Loa v Safe [1963] PGSC 42 (11 November 1963)

IN THE SUPREME COURT
OF THE TERRITORY OF
PAPUA AND NEW GUINEA

APPEAL No. 8 of 1963 (P)

BETWEEN:

HEKWA LOA
Appellant

and

SERGEANT SAFE
Respondent

REASONS FOR JUDGMENT

Minogue, J.
11/11/1963

On the 3rd September, 1963, the appellant was charged before a Magistrate of the Court of Native Matters at Port Moresby that being a native he did play cards for money contrary to regulation 83(1) of the Native Regulation 1939-1962. To that charge he pleaded guilty and was fined 10s/-d. in default 4 days imprisonment. Six other natives were charged with him, also pleaded guilty and were fined a similar sum of 10s/-d. At the same time the learned Magistrate made an order that the sum of money £32. 1. 0d. be forfeited to the Administration. As to £24. 0.0d. of that money the appellant handed a submission in writing to the learned Magistrate in which he submitted that this money was his and should be returned to him. I will deal with the full terms of the submission hereunder. The Magistrate rejected the submission and made the order for forfeiture. It is against this order which the appellant appeals.

At the outside Mr. Germaine, for the appellant, submitted that the appeal was competent and referred me to a decision of this Court in support of his submission, Mr. Pratt, who appeared for the respondent, announced that he did not intend to question the jurisdiction of the Court to hear the appeal and, whilst expressing some doubt as to the Court's Jurisdiction, I proceeded to hear argument.

Before dealing with the various submissions made to me in argument and with the question, of whether the appeal is competent, I should first set out the material before me.

Mr. Lalor, the Public Solicitor, and solicitor for the appellant, exhibited to an affidavit which he made a copy of the original Minute of Complaint and the documents constituting the record of proceedings in the Court of Native Matters. This was agreed by counsel for the respondent to be a correct copy of these documents and, as I understood him, of the only documents in existence in the Court's records. The Minute of Complaint shows that complaint was made by the respondent against eight natives of whom one did not appear. The Minute records that all defendants, with the exception of the native not appearing, separately pleaded guilty to the offence charged, i.e. that being a native he did play cards for money, and went on to record the decision of the Court that all defendants, with the exception of the non appearing native, be fined 10s/-d, each in default four days imprisonment. It then went on to record the order that the sum of £32.1.0d. be forfeited to the Administration. Next appears a document styled a Brief Sheet which on its face appears to be a document prepared by the Police Inspector in charge of the case, Sub-Inspector Strutt, and it does no more than set out the names of the defendants, the charge laid, and the names of available witnesses, these appearing as Mr. William Johns, Sgt. Safe and Sub-Inspector Strutt. Then appears a statement of facts, which I think is desirable to set out in full, it reads as follows:

"Facts"

About 5.30 a.m. one Saturday the Twenty Eighth day of September, 1963 Mr. William Johns of Six Mile went to the native quarters attached to his residence at Six Mile. On approaching the quarters he noticed through the window that eight occupants, now the defendants before the court, were playing cards, each had money in his hands and cards also. Some money was on the floor of the hut.

Mr. Johns entered the quarters and seized the money and detained the offenders until Sub-Inspector Strutt and Sgt. Safe attended at the scene.

To Mr. Strutt and Sgt. Safe Mr. Johns indicated the eight defendants individually and handed Mr. Strutt the sum of £32. 1. 0d. which amount he had seized from the defendants.

Sgt. Safe then arrested the defendants and they were conveyed to the Police Station, charged and placed in the cells.

With the exception of Oswald Kapuari who works for Posts and Telegraphs and Aifu Sior who is a domestic, the defendants all work for Mr. Johns the complainant.

Oswald Kapuari appeared at Port Moresby Petty Sessions 7/12/62 and was fined £2 in def 7 days for drunkenness.

Brian M. Strutt
Sub. Inspector

On its face this appears to be a document prepared by Sub-Inspector Strutt and I imagine was something in the nature of a Police Brief from which the prosecuting officer, Mr. Strutt, opened the cases or related the facts to the Magistrate. Apparently it was then handed to the Magistrate for inclusion in the Court record. The last document in the Court record is a letter signed by the appellant and handed up by him to the Magistrate. I set this document out in full:-

"The Magistrate

Court of Native Matters,

PORT MORESBY.

May it please Your Worship:-

I plead guilty to the charge of gambling under Regulation 83 of the Native Regulations of the Territory of Papua.

