State v Pokolou [1983] PGNC 4; N404 (11 March 1983)

Unreported National Court Decisions

N404

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
- AGAINST -
PAUL POKOLOU

Lorengau Manus Province

Kidu CJ
11 March 1983

KIDU CJ: Tcused was asked by me on e on the 10th of March 1983 whether it was true that he between 7th August 1980 and 3rd November 1980, whilst employed as Councillor of Los Negros Ward Committee No. 7, stole K660 which came into his possession on account of the Los Negros Ward Committee No. 7. He said it was true. However, his Lawyer Mr. Thompson submitted that I should not proceed with the trial as the accused had been pardoned by his people and this was covered by section 37(3) of the National Constitution. This provision read as follows:-

“No person shall be tried for an offence for which he has been pardoned.”

He submitted that as custom was part of the underlying law of Papua New Guinea schedule 2.1 of the Constitution provides that custom is adopted and shall be applied and enforced as part of the underlying law, I should do so as the accused has been pardoned by his people according to his custom.

I required proof of such a custom and Mr. Thompson called three witnesses - two elderly men from the Los Negros (Mr. Handen Muimui and Mr. Thomas Paraka) and Mr. Arnold Marsipal, former President of the former Manus Local Government Council.

Mr. Marsipal’s evidence was that whilst he was the President of Manus Local Government Council if there were cases of misuse of monies from Ward Committees of the Council the Finance Committee of the Manus Local Government Council would refer these matters to the Ward Committee for settlement. If there was no settlement in the Ward or in the village then the Finance Committee of the Local Government Council would make recommendations that either the matter be settled, referred to the Village Court or the Local or District Court in Lorengau. He did not give any evidence (nor was he asked) about any custom relating to pardons in the Los Negros Islands.

Mr. Handen Muimui: Mr. Muimui’s evidence was that when the accused was taken by the police and charged last year his people went around the Los Negros Island and obtained support for a petition (written petition) to the police to let them handle or settle the matter in the village. When the petition was taken to the police the police refused because they said the charge had been laid already. Nothing happened after that until Tuesday the 8th of March 1983 when village elders (both traditional leaders and leaders of the new Community Government) held a meeting with the accused during which the accused confessed that he had stolen the money. The community then collected money mainly from the leaders and relatives of the accused and the money was then handed over to the new president of the Los Negros Community Government, Mr. Thomas Paraka. This Community Government is the successor to the previous Ward 7 of the Manus Local Government Council.

Mr. Muimui said in his evidence -

“We settled the matter by custom. We settled it by custom so that in future such thing won’t happen again. According to the custom that’s the only way we could settle the problem.

According to custom if someone steals they have to settle the matter themselves. According to custom if someone gets the property of another person that matter would be settled. You would have to pay back the thing you took or pay for the property. If someone steals I think he has to pay back the same thing.”

He said “to settle the matter the accused person and the people met and the accused went and he then handed the money to the President of the Los Negros Community Government. The money was in cash and was for the trouble. He got the money and talked to us big men. He told us that the money was for what he had done. That money was to straighten the trouble.” He said when he handed the money to the Chairman of the Community Government he told them: “The money K660 which Paul took wrongly is now here”. Mr. Muimui said that if the matter had been settled in the village before the Police were informed about it no one would have been allowed to do so.

In cross-examination he said that a lot of matters had been settled in the village and a lot of verbal petitions had been made to the Police to settle cases involving deprivation of property in the village. The petition in the accused’s case was the first one made in writing. He also said that the matter had been reported to the Police by a leader named KOMIN and the accused was arrested and charged.

Mr. Thomas Paraka: Mr. Paraka’s evidence was similar to that of Mr. Muimui. He said that the leaders called a meeting on the 8th of March 1983 and collected money to help the accused because he was in trouble. Most of the people he said who contributed were related to the accused. And he said those who called the meeting were big men i.e. big men - traditional leaders as well as leaders of the new Community Government. He said that because the accused had been in trouble the people in the village had to solve it according to custom. And he said all the big men contributed to pay the money that the accused had stolen from the community.

On the morning of the 11th of March 1983 when the court reconvened Mr. Thompson indicated that he would not pursue his original submission that the accused had been pardoned according to custom and therefore should not be proceeded against. He said that the Court should proceed with the trial and that he would make his submissions on sentence. I then read the depositions and associated documents and convicted the accused as charged in the indictment.

