Keke v Papua New Guinea Colour Laboratories Pty Ltd [1992] PGNC 92; [1992] PNGLR 265; N1056 (16 March 1992)

N1056

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

KOAI KEKE

V

PAPUA NEW GUINEA COLOUR LABORATORIES PTY LIMITED

Waigani
Brown J

11 February 1992
17 February 1992
16 March 1992

APPEAL - National Court - Offence of criminal nature under Industrial Relations Act Ch 174 s 63 - Finding of not guilty by District Court - Whether defendant entitled to plea of autrefois acquit on appeal.

CONSTITUTIONAL LAW - Offence of criminal nature under Industrial Relations Act Ch 174 s 63 - Whether finding of not guilty by District Court entitles defendant to protection from further action - Constitution s 37(10).

LEGAL PRACTITIONERS - Right of audience - Person not admitted - Appearing in the District Court representing aggrieved person on prosecution of an information - District Courts Act Ch 40 s 59 - Lawyers Act 1986 s 35.

Facts

Koai Keke alleged that he was illegally dismissed by the respondent and that in so dismissing him the respondent committed an offence under s 63 of the Industrial Relations Act Ch 174, which reads:

"Section 63 Injuring employee or employer on account of industrial action

(1) An employer who:

(a) dismisses an employee; or

(b) injures him in his employment; or

(c) alters his position to his prejudice;

because the employee:

(d) is entitled to the benefit of an award; or

(e) has appeared as a witness or has given evidence in any proceedings under this Act; or

(f) being a member of an organisation that is seeking better industrial conditions - is dissatisfied with his conditions,

is guilty of an offence.

Penalty: A fine not exceeding K100.00.

(2) An employee who ceases work in the service of his employer because the employer:

(a) is entitled to the benefit of an award; or

(b) has appeared as a witness or has given evidence in any proceedings under this Act,

is guilty of an offence.

Penalty: A fine not exceeding K50.00.

(3) ...

(4) Where an employer has been convicted of an offence against this section, the court that convicts him may:

(a) order that the employee be reimbursed any wages lost by him; and

(b) direct that the employee be reinstated in his old position or in a similar position.

(5) ..."

Accordingly, Keke laid an information against the respondent in the District Court and it was prosecuted by the General Secretary of the Amalgamated General Workers Union, Mr Andrew Kandakasi. Mr Kandakasi was not a lawyer and, therefore, did not have an automatic right to appear and to represent another person. The respondent company was found not guilty and the information was, accordingly, dismissed. Hence, the appellant appeals.

Held

1. Since the offence under s 63(1) of the Industrial Relations Act Ch 174 carries a penalty of a fine not exceeding K100.00, it is an offence of a criminal nature. Therefore, a "not guilty" finding affords the respondent company a plea of autrefois acquit and a constitutional protection from further action: s 37(10) of the Constitution. Section 37(10) reads:

"No person who shows that he has been tried by a competent court and has been convicted or acquitted shall again be tried for that offence or for any other offence of which he could have been convicted at the trial for that offence, except upon the order of a superior court made in the course of appeal or review proceeding relating to the conviction or acquittal."

Supreme Court Reference No 2 of 1990 (1991 Unreported) SC 407 referred to.

Accordingly appeal dismissed.

2. Criminal prosecutions under the Industrial Relations Act require the professional expertise of a qualified lawyer who is conversant with practice and procedure of the court and the code of ethics and the duties and responsibilities to the client and to the court.

3. In the circumstances of the case, the General Secretary was neither an aggrieved person nor a person "with an interest" within the meaning of s 57(2) of the Constitution.

4. To the extent that the Magistrate purported to exercise his powers under s 59(1)(e) of the District Courts Act Ch 40 and granted leave to the General Secretary to appear, he did so erroneously since s 59(2) provides that on the hearing of an information before the court, the informant may appear by a police officer (if not represented by a qualified lawyer). Consequently, it is an error of law which, if pleaded, may invalidate the proceedings.

Cases Cited

Henao Batari v Employers' Federation of PNG [1979] PNGLR 92.
Supreme Court Reference No 2 of 1990 (1991 Unreported) SC 407.

Counsel

A Kandakasi, for the appellant.
S Kettan, for the respondent.

16 March 1992

BROWN J: This is an appeal by an aggrieved past employee, Koai Keke, against a decision of a Magistrate dismissing an information laid by the past employee against PNG Colour Laboratories Pty Ltd (PNG Colour Lab). He alleged that the employer committed an offence in dismissing him. The Industrial Relations Act Ch 174 provides –

"Section 63. Injuring employee or employer on account of industrial action

(1) An employer who:

(a) dismisses an employee; or

(b) injures him in his employment; or

(c) alters his position to his prejudice,

because the employee:

(d) is entitled to the benefit of an award; or

(e) has appeared as a witness or has given evidence in any proceedings under this Act; or

(f) being a member of an organization that is seeking better industrial conditions - is dissatisfied with his conditions,

is guilty of an offence.

Penalty: A fine not exceeding K100.00.

(2) An employee who ceases work in the service of his employer because the employer:

(a) is entitled to the benefit of an award; or

(b) has appeared as a witness or has given evidence in any proceedings under this Act,

is guilty of an offence.

Penalty: A fine not exceeding K50.00.

(3) ...