However, I submit that the sum of £24.0.0. now in the possession of the Police should be returned to me since it did not come into their possession pursuant to Regulation 83A(l) and, therefore, cannot be forfeited under Regulation 83A(2).

Regulation 83A(1) provides that -

"Where any native is found committing an offence .......or where there is reason to believe an offence has been committed ........ any Magistrate Member of the Royal Constabulary or Village Constable may seize ..... money and money's worth in the possession of the native found committing an offence ..."

In fact I handed all money in my possession to Mr. Johns before he called the Police and I submit he had no right to either ask for that money or, once he had received it from me, to part with it to the Police.

The right to "seize" is a power which must be read strictly and I submit its use is restricted in time by the words "in the possession of the native found committing the offence" and that the power to seize is not one that can be delegated.

At the time the Police were called there was no. money in my actual possession and I submit "possession" is restricted to actual possession. This is supported by the rest of the Regulation dealing with abandonment.

I respectfully submit therefore that the Court has no power to order the sum of £24.0.0, to be forfeited to the Administration but that an Order should be made for the return of the money to me.

HEKWA LOA"

Obviously this document was not prepared by the appellant and Mr. Germain admitted that it had been prepared by the Public Solicitor or by one of his professional staff. On this letter the learned Magistrate endorsed the following finding:-

I consider that the effect of the regulation is that the defendant was found committing the offence. He handed the money then in his possession over to Mr. Johns and the money was then lawfully seized by the Constable of Police. I do not think that the seizure has to be made at the exact time of the committing of the offence. I reject this submission.

L. CERVETTO, M.C.N.A.
30/9/63

The appellant himself did not make any affidavit as to the course of proceedings in the Court of Native Matters and I assume through lack of understanding was unable to do so. The respondent has not made any affidavit in reply and, as I understood his counsel, was agreeable to my making the assumption that no viva voce evidence was given and that the Magistrate acted solely on the documents or papers before him. I must assume of course that the sum of £32.1.0d. was in the possession of the police officer at the time of the hearing. It seems to me obvious that no enquiry was made as to the ownership or possession of the various component parts of this amount and that all that the Magistrate had before him was a written statement of the Sub-Inspector as to the circumstances in which he came into possession of this sum and the claim in writing that £24.0.0d of such sum had been in the possession of the appellant shortly prior to his arrest. No point was made by counsel for the respondent that the appellant had not shown any title to this sum of £24.0.0d and as appears from the Magistrate's ruling the question of title was immaterial as he had decided to order forfeiture of all the money "seized".

The foregoing method of placing material before this Court seems to me unsatisfactory but as the Court has not laid down any rules or procedure for appeal I suppose it ill lies in me to complain and, as both parties have agreed that there is no further material to be placed before the County I must do the best I can making such deductions and assumptions as seem proper from a perusal of that material.

The appellant appealed on a number of grounds but in the result argument was directed to three grounds of substance:-

1. That regulation 83A(2) of the Native Regulations is ultra vires the power to make regulations conferred by the Native Regulations Ordinance 1908-1952 (sic).

2. That the Magistrate had no jurisdiction under regulation 83A(2) of the said regulations to order the forfeiture of the sum of £32.1.0d or any part thereof.

3. That the appellant was denied justice in so far as the Magistrate failed to make a judicial enquiry either to satisfy himself as to the circumstances of the seizure of that part of the money which was the appellant's property or to obtain facts upon which to base the exercise of his discretion to order forfeiture under the aforesaid regulation.

With regard to the second and third grounds, what counsel for the appellant sought to argue was that if the regulation is intra virus the Magistrate was still without jurisdiction because the conditions set out in the regulation had not been satisfied.

Regulation 83 (1 ) provides :-

"83.-(1) Subject to sub regulation (2) of this regulation any native who plays cards for money or money's worth or who gambles in any other way and, any native who assists in any such card playing or other form of gambling shall be liable on conviction:-

(a) if he has not been previously convicted of an offence of a like nature to a fine not exceeding Two pounds or in default of payment to imprisonment for any period not exceeding Four months or in the discretion of the Magistrate to imprisonment in the first instance for any period not exceeding Four months without the option of a fine: or

(b) if he has been previously convicted of an offence of a like nature to a fine of not less than One pound and not exceeding Five Pounds or in default of payment to imprisonment for any period not less than One month and not more than Six months, or in the discretion of the Magistrate to imprisonment in the first instance for any period not less than One month and not more than Six months without the option of a fine.

