawRp 12; [1988] PNGLR 155 (5 August 1988)

Papua New Guinea Law Reports - 1988-89

[1988] PNGLR 155 - Edward Ramu Diro v John Stanley Reeve 

[1988] PNGLR 155

SC354

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

EDWARD RAMU DIRO

V

JOHN STANLEY REEVE

Waigani

Bredmeyer Amet Los JJ

25 July 1988

5 August 1988

CRIMINAL LAW - Particular offences - Perjury - Wilfully false statements to Commission of Inquiry - Whether offence perjury - Whether able to be prosecuted - Whether “offence under this Act” - Criminal Code (Ch No 262), s 121 - Commissions of Inquiry Act (Ch No 31), ss 13, 16, 19 - Commissions of Inquiry Ordinance 1951, s 16.

Held

(Bredmeyer J dissenting) Whilst a person who gives false evidence before a Commission of Inquiry constituted under the Commissions of Inquiry Act (Ch No 31), is liable to be punished for the substantive offence of perjury under s 121 of the Criminal Code (Ch No 262), s 13 of the Commissions of Inquiry Act precludes the effective prosecution of such a charge, because the unrepealed s 16 of the Commissions of Inquiry Ordinance did not create perjury as a substantive “offence against [the] Act”.

R v Cuthbertson [1980] 2 All ER 401 at 404 and Giannarelli v The Queen [1983] HCA 41; (1983) 154 CLR 212, applied.

Cases Cited

Giannarelli v The Queen [1983] HCA 41; (1983) 154 CLR 212; 57 ALJR 826; 49 ALR 577.

R v Cuthbertson [1981] AC 470; [1980] 3 WLR 89; [1980] 2 All ER 401.

Appeal

This was an appeal from a decision (reversing a decision of a magistrate) that the appellant was liable to be prosecuted for perjury for statements made during a Commission of Inquiry constituted under the Commissions of Inquiry Act (Ch No 31).

The Commissions of Inquiry Act (Ch No 31), is the revised form under the Revision of Laws Act 1973 of the Commissions of Inquiry Ordinance 1951. Section 16 of the Ordinance which has not been repealed and was wrongly omitted from the revised law, provides:

“Giving false evidence:

A person appearing as a witness before a Commission, who wilfully gives false evidence, is guilty of perjury and liable to prosecution and punishment accordingly.”

Section 13 of the Commissions of Inquiry Act (Ch No 31) provides:

“A statement or disclosure made by a witness in answer to a question put to him by a Commission or by a Commissioner is not (except in proceedings for an offence against this Act) admissible in evidence against him in any civil or criminal proceedings.”

The Criminal Code (Ch No 262), s 121, provides for the crime of perjury in relation to judicial proceedings.

Counsel

L Gavara-Nanu, for the appellant.

I Molloy, for the respondent.

Cur adv vult

5 August 1988

BREDMEYER J: Edward Ramu Diro is a leading Member of Parliament and was the Minister for Forests. He appeared as a witness before the Commission of Inquiry into various forestry matters constituted by Barnett J. After many days in the witness box the Commissioner directed that Mr Diro be prosecuted on five charges of perjury. Pursuant to that direction five informations for perjury under s 121(1) of the Criminal Code (Ch No 262) were laid by Mr J R Reeve, counsel assisting the Commission of Inquiry.

Perjury is an indictable offence under our Criminal Code, so the hearing of the five charges commenced by way of a committal before a District Court Magistrate Mr Allan Kopi. At that hearing counsel for Mr Diro made a number of legal objections to the charges which were upheld by the magistrate. Accordingly the charges were dismissed on 21 January 1988. Mr Reeve appealed against that decision to the National Court and on 29 February Woods J reversed that decision. He ruled that the charges were competent and he ordered the District Court to rehear the charges. Mr Diro has appealed against that decision to this Court.

The first issue is: Can a person who gives false evidence before a Commission of Inquiry be prosecuted for perjury? The Commissions of Inquiry Act as it appears in Ch No 31 of our revised Laws does not contain a perjury section. It contains four other offence sections: for failure to attend or produce documents (s 9); refusing to be sworn or to give evidence (s 10); contempt of the Commission (that is, wilfully insulting the Commission or interrupting its proceedings) (s 11); and disobeying a direction of the Commission that proceedings be not published (s 12).

