Burusep, Regina v [1963] PGSC 3; [1963] PNGLR 181 (6 December 1963)

Papua New Guinea Law Reports - 1963

[1963] PNGLR 181 - Regina v Burusep and Ors

[1963] PNGLR 181

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

BURUSEP & ORS

Port Moresby

Mann CJ

6 December 1963

EFFECT OF DEFECTIVE COMMITTAL PROCEEDINGS AND DUPLICITY IN INFORMATION - Hearsay evidence on committal proceedings - Procedure concerning ex-officio Indictments - Queensland Criminal Code and effect of Territory Legislation in relation to presentation of Indictments - Delegation of powers of Crown Law Officer - Criminal Code - District Courts Ordinance 1924-1961 - Criminal Procedure Ordinance of 1889 (Papua, adopted).

A number of people from an extremely primitive area were indicted before the Supreme Court on a charge of wilful murder arising out of a series of tribal raids. They were committed for trial by a magistrate largely on hearsay evidence. At the conclusion of the prosecution case in the committal proceedings the magistrate warned the accused and took statements from them. Several of the accused made damaging admissions in these statements. The Crown sought to present an ex-officio indictment in order to avoid the faulty committals.

Held:

that:

N1>1.

N2>(a)      As the evidence before the lower court was not sufficient to put the accused on trial under S. 104a of the District Courts Ordinance the magistrate should have discharged them. Failure to comply with S. 104a was an incurable defect which invalidated the committal proceedings.

N2>(b)      As a general principle hearsay evidence should not be received during committal proceedings. A failure to object to the admission of such evidence will not necessarily entail a waiver of right to object to the same evidence in subsequent proceedings particularly in those cases where the accused could have no knowledge of his rights.

N2>(c)      As the information at the committal proceedings contained several charges of wilful murder it was bad for duplicity. Several distinct and separate offences were involved and the magistrate should have called upon the prosecution to elect, if power to amend the information existed. In the event of failure to elect, or the absence of power to amend, the information should be dismissed as a nullity.

N2>(d)      A failure by the committing magistrate to comply with any of the statutory requirements pertaining to committal proceedings is fatal to the validity of those proceedings.

N2>(e)      Any statements taken by a committing magistrate who erroneously applied the provisions of S. 104a of the District Courts Ordinance are inadmissable under S. 105 of that Ordinance in a subsequent trial.

N1>2.       In the Queensland Criminal Code it is difficult to see why S. 560 (indictments generally) is retained at all if S. 561 (ex-officio information) is to have general application. In determining the validity of the indictment S. 560 can be ignored altogether. The situation in the Territory of New Guinea however is conditioned by the simultaneous adoption of the Criminal Code and the Criminal Procedure Ordinance of 1889 (Papua Adopted). There is a clear conflict between S. 560 and S. 561 of the Code and certain provisions in the Criminal Procedure Ordinance requiring an examination of the scheme of the legislation as a whole. Bearing in mind the English practice concerning ex-officio indictments it is clear that S. 3 of the Criminal Procedure Ordinance both in Papua and New Guinea affords a greater protection to the individual and affords him a positive guarantee that he would not be placed in jeopardy by trial for criminal offences without a proper preliminary investigation before a Magistrate.

S. 3 and S. 12 of the Criminal Procedure Ordinance of 1889 (Papua adopted) are paramount and S. 560 and S. 561 of the Criminal Code are not to be regarded as part of the law of the Territory of New Guinea.

N1>3.       S. 18 of the Criminal Procedure Ordinance of 1889 (Papua adopted) does not confer a power of delegation to prosecutors generally but merely permits the Administrator to appoint a substitute for the Crown Law Officer (who is the Secretary for Law), during such time as that Officer may be absent from duty. Such an appointment cancels the powers of the Crown Law Officer until it is revoked.

Criminal Code SS. 560, 561, 567, 596, 686, 687, 688, 696. District Courts Ordinance 1924-1961, SS. 35, 104A, 104B, 105. The Criminal Procedure Ordinance of 1889 (Papua adopted) SS. 3, 12, 13, 15, 18, 21. Laws Repeal and Adopting Ordinance 1921-1952, S. 17. Criminal Procedure Amendment Ordinance 1909 (Papua). Judiciary Ordinance 1921-1938, S. 7a. Ordinances Interpretation Ordinance 1949-1963, SS. 8A, 36A, considered.