(4) Where an employer has been convicted of an offence against this section, the court that convicts him may:

(a) order that the employee be reimbursed any wages lost by him; and

(b) direct that the employee be reinstated in his old position or in a similar position."

The information came for hearing on 29 January 1991 when the learned Magistrate, Mr Vagi, after hearing evidence, dismissed the information, giving written reasons. The Magistrate correctly stated on hearing the summons issued on an information alleging breaches of s 63(1) of the Act that, if proved, the offence carried with it a penalty of a fine not exceeding K100.00.

Consequently, it is clearly criminal in nature although the offence is punishable on summary conviction. The District Court accordingly has jurisdiction to deal with this summons [s 20(1) District Court Act Ch 40].

So far as its criminal nature is concerned, I need not allude to the difference that previously existed between, for instance, a "taxation" prosecution and a prosecution under the Industrial Relations Act. If there be differences, they have been done away with [see Supreme Court Reference No 2 of 1990 (1991) SC 407].

The Magistrate has dismissed the information. There can in those circumstances be no appeal against his finding of "not guilty". A plea of autrefois acquit and the support afforded by s 37(8) of the Constitution is available. The respondent may plead the protection of the criminal law.

I, accordingly, dismiss the appeal.

I should also say that the manner in which this prosecution has been launched gives cause for comment. The informant or aggrieved party was Koai Keke. The person who led evidence before the Magistrate was Andrew Taupin Wanko Kandakasi, the General Secretary of the Amalgamated General Workers Union of Port Moresby. His evidence was by way of affidavit, in which he averred that the aggrieved employee had complained to him and his statement was annexed to the affidavit. The General Secretary also annexed letters written on the worker's behalf after the event. Nowhere does the General Secretary allege that there was a "dispute" in existence with the employer. Also forming part of the affidavit is a document headed "Court Submission".

There is no evidence that the General Secretary is a qualified legal practitioner with an automatic right of appearance before the District Court. In fact, the appellant seems to rely on that fact where, in his submissions to this Court, he says that the General Secretary is not by training or profession a lawyer. Yet the Magistrate allowed a right of appearance and, with the parties' agreement, dealt with the case on the basis of the affidavit that I have alluded to. The respondent's evidence gave as a reason for retrenchment the fact that the appellant's work had been severely cut by the lack of mail orders from Kieta following the Bougainville Copper mine closure.

Quite frankly, that is hardly the way to institute a prosecution under the Industrial Relations Act. The institution of criminal prosecutions calls for the professional expertise of a trained lawyer conversant with the duties and responsibilities attaching to such a prosecution.

The actions of the General Secretary by appearing and representing the aggrieved person may well breach s 35 of the Lawyers Act 1986 and, because of the professional responsibilities attaching to a prosecution of this nature, he is not such a person "with an interest" referred to in s 57(2) of the Constitution. The aggrieved person quite properly may lay a complaint as has been done, but for the General Secretary both to purport to give evidence and prosecute is contrary to good sense. The union may instruct a lawyer to appear on behalf of its member, or the member may appear in person (or be represented by a qualified lawyer), but where criminal prosecutions are involved, the maintenance of the "rule of law" requires the involvement of the State, or where a private prosecution, a prosecutor qualified to appear in a court of law, conversant with ethical considerations of his role, and the practice and procedure of the court, able to properly discharge his duty, both to his client and the court.

Whilst I have considered the case of Henao Batari v Employers' Federation of PNG [1979] PNGLR 92 and Greville-Smith J's reasons, this appeal on the facts may be distinguished, for this case is concerned with a prosecution not an arbitration. In the event, His Honour found that one Bobby Gaigo had no right of appearance as agent for Henao Batari.

I consider that the manner in which this prosecution was pursued in the District Court clearly illustrates the risk to an accused which emanates from a relaxation of the rules relating to representation embodied in s 35 of the Lawyers Act 1986. The risk was not realised in this instance, for a finding of not guilty had been entered by the learned Magistrate, a finding on facts which can be uncontroverted.

The Magistrate's powers affecting the right of appearance are regulated by the District Courts Act Ch 40 s 59, where it reads:

"(1) A complainant or a defendant may be represented for the purpose of a proceeding by:

(a) a lawyer; or

(b) a person admitted as a trainee to the Legal Training Institute who is certified by the Director of the Institute to represent a party to the proceeding; or

(c) subject to Subsection (3), a candidate for the degree of Bachelor of Laws at the University of Papua New Guinea who is certified by the Dean of the Faculty of Law, after consultation with a Magistrate nominated by the Magistrates Association, to act as a legal representative; or

(d) any other person authorized by law; or

(e) any other person by leave of the Court.

(2) On the hearing before a Court of an information, the informant may appear by a police officer."

The Magistrate has, it seems, purported to exercise a discretion under s 59(1)(e). The Act specifically provides in s (2) that the informant may be represented by a police officer. A police officer, of course, prosecutes for the State in the lower court.

Whilst the discretion has been exercised erroneously, neither party took exception to that course in the lower court nor before me. It was clearly an error of law which, if pleaded, may invalidate the proceedings.

The appellant has sought to appeal on specific grounds, which I have considered. Consequently, the exercise of the Magistrate's discretion, not having been the subject of appeal, remains unaffected.

The respondent shall have its costs of the appeal.

_____________

Lawyer for appellant: Young & Williams.
Lawyer for respondent: Blake Dawson Waldron.