The revised version of the law omits, however, a perjury section which was s 16 of the Commissions of Inquiry Ordinance 1951 which reads:

“Giving false evidence.

A person appearing as a witness before a Commission, who wilfully gives false evidence, is guilty of perjury and liable to prosecution and punishment accordingly.”

The Commissions of Inquiry Ordinance 1951 as amended has now become the revised law (Ch No 31). The amendments to it (there are only two, Ordinances No 38 of 1970, and No 64 of 1971) have not repealed s 16 of the original Ordinance. That section remains good law. It is a provision of substance and importance and the legislative counsel who prepared the revised Laws had no power to make any change “in the substance and effect of any law” (s 9 of the Revision of Laws Act 1973). I conclude that the old s 16 section has been omitted from Ch 31 by error. It is one of the very rare errors made by the legislative counsel who prepared the revised Laws. It is unfortunate that the error was made and also that it was not pointed out to Magistrate Kopi or to Woods J. The old s 16 remains part of the law. It does not give a penalty. The phrase “is liable to prosecution and punishment accordingly” is clearly a reference to the Criminal Code. A person who wilfully gives false evidence before a Commission of Inquiry is liable to be prosecuted and punished under the Criminal Code.

The second issue in this case is whether s 13 of the Commissions of Inquiry Act bans the presentation of answers given by Mr Diro before the Commission as evidence against him on the perjury charges. Section 13 reads:

“Statements by witness not admissible in evidence against him.

A statement or disclosure made by a witness in answer to a question put to him by a Commission or by a Commissioner is not (except in proceedings for an offence against this Act) admissible in evidence against him in any civil or criminal proceedings.”

Mr Gavara, counsel for Mr Diro, argued that this section prevented the use of any answer given by Mr Diro to the Commissioner in response to questions from being used against him in the perjury trial, and he cited Giannarelli v The Queen [1983] HCA 41; (1983) 154 CLR 212 in support.

I am firmly of the view that s 13 creates no bar to a perjury prosecution. Perjury, in my view, is an offence “against this Act”. A witness who perjures himself before a commission is liable to be prosecuted for perjury. The liability is under the old s 16 of the Commissions of Inquiry Ordinance already quoted which in turn incorporates s 121 of the Criminal Code. I consider that perjury is an offence against this Act and it is highly desirable that it should be. First, it would be a strange interpretation if the old s 16 allowed a prosecution for perjury and then s 13 made it impossible to prove. Then it would be strange if a witness could be prosecuted for refusing to answer a question (s 10) yet not be liable to prosecution for telling lies. He could readily escape prosecution under s 10 by answering all questions but telling a pack of lies. Thirdly, public policy favours an interpretation allowing a prosecution for perjury before a Commission of Inquiry. A commission, like a court, requires truthful evidence to be given to it. If justice is to be done in court, and a commission is to find the truth, each body needs truthful witnesses, and to enforce that, it needs a sanction. That sanction is the offence of perjury. Prosecutions for perjury are very rare but the threat of prosecution is sufficient in many cases to produce the truth.

Giannarelli’s case, already cited, can be distinguished. It involved the interpretation of a very similar section but it turned on differences between a federal law and a State law peculiar to Australia. Mr Frank Costigan QC was given a double commission, under letters patent issued by the Governor-General of Australia and under letters patent issued by the Governor of Victoria. The Giannarelli brothers were charged with perjury, knowingly giving false statements as to their bank accounts to the Royal Commission. They were charged under s 141 of the Evidence Act 1958 (Vic) and s 314 of the Crimes Act 1958 (Vic). The former section provides that any person who wilfully and corruptly makes a false statement on oath is deemed to be guilty of perjury; and the latter section provides a maximum penalty of 15 years imprisonment for perjury. They were convicted and their appeal to the Victorian Full Court was dismissed. They further appealed to the High Court of Australia and succeeded on a new point not raised in the courts below, namely s 6dd of the Royal Commissions Act 1902 (Cth) which read:

“Statements made by witness not admissible in evidence against him.

A statement or disclosure made by any witness in the course of giving evidence before a Commission is not (except in proceedings for an offence against this Act) admissible in evidence against that witness in any civil or criminal proceedings in any court of the Commonwealth, of a State, or of a Territory.”

The Giannarelli brothers were being prosecuted for the offence of perjury under two Victorian Acts, not for perjury under s 6h of the Royal Commissions Act 1902 (Cth). If they had been, s 6dd would not have protected them. The problem of two laws, two jurisdictions, and the Commonwealth law overriding the State law, does not arise in Mr Diro’s case.