R. v. Kenniff and Kenniff (1903) St. R. Q. 17, Edwards v. Jones (1947) 2 K.B. 659, Johnson v. Miller [1937] HCA 77; (1937-1938) 59 C.L.R. 467, R. v. Gee (1936) 52 T. L. R. 473, R. v. Shakeshaft Smith and Suttie (1906) Crim. L. R. 207 followed.

Counsel:

Smith, with him Bowen, for the Crown.

Germaine, with him O’Regan, for the Accused.

C.A.V.

MANN CJ:  This case was listed for hearing before me at Wewak on the 28th November. Mr. Smith appeared with Mr. Bowen for the Crown, and Mr. Germaine appeared with Mr. O’Regan for the Defence.

At the outset I was told that the Defence intended to move to quash the indictment under Section 596 of the Criminal Code on the ground that the committal was invalid for a variety of reasons. It appeared that there were many defects in relation to the committal proceedings, and to overcome the possible effect of these the Chief Crown Prosecutor tendered an indictment charging each of the accused with the wilful murder of one, Manau. On the outside this indictment was endorsed “Ex officio indictment” and it was tendered in purported compliance with Section 561 of the Criminal Code. The indictment was signed by W. W. Watkins, Esquire, Secretary for Law, who may for present purposes be regarded as “the Crown Law Officer” wherever that expression occurs.

At this point of the argument it appeared that the course being pursued on behalf of the Crown was justified by the express provisions of the Criminal Code and by the established practice as followed in Queensland. However, it was argued by the Defence that under Section 695 of the Criminal Code the practice to be applied to ex-officio indictments under the Code is the practice prescribed in the Code for cases where an information is laid by leave of the Court by private prosecutors.

I was invited as a matter of discretion to refuse leave in the present case, and reliance was further placed upon Section 686 which appears indirectly to prohibit a private prosecution from being initiated for an indictable offence punishable with death. Section 687 relating to security for costs is the only part of the practice pertaining to private prosecutions which is expressly not applied to ex-officio indictments.

This argument may be quickly disposed of, for Section 695 applies to ex-officio indictments which are presented and not to indictments which are about to be presented. Section 686 therefore can have no application to an ex-officio indictment, and the provisions applicable to this class of indictment commence at Section 688. Accordingly, there is no need to obtain the leave of the Court, and there is no restriction to prevent an ex-officio indictment from being presented under Section 561, if applicable to the Territory, for a crime punishable with death.

In the course of argument based on the provisions of Section 561 of the Code, the question arose as to how the established practice in Queensland under this Section can apply in the Territory consistently with the provisions of the Criminal Procedure Ordinances in force in Papua, by which the Criminal Procedure Ordinance of 1889 was adopted and applied as part of the law of the Territory of New Guinea in 1921. A number of questions of considerable complexity then arose requiring reference to sources not available at Wewak, and accordingly I remanded all the accused in the two cases awaiting trial to the next Criminal Sittings of the Court at Wewak, and indicated that I would subsequently deliver my decision on the preliminary point as to whether the indictment tendered was receivable. I also intimated that since the trial of any of the accused could not commence until I had before me a proper indictment, it appeared to me to be proper for the decision on this preliminary point to be delivered in Port Moresby at the first opportunity without requiring the attendance of any of the accused who might be parties to the proceedings, and commencement of which would depend upon the ruling which I was to give.

I think the first main point is as to the validity of the proceedings by virtue of which the accused in the first case were all committed for trial. I have no doubt that these proceedings were defective.

The first objection taken was that the proceedings were not conducted with due regard to the mandatory provisions of the District Courts Ordinance 1924-1961. In particular, by virtue of Section 104a the Magistrate was under an express duty to consider the evidence called on the part of the prosecution and to discharge the defendant forthwith unless the Court was of the opinion that the evidence was sufficient to put the defendant upon his trial for an indictable offence.

It is, I think, quite clear that the Magistrate failed to comply with this Section. At the point of the proceedings at which the Section is expressed to operate, the evidence was clearly not sufficient to put the accused upon trial. There was some evidence to show that some of the persons then before the Court were present at a time when a raid was taking place, but most of the evidence was hearsay and received from sources which, without thorough checking and investigation must be regarded as entirely unreliable.