Mr. Thompson then made his submissions before sentence. He submitted that there is a custom in the Los Negros Community that if a person from there deprives another of his property and if the matter is settled according to custom as described by the witnesses Mr. Muimui and Mr. Paraka then there would be no complaints by anybody in the community to the authorities (Police and Courts). Mr. Thompson submitted that as the matter had been dealt in that way by custom I should recognize the custom; that this case was different from other cases in that the money belonged to a Ward or a Community and from the witnesses I had heard the day previous the prisoner had gone and admitted to members of the Ward that he had taken the money and said that he was sorry and that process of dispute settlement at the village level had some psychological effect on the prisoner. It was not his relatives who had asked for forgiveness from the village elders but the prisoner himself who had done this by appearing before his people.

The custom in the Manus Local Government times as described by Mr. Marsipal, he said, was that simple cases such as this were allowed to be settled in the village.

If no such settlement was forthcoming then recommendations were made to the courts to deal with the matter. Mr. Thompson submitted that this practice should be encouraged by the courts. He said that courts had not really recognized decisions made in villages but only had taken them into account for purpose of mitigation of sentence only.

I pointed out to him the case of Uname AumaneN404.html#_edn1002" title="">[mii]¹. Mr. Thompson, however, submitted that the facts of this particular case were different and Uname Aumane’s case was not applicable. He said that this case was a deprivation of property case and the court should recognize what the people had done in their village. The custom of the village was that a person who stole from his own people and was punished according to custom by them would not be subjected to other authority. Therefore the court should recognize the settlement of this matter according to custom and adopt the decison of the leaders of the Los Negros Island and ignore the provisions of the Criminal Code. He said that the primary consideration in this case was the people and not protection of the property; that customary law was in existence to keep people’s relationships intact rather than punish people for breaches of the law. It was submitted that as the prisoner had gone before his people and had admitted the offence and had undergone the settlement process it was punishment and despite the statutory law the Court should sanction the decision made in the village and let the prisoner go without formally sentencing him as required by the Criminal Code.

In the alternative Mr. Thompson submitted that as restitution had been made and with the background of the accused in mind that should be the end of the matter - that is the court exercise its power under section 19 of the Criminal Code and release the prisoner on a good behaviour bond.

Mr. Thompson went so far as submitting that whatever the law says now the customary settlement should be put in a higher level rather than being taken into account in mitigation of sentence. He urged me to ignore the provisions of the Criminal Code (especially section 19) and any court decisions like Umane Aumane’s case or Poning’s CaseN404.html#_edn1003" title="">[miii]² and make my order accordo t to the decision arrived at in the village on the evening of the 8th of March 1983 by the people themselves at Los Negros.

I made some remarks on sentence and I indicated that I would exercise my powers under section 19(1)(d) and (6) of the Criminal Code and instead of sentencing the prisoner to jail I would release him on a good behaviour bond in the sum of R200 for 2 years. I stated then that I had done this primarily on the basis that the matter had been settled according to custom in the village and that I saw no reason to formally sentence him and exercise my power to sanction the settlement in the village. Of course the result of the good behaviour bond is that if he breaches any law then he would have to return to this Court and be sentenced for the offence to which he pleaded guilty before me. I said I would write a judgment and give my full reasons later as authorities which were relevant to the submissions Mr. Thompson made were not available in Manus.

If Mr. Thompson had persisted in his original submission that the prisoner should not have been tried because he had been pardoned by his people and therefore was protected by the provisions of section 37(9) of the Constitution, I would have ruled that the evidence given by the three witnesses he called established no such custom of pardoning. I would have made that ruling and proceeded as usual.

It was obvious to me that Counsel had not read several recent Supreme Court decisions (and some National Court decisions) relevant to the submissions he made to me in Lorengau. The cases of Uname Aumane and Re: Poning had not been digistested by Counsel. I am aware of criticisms by some legal practitioners that the Courts are failing to take custom into account and also failing to develop the underlying law as required by the Constitution. I do not wish to be defensive; rather I will make some remarks which might explain to academics and practitioners the reasons why Courts have not taken any active part in the recognition of customs and also in the development of the underlying law.

There are basically two reasons why custom is not recognised by the Courts and the underlying law not been developed.