Cards being used for gambling may be seized by any Magistrate, member of the Royal Papuan Constabulary or Village Constable and upon conviction of an offence under this regulation the Magistrate may order them to be destroyed or otherwise dealt with at his discretion."

Sub regulations (2) and (3) of this regulation are not material in this case.

Regulation 83A is as follows:

"83A -(1) Where any native is found committing an offence against Regulation 83 or where there is reason to believe that an offence has been committed against Regulation 83 any Magistrate, member of the Royal Papuan Constabulary or Village Constable may seize all instruments of gambling money and money's worth in the possession of the native found committing the offence or found abandoned at any place where he has reason to suspect that the offence has been committed.

(2) Upon being satisfied, upon a conviction or otherwise, that instruments of gambling, money or money's worth seized in accordance with Sub-Regulation (1) of this regulation were being used for the commission of an offence against Regulation 83, the Court may order the instruments of gambling to be destroyed and the money or money's worth to be forfeited to the Administration."

Sections 3 of the Native Regulation Ordinance 1908-1962 (Papua) empowers the establishment of Courts for Native Matters. The composition of such Courts, their jurisdiction, practice and procedure and the extent of punishment that they shall be entitled to impose for any offence shall, subject to the provisions of the Ordinance, be as defined and prescribed by regulations under the Ordinance. The general power to make regulations is contained in section 5 which provides that it shall be lawful for the Administrator in Council to make regulations affecting the affairs of natives with regard to a number of specified matters, none of which are here material except for sub-regulation (5) "the jurisdiction powers and procedure of Courts for Native Matters in civil and criminal matters", and generally with regard to matters other than those specified but bearing upon or affecting the good government and well being of the natives. The section then enacts that "the regulations may provide penalties for a breach thereof not exceeding in any case a fine of Twenty-five pounds in default of payment imprisonment with or without hard labour for a period not exceeding six months."It was to this part of the section that my attention was specifically directed. Mr. Germain argued that forfeiture is a penalty and is a type of fine and he went onto further argue that either forfeiture is a punishment or penalty not contemplated by the Ordinance, in which case to impose a forfeiture by regulation is invalid; or it must be considered that it is a type of fine and in such a case the combined effect of Regulation 83 and 83A is to allow an unlimited power of fine and, such a power is beyond the power conferred by Section 5 and therefore bad.

Mr. Pratt, on the other hand, argued for the respondent that the word "penalty" in section 5 must be construed in the context, of that section, and, so he said, in that context "penalty" must be confined to the meanings of "fine" and "imprisonment". Consequently, wherever one finds a fine or imprisonment imposed neither must exceed the maximum allowed in the section. Although forfeiture may be loosely defined as a penalty it is not a penalty within this part of the section for it refers only to fines or imprisonment and forfeiture is neither. He argued that the authority to order forfeiture arose from a combination of sub-section (5) and the general power contained in the section to legislate for the good government and well being of the natives. The suppression of gambling, so he said, was clearly within this power and the provision for forfeiture merely, and properly operated as an additional deterrent. Provisions such as this, he said, were common in the laws of the Australian States relating to gaming and with that I agree. However, I should add that the provisions for search or seizure are heavily hedged with safeguards and in Western Australia for example there is no power to seize money from a person found in a common gaming house. See King Kee –v- Smythe [1909] WALawRp 11; 11 W.A.L.R. 86.

In my opinion the legislature has shown a clear intention to provide by the Ordinance limitations on the extent of punishment that the inferior Court set up by the Regulations can impose. Those limitations are contained in section 5 and that section limits the extent to which the Magistrate can go. The words "punishment" and "penalties" are it seems to me used synonymously as they are in ordinary English usage. "Punishment" is defined by the Shorter Oxford English Dictionary as "that which is inflicted as a penalty; a penalty imposed to ensure the application and enforcement of the law." And "penalty" in its turn is defined as "the punishment imposed for breach of law, rule or contract; a loss, disability or disadvantage of some kind either fixed by law for some offence or agreed upon in case of violation of a contract." The section does not in my view merely prescribe what can be done by way of fine or imprisonment and leave penalties at large. It covers, and is whole field of punishment.

What remains then to be considered is whether an order for forfeiture of money or, at any rate, the order for such forfeiture provided by regulation 83A (2) is a punishment or a penalty.

It has long been the practice in statutes to use the word "forfeiture" as the equivalent of "penalty" or "specific pecuniary sum" payment of which is ordered on adjudication either in a criminal proceeding properly so called or in a penal action. See Encyclopaedia of the Laws of England 2nd Edition, Vol.6, page 210. And in discussing "penalty" the learned authors of the first edition of this Encyclopaedia say that this term is ordinarily used for a pecuniary mulet enacted by a Court of Justice for a criminal offence.