In committal proceedings, and especially in the Territory, it is sometimes a wise and proper course for a committing Magistrate to include some hearsay evidence in the depositions, leaving it to the Supreme Court to exclude it if it comes to the conclusion that it should not be admitted on the trial. Sometimes evidence of this class will disclose information of great concern to the Defence, and at other times may well affect the course of action which the Crown would want to take. However, these cases are in the minority, and where evidence is clearly inadmissible, the general rule is that it should not be taken on the committal proceedings.

Information coming to the Court second-hand is usually an indication of inadequate Police investigation of the case. Only when the case is properly investigated and this kind of information followed to its source, the case is ready to be submitted to the Magistrate with a view to having committal proceedings instituted.

Reliance was placed by the Crown upon the fact that hearsay evidence may be and frequently is admitted without objection, and it was argued that its admission should not be taken as invalidating the proceedings. The native defendants who were involved in the proceedings before the Magistrate were not represented by Counsel and, of course took no objection to anything that the Magistrate did. There is danger in relying too heavily on lack of objection. In the first place, if the question which subsequently arises is a question of law, the failure to take objection to the admissibility of evidence may prove to be quite immaterial to the legal consequences; moreover, the rule under which a litigant is precluded from raising an objection which he did not raise in the first instance, appears to me to be based upon a waiver of a right which the party is taken to have understood. He has elected to proceed with the case without troubling to raise a possible objection.

There is obvious difficulty in applying any doctrine of waiver or election against the interests of people such as comprised this group of defendants in the proceedings before the Magistrate. According to the information contained in the depositions, these were people who had never been in contact with the Administration and who obviously had no understanding of the proceedings which were being taken and could not be aware of their right to object or of their power to waive any defect. They were brought to the Court in custody and submitted to whatever was required of them, even to the extent of making statements, which they should not have been called upon to make.

Where hearsay evidence is admitted wrongly but without objection, it does not follow that that evidence should be given full weight according to its tenor. A separate question arises in considering what weight ought to be given to it. This is made quite clear in such cases as the following to which I have been very properly referred by the Chief Crown Prosecutor:

Walker v. Walker[ccxxxiii]¹; and

O’Brien v. Klegg[ccxxxiv]².

In the present case the evidence taken by the Magistrate appears to relate to a conflict conducted by two opposing groups of native people belonging to three separate tribes. Every material witness was a member of one of these tribes and several of them showed a disposition to speak at second-hand of what had been conveyed to them by other members of the tribe. Others purported to recognise and identify individuals belonging to opposing tribal groups without any averment that these individuals were known to them. The tendency to learn the tribal story after the events in question and even during the committal proceedings is so frequently observed that hearsay evidence of this character taken without any testing as to personal knowledge becomes, in my view, practically worthless. It is quite incapable of being strained and extended to support inferences. The case on the facts is so weak and so confused that at one point the Crown was driven to rely upon the Magistrate’s own experience, assumed to have been acquired by him as Assistant District Officer in the vicinity, to support a conclusion that one group of natives constituted the aggressors because they were found during a conflict in the territory normally occupied by another hostile group. This assumption was then in its turn to be used to establish that as aggressors in foreign territory, it must follow that they were there to pursue a common purpose, that is, to attack the group who normally occupied that area.

These are all matters which should be affirmatively proved by evidence of substantial and probative value. When hearsay evidence is discounted as much as I think it should be on the score of its weight, the Magistrate, complying with Section 104a, could not have entertained more than a suspicion as to some of the essential elements of the case, including the participation by each of the accused as an individual in the raid.

The next objection of substance which was relied upon by the Defence was that the information or complaint upon which the committal was based was bad for duplicity in that it alleged more than one wilful murder. I do not want to be taken as saying that because more than one person is killed it necessarily follows that more than one crime has been committed (assuming that criminal responsibility does in fact attach). It may be possible simultaneously to destroy several people by the same means, and by virtue of Section 9 of the Ordinances Interpretation Ordinance 1949-1963, it may be proper to read the provisions of the Code defining the offence in such a way that the singular words would import the plural. It may be proper on the facts of such a case to regard such an act as committed jointly against a number of victims just as an act may on the facts be jointly committed by a number of actors. Thus, in such a case it is possible that only one crime would be committed, but I expressly refrain from deciding that point, and only mention it to make the distinction clear.

In the present case, although the Crown relies on a single raid as a war-like operation, it is clear that each of the three deaths referred to in the depositions was occasioned by separate acts on the part of separate individuals and that there are differences in time and place even if the parties were acting in concert. It is clear, I think in these circumstances, that more than one crime is disclosed in the depositions.