(1) &ـ In almo almost evet every case that has come before the National Court (and also the Supreme Court) Lawyers have not mad atteeither to produce evidence or material necessary for the Judges both in the NatioNational Cnal Court and the Supreme Court to use to recognize custom or to develop the underlying law. Judges have not the time and resources to undertake their own researches in most cases and it is unfair for Lawyers to expect too much from judges who are already over worked and under rewarded.

(2) Tre Paeniamf t os cointry ntry has failed to perform its duties as given to it by the Constitution. Section 20 of the Constitution provides as follows -

“1. An Act of Parliamenl sha/p -

(a) ټ declar uthe underlyderlying law of Papua New Guinea, and

(b) &##160; pe ford fordevelt or nde olaw oua New Guinea.

2.

2.&#160 ـ UntilUsuil such such time time time as an Act of Parliament provides othe -(a)& &160; &#the underllaw law law olaw of Paof Papua New Guinea shall be as prescribed in schedule 2 (adoption etc. of certain laws); and

(b);ټ the manner of development of the underlying law shall ball be as e as prescprescribed by schedule 2 (adoption etc. of certain laws).”

Schedule 2 of the Constitution provides firstly that custom is adopted shall be applied and enforced as part of the underlying law. However, it goes on to say that custom is not to be applied or enforced if such custom is inconsistent with a Constitutional Law or statute or repugnant to the general principles of humanity.

Schedule 2 also provides that principles and rules that formed immediately before Independence the principles and rules of Common Law and Equity in England are adopted and they are to be applied and enforced as part of the underlying law except where they are inconsistent with the Constitution Law or a statute or they are inapplicable or inappropriate to the circumstances of Papua New Guinea from time to time or that their application to any particular matter would be inconsistent with custom as adopted.

Schedule 2 further also provides that if in a particular matter before a court there appears to be no rule or law applicable or appropriate to the circumstances of Papua New Guinea then it is the duty of the National Judicial system, in particular the Supreme Court and the National Court, to formulate an appropriate rule as part of the underlying law of Papua New Guinea and it sets out the type of matters that must be taken into account in formulating a new rule.

Mr. Thompson’s submission was not that there was absence of any applicable law in the matter before me; but that I should ignore the statutory law and the decisions of the Supreme Court and pronounce a new law. I decline to adopt this course of action as it would have been beyond what is contemplated by section schedule 2 of the Constitution.

Its is one of the most important responsibilities of Lawyers to know what the Constitution and statutes say and read what rulings are made by courts, especially the Supreme Court. Lawyers must also be mindful of the law that say that lower Courts are bound by decisions of higher Courts. The National Court is bound by decisions of the Supreme Court and all other Courts are bound by decisions of the Supreme Court as well as the National Court.

(A) PUBLIC PROSECVTOR AM UNUMA AUMANE & OTHERS (1980) PNGLR 510

The decision in this case was handed down on December 19, 1980. This was a case of a sorcery killing. Briefly the facts were that and old woman had been accused of causing the death of nearly 20 people by sorcery. One day she was being taken to the nearest Government Post when she attempted to escape. The consequence of this attempt was that she was cold-bloodely killed by the five/six people who were taking her to the Government Post. Four of them were charged with wilful murder and appeared in the National Court. The National Court found them guilty and convicted them and sentenced each of them to 3 months imprisonment with hard labour and ordered that each of them pay 5 pigs each to the deceased woman’s younger son when they were released from their confinement.

Kapi, J. (now Deputy Chief Justice) referred to the imposition of customary punishment. His Honour’s comments on this aspect of the case can be found in pp.540 to 543 of the report:

“Power to impose customary punishment

Under the legal system we have adopted, a person may not be punished until he is found guilty of an offence according to law. There can be no punishment unless there is conviction. Under s.37(2) of the Constitution “... nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.”

For a person to be found guilty of an offence a written law must

(a) & define fine it,

(b) & and pred prescribe the penalty.

A written law under this provision, in my view, refers to an Act of Parliament (including any law made under the, orglaws he Constitution. This term has been used to distinguished ihed if frof from wham what may be called the unwritten laws, custom as adopted under Sch.2:1 of the Constitution, common law as adopted under Sch. 2:2 of the Constitution and the underlying law as developed under Sch. 2:3 and Sch: 2:4 of the Constitution.

