Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council [2021] PGSC 38; SC2112 (28 May 2021)

SC2112

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REF NO 1 OF 2020

REFERENCE BY THE ATTORNEY GENERAL OF PAPUA NEW GUINEA AND PRINCIPAL LEGAL ADVISER
TO THE NATIONAL EXECUTIVE COUNSIL

RE SECTION 92 OF THE CRIMINAL CODE

Waigani: Kandakasi DCJ, David J,
Makail J, Berrigan J, Miviri J

2021: 24^th and 28^th May

CRIMINAL LAW – Sections 83A and 92 of the Criminal Code – Abuse of Office - Rules of statutory construction and interpretation – “a person employed in the Public Service” includes a person employed by a constitutional institution.

The Attorney General and Principal Legal Adviser referred a point of law to the Supreme Court under s 26 of the Supreme Court Act arising from a criminal trial in the National Court in which two accused persons, jointly charged with abusing the authority of their office, contrary to s 92 of the Criminal Code, were acquitted on the basis that they were not employed in the Public Service. The State alleged that the accused, whilst employed as Returning Officer and Assistant Returning Officer with the Electoral Commission, abused the authority of their offices by allowing false eligible voter names in the preliminary electoral rolls of a particular ward in the 2017 General Election. The trial judge relied on the Supreme Court decision of Re Jurisdiction of the Public Service Commission, Reference by the Public Solicitor (2019) SC1871, to hold that as there was nothing in the Organic Law on National and Local-level Government Elections deeming the Electoral Commission to be a “department” or “deemed department” pursuant to s 20(2) of the Public Services (Management) Act, it was not part of the National Public Service, and as such the accused were not persons “employed in the Public Service” for the purposes of s 92 of the Criminal Code.
The point of law referred to the Supreme Court was: Does the phrase “Public Service” in s 92 of the Criminal Code refer to the National Public Service under s 188 of the Constitution?

Held:

(1) S 92 is not concerned with the meaning of “National Public Service” for the purposes of s 188 of the Constitution but with the meaning of “a person employed in the Public Service” under the Criminal Code.

(2) S 83A(c) of the Criminal Code specifically provides that a “person employed in the Public Service” includes a person employed by a constitutional institution. The Electoral Commission is a constitutional institution created by s 126(1) of the Constitution and provided for under s 5 of the Organic Law on National and Local-level Government Elections. Accordingly, a person employed by the Electoral Commission is a person employed in the Public Service for the purpose of s 92 of the Criminal Code.

(3) The ordinary rules of construction must be applied in construing a penal statute such as the Criminal Code: ss 109(4) and 158 of the Constitution.

(4) The point of law referred to the Supreme Court was resolved in the negative by the interpretation and application of s 92 of the Criminal Code read together with s 83A of the Criminal Code.

Cases Cited:
Papua New Guinea Cases

PLAR No. 1 of 1980 [1980] PNGLR 326
SCR No. 1 of 2000; Re Morobe Provincial Government for and on behalf of the Morobe Provincial Executive Council (2002) SC693
Re Jurisdiction of the Public Service Commission, Reference by the Public Solicitor (2019) SC1871
Gari Baki v Allan Kopi (2008) N4023
Central Banking (Foreign Exchange and Gold) Regulations (Chapter 138), Re [1987] PNGLR 433
The State v James Yali (2005) N2932
The State v Joel Luma (2021) N8798
The State v Yawijah (2019) N7767

Overseas Cases

Beckwith v. The Queen [1976] HCA 55; (1976) 135 CLR 569

References Cited

Sections 109(4), 158(2) and 188, of the Constitution
Section 26 of the Supreme Court Act
Sections 1, 83A and 92 of the Criminal Code
Section 20(2) of the Public Service (Management) Act

REFERENCE

This was a reference by the Attorney General and Principal Legal Adviser under s 26 of the Supreme Court Act of a point of law arising from a case in which two persons jointly tried on indictment were acquitted.

Counsel

T Tanuvasa, for the Attorney General and Principal Legal Adviser
C Sambua, for the Public Prosecutor
L B Mamu, for the Public Solicitor

28^th May, 2021

1. BY THE COURT: The Principal Legal Adviser and Attorney-General has referred a point of law to the Supreme Court under s 26 of the Supreme Court Act arising from a criminal trial in the National Court in which two accused persons, charged with abuse of office, contrary to s 92 of the Criminal Code, were acquitted on the basis that they were not persons employed in the Public Service. The Referrer seeks the Supreme Court’s opinion under s 26 of the Supreme Court Act on a point of law relating to the interpretation and application of s 92 of the Criminal Code.
   
2. The question presented is: Does the phrase “Public Service” in s 92 of the Criminal Code refer to the National Public Service under s 188 of the Constitution?
   
3. Section 26 of the Supreme Court Act (reference of point of law following acquittal on indictment) confers jurisdiction on this Court to give its opinion on the point of law that has been referred. It provides that:
   

(1) Where a person tried on indictment has been acquitted whether in respect of the whole or part of the indictment and the Principal Legal Adviser desires the opinion of the Supreme Court on a point of law that has arisen in the case—

(a) the Principal Legal Adviser may, within 40 days after the acquittal, refer the point to the Supreme Court; and

(b) the Court shall, in accordance with this section, consider the point and give its opinion on it.