By virtue of Section 567 of the Criminal Code it might well be that the Crown could have several charges heard together were they charges for offences other than homicide, but there is nothing in the Code or in the District Courts Ordinance to authorize a Magistrate to investigate in the same proceedings and under the same complaint, several separate and distinct criminal offences which could not be comprised in on indictment. (District Courts Ordinance, Section 35.)

I think that the position here is precisely similar to that which obtained in R. v. Kenniff and Kenniff[ccxxxv]³ where the prisoners were jointly indicted for the wilful murder of two men at the same place and (probably within seconds) at the same time. The circumstantial evidence showed that the two men had been shot apparently by one of the accused who fired several bullets from a revolver. It appears to have been established to the satisfaction of the jury that the two accused were acting in concert. On the trial Griffith C. J., before the close of the evidence for the prosecution, required Counsel for the Crown to elect on which of the charges he would proceed, and Counsel did so. This indicates a recognition that two separate offences had been committed.

The Report does not show in what form the two accused in Kenniff’s case[ccxxxvi]⁴ were committed for trial. It may well be that they were jointly committed for trial for the double murder and again it may well be that Section 561 of the Criminal Code as in force in Queensland prevented the Defence from placing any reliance upon such a defect, if it existed. None of these questions was raised for determination in the case as reported, and so Kenniff’s case[ccxxxvii]⁵ cannot be relied upon for more than authority that the facts constituted more than one criminal offence. The other question will depend on the applicability and effect of other statutory provisions adopted in the Territory.

Following the same practice as was followed in Kenniff’s case[ccxxxviii]⁶ and assuming that the defect was one which could have been cured by the exercise of the Magistrate’s power to amend (and I am not called upon to decide this point), the Magistrate should have explained the situation to the Prosecutor and called upon him to elect as to which alleged offence he preferred to proceed. If the defect were found to be one which could not be cured by the proper exercise of any power to amend, then the proceedings were bad and should have been struck out and a fresh complaint or information laid. If the Prosecutor appeared not to understand the position or if he refused to elect, then the Magistrate should have followed the course approved in Edwards v. Jones[ccxxxix]⁷ and dismissed the information, treating it as a nullity. It should be noted that only in the case where an express power to amend is found to be applicable, that such a defect can be cured. See also Johnson v. Miller[ccxl]⁸. See also the Notes to Section 43 of the Queensland Justices Act in the 3rd edition of Kennedy Allan’s book on the Justices Act, pages 109-110.

The conclusion I reach as to both of these substantial objections which were raised by the Defence to invalidate the committal proceedings is that those proceedings were invalid.

The authorities appear to be clear as to the fatal effect on the committal when the Magistrate fails to comply with the statutory requirements. R. v. Gee[ccxli]⁹ is the authority most cited and R. v. Shakeshaft, Smith and Suttie[ccxlii]¹⁰ to which I have been referred since the hearing by Counsel for the Defence is a clear illustration of the incurability of an information or complaint which discloses no offence and therefore cannot support a valid committal for trial.

At a later stage of the proceedings when Section 104a came into effect the Magistrate had no discretion but to discharge the defendants forthwith. Instead he followed the procedure which would have been appropriate if Section 104b had been applicable and cautioned the defendants and took statements from them. Although the statements contained admissions which would, if properly taken, undoubtedly justify the committal of the defendants, the committal which took place in consequence of the Magistrate’s departure from the express terms of Section 104a must be invalid. The statements actually taken after due warning were improperly taken contrary to the Ordinance and could not be tendered upon the trial under Section 105 because the defendants were not validly committed for trial. I am not called upon in this case to decide whether any future use of those statements might properly be made in other proceedings.

The motion on behalf of the Defence was in the form of a motion to quash the indictment under the provisions of Section 596 of the Criminal Code, and the Defence relied on the indictment as being formally defective, to comply with the wording of the Section. Section 571 throws some light upon what the Criminal Code regards as a formal defect. It lists a number of defects, all of which are a matter of words, and in the second part of the Section an apparent distinction is drawn between a formal defect which is apparent on the face of an indictment, and a formal defect which may not be so apparent. A formal defect which is apparent on the face of the indictment, if objection is not taken by motion to quash the indictment before the jury is sworn, may be waived and cannot be taken later. If it is apparent on the face of an indictment that the Court had no jurisdiction or that no offence could have been committed this may involve defects of both form and substance, and the Section cannot mean that the latter would be waived if not raised in time. An amendment as to form might obviate the apparent defect in substance, but if not, I think that a “formal defect” must be limited to the form in which the indictment appears.