Consequently a person can only be found guilty of an offence and punished in accordance with an Act of Parliament, organic law and the Constitution.

In the instant case the respondents were found guilty of the offence of wilful murder pursuant to s.304 of the Criminal Code Act. The punishment for wilful murder is a maximum sentence of life imprisonment under s.309 of the Code. Under s.19 of the Code a judge may impose any of the lesser punishments prescribed. In my view the crime of wilful murder is a statutory offence and the only punishment that can be imposed is set out under the Code. A judge has no power to impose any other punishment.

His Honour, the trial judge, in his reasons for sentence, on pp.16 and 17, agreed with the conclusion I have reached when he said:

“When I look at the Criminal Code, sections 18 and 19, present very little scope for imposing any other form of punishment than imprisonment. It is clear from s.18 of the Criminal Code Act’s Schedule that the punishments to be imposed do not include an order that the prisoners pay 20 pigs to the survivor of the deceased.”

Did the trial judge fall into error when he actually imposed a sentence of five pigs on each of the respondents?

He relied on Native Customs (Recognition) Act 1963 and the provisions of the Constitution.

Native custom is defined by s.4 of the Act. This definition is identical to the definition given by the Constitution. In the Constitution “custom” is defined to mean the custom and usage of the indigenous inhabitants of the country existing in relation to the matter in question at the time when, and the place in relation to which the matter arises, regardless of whether or not the custom or usage has existed from time immemorial. Custom is recognised and enforced subject to the matters set out under s.6 of the Act. See also Sch. 2:1 of the Constitution.

Under s.7(e) of the Native Customs Recognition) Act custom shall be taken into account in determining the penalty (if any) to be imposed on a guilty party.

The trial judge found that in imposing a payment of five pigs each on the respondents he was applying their customary law. There is no indication in the evidence or in the trial judge’s reasons as to whether or not the payment of five pigs is the maximum punishment in the village for killing a sorcerer.

In my view the trial judge misconstrued the application of s.7(e) of the Act. This section requires that custom shall be taken into account when determining the penalty. This means that a particular custom of the offender may be taken into account to explain his behaviour, for example he may have committed the offence under customary pressure. Custom used in this sense becomes a mitigating factor. In the case of R. v. Asis Bitimur (31), Clarkson, J. in dealing with a sorcery killing said:

“These problems were real and pressing in a community dominated and largely ordered by a universal belief in sorcery. The killing of the deceased has been welcomed with relief throughout the area in which he lived.”

He went on to say:

“This is a case in which the Court, while enforcing the law, must recognize that the enforcement is against primitive people who have acted in accordance with their own custom ...” (Underlining mine).

Again Clarkson, J. in R. v. Iu Ketapi and Another (32), in dealing with the custom of `payback killing’ in a wilful murder case said:

“In the present case I am satisfied that the ignorance of the accused, their upbringing and the strong tribal traditions which bind them in the society in which they live and in obedience to which the killing was committed, constitute extenuating circumstances ...” (Underlining mine.)

See also R. v. Lakalyo Neak, Kaia Yongaipa and Kupuni Yakaira (33).

These cases show one way of taking custom into account. Tgey explain the cultural justification of the offenders’ behaviour which reduces their culpability or blameworthiness. In some instances the custom may increase the seriousness of the offenders’ behaviour. For instance, in incest cases, custom may regard it as immoral and may call for severe punishment.

A court may also take into account customary punishment in the same way. In R. v. Jim Kaupa (34) Wilson, A.J. said:

“It is no less important in an emerging country such as Papua New Guinea, where there are strong traditional pressures upon a person responsible for the death of another man to pay compensation to the deceased’s kinsmen whatever the Court’s decision might be, to take into account other punishment which an offender has received such as the liability to pay compensation”. (Underlining mine.)

Customary punishment assists the court in deciding whether the offender ought to receive less or more punishment.

All these matters discussed in these cases are proper matters to be taken into account in sentencing. Under s.7(e) of the Native Customs Act a court may have regard to these matters in arriving at the appropriate sentence. This means that a judge may increase of decrease the sentence depending on whether custom mitigates or aggravates the offence and may impose the appropriate sentence within the range given by law. In this case the trial judge had only power to impose punishment within the range given by ss.19 and 309 of the code. While the trial judge did not err in referring to the willingness of the respondents to pay compensation in terms of pigs, in accordance with custom, he fell into error when he imposed that sentence as a matter of law.