The appellant relied on R v Cuthbertson [1980] 2 All ER 401, which I consider should be distinguished. In that case Cuthbertson and another were convicted of conspiracy to contravene s 4 of the Misuse of Drugs Act 1971 (UK). The offence of conspiracy was under the common law. They were convicted and their ill-gotten gains of cash, cars and deposits in Swiss and French bank accounts were forfeited to the State under s 27 of the Act. That section enabled the court to forfeit property relating to the offence against any person convicted of “an offence under this Act”. The forfeiture was upset and the appeal succeeded in the House of Lords on the basis that the appellants were not convicted of an offence “under this Act,” but rather of a conspiracy (a common law offence) to commit an offence under the Act.

I have read the Misuse of Drugs Act and there is no section incorporating the offence of conspiracy into the Act. Our statute is different. The perjury charges were laid under s 121 of the Criminal Code but they are incorporated into the Commissions of Inquiry Act by the old s 16 already quoted. The informations before us signed by Mr Reeve read “... contrary to s 121 of the Criminal Code Chapter 262”. They could just as easily (and quite properly) have read “... contrary to s 16 of the Commissions of Inquiry Act and s 121 of the Criminal Code”. That would have demonstrated tangibly the incorporation of the Code offence into the Commissions of Inquiry Act. I note that the charges laid in Giannarelli’s case, as per the judgment of Brennan J (at 227) of the report, recited both statutes: the Evidence Act which said it is perjury to give a false statement on oath, and the Crimes Act which provided the penalty. Cuthbertson’s case is correct on its legislation but our legislation is different.

The third issue raised by Mr Gavara relates to s 19 of the Commissions of Inquiry Act which reads:

“Prosecution of offences.

No proceedings shall be commenced for any offence under this Act except by direction of the Commission, who may direct its secretary, or such other person as they think proper, to commence and prosecute proceedings.”

Mr Gavara argued that the section is unconstitutional because it allows a direction to be given by the Commission to the Public Prosecutor and to the Police Force both of whom enjoy Constitutional independence in their prosecutorial functions, the former under s 176(3)(a) and the latter under s 197(2) of the Constitution. I consider that that question does not arise for our decision on the facts of this case. It is clear from the evidence that the Commissioner directed Mr J Reeve, his counsel assisting, to prosecute; not the Public Prosecutor nor the Police Force. It is true that Mr Reeve obtained the assistance of the police in having Mr Diro arrested and in laying the charges, and he obtained the assistance of the Public Prosecutor in supplying a lawyer to prosecute the case at the committal. Nevertheless the legal position is that the Commissioner directed Mr Reeve only to prosecute, not the Public Prosecutor or the Police Force and that their assistance to Mr Reeve has been voluntary. Mr Reeve remains the informant, he alone can withdraw the informations. He can prosecute the charges himself or brief counsel, or seek the voluntary assistance of the Public Prosecutor. I consider that this attack on the proceedings fails.

I consider all the arguments for the appellant fail. I would dismiss the appeal and affirm the order of Woods J that the District Court at Port Moresby proceed to hear the five informations according to law.

AMET J: Edward Ramu Diro, a Member of the National Parliament and a former Minister for Forests appeared as a witness before the Commission of Inquiry inquiring into various aspects of the forestry industry. The Commission was constituted by Barnett J. Following some evidence by Mr Diro, the Commissioner, Barnett J directed Mr John Reeve, Counsel assisting the Commission, under s 19 of the Commission of Inquiry Act (Ch No 31) (the Act), to lay charges against Mr Diro for allegedly “knowingly giving false testimony” concerning matters into which the Commission was inquiring. Consequently Mr Reeve swore five informations under the District Courts Act (Ch No 40), as lawyer assisting the Commission, charging Mr Diro with perjury under s 121(1) of the Criminal Code Act (Ch No 262) (the Code). These five charges were to proceed by way of committal before the District Court. Magistrate, Mr Allan Kopi, upheld legal objections by the lawyer for Mr Diro that the court did not have jurisdiction because perjury was not an offence under the Act and struck out the informations. Mr Reeve successfully appealed against the magistrate’s decision in the National Court before Woods J who reversed that decision and ruled that the charges were competent and ordered that the District Court hear the charges. It is from that decision that Mr Diro has appealed to this Court.