It follows that Section 596 neither applies to nor limits an application to deal with an indictment which is bad in substance. If it is not an indictment authorised by law it is not an indictment at all and the Court cannot deal with it or call on the accused to plead to it. It may be contended that it is likely to “embarrass the accused in his defence” if he is called upon to plead to a nullity, but I think that it is unnecessary to establish this, or otherwise to bring the objection within Section 596.

The arguments addressed to me were based mainly on the express provisions of the Queensland Criminal Code, under which indictments may be presented under Section 560, 561 or 686. Section 560 may be termed the ordinary case where a person has been committed for trial. Such an indictment is to be signed and presented to the Court by a Crown Law Officer or a person properly appointed for the purpose.

It has generally been assumed that the functions of signing and presenting indictments are severable and may be performed by different authorised individuals. Section 560 carries some suggestion that these functions are to be performed by the same person.

The nature of the statutory right to sign and present indictments is apparent. It belongs to the Crown and is exercisable only by Crown Law Officers and persons appointed especially for the purpose by the Governor in Council. As a matter of legal history it is, in its present form, a substitute for the older form of Indictment which was an accusation made by a grand jury after due investigation. There seems to be no substantial reason why the same person should be required to perform two functions exercisable on behalf of the Crown. Section 561 does not require in express terms that a so called ex-officio indictment shall be signed, but it must be presented by an authorised individual. By definition (Section 1) it must be a charge reduced to writing in either case.

I see no reason why if Section 561 carries no suggestion that an ex-officio indictment need be both signed and presented by the one person, it should be thought that Section 560 is intended to have that effect. Indeed if Section 561 is to have general application it is difficult to see why Section 560 is retained at all.

In R. v. Webb[ccxliii]¹¹, the Court of Criminal Appeal in Queensland explains that it was by historical accident that these two sections still stand. The established practice and the proper practice is to use Section 561 only for the limited purposes and in the clear and simple cases described by Philp J.

The Court of Criminal Appeal points out that it is the province of the legislature to alter the law of Queensland (to overcome the effect of that historical accident) “so as to secure to Queenslanders the same immunity from indictment by the Crown without committal proceedings as is enjoyed by Englishmen.”

An amendment of the Queensland Criminal Code as late as 1956 merely extended the power of officers of the Crown to indict persons without committal proceedings, so that it appears to be the position in Queensland that any authorised person can indict without preliminary investigation or regardless of defects in committal proceedings. The only protection in Queensland is the practice, referred to in R. v. Webb[ccxliv]¹², which is apparently strictly observed in Queensland, and supported by the vigilance of Judges whose intimations from the bench as to what is proper, have been respected. Thus in R. v. Durnin[ccxlv]¹³ Douglas J. intimated that in the circumstances the Crown should not proceed with an ex-officio indictment for a lesser offence after acquittal upon a major charge, although by statute the Crown had a right to do so. The case was terminated by a nolle prosequi.

This being the state of the law under the Queensland Code it appears to me that Section 560 can be ignored in determining the validity of an indictment. Whether the accused were validly committed for trial or not, any authorised representative of the Crown has in Queensland a statutory right to bring them to trial if Section 561 is applicable.

The question then arises - Is the Queensland position applicable to the Territory, and in particular to the Territory of New Guinea, by virtue of the adoption of the Criminal Code?

Turning now to the Ordinances of New Guinea, the Criminal Procedure Ordinance of 1889 (Papua adopted) was, to the extent to which it was in force in Papua, adopted as part of the law of New Guinea by the Laws Repeal and Adopting Ordinance 1921.