S. 7(e) of the Act does not enlarge the power of the court under ss.19 and 309 of the Code. S.7(e) may only operate within the range provided under ss.19 and 309 of the Code.

It appears from this reasoning that a person may only be convicted of an offence which is defined, and the penalty for which is prescribed by a written law. (S.37(2) of the Constitution.) In the instant case the Criminal Code defines wilful murder and prescribes the penalty. As a matter of law a court can only impose the penalty provided under the Code. This court has no power to impose any customary punishment. I have not overlooked Sch. 2:1(1) of the Constitution which adopts custom, which shall be applied and enforced. However, adoption of custom is subject, amongst other things, to Sch. 2:1(3)(b), an Act of the Parliament which may provide for the purpose for which custom may be recognised, applied and enforced. Such an Act is the Native Customs (Recognition) Act.

Under s.7(e) of this Act custom may be taken into account in punishment. As I have pointed out earlier, custom here may only mitigate or aggravate the sentence to be imposed. However, ultimately, the penalty to be imposed is as provided for under the Code and there is no power in the court to impose customary punishment.

I also find that there is no room for developing the underlying law in this case. The development of the underlying law under Sch. 2:3 arises only when there appears to be no rule of law that is applicable. In this case the Criminal Code is applicable.

The view I have taken is the present state of the law. However, I do appreciate the weight of the learned trial judge’s view on the place of customary punishment to be imposed as punishment. This is dealing with what the law should be. These are matters, not for this courts, but for legislative amendment. Such proposals for amendment of the Code have been put forward by the Law Reform Commission but so far the Parliament has not enacted them.”

In this case Kearney, DCJ agreed:

“I respectfully agree with the views expressed by Kapi, J. as to the effect of s.7(e) of the Native Customs (Recognition) Act 1963; the proper approach to sentencing facts; the duty of a State Prosecutor, on matters relevant to sentence; and the effect of s.19 of the Code.”

(B) IN LAST YEAR’S CASE OF RE PONING, UNREPORTED SUPREME COURT JUDGMENT NO. SC224 DATED 26TH MARCH, 1982, WHAT WAS SAID IN WATERATb>

“As to the criminal lawl law, it , it is cois considensidered ored 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 Constitution Schedule 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 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 p. Consolidated Foods Corporation (16).

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 lof separation of powers permeates the Constitution. I adhere to what I said in Reference No. 1A of 1981 (17), 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. Constitution s.155(1) 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 Public Prosecutor v. Uname Aumane and ors (18), with whom I agreed. I respectfully agree with his Honour’s expressed views at p.31 herein on the need for the permissible range of penalties for offences to be defined and prescribed by written law, under 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 (19); but I think that the most that can be done, in the absence of some provision such as the Queensland Code s.657A, is to apply 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 (20)”.

Kapi, J. (as he then was) -

“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 for which the Parliament has unlimited power to legislate upon. 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 sub-s.2 of the Constitution. I discussed this section in Public Prosecutor v. Uname Aumane and 3 others (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, sub-s.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, sub-s.2 of the Constitution. I do not think the framers of our Constitution intended this.”

Pratt, J -

“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” 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 Chapter 5 of the Code are by virtue of s.36 applicable to “all persons charged with any offence”. More particularly Chapter 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, 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 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.”

If counsel had read these two Supreme Court cases much time would have been saved for all concerned in this case.

The National Court is bound by decisions of the Supreme Court. Section sch. 2.9(1) of the Constitution says:

“(1) ҈ All decisions of laof law by the Supreme Court are binding on all other courts, but not on itself.”

Lawyers who urge National Court Judges (and Magistrates) to ignore decisions of the Supreme Court would be submitting that Section s.2.9(1) of the Constitution be breached by National Court Judges and Magistrates.

Lawyers for the State: Public Prosecutor

Counsel: Mr. R. Auka

Lawyer & Counsel for the Accused: Mr. M. Thompson

N404.html#_ednref1002" title="">[mii]^{Acting Public Prosecutor v. Uname Aumane & 3 Others (1980) P.N.G.L.R. 510}

N404.html#_ednref1003" title="">[miii]^{Unreported Supreme Court Judgment SC.224 dated 26th March, 1982.}