The first argument advanced by the appellant is that, because s 13 of the Act renders a statement or disclosure made by a witness in answer to a question put to him by a Commission inadmissible, in evidence against him in any civil or criminal proceedings, he should not have been charged with perjury. It was submitted that because the evidence relied upon for the charges was alleged statements or disclosures made before the Commission the charges could not be proved.

Section 13 is in these terms:

“A statement or disclosure made by a witness in answer to a question put to him by a Commission or by a Commissioner is not (except in proceedings for an offence against this Act) admissible in evidence against him in any civil or criminal proceedings.”

Whilst I agree that this argument would be the effect of s 13, if it were held that perjury was not an offence against the Act, it did not necessarily follow that the appellant or any witness should not or could not have been charged with an offence of perjury under the appropriate law. The plain reading of the section simply relates to admissibility of evidence.

The second and the more substantive threshold argument advanced by the appellant is that perjury is not an offence under the Act. It is useful to set out the other relevant provisions of the laws that will be discussed in this context.

Section 16(2) of the Act provides that:

“A witness who appears before the Commission, and any counsel appearing before the Commission, have the same protection and, in addition to the penalties provided by this Act, are subject to the same liabilities in any civil or criminal proceeding as a witness or counsel have in any case tried in the National Court.”

Section 19 provides that:

“No proceedings shall be commenced for an offence under this Act except by the direction of the Commissioner, who may direct its secretary, or such other person as they think proper, to commence and prosecute proceedings.”

In reply to this submission the respondent argued that a vital fact overlooked by all parties up to this point was that under the Commission of Inquiry Ordinance 1951 (as amended), from which the revised Act was derived, s 16 was in force making the giving of false evidence an offence. There were two amendments, but neither repealed this s 16. Consequently, the omission in the revised Act was one of a substantive provision which was not permitted. It remains part of the revised Act. The argument continues that although it did not come to the attention of the Commission, the courts below and counsel, it nevertheless now strengthens the ruling that perjury is an offence under or against the Act.

The old s 16 states that:

“A person appearing as a witness before a Commission, who wilfully gives false evidence, is guilty of perjury and liable to prosecution and punishment accordingly.”

The appellant however submitted that Woods J erred in his construction of s 16(2) to incorporate the offence of perjury under s 121(1) of the Code and make it an offence under the Act. Mr Gavara for the appellant argued that the old s 16 did no more than make a mere declaration of the substantive Code offence under s 121(1). It did not create a new and specific offence of perjury chargeable under the Act. The prosecution of the offence still remained under the Code.

Two highly persuasive case authorities were relied upon by the appellant; Giannarelli v The Queen [1983] HCA 41; (1983) 154 CLR 212, a division of the High Court of Australia and the House of Lords decision in R v Cuthbertson [1980] 2 All ER 401.

In Giannarelli’s case a Royal Commission was set up concurrently under letters patent issued by the Governor-General of Australia and the Governor of Victoria. The Commission conducted the inquiries concurrently as each related to the same subject matter. The Giannarelli brothers were charged with perjury under s 314 of the Crimes Act 1958 (Vic) and s 141 of the Evidence Act 1958 (Vic). They were convicted. Their appeal to the Victorian Full Court was dismissed. They appealed successfully to the High Court on a legal issue which had not been raised in the courts below. The appeal turned on the construction and application of s 6dd of the Royal Commissions Act 1902 (Cth) which provides that:

“A statement or disclosure made by any witness in the course of giving evidence before a Commission is not (except in proceedings for an offence against this Act) admissible in evidence against that witness in any civil or criminal proceedings in any court of the Commonwealth, of a State or of a Territory.”

This section was substituted for an earlier section which was more similar to our s 13. That was in these terms:

“A statement or disclosure made by any witness in answer to any question put to him by a Royal Commissioner or any of the Commissioners shall not (except in proceedings for an offence against this Act) be admissible in evidence against him in any civil or criminal proceedings in any Commonwealth or State Court or any Court of any Territory of the Commonwealth.”

Gibbs CJ said (at 218) in Giannarelli’s case of this difference that:

“It is clear enough that the section in its earlier form would not have applied to statements made in answer to questions put by counsel representing the witness himself or some other person appearing before the commission, and it is doubtful whether it would have applied when the question was put by counsel assisting the commission.”

I adopt this observation as being applicable to s 13.