There may be some doubt as to how much of this Ordinance then remained in force in Papua by reason of the subsequent adoption there in 1902 of the Queensland Criminal Code. Nevertheless the Criminal Procedure Ordinance was not repealed in Papua, but was subsequently amended by later Ordinances. Its adoption in New Guinea in 1921, by the Laws Repeal and Adopting Ordinance 1921 (New Guinea) would be an adoption of what the Ordinance said, not an adoption of its effect when applied to laws of Papua not necessarily in force with the same effect in New Guinea, so that it is possible that the same Ordinances might have different effect in the two Territories. Accordingly I say nothing as to the position in relation to the Territory of Papua, except that in Papua the Criminal Procedure Amendment Ordinance of 1909, which was not adopted in New Guinea, provides for the appointment of Crown Prosecutors in whose name indictments may be presented. I am not concerned to decide whether this provision in Papua affords any means of overcoming the situation in which committal proceedings are a nullity or in which a person has not been committed for trial.

The Criminal Procedure Ordinance of 1889 is today in force in New Guinea, and being adopted by the same Ordinance as the Criminal Code, the two must be considered together. There is no obvious reason why either should prevail, for both are equally adopted from outside sources subject to tests of applicability. (Sections 13 and 15.)

In Sutherland v. The King[ccxlvi]¹⁴ the High Court of Australia had to consider a somewhat similar situation. The point at issue was whether the general rule of trial by jury was excluded in the Territory of New Guinea by virtue of the Laws Repeal and Adopting Ordinance and the Criminal Procedure Ordinance of 1889 as adopted in New Guinea. Reliance was placed by the appellant upon inferences to be drawn from the Queensland Criminal Code as adopted in New Guinea suggesting that the usual mode of trial in criminal cases was to be with a jury. Dixon J. (as he then was) pointed out that the provisions in the Criminal Code which were relied upon did not create any right to trial by jury, but were directed to trial by jury and supposed its existence. The qualification to be put on this adopted legislation was that all of the laws are only incorporated in New Guinea so far as they are applicable. The High Court found that Section 21 of the Criminal Procedure Ordinance was applicable and was therefore to be applied.

In this case as in Booth v. Booth[ccxlvii]¹⁵ the High Court demonstrated the necessity for a somewhat broad and practical approach to the problems arising from the somewhat indiscriminate adoption of ready-made laws from other places. The broad task is to reach a workable result, and the only guidance afforded by the adopting Ordinance is that only those laws are to have force which are found to be “applicable” to the circumstances of the Territory. The situation becomes confused because other adopted laws are undoubtedly circumstances of the Territory.

I think the proper approach to the problem in the present case is to bear in mind that two pieces of conflicting adopted legislation cannot be read together so as to cancel each other out, and as was pointed out in Sutherland v. The King[ccxlviii]¹⁶ one particular provision, by its own force, cannot be used to negative another.

Looking at the scheme of the legislation as a whole, my first impression is that in New Guinea the Criminal Code of Queensland was adopted as a general body of law to apply in the Territory, and that certain selected Papuan Ordinances dealing with specific provisions were also to be applied so far as applicable. Each provision relevant to the case before me would in itself be applicable in the absence of the other. I cannot, in one step, say that the particular should prevail over the general, for that tends to beg the question of applicability. I look to the nature of the particular pieces of legislation with which I am now concerned to see if any appropriate guidance is afforded by that means.

By Section 3 of the Criminal Procedure Ordinance (Papua adopted) no criminal case is to be brought under the cognizance of the Central Court (now by Section 7a of the Judiciary Ordinance the Supreme Court) unless there has been a committal for trial before a Magistrate. The exceptions to this rule are cases brought by ex-officio informations and informations by the Master of the Crown Office, as known to the law of England.

I think it is unnecessary for me to deal in any detail with the English practice referred to in Section 3. The Chief Crown Prosecutor has been good enough to make available Volume 9 of the First Edition of Halsbury’s Laws of England in which at page 329 there is a convenient summary of the situation as it existed in England in 1921.

It appears that proceedings by way of indictment by Grand Jury were then practically universal, and that only in rare cases of exceptional public interest were the alternative modes of impeachment before Parliament, or informations filed in the High Court without any form of committal for trial, resorted to. An ex-officio information could be filed by the King’s Attorney-General only, or, if that office were vacant, by the King’s Solicitor-General, and this power was exercised without the leave of the Court, but only in cases of enormous misdemeanours tending to disturb or endanger the Government or to molest or affront the King in the discharge of his Royal functions. This is clearly a relic of an ancient Royal right preserved by reason of the personal interest in it retained by the Sovereign. It was in England virtually obsolete when the Criminal Procedure Ordinance was adopted in New Guinea.