(2) For the purpose of its consideration of a point referred to it under this section, the Supreme Court shall hear argument—

(a) by, or by counsel on behalf of, the Principal Legal Adviser; and

(b) if the acquitted person desires to present any argument to the Court, by counsel on his behalf or, with the leave of the Court, by the acquitted person himself; and

(c) by, or by counsel on behalf of—

(i) the Public Prosecutor; and

(ii) the State Solicitor [semble Public Solicitor was intended],

or either of them, if they desire to present any argument to the Court.

(3) No report of proceedings under this section shall be published that discloses the name or identity of any person charged at the trial or affected by the decision given at the trial.

(4) Any publication in contravention of Subsection (3) is punishable as contempt of the Supreme Court.

(5) A reference under this section does not affect the trial in relation to which the reference is made or any acquittal in that trial.

BACKGROUND

4. On 23 December 2019 the learned trial judge acquitted two persons jointly charged in an indictment with the following count of abuse of office contrary to s 92 of the Criminal Code, such that:
   

“[W]hilst being employed in the Public Service by the Electoral Commission as Returning Officer and Assistant Returning Officer respectively did in the abuse of authority of their office allow false eligible voters names in the preliminary electoral rolls for the [named] ward in the 2017 General Election, prejudicial to the lawful rights of election candidates and eligible voters of the said electorate”.

5. The trial judge acquitted the accused for two reasons, one of which does not concern us here. Relevantly for our purposes, he also found that the officers as employees of the Electoral Commission were not employed in the Public Service for the purposes of s 92 of the Criminal Code as a matter of law.
   
6. In particular, the trial judge relied on the Supreme Court decision of Re Jurisdiction of the Public Service Commission, Reference by the Public Solicitor (2019) SC1871, which held, inter alia, that the Office of Public Solicitor is not part of the National Public Service and its officers and employees are not members of the National Public Service. The Court in that decision found that the National Public Service under s 188 of the Constitution consists of: (a) the Department of the Prime Minister and National Executive Council; (b) the Department of Personnel Management; and (c) such other Departments and Offices deemed as Departments as are established under s 20(2) of the Public Service (Management) Act.
   
7. Applying that reasoning, His Honour found that as there was nothing in the Organic Law on National and Local-level Government Elections (the Organic Law) deeming the Electoral Commission to be a “department” or “deemed department” pursuant to s 20(2) of the Public Services (Management) Act, it was not part of the National Public Service, and the accused were not employed by the National Public Service. As such, he found that the accused were not employed in the Public Service for the purposes of s 92 of the Criminal Code.
   

SUBMISSIONS

8. In resolving the point of law that arises from the above verdict, we acknowledge the able assistance of counsel who appeared in the proceedings: the Public Solicitor, Mr Mamu, the Solicitor-General, Mr Tanuvasa, and the Deputy Public Prosecutor, Mr Sambua. Each submitted that the learned trial judge erred in law in making the above finding and that the question should be answered in the negative.
   
9. We agree for the following reasons.
   

CONSIDERATION

10. This reference concerns the interpretation of a phrase used in a legislation, namely S 92 of the Criminal Code. Before proceeding any further to consider the interpretation required, we first need to and remind ourselves of the principles governing statutory interpretation. This starts with ss 109(4) and 158(2) of the Constitution.
    
11. The Supreme Court in PLAR No. 1 of 1980 [1980] PNGLR 326, per Wilson J stated the relevant principles in these terms:
    

“... there is no place in a developing country where the courts, as well as the Law Reform Commission, are given special responsibilities in the process of development, for the narrow interpretation of statutes without adequate regard to the social purpose of particular legislation. Development is difficult to achieve if courts adopt too conservative an approach to the interpretation of statutes. There has been a tendency in our National Judicial System, less evident in some recent decisions of the courts but still perceptible, to over-emphasize the literal meaning of a provision at the expense of the meaning to be derived from other possible contexts; the latter including the application of the “mischief” rule, the recognition of the general legislative purpose, as well as the obligations laid down under the Constitution such as, for example, the obligation upon the courts in interpreting the law to give ‘paramount consideration to the dispensation of justice’...”

12. Subsequent decisions of both the Supreme and National Courts have adopted and applied this statement of the law. One such decision is the decision in SCR No. 1 of 2000; Re Morobe Provincial Government for and on behalf of the Morobe Provincial Executive Council (2002) SC693. After citing the above statement of the principles governing statutory interpretation, the Supreme Court after having considered the provisions of schedule 1.5 (interpretation) of the Constitution added:
    

“Going by this expressed dictation in the Constitution ..., it is now an accepted principle of both constitutional and other statutory interpretation, that the provisions of the Constitution and all Acts of Parliament must be given their fair and liberal meaning. This is so as to give effect to the intent of Parliament behind the provisions in question. There is a long line of case authority on that.”