The High Court held that the Royal Commissions Act (Cth), s 6dd, applied to render inadmissible in evidence such statement or disclosure. It was a situation of conflict between a State law and an overriding Commonwealth law. The Commonwealth law prevailed. Gibbs CJ said (at 221):

“In other words, the present case is not merely one in which a conviction was affected by inadmissible evidence — it is a case in which the charge of perjury could never have been proved, because no evidence to prove the making of the perjured statements is at law admissible.”

I agree that had the Giannarelli brothers been charged under s 6h of the Royal Commissions Act then s 6dd would not have applied to assist them. Section 6h provides for a specific offence for giving false testimony:

“Any witness before a Royal Commission who knowingly gives false testimony touching any matter, material in the inquiry being made by the Commission, shall be guilty of an indictable offence.

Penalty: Imprisonment for five years.”

A prosecution for an offence under s 6h is a “proceeding[s] for an offence against this Act” within the meaning of the exception in s 6dd which would permit the admission of statements or disclosures made by a witness before a Commission, in such a criminal prosecution.

It is important to note that s 6h provides for a specific indictable offence for giving false testimony under the Royal Commissions Act, with the relevant maximum penalty provision. This is distinct from the general indictable offence of perjury under s 35(1) of the Crimes Act 1914 (Cth) which is in the following terms:

“Any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter, material in that proceeding, shall be guilty of an indictable offence.

Penalty: Imprisonment for 5 years.”

There is marked difference in the definition of the respective offences. I think it was not intended that a Commission of Inquiry should be a judicial proceeding.

I make one further comparison of similar statutory provisions in Queensland. The Commissions of Inquiry Act 1950 (Qld) provides under s 14(2) and s 14(3) as follows:

N2>“(2)    A statement or disclosure made by any witness in answer to any question put to him by a Commission or any commissioner or before a Commission shall not (except in proceedings in respect of contempt of the Commission or of an offence against any of the sections of ‘The Criminal Code’ specified in section twenty-two of this Act) be admissible in evidence against him in any civil or criminal proceedings.

N2>(3)      Every witness summoned to attend or appearing before a Commission shall have the same protection and shall, in addition to the penalties provided by this Act, be subject to the same liabilities as a witness in any action or trial in the Supreme Court.”

Section 22 on indictable offences in connection with Inquiry by a Commission provides that:

“For the purposes of removing any doubt as to the application of sections one hundred and twenty, one hundred and twenty-three, one hundred and twenty-six, one hundred and twenty-seven, one hundred and twenty-eight, one hundred and twenty-nine and one hundred and thirty respectively of ‘The Criminal Code’ to and with respect to an inquiry into or with respect to any matter or matters by any Commission, it is hereby declared that any reference therein to a ‘judicial proceeding’ shall be deemed to be a reference to an inquiry by a Commission, any reference therein to a ‘tribunal’ shall be deemed to be a reference to a ‘Commission’, and any reference therein to the holder of a judicial office, however worded, shall be deemed to be a reference to ‘a commissioner’ within the meaning of this Act and that those sections shall be read subject to all such other adaptations thereof as are necessary for purposes of their application as hereinbefore in this section provided.” (My emphasis.)

Section 123 of the Criminal Code (Qld) is the perjury provision. It provides that:

“Any person who in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then depending in that proceeding, or intended to be raised in that proceeding, is guilty of a crime, which is called perjury.”

Section 124 provides for punishment for perjury.

Section 121(1) of the Criminal Code (Ch No 262) provides for the offence of perjury in similar terms:

“A person who in any judicial proceeding, or for the purpose of instituting any judicial proceedings, knowingly gives false testimony concerning any matter that is material to any question then depending in the proceedings or intended to be raised in the proceedings, is guilty of the crime of perjury.

Penalty: Subject to subsection (2), imprisonment for a term not exceeding of 14 years.”

Several pertinent observations can be made from a comparison of these Australian provisions with the Act. The first is that the Royal Commissions Act (Cth) makes the giving of false testimony before a Royal Commission a specific substantive indictable offence under s 6h with the necessary maximum penalty. This thus makes perjury an offence “against or under” the Act for the purposes of the exception under s 6dd. This is distinct from the general indictable offence of perjury under s 35(1) of the Crimes Act (Cth).