The other kind of information referred to in Section 3 of the Criminal Procedure Ordinance is an information by the Master of the Crown Office. This was an information lodged at the instance of a private person and required the leave of the Court, which was only granted for gross and notorious misdemeanours which did not specially concern the State, but which on account of their magnitude deserved public animadversion. The rare instances given of the proper use of this kind of information bear no resemblance to the use to which the ex-officio indictment was designed to be put in the present case.

As already pointed out with reference to the recent Queensland case of R. v. Webb[ccxlix]¹⁷ the different position which obtains in Queensland by virtue of the Criminal Code is the result of accident. In England, when the Criminal Procedure Ordinance was adopted in New Guinea, the practice of committing a person to trial by the indictment of a Grand Jury was still being followed, but Grand Juries were not adopted in Queensland. Instead the Crown Law Officer was given power to carry out the functions of a Grand Jury to the extent of examining depositions taken before a Magistrate and deciding whether or not there was, in effect, a true bill. This power finds expression still in Section 561 of the Criminal Code.

Originally the same kind of power, but subject to strict safeguards, was conferred upon the Judges in Papua by the Criminal Procedure Ordinance, but in 1924 this provision was amended, in the Ordinance as adopted in New Guinea, by transferring substantially the same power, subject to the same safeguards, to the Crown Law Officer. The Criminal Procedure Ordinance of 1889 was first enacted by the British Administration in Papua, and has since been amended on several occasions in Papua and in New Guinea, thus affording some statutory recognition that these provisions are regarded as being in force.

The purpose of adopting Section 3 of the Criminal Procedure Ordinance both in Papua and later in New Guinea was clearly to afford a greater protection to the individual and to afford him a positive guarantee that he would not be placed in jeopardy by trial for criminal offences without a proper preliminary investigation before a Magistrate. This kind of protection was lacking in Queensland for the reasons previously noted. It is a vital measure for the protection of the liberty of the subject from possible abuse of power, and I think that it is clear that the intention of the Ordinance was to adopt the Criminal Code of Queensland as a general measure, but to afford the additional protection for the people of the Territory derived from Ordinances such as the Criminal Procedure Ordinance of Papua.

The Crown, however, relies on Sections 12 and 18 of the Criminal Procedure Ordinance read in conjunction with Sections 560 and 561 of the Criminal Code. The effect of this argument is that, although as a general rule, persons are to be committed for trial by a Magistrate before they can be tried, the Crown Law Officer is authorised by Section 12 of the Criminal Procedure Ordinance to lay any charge, (which under Section 1 of the Criminal Code is the same thing as an indictment) in cases of persons committed for trial for an indictable offence. Under Section 18 the Administrator may confer authority on what we may call Crown Prosecutors to lay charges generally, and perform other functions in place of the Crown Law Officer. By Section 17 of the Laws Repeal and Adopting Ordinance the expression “Governor-in-Council” in Sections 560 and 561 of the Criminal Code should also be read as “the Administrator-in-Council”. The effect of the paragraph of Section 561 is therefore to allow any Prosecutor upon whom these general powers to prosecute are conferred, to exercise the particular power added by Section 561.

There seem to me to be several fallacies in this argument. The Criminal Procedure Ordinance of 1889 is intended to protect the subject and imposes a personal responsibility on the Crown Law Officer to lay all charges or direct them to be laid. In Papua this function was discharged by the Judge, and when in 1924 the section was amended in New Guinea to confer this responsibility upon the Crown Law Officer, the words chosen indicate that the responsibility was to be that of the Crown Law Officer alone, and was not to be delegated to others.

In these circumstances the Administrator is empowered by Section 18 to appoint a substitute for the Crown Law Officer, but such an appointment, by Section 18, is to negative the powers of the Crown Law Officer until the substitute’s authority is cancelled. This is no more than a convenient means of dealing with the temporary absence or incapacity of the Crown Law Officer. It is a further indication, if one were needed, that the responsibility is that of the Crown Law Officer. It is not a means of delegating general powers to Prosecutors such as would satisfy Section 561.

In New Guinea therefore I hold that Section 561 of the Criminal Code does not apply, and cannot authorise a Crown Prosecutor to present an indictment against a person who has not been validly committed for trial for the offence charged, by a Magistrate, so as to escape from the express terms of Section 560. Moreover, in my opinion, for the reasons previously given, Section 561 has no application to New Guinea.

