Kisi v Nash; ex parte Secreatry for Law [1974] PGSC 18; [1974] PNGLR 45 (29 June 1972)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 45 - Kisi v Nash; ex parte Secreatry for Law

[1974] PNGLR 45

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

KISI

V

NASH, EX PARTE SECRETARY FOR LAW

Port Moresby

Kelly J

19 June 1972

29 June 1972

CRIMINAL LAW AND PROCEDURE - Appeal - Substantial miscarriage of justice - Misdirection - Test to be applied - Unlawful use of violence - “Violence” - District Courts Ordinance 1963-1970 ss. 225[lii]1, 236 (2)[liii]².

POLICE OFFENCES - Unlawful use of violence - “Violence” - Police Offences (New Guinea) Ordinance 1925-1966 s. 30 (a)[liv]³.

WORDS AND PHRASES - “Violence” - Police Offences (New Guinea) Ordinance 1925-1966 s. 30 (a)[lv]⁴.

On a charge of unlawfully using violence to another person under s. 30 (a) of the Police Offences (New Guinea) Ordinance 1925-1966, the magistrate ruled no case to answer and dismissed the information on the ground that where the force used constituted prima facie an unlawful striking under the section it could not constitute an unlawful use of violence.

Held

N1>(1)      The word “violence” in the context of s. 30 (a) of the Police Offences (New Guinea) Ordinance 1925-1966 should be given its ordinary dictionary meaning of “the exercise of physical force so as to inflict injury or damage to persons or property.”

N1>(2)      The three types of conduct which, if unlawful, may constitute the offences provided by s. 30 (a) of the Police Offences (New Guinea) Ordinance 1925-1966, namely lays hold of, strikes or uses violence are not mutually exclusive.

N1>(3)      Accordingly, the magistrate had misdirected himself in law.

N1>(4)      Under s. 236 of the District Courts Ordinance 1963-1970 the test to be applied on an appeal of this nature, is whether a magistrate properly directing himself on the law would have come to the same conclusion as that to which he did come.

N1>(5)      The premature dismissal of the information was in the circumstances a substantial miscarriage of justice and the appeal should be allowed.

Appeal

This was an appeal by the Secretary of Law brought pursuant to s. 225 (3) of the District Courts Ordinance 1963-1970 from the dismissal of an information by a magistrate in the District Court at Mt. Hagen.

Counsel

D. Williams for the appellant.

Cur adv. vult.

29 June 1972

KELLY J: This is an appeal by the Secretary for Law brought pursuant to s. 225 (3) of the District Courts Ordinance 1963-1970 from the dismissal of an information by a magistrate in the District Court at Mt. Hagen on 1st September, 1971.

The respondent was charged with having unlawfully used violence to another person, to wit Benny Kisi, the charge being brought under s. 30 (a) of the Police Offences (New Guinea) Ordinance 1925-1966 which provides:

N2>“30.    A person who:

(a)      unlawfully lays hold of, strikes or uses violence towards any other person; is guilty of an offence.”

At the end of the prosecution case the magistrate held that there was no case for the respondent to answer and accordingly acquitted him. His finding is recorded on the depositions in these words:

“Insufficient evidence to prove violence if the charge was unlawfully strike it would result in a prima facie case but here I find no violence. No case for defendant to answer.”

The magistrate subsequently furnished a report in accordance with s. 231 (2) of the District Courts Ordinance setting out his reasons. These reasons indicate that he had interpreted s. 30 (a) by giving to the word “violence” the meaning of the use of force by one person to another which is not included in the words “lay hold of or strike”, so that as I understand his reasoning in the present case where the force used constituted prima facie an unlawful striking it could not constitute an unlawful use of violence. It appears that it was the view which he thus took of the section which led him to the view that there was no evidence of violence and so to the finding that there was no case to answer.

The only real evidence of the act alleged against the respondent is that of the complainant Benny Kisi which was that the respondent had hit him and that he was bleeding and from the description of events given by the complainant this was prima facie done unlawfully. There was also evidence from a woman who was present, and who, although she said in examination in chief that the respondent hit the complainant with closed fists, subsequently said in cross-examination that she did not see him hit the complainant.

As far as I am aware there is no authoritative judicial definition of the word “violence” in this context. I would consider that it may properly be defined in accordance with the meaning given in the Shorter Oxford English Dictionary namely:

“the exercise of physical force so as to inflict injury or damage to persons or property.”

Turning now to the three types of conduct which, if unlawful, may constitute the offence provided for by s. 30 (a) namely, laying hold of another person, striking another person, or using violence towards another person, I do not consider that these are necessarily mutually exclusive. Clearly there may be an act which may constitute a striking without necessarily amounting to the use of violence, for example, an open handed blow of such a nature that it inflicts no injury or damage. If, on the other hand, the blow which constitutes the striking is such that it does inflict injury or damage to the person struck then there is a use of violence within the meaning of s. 30 (a) notwithstanding that there has been a striking and I would consider that in these circumstances the person doing the act could be charged either with unlawfully striking the other person or with unlawfully using violence towards that person and on appropriate proof could be convicted of the offence with which he was thus charged.

I am therefore of the opinion that the magistrate misdirected himself in law. In this case there was some evidence of an act by the respondent amounting to the unlawful use of violence towards the complainant, namely hitting him so as to draw blood and doing so without lawful excuse. I think the inference is open from the evidence of the complainant that the bleeding to which he referred was in consequence of his having been hit, so that prima facie there was the unlawful exercise of physical force by the respondent so as to inflict injury to the complainant.

Section 236 (2) of the District Courts Ordinance provides:

“An appeal shall be allowed only if it appears to the Supreme Court that there has been a substantial miscarriage of justice.”

The meaning of “substantial miscarriage of justice” has generally been considered from the point of view of the accused person (see e.g. Mraz v. The Queen[lvi]⁵ and the authorities there referred to) and in relation to a provision cast in the form that the appellate court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred (cf. Supreme Court (Full Court) Ordinance 1968, s. 28 (2) which, however, refers only to “miscarriage of justice”). The test to be applied in the present instance is whether the magistrate properly directing himself on the law would have come to the same conclusion as that to which he did come. In this case it could not be said that this would have been so, so that there has been a miscarriage of justice and in the circumstances I consider that it could properly be regarded as a substantial miscarriage of justice within the meaning of s. 236 (2) in that there has been premature dismissal of an information.

The consequence is that the appeal must be allowed, the order of the District Court quashed and the case remitted for further hearing before the District Court at Mount Hagen. I may say that whilst, having allowed the appeal, I feel compelled to adopt this course, I do so with some reluctance particularly in view of the time that has now elapsed since the occurrence of the incident the subject of the proceedings.

Appeal allowed. Order of District Court quashed. Case remitted for rehearing.

Solicitor for the appellant: P. J. Clay, Crown Solicitor.

iv>
R>

[liii]span>Infra p. 48.

[liv]Infra p. 46.

[lv]Infra p. 46.

[lvi][1955] HCA 59; (1955) 93 C.L.R. 493, at p. 514.

[lvii] [1961] A.L.R. 584.