The Queensland Commissions of Inquiry Act on the other hand, by virtue of s 14(2) and s 22, specifically make proceedings in respect of the indictable offence of perjury under s 123 of the Criminal Code (Qld) an exception to the inadmissibility rule under s 14(2). Section 22 specifies the sections of the Criminal Code (Qld) which are referred to by s 14(2), including the perjury section, s 123, and to remove any doubt on the application of the Criminal Code provisions to any inquiry by a Commission it declares that any reference therein to a “judicial proceeding” shall be deemed to be a reference to an inquiry by a Commission.

By this approach the Queensland Commissions of Inquiry Act has enabled prosecution for perjury before a Commission of Inquiry under the Criminal Code Act 1899 (Qld). It has not provided for a specific offence under the Commissions of Inquiry Act (Qld), nor left any room for doubt by specific reference in s 14(2) in these terms: “except in proceedings in respect ... of an offence against any of the sections of ‘The Criminal Code’ specified in section twenty-two of this Act.”

The most significant observations to be made about these similar Australian Commonwealth and Queensland statutes are, first, that they make specific provisions for the prosecution of perjury before a Commission of Inquiry. The provisions are specific and unambiguous. They are different. They suggest that a Commission of Inquiry may not be by definition a “judicial proceeding”!

One further provision worthy of observation is s 14(3) of the Commissions of Inquiry Act (Qld) which follows immediately after s 14(2). I will return to this in discussion of the construction of s 16(2) and the ruling by Woods J.

I have found the discussion of principles by Lord Diplock in R v Cuthbertson as to the meaning of the phrase “an offence under this Act” to be conclusive of the view that I have arrived at. The particular circumstances of the case are not applicable or relevant, but the broad principles of statutory construction have universal application. I adopt and apply them as being quite appropriate and applicable to the construction of the same phrase under the Act.

The appellants produced and supplied an illegal drug on a large scale as a result of which they made enormous profits. They were convicted of conspiracy with other persons to contravene s 4 of the Misuse of Drugs Act 1971 (UK), and following their conviction and sentence the trial judge ordered the forfeiture, under s 27 of the 1971 Act, of the appellants’ assets which had been traced as representing the proceeds of their criminal enterprise. The appellants appealed against the forfeiture orders, contending that the power of forfeiture contained in s 27 only applied where “a person is convicted of an offence under the Act” and not to a conviction for conspiracy to commit an offence under the Act. Section 27(1) is in these terms:

“Subject to subsection (2) below, the court by or before which a person is convicted of an offence under this Act may order anything shown to the satisfaction of the court to relate to the offence, to be forfeited and either destroyed or dealt with in such other manner as the court may order.”

The Court of Appeal dismissed their appeals. They appealed to the House of Lords. The House allowed the appeal, holding that:

“To come within the forfeiture provisions of s 27 of the 1971 Act the offence of which the accused had been convicted had to be ‘an offence under [the] Act’, and it was clear from the whole structure of the Act that for an offence to come within that description it had to be an offence, whether substantive or inchoate, which had been expressly created by the Act itself.”

Lord Diplock, with whose opinion all the other Lords agreed, said (at 403) that “the words of the section, in my view, speak for themselves clearly, without resort to extraneous aids”. His Lordship continued (at 404):

“In the first place, to come within s 27(1) of the 1971 Act, the offence of which the accused has been convicted must be ‘an offence under this Act’.

The fact that the section is a penal provision is in itself a reason for hesitating before ascribing to phrases used in it a meaning broader than that they would ordinarily bear; ... Whenever an offence is created by the Act itself this is done expressly. The draftsman is not content to say ‘it shall be unlawful’ to do a particular act; he goes on to say ‘it shall be an offence’ to do it. For each of the offences so created, express provision for its mode of trial and punishment is made ... . So the draftsman, where he intends to make even inchoate offences ‘offences under this Act’ does so expressly; he also makes express provision for their mode of trial and punishment ... .” [My emphasis.]

Returning to the provisions of the Act, before us, the old s 16 does not expressly make perjury or giving of false testimony before a Commission a substantive offence “against or under the Act” in the manner suggested by Lord Diplock with which I entirely agree, and indeed more significantly, in accordance with the requirements envisaged by the Constitution, s 37(2), it does not provide for the mode of trial and penalty, such as under s 6h of the Royal Commission Act (Cth). It does not make or provide for perjury as an offence against or under the Act. In the words of Lord Diplock again, “to ascribe to the section any more extended ambit would involve putting a strained construction on the actual language that is used” (at 405).