The English practice as to ex-officio informations as it stood in 1921 is applicable by virtue of Section 3 of the Criminal Law Procedure Act. If I were of the opinion that the Queensland practice was applicable in New Guinea, I would, in the present case, be disposed to intimate from the Bench, following the example of R. v. Durnin[ccl]¹⁸ and having regard to the warning given by the Queensland Court of Criminal Appeal in Webb’s Case[ccli]¹⁹ that in my opinion proceeding by ex-officio indictment in the present case would incur the grave risks of injustice referred to by Philp J. and that on no view would it be proper to resort to such an expedient to overcome the legal effects of obvious lack of proper investigation of the facts of the case.

To summarize the position in relation to indictments in New Guinea, I think the statutory provisions are as follows:

N2>(1)      Section 561 of the Criminal Code is not applicable and therefore is not adopted as part of the law of New Guinea.

N2>(2)      Section 560 appears to me not to have any significant effect, and the better view is that in New Guinea it would serve no particular purpose and is therefore not applicable and should not be regarded as part of the law of New Guinea.

N2>(3)      Sections 3 and 12 of the Criminal Procedure Ordinance 1889 (Papua adopted) are part of the adopted law of New Guinea and are applicable and are at present in force.

N2>(4)      Section 18 of the Criminal Procedure Ordinance of 1889 is part of the adopted law applicable and in force in New Guinea but does not confer a power of delegation and therefore Section 36A of the Ordinances Interpretation Ordinance inserted by Ordinance No. 44 of 1960 has no application. Nevertheless the appointment of a substitute for the Crown Law Officer under Section 18 would authorise the substituted appointee to perform all the functions of the Crown Law Officer under Section 12.

N2>(5)      The expression “Crown Law Officer” as appearing in Section 12 of the Criminal Procedure Ordinance should by virtue of Section 8A of the Ordinances Interpretation Ordinance 1949-1959 be read as “the Secretary, Department of Law of the Territory of Papua and New Guinea.”

N2>(6)      The powers conferred by Section 12 are only exercisable (except in the rare cases specified in Section 3 in cases where the person proposed to be indicted has been validly committed for trial by a Magistrate after due investigation as prescribed by Section 3. Under Section 12 the Crown Law Officer is not bound to indict for the same offence as that for which the person was committed by the Magistrate, but he may lay any charge that the evidence appears to him to warrant.

N2>(7)      Although Section 12 refers to a “charge” and the text of the Criminal Code in many places refers to an “indictment”, there is no difficulty with or without the aid of Section 17 of the Laws Repeal and Adopting Ordinance in reading the words “charge” and “indictment” as having the same meaning in the Territory for the purposes of the Criminal Code (see Section 1) and for the purposes of the Criminal Procedure Ordinance. It seems to be a mere matter of convenience which term is used in practice.

In the cases outstanding at Wewak it appears to me that the committal proceedings being invalid and there being no case for the presentation of an ex-officio indictment, the persons awaiting trial cannot now be indicted without a fresh inquiry and committal before a Magistrate. The accused persons therefore should be released forthwith from the custody in which they are being held in relation to the complaints that were considered by the Magistrate in the committal proceedings. I propose to so direct but make it clear that such a direction would not prejudice the commencement of any separate lawful proceedings which the Crown may desire to take.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitor for the Accused: W. A. Lalor, Public Solicitor.

[ccxxxiii](1937) 57 C.L.R. 630.

[ccxxxiv](1951) St. R.Q. 1.

[ccxxxv](1903) St.R.Q.17.

[ccxxxvi](1903) St.R.Q.17.

[ccxxxvii](1903) St.R.Q.17.

[ccxxxviii](1903) St.R.Q.17.

[ccxxxix](1947) 2 K.B. 659.

[ccxl][1937] HCA 77; 59 C.L.R. 467 per Dixon J. at p. 488.

[ccxli](1936) 52 T.L.R. 473.

[ccxlii](1960) Crim. L.R. 207.

[ccxliii](1960) Q.R. p. 443.

[ccxliv](1960) Q.R. p. 443.

[ccxlv] (1945) Q.W.N. 35 R.J.

[ccxlvi](1952) C.L.R. at p. 356.

[ccxlvii]53 C.L.R. 1.

[ccxlviii](1952) C.L.R. at p. 356.

[ccxlix](1960) Q.R. p. 443.

[ccl](1945) Q.W.N. 35.

[ccli](1960) Q.R. p. 443.