It was originally quite distinct from "fine" but is now generally used as its equivalent. In the Police Offences Act, 1958 of the State of Victoria, fines, penalties and forfeitures seem to be synonymous and as was stated by Mr. William Paul in article in 14 A.L.J. 301 "forfeitures are intimately allied to fines, penalties, amercements, ransoms and compensation ordered in respect of criminal acts." In the District Courts Ordinance 1924-1962 (New Guinea) "fine" is defined as including pecuniary penalty or pecuniary forfeiture or pecuniary compensation payable under a conviction. In R. v. Smith Le & Ca 131[1862] EngR 164; , 169 E.R. 1333, the Court of Crown Cases Reserved held that the word "penalty" in a Bankruptcy Act preserving penalties in a repealed Act was broad enough to include all punishment of whatever kind.

That the forfeiture of money in the possession of a native found playing cards is a penalty or punishment is to me beyond question. As that forfeiture follows on his being found committing the offence and upon his consequent guilt of that offence, I am of the opinion that such a forfeiture must be a penalty or an additional penalty for the offence of playing cards created by Regulation 83. The power of forfeiture in regulation 83A is unlimited. It may extend from 1d. to £100.0.0d or, indeed, to a much greater sum. So that the Magistrate is permitted by the regulation to impose a penalty far in excess of £25.0.0d. This the Ordinance does not allow and, accordingly, in my opinion, so far as concerns money or, money's worth the regulation is beyond power and, consequently, the Magistrate had no jurisdiction to order such forfeiture.

I do not think that the situation is saved by section 39 of the Ordinances Interpretation Ordinance 1949-1962. This section is in similar terms to Section 46(b) of the Acts Interpretation Act of the Commonwealth and has been discussed in a number of cases. The view of Latham, C.J. in Pidoto -v- Victoria [1943] HCA 37; (1943) 68 C.L.R. 87 at pp. 108-109, that this section is prescribing a rule of construction only and not a rule of law seems to be generally accepted, and the view has been rejected that the Act should be read as affecting the operation of laws in the sense that all laws are to be construed as validly applying whenever they could by suitable limitations have been made validly applicable. It may be that section 39 can preserve regulation 83A so far as it deals with instruments of gambling. That view has not been argued before me and does not really arise in this case but I do not think that the regulation can be read down so as to permit a forfeiture where the combined effect of the fine and forfeiture would not exceed a penalty of £25.0.0d. It seems to me that to attempt to do so would be to attempt to perform what Latham, C.J. describes as "a feat which is legislative and not judicial."

Accordingly, Iam of opinion that Mr. Germain's first submission succeeds. I postpone for a moment the results which follow from that view because, in case I am wrong in such view, and in deference to the argument addressed to me, I feel that I should dispose of the remaining arguments.

Mr. Germain's second submission was based upon what he said was the proper construction of regulation 83A. As he properly said this regulation is to be read in conjunction with regulation 83 because it can only operate where a person is found committing an offence against the latter regulation, and, in this case where the appellant was found playing cards.

Reading the section as a matter of ordinary English expression it deals with two sets of circumstances, the first where a native is found committing an offence under regulation 83,and the second where there is reason to believe that an offence has been committed under that regulation. In the first set of circumstances money (inter alia) in the possession of a native found committing the offence may be seized. It is to be noted that the present tense is used - "is found committing" not "has been found committing" or "is found to have committed". There can be no doubt that the only persons given power to seize are the Magistrate, Police Officer and Village Constable. True it is that the regulation does not expressly state that the Magistrate, Police Officer or Village Constable must find the native committing the offence at the time of seizure, but any other construction would, in my view, produce absurd results. If the discovery of the offence could be made by some other person then it would follow that days later and miles later from the scene of the offence any of the persons specified in the section could seize all money in the possession of the native who had been found committing the offence by that other person. This would be a most peculiar and astonishing power to be placed in. the hands of a Village Constable and it is a result so intolerable and contrary to our notions of law and of the liberty of the subject that the Administrator in Council should not be held to have intended it.

The same result would follow if any extended construction were given to the words "found committing" where second appearing in the regulation and it were to be thought that the seizure by any of the specified persons was authorized at any time and at any place after the commission of the offence provided that he, or some other person, had in fact found a native committing an offence against the regulation.

Consideration of these possibilities provides me with the strongest fortification in the view at which I have arrived, namely, that the finding by the specified person of the offence being committed and the seizure of the instruments of gambling or money must be contemporaneous.

