Rose v Samuel [1987] PGNC 60; [1987] PNGLR 1; N581(M) (16 February 1987)

N581(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

PETER ROSE

V

YAMU SAMUEL

Mount Hagen
Woods J
11 February 1987
16 February 1987

INFERIOR COURTS - District courts - Jurisdiction - Quashing information - No relevant statutory power - No Power to quash - District Courts Act (Ch No 40).

EVIDENCE - Burden of Proof - Proclamations and notices made under laws - Proof as evidence required - Not judicially noticed.

EVIDENCE - Proceedings for offences - offence created by law Application of law to particular time or place by proclamation or notice - Proof of offence at relevant time - Proclamation or notices must be proved.

Held:

(1) There being no provision in the District Courts Act (Ch No 40) in relation to the quashing of information or demurrers, the District Court has no power to quash an information on the ground that it discloses no offence known to the law.

(2) Laws are not evidence; they are judicially noticed and no proof of them is required. Proclamations and notices made under the laws are matters of evidence and must be proved.

(3) Where therefore offences which are created by the laws may be limited in respect of time or place by proclamations and orders, whether the offence was an offence at the relevant time is a matter of evidence to be properly proved.

Cases Cited

The following is the only case cited in the judgment:
R v Deputy Chairman of Inner London Quarter Sessions; Ex parte Metropolitan Police Commissioner [1969] 3 All ER 1537.

Appeal

This was an appeal from a decision of a District Court Magistrate refusing to quash an information alleging an offence of importing beer into a prohibited province contrary to the Liquor Licensing Act (Western Highlands).

Counsel:

W Neill, for the appellant.
M Teine, for the respondent.
Cur adv vult

16 February 1987

WOODS J.: This is an appeal against certain orders made by the District Court at Mt Hagen on 15 January 1987 at the hearing of an information against the appellant that he did on 24 December 1986 import 200 cartons of beer into a prohibited province.

At the hearing on 15 January the appellant had moved to quash the information.

The orders made by the magistrate were:

1. That the application that the said information be quashed be refused.

2. That the informant have leave to withdraw the information.

3. That the application of the defendant for the return to the defendant of the beer referred to in the charge be refused.

4. That the application of the defendant for costs be refused.

The grounds of appeal are, in brief, that the magistrate erred in failing to quash the information, erred in allowing the prosecution to withdraw the information, erred in refusing to order the informant to return the beer and erred in not allowing reasonable costs to the defendant.

The appellant submits that the magistrate was bound to hear the motion to quash the information and thereby to quash the information as the information disclosed no offence known to the law. The appellant also submits that the magistrate in enabling the prosecution to withdraw the information allowed an abuse of the process of the court in that there was no charge on which the information could have been based.

The appellant then makes certain submissions on the Western Highlands Provincial Government Liquor Licensing Act and certain notices in the Western Highlands Gazette.

In moving to quash the information the appellant appears to be introducing Criminal Code and superior court procedures into the District Court.

Whilst the Criminal Code (Ch No 262) has specific sections which allow for:

in s 558 — Motion to quash indictment on certain specified grounds, which do not include that there is no offence known to the law.

in s 560 — The accused person may demur to an indictment on the grounds that it does not disclose any offence cognisable by the court.

in s 567 — Demurrer.

in s 594 — A person convicted may move that the judgment be arrested on the grounds that the indictment does not disclose an offence,

there are no such sections in the District Courts Act (Ch No 40).

The District Court is a creature of statute unlike the National Court which is set up under the Constitution as a superior court of record and a court of unlimited jurisdiction. The procedures and powers of the District Court must be found in the specific legislation setting up the District Court. There are no sections in the District Courts Act or the legislation referred to in this particular case which refer to motions to quash informations or to demurrers.

How can I transcribe the procedures specifically provided for in indictments in the Criminal Code into another court with a different mode of commencement of proceedings?

In the District Court criminal offences to be tried summarily are commenced by information. Section 127 of the District Courts Act states: "If both parties appear at the hearing of an information personally or by their legal representative the court shall proceed to hear and determine the information."

