State v Tulong [1994] PGNC 25; N1297 (19 August 1994)

N1297

PAPUA NEW GUINEA
[In the National Court of Justice]

CR 764 of 1994

THE STATE

v

NATPALAU TULONG

Kavieng: Doherty, J.
August 17 & 19 August 1994

DECISION

Mr M Unagui, for the State
Mr G Gendua, for the Accused

Interpretation of Statute - arrest without warrant.

The Accused was arrested without a warrant and charged under S.128 Criminal Code. He was committed to National Court for trial.

Held:

The provisions of S.128 Criminal Code were mandatory. The Arrest Act did not implied by repeal the provisions of the Criminal Code relating to arrest on warrant. It is the duty of the Court at committal stage to ensure a person is arrested in accordance with law.

Cases Cited:
State v. Kiap Bonga [1988-89] PNGLR 360
Secretary of State v. Wran [1968] 3 W.L.R. 609

DOHERTY, J: The accused was committed to stand trial in the National Court on one count pursuant to S.128 of the Criminal Code that on the 14th of March 1994 he conspired to defeat the course of justice when he was prosecuted on a charge of Unlawful Wounding. The indictment was presented. No demur or objection to the jurisdiction of the Court was lodged. The presenting of the indictment brings him within the jurisdiction of the court.

At that point, it was noted that provisions of S.128(2) of the Criminal Code provide "that a person shall not be arrested without warrant for an offence against S.128(1)." Apparently no warrant was issued. The information shows that it was laid on the 17th of March 1994 and State witnesses' statements were taken on the 15th of March and on the 16th March, that is immediately before the information was laid. The matter proceeded by way of committal, pursuant to S.92 of the District Court Act, no objection was raised to the jurisdiction of the District Court and apparently the District Court did not check whether any warrant was ever issued for the accused.

The District Court committal proceedings are not automatic. It is incumbent on a Magistrate to check that the law has been complied with and not to rubber stamp every information before it.

The Constitution S.42(1)(d) provides that "a person shall not be deprived of his liberty except on reasonable suspicion of his having committed or being about to commit an offence". The Criminal Code, which was legislated prior to the Constitution, provides several sections where arrest must be made by way of warrant. It will be noted that the Constitution makes no mention of arrest on warrant but is a general provision for the upholding of a right which in turn is implemented by other laws. The Arrest Act was introduced in 1977 and amended in 1979 by the Arrest (Amendment) Act 1979 (No. 7 of 1979). It provides at S.2 "Notwithstanding the provisions of any other law but subject S.24 this Act applies to and in relation to an arrest for any offence, whether made by or under this Act or by or under any other law".

Section 3 provides for arrest without warrant by a Policeman and states that "A Policeman may, without warrant, arrest a person he believes on reasonable grounds is about to commit, is committing or has committed an offence."

As originally drafted in 1977, that provision read "an offence for which the penalty is imprisonment." The amendment deleted those words thereby giving power to the Police to arrest for any offence whether it be one with a penalty of imprisonment or fine only. This seemed, then, to leave the "arrest with warrants" provisions in S.5 of Arrest Act to apply to people other than the Police. Section 24 of the Arrest Act relates to contempt of Parliament or Court is not relevant to the situation before me.

Section 23 states:-

"The provisions of this Act which specify the circumstances in which a person may be arrested are in addition to and not in derogation of a provision of any other Act or subordinate enactment which confers a power of arrest."

I consider the meaning of that provision is - if there are special arrest provisions in a law, the provisions of the Arrest Act Ch 339 now are additional to that power. In 1993, the Criminal Code (Amendment) Act 1993 repealed several of the provisions in the Criminal Code providing for arrest by warrant but not S.128.

The apparent conflict between the provisions of the Criminal Code and the provisions of the Arrest Act relating to arrest without warrant were considered by the National Court in the State v. Kiap Bonga [1988-89] PNGLR 359. The particular case concerned Section 87 of the Criminal Code and, as in this case, a person was brought before the National Court by way of indictment and had not been arrested on a warrant. It was argued that the Arrest Act, being a later act than the Criminal Code, impliedly repealed the provisions of the Code relating to arrest with warrant.

It was held that rules of statutory interpretation usually consider where the later of two statutes makes a provision that is inconsistent with earlier legislation, the latter is to be taken to have impliedly repealed the former. It was considered that the Arrest Act was intended to cover all aspects of arrest and so by implication would repeal the Criminal Code. The Arrest Act makes no reference or repeal of any provision in any other legislation and limits its provisions to Common Law powers and duties at S.31.

The general rules of interpretation are that two pieces of legislation should be able to stand together. There might be an implied amendment only if collision between the two laws cannot otherwise be avoided. Maxwell On Interpretation of Statutes 12th Edition at p.188 states, "collision may also be avoided by holding that one section, which is ex facie in conflict with another, merely provides for an exception from a general rule contained in that other."

It is also considered [at p.191 of the same text] that any rule of interpretation providing for "implied repeal" is to be avoided where possible. Quoting from an old English case Dr Foster's case [1614] Rep 566 it is said, "Acts of Parliament are established with such gravity, wisdom and universal consent of the whole realm for the advancement of the commonwealth they ought not to by any constrained construction out of the general and ambiguous words of a subsequent Act, to be abrogated." "If therefore earlier and later statutes can reasonably be constructed in such a way that both can be given effect to, this must be done. Re Chance [1936] Ch. 266. If the later Act contains a list of earlier enactments which expressly repeals then an omission of a particular statute from that list will be a strong indication of an intention not to repeal that statute. When a later Act is worded in purely affirmative language, without any negative expressed or implied it is even less likely that it is intended to repeal the earlier law. (Maxwell supra p.191).