The same observations can be made of s 16(2). The expressions therein are even further removed from the old s 16. How it can possibly be construed to define the offence of perjury and prescribe the penalty for it, per the Constitution, s 37(2), and the mode of trial, to make perjury an offence “against or under the Act” within the meaning of the exception in s 13 is quite difficult to comprehend. It is even more so in the light of these principles and the proper drafting techniques adopted in respect of other similar Australian legislation. It was so construed by Woods J, unfortunately in ignorance of the existence of the old s 16. The presence or absence of the old s 16 does not add to the construction placed on s 16(2) by Woods J. It rather becomes less sound in the light of the old s 16. When s 16 and s 16(2) are viewed in the light of s 14(2), s 14(3) and s 22 of the Commissions of Inquiry Act (Qld), the construction placed on s 16(2) by Woods J finds even less favour. In my view such a construction was not open.

The argument that both s 16 and s 16(2) sufficiently incorporate the Criminal Code, s 121(1), offence of perjury cannot be upheld by any manner of construction of the language used. The drafting has not been precise in its expression of what the legislator’s intention was. The substantive offence remains the Criminal Code offence of perjury under s 121(1).

I do acknowledge that the legislature did intend that perjury before a Commission of Inquiry would be a punishable offence. This I believe is sufficiently evident in the terms of the old s 16, and I think it was intended that the Code offence of perjury should apply, thus the expression “liable to prosecution and punishment accordingly”. It has, unfortunately, been poorly drafted. It has simply declared that wilfully giving false evidence amounts to perjury. I consider that to properly incorporate the Code offence to be a punishable indictable offence under the Commissions of Inquiry Act, the Act would have to be amended to include a specific provision creating an offence of perjury like s 6h of the Royal Commissions Act (Cth), or to amend s 13 and make provisions to enable prosecution under the Criminal Code in the style of the Commissions of Inquiry Act (Qld), s 14(2) and s 22. As the provisions exist at present the substantive offence remains under the Criminal Code, s 121(1). There is no offence of perjury against or under the Commission of Inquiry Act and consequently s 13 renders any statement or disclosure made by a witness before a Commission of Inquiry, inadmissible in evidence against the witness in any civil or criminal proceeding.

There remains one final observation I would like to make in relation to s 19. To the extent that it bars any prosecution by the Public Prosecutor or the Police in the discharge of their respective independent constitutional functions, except by the direction of the Commission, the section is unconstitutional. It need not be struck down in full. It should be read down subject to this ruling, until properly amended. The direction of the Commissioner to the Secretary or such other person as he thinks proper, other than the Public Prosecutor or the Police, would be valid and not unconstitutional. The direction in this instance was not to the Police or the Public Prosecutor.

The appeal is therefore upheld. The decision of Woods J is quashed and the decision of the District Court affirmed.

The respondent shall pay the appellant’s costs.

LOS J: Basically I agree with Amet J that:

N1>(1)      On the proper construction of s 16 of the Commissions of Inquiry Act (Ch No 31), perjury is not an offence under this Act.

N1>(2)      A reference is made to the offence of perjury under this Act especially by the left out section (the old s 16) from the revised Laws, but I have come to the conclusion that the reference is declaratory only to the offence of perjury in the Criminal Code (Ch No 262) (s 121).

N1>(3)      That being so and with the aid of:

N2>(a)      the Australian High Court decision in Giannarelli v The Queen ((1983) [1983] HCA 41; 154 CLR 212); and

N2>(b)      the House of Lords decision in R v Cuthbertson [1980] 2 All ER 401, especially Lord Diplock’s judgment beginning at 402, I conclude that the exception in s 13 of the Commissions of Inquiry Act does not apply to perjury — for the simple reason that it is not an offence against the Commissions of Inquiry Act.

I do appreciate that there is a need to punish any witness who tells lies before a Commission of Inquiry, but to construe the Commissions of Inquiry Act in its present state just to cover that need would be over-reaching in my respectful view. I do hope however that the Legislature would act soon to cover that need. For the reasons I have stated, I would uphold the appeal.

(By majority) Appeal allowed.

Decision of Woods J quashed.

Orders of District Court affirmed.

Lawyer for the appellant: Les Gavara-Nanu.

Lawyer for the respondent: Angoea J Tadabe, Acting Principal Legal Adviser.