There is no stated procedure to demur to or to move to quash the information. The magistrate must follow s 127. Whilst in s 131 there is specific reference to the practice for the time being in the National Court that is in respect of examination and cross-examination of witnesses.

It is submitted that by not permitting a defendant to challenge an information at that early stage a defendant is being denied constitutional rights and it could lead to a flood of unjust actions against defendants which could breach constitutional rights. But why suddenly now — it has not happened in the many years that the District Courts have been operating. Procedures in the District Court and the relevant laws allow a defendant a fair hearing and all his constitutional rights. There are ample safeguards in the appeal provisions. The appellant is asking me to confuse the District Court with higher court procedures some of which are practically outmoded anyway.

The English case of R v Deputy Chairman of Inner London Quarter Sessions; Ex parte Metropolitan Police Commissioner [1969] 3 All ER 1537, briefly discusses demurrers in the Criminal Law. At 1538 Cantley J states:

"The procedure of demurrer is of very considerable antiquity, but for practical purposes has long been regarded as obsolete. [In the United Kingdom the] Demurrer was supplanted in practice by the safe and convenient procedures of motion to quash the indictment or motion in arrest of judgment."

And at 1541 Lord Parker CJ said "I hope that now demurrer in criminal cases will be allowed to die naturally".

I note the following comment in R Watson and H Purnell, "Criminal Law in NSW" (2nd ed, 1981) Vol 1, Indictable Offences at par 1071 "Because of the wide powers of amendment and the provisions for appeal, demurrers are now practically obsolete".

I therefore find that a procedure to quash an information does not exist in the District Court and the magistrate did not err in refusing to quash the information.

Before I move onto the other orders made by the magistrate, I must comment on certain other submissions made, which whilst not necessary in view of what I have already decided, may be of interest and relevance generally.

The grounds of the demurrer or motion to quash was that the information disclosed no offence known to the law. The appellant appears to have overlooked the distinction between laws and orders or proclamations made under law.

The Western Highlands Provincial Government Liquor Licensing Act in s 32a clearly provides for an offence involving the importing of liquor into the province. The Act therefore discloses an offence.

It then becomes a matter of evidence whether steps have been taken to declare certain periods for the purpose of the Act and whether the defendant has done any act which comes within the section and any orders made thereunder. Notices under the Act are not laws made by the Parliament or the Assembly, they are proclamations or notices made under laws and they must be proved in evidence. Such proof is usually facilitated by evidence legislation, proof by gazette.

Laws themselves are not evidence; they are judicially noticed and no proof of them is required. Proclamations and notices made under laws are evidence and legislation usually provides how they can be proved.

Therefore whether the offence was an offence at the relevant time is a matter of evidence and to insist that this should be dealt with before a defendant is arraigned or a plea taken is confusing the procedures before the District Court.

With respect to the further orders made by the magistrate, first, the order granting leave to the informant to withdraw the information is confusing as on the submissions before me the informant did not seek such leave. This seems to have been an arbitrary order made by the magistrate in his confusion at being confronted with this higher court motion. Instead of proceeding to hear the matter in accordance with s 127 of the District Courts Act he avoided the issue.

I should therefore quash this order and order the magistrate to hear the original information. However, following that order, the State did withdraw and has laid a fresh information so, in the circumstances and in accordance with the powers of the National Court to make such orders as the case requires I will allow that order to stand.

With respect to costs, if an informant is allowed to withdraw or in this case made to withdraw by the magistrate the defendant has been forced to the court unnecessarily. Therefore on the analogy of s 147, the defendant is entitled to such reasonable costs as are fixed by the court. I therefore order the State to pay costs of K200 to the defendant for the appearance on 15 January only.

The adjournment on 8 January was through the confusion created by the defendant attempting to introduce a procedure on indictments into summary offence procedure therefore I cannot allow costs for that appearance.

As I would have ordered a full hearing by the magistrate but that will in effect be done on a fresh information I will not overrule the magistrate’s order on the status of the seized goods.

In effect I have dismissed the appeal except as to the matter of costs I therefore make no order as to costs on the appeal.

Appeal dismissed

_________________

Lawyer for the appellant: W Neill.
Lawyer for the respondent: Public Prosecutor.