This Court is not bound by a ruling of a competent court of equal jurisdiction, but clearly a prior interpretation is very persuasive upon this court and the case of the State v. Kiap Bonga is of such persuasive authority in this Court. This in itself would make my decision a fairly clear one, if it were not for the provisions of the Criminal Code (Amendment) Act 1993 which was passed subsequent to the ruling of the Court in Bonga's case in 1989. In 1993 the Criminal Code (Amendment) Act introduced a total of ten (10) amendments, nine (9) of which repealed provisions of the Code relating to arrest by warrant. Several of these relate to false pretences and to sexual offences.

However, they did not deal with any of the provisions of Division 5 of the Code under which this Section lies nor the preceding Sections of the Criminal Code. It did not amend S.87, which is the Section under which the Kiap Bonga charge was brought. Without counting all the sections and researching fully the Criminal Code, I note that a least thirteen (13) sections have not been amended and these provide arrest by warrant (eg. S 128, 129, 127, 122, 121, 120, 119, 116, 112, 87, 59, 61, 62).

How then do I relate that later Amendment and apply it to the Bonga situation?

The Criminal Code was passed prior to the Arrest Act Ch 339, as amended in 1979 and the Criminal Code (Amendment) 1993 is the more recent enactment. The Criminal Code (Amendment) 1993 does not repeal the warrant provisions in S.128 and the law considers that Parliament intends what it writes in its legislation. Having repealed some of these warrant provisions it clearly did not intent to repeal them all.

If I adopt the reasoning in Bonga's case then it is intended that the warrant provisions in Section 128 still stand. This provision is mandatory, and provides a person "shall not be arrested ..." Where a statute uses language which requires that something shall be done or done in a particular manner or form without expressly declaring what should be the consequences of non-compliance, is the Court required to regard it as imperative or merely directory?

"In some cases the conditions or forms prescribed by the Statute are regarded as essential to the act or thing regulated by it and their omission is held fatal to its validity. In others such prescriptions have been considered as merely directory, neglect of them involving nothing more than liability to a penalty. An absolute enactment must be obeyed and fulfilled exactly but it is sufficient if a directory enactment be obeyed or fulfilled substantially." I quote here from Maxwell on the Interpretation of Statute at p.314.

This is a Law dealing with procedures in court and enactments regulating courts are "usually constructed as imperative and for the protection of accused persons" (Secretary of State for Defence v. Wran [1968] 3 W.L.R. 609 at 614). Where the Act or thing required by Statute is a condition precedent to the jurisdiction of a tribunal, compliance cannot be dispensed with and, if it is not completed or is impossible to comply with the jurisdiction fails. The duty imposed on the court under S.128 is to have a person arrested on a warrant. It is a duty on an Officer i.e. on the Police before he is brought before the District Court.

The provisions of the District Court Act relating to Summonses are contained Sections 50 to 53 and the general committal procedures are under Section 94(b) and (c). None of the previous speak of summonses or relate directly to the provisions of warrants under the Criminal Code.

I consider that this provision of the Criminal Code is an imperative one, it is mandatory provision, that despite the board wording of Sections 23 and 1 of the Arrest Act Ch. 339 it involves a procedure that the Court is obliged to ensure is followed and uphold.

When amending the Code, Parliament appears to have deliberately omitted all of the Sections under Division 5 when repealing the arrest on warrant sections. The clear implication is that they intended to leave them for a purpose. The intent of the Parliament is to be upheld.

As a result I consider that the arrest of the accused without a warrant was an improper arrest. The Court held in State v. Kiap Bonga (supra) that the effect of arrest without warrant is that any admissions made by the accused are not admissible before the Court.

I consider that the failure to repeal the provisions of S.128 and other sections in Division 5 under Criminal Code (Amendment) 1993 goes further. Parliament intended that he be arrested only on warrant and he was not, so he was therefore brought improperly before the Court and the committal proceedings should not have gone ahead as they did. There was an obligation on the District Court to discharge him.

I consider he is therefore illegally before this Court, although an indictment has been presented I cannot arraign him. I am obliged to discharge him. A discharge does not require a plea nor does it prevent a charge being laid again.

In considering the situation before, I am very conscious of the fact that in fact it may well be the defendant who suffers most by this situation. A warrant is likely to be issued and he is likely to be arrested again because the offence is an extremely serious one that the police, quite rightly, cannot let pass. He will therefore be brought again before the District Court and will again go through a committal and again be held awaiting a National Court.

If it had been within my powers try to dispose of his case now I would have done so because I am conscious of the fact that he has been waiting a considerable time for his hearing. However, the Courts first duty is to the Constitution and to uphold the Constitution, and the Constitution makes it clear that a person can only be arrested in accordance with the law and held and deprived of their liberty in accordance with the law. That law was not complied in this case and I am therefore obliged to find that the defendant is not properly before the Court and therefore I cannot accept the indictment.

-----------------------------

Lawyer for the State: Public Prosecutor
Lawyer for the Defendant: Public Solicitor