On the material before the learned Magistrate there can be no reason for him to suppose that the Sub-Inspector or Sgt. Safe found the appellant committing any offence, and consequently, the seizure and retention of the sum of £32.1.0d by the inspector can find no legal justification any more than can the order for its forfeiture. There has been no seizure in accordance with the regulation 83A(1) on its proper construction and consequently the conclusion to which the learned Magistrate came and which he set out in the record was wrong and he had no jurisdiction to embark on an enquiry under regulation 83A(2).

The same result can, I think, be reached upon two much narrower grounds. Firstly, regulation 47 of the Native Regulations forbids the reception of hearsay evidence. In this case the record shows that the only non-hearsay evidence before the court were such admissions as were contained in the letter submitted by the appellant. All they amount to is that he handed £24.0.0d in his possession to Mr. Johns before the arrival of the police. There is in this letter an admission that he was gambling contrary to regulation 83, but nothing that could be construed as an admission that the amount of £24.0.0d was connected with this gambling - whatever form it may have taken. Even if the material appearing on the record style "Facts" could be taken to have been admitted in evidence, it was clearly in all material parts hearsay, and consequently, inadmissible under regulation 47. Accordingly, there was no material upon which the Court for Native Matters could found jurisdiction to order forfeiture. In the second place there was no seizure in accordance with Regulation 83A (1)) to found that jurisdiction. The only persons who may seize are the Magistrate, Police Officer, or village Constable and on no view could the action of handing the £32.1.0d by Mr. Johns to the Sub-Inspector be regarded as seizure. See R v. Dennis [1894] UKLawRpKQB 108; (1894) 2 Q.B. 458, per Hawkins J.pp. 478-479. So that the appellant is entitled to succeed on the second ground.

I turn now to the third ground. Although this ground as set out in the Notice of Appeal refers to a denial of justice, substantially it amounted to and was treated in argument as a submission that the learned Magistrate had no jurisdiction to make the order which he did because he had not satisfied himself of the facts sufficient to found his jurisdiction. Regulation 83A(2) clearly requires the Magistrate to be satisfied that money seized in accordance with Regulation 83A(1) was being used for gambling. There is nothing on the record to show that the Magistrate entered upon this enquiry, nor is there anything therein which could have been material to such an enquiry. I have already held that assuming the power to order forfeiture to be a validly granted power, there was no seizure in accordance with Regulation 834(1). Consequently, I am also of opinion that on this ground too there was no jurisdiction to make the order.

I return now to the question of this Court's jurisdiction to hear an appeal from the decision of a Court for Native Matters. In Mau Mau v. Maragili, Appeal No.1 of 1963, I expressed the tentative view that procedure by way of appeal does not lie. My brother Smithers in Kare-Konia v. Wenta Wuamp, Appeal No.3 of 1962, seems inclined to a similar view. The matter has not been argued but I still doubt whether an appeal will lie. Sir Beaumont Phillips, C.J. in Ruma-Hanua. v. Pala-Ua in a judgment delivered on the 20th June, 1956, grasped the nettle firmly and decided to hear an appeal in that case. Perusal of his reasons for judgment leaves me with the impression that his decision proceeded rather from a laudable desire that justice should seem to be done than from any firm legal foundation. I should add that for reasons with which I respectfully agree the learned Chief Justice dismissed the appeal. I should further add that after Mau Mau's case (supra) the Judges of this Court prepared some rules for appeal but, an the assumption mistaken it seems that the new Local Courts Ordinance would repeal the Native Regulations, the finalisation and promulgation of these rules were allowed to lapse and to give place to what appeared to be more urgent and pressing matters.

Once again in this case it appears to me that no injustice need or can result to the appellant. Taking the view that I do that on whatever basis the matter is approached the record of the Court for Native Matters shows that the learned Magistrate acted without jurisdiction, the prerogative Writ of Certiorari is open to him. And I am prepared to treat this hearing as an application for leave to apply for such a writ, subject to the appellant placing an affidavit before the Court as to his title to the £24.0.0d which he claims. Further as the matter has been full argued and there is no further material available to me, I am prepared to make in the first instance an Order of Certiorari, that is an order to remove the proceedings in the Court for Native Matters into this Court and an order directing that so far as those proceedings direct forfeiture they be quashed.

Such an order, of course, leaves untouched the final destination of the amount in the possession of the Sub-Inspector but I have no doubt that the parties will be able to satisfactorily sort out this matter.