Yasi v Butu [1991] PGNC 87; [1991] PNGLR 206; N994 (31 May 1991)

N994

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

GATH YASI

V

MESI BUTU

Lae
Doherty J

31 May 1991

STATUTES - Operation and effect - Notification of coming into operation - Sufficiency of - Notice of certification ineffective as promulgation - Dangerous Drugs (Amendment) Act 1990 (Ch No 228), Preamble.

The Preamble to the Dangerous Drugs (Amendment) Act 1990 provided:

"Made by the National Parliament to come into operation in accordance with a Notice published in the National Gazette by the Head of State, acting with, and in accordance with, the advice of the Minister."

Held

A notification in the National Gazette to the effect that the Acting Speaker certified the Act was not effective to bring the Act into operation as required by the Preamble to the Act.

Appeal

On an appeal against conviction and sentence for the offence of cultivating cannabis, the grounds of appeal raised the validity of the provisions of the Dangerous Drugs (Amendment) Act 1990.

Counsel

C Inkisopo, for the appellant.
M Peter, for the State.

31 May 1992

DOHERTY J: The defendant appeals from a conviction and sentence imposed by the District Court at Lae which found him guilty of cultivating cannabis pursuant to s 3(1)(a) of the Dangerous Drugs Act (Ch No 228). The grounds for appeal related to the exclusion of the word "knowingly" in the information.

The information was worded as follows:

"That Gath Yasi of Gapsonkec Markham did cultivated a dangerous drug namely cannabis without authorization under Schedule of the Dangerous Drug Act or any regulations there under.

Thereby contravening Section 3(1)(a) of the Dangerous Drug Act Chapter 228" [sic].

Counsel for the appellant argues that "knowingly" is a crucial element of the offence and this was omitted from the original information lodged in the District Court and in turn read to he defendant when he first appeared at a lower court.

I have pointed out to counsel the provisions of the Dangerous Drugs (Amendment) Act 1990 (No 23 of 1990) which purports to amend the principal Act by deleting the word "knowingly" and thereby, it appears to me, making the offence one of strict liability.

It may have been in the mind of the legislature to make possession, etc, of certain drugs an this provision a offence of strict liability as it is in other jurisdictions.

However, I am satisfied on the evidence before me that whilst the Dangerous Drugs (Amendment) Act was passed in 1990 and was shown to be certified by the Acting Speaker of the National Parliament on 29 August 1990 (see Gazette G60 of 13 September 1990) that it in fact was not brought into force.

I find this from the Preamble to the Act which states:

"Made by the National Parliament to come into operation in accordance with a Notice published in the National Gazette by the Head of State, acting with, and in accordance with, the advice of the Minister."

The notification in Gazette G60 is to the effect that the Acting Speaker certified the Act. This does not constitute the Notice bringing it into force which is to be signed by the Head of State following advice from the Minister.

I therefore find that there was no offence of cultivating a dangerous drug per se, that there was no proof of the element of knowledge and the learned magistrate erred in accepting and putting the charge in the form that it was put.

Accordingly I uphold the appeal and quash the conviction of the appellant.

Appeal allowed.

Conviction quashed.

___________________

Lawyer for the appellant: Public Prosecutor.
Lawyer for the respondent: Public Solicitor.