13. Section 92 is found in Part III of the Criminal Code, which governs offences against the Administration of Law and Justice and Against Public Authority. It criminalises the abuse of office by persons employed in the Public Service (emphasis ours):
    

ABUSE OF OFFICE

(1) A person employed in the Public Service who, in abuse of the authority of his office does, or directs to be done, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanour.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding two years.

(2) If an act prohibited by Subsection (1) is done, or directed to be done, as the case may be, for purposes of gain, the offender is liable to imprisonment for a term not exceeding three years.

14. The question referred can readily be disposed of when regard is had to the interpretation clause contained at s 83A of the Criminal Code itself. Section 83A is also found in Part III of the Criminal Code. Section 83A(c) explicitly in clear and unambiguous terms provides that a “person employed in the Public Service” includes a person employed by a constitutional institution:

PART III – OFFENCES AGAINST THE ADMINISTRATION OF LAW AND JUSTICE AND AGAINST PUBLIC AUTHORITY

Division 1A. – Interpretation

83A. INTERPRETATION.

In this Part, unless the contrary intention appears–

“person employed in the Public Service” includes–

(a) a member of any of the State Services established under or by authority of Section 188 (Establishment of the State Services) of the Constitution; and

(b) a constitutional office-holder as defined in Section 221 (Definitions) of the Constitution; and

(c) a member of or person employed by a constitutional institution, being any office or institution established or provided for by the Constitution including the Head of State, a Minister or the National Executive Council; and

(d) a member of the National Parliament or of a provincial assembly; and

(e) a person employed under the Official Personal Staff Act 1980 or the Parliamentary Members’ Personal Staff Act 1988; and

(f) a person employed by a provincial government; and

(g) a member, officer or employee of a body or corporation established by statute.

(emphasis ours)

15. It is thus clear that, for the purposes of s 83(A)(c) of the Criminal Code, the Electoral Commission is a constitutional institution being an institution established under s 126 of the Constitution and provided for under s 5 of the Organic Law. Section 126(1) of the Constitution provides that:
    

“Elections to the Parliament shall be conducted, in accordance with an Organic Law, by an Electoral Commission.”

16. To our minds that is sufficiently clear. Section 221 of the Constitution is in similar terms. It provides:
    

“"constitutional institution" means any office or institution established or provided for by this Constitution, other than an office of Head of State or of a Minister, or the National Executive Council”

17. Accordingly, it is clear that a person employed by the Electoral Commission is a person employed in the Public Service for the purpose of s92 of the Criminal Code.
    
18. The interpretation applied by the trial judge was flawed because it failed to read the governing provision in the context of the legislation in which it appeared.
    
19. As noted earlier, the importance of the context and purpose of the statutory provision being interpreted and the Court’s duty it is to look for it and arrive at an interpretation of words employed by the legislature has been emphasised many times.
    
20. The alleged offence in this case was not concerned with the meaning of “National Public Service” for the purposes of s 188 of the Constitution (or the application of s 20 of the Public Services (Management) Act for that matter) but with the meaning of “a person employed in the Public Service” under the Criminal Code. There was no need for the learned trial judge to resort to the decision in Re Jurisdiction of the Public Service Commission in the absence of any ambiguity or uncertainty as to the meaning of those words in s 92 when read together with s 83A of the Criminal Code.
    
21. Regrettably, however, neither counsel at the lower court assisted the trial judge by referring to s 83A. It was incumbent on both of them to do so, particularly, the State Prosecutor. Had the learned trial Judge been so assisted he would not have arrived at the decision he arrived at on the issue in question.
    
22. Furthermore, it is to be remembered that in interpreting the statutes of Papua New Guinea the matters contained in ss 109(4) and 158(2) of the Constitution are to be given paramount consideration: Central Banking (Foreign Exchange and Gold) Regulations (Chapter 138), Re [1987] PNGLR 433; Kidu CJ, Kapi DCJ, Amet J.
    
23. Section 158(2) of the Constitution makes clear that in interpreting the law the courts “shall give paramount consideration to the dispensation of justice”.
    
24. In doing so s 109(4) of the Constitution provides that:
    

“Each law made by the Parliament shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit, and there is no presumption against extra-territoriality.”

25. It follows from the above that the ordinary rules of construction must also be applied in construing a penal statute such as the Criminal Code.
    
26. It is only where after having regard to the words of the statute, its context, its legislative history, purpose and any applicable interpretation provisions, the provision under consideration remains ambiguous, can the ambiguity be resolved in favour of an accused in a criminal case.
    
27. This is consistent with the approach now taken at common law in jurisdictions similar to ours. As explained by Gibbs J in the High Court case of Beckwith v. The Queen [1976] HCA 55; (1976) 135 CLR 569, 576:
    

“The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences ... The rule is perhaps one of last resort.”

28. There was no ambiguity in the language of s 83A of the Criminal Code.
    
29. Furthermore, it is to be noted that the definition of “a person employed in the Public Service” in s 83A of the Criminal Code is an inclusive and not an exclusive one.
    
30. In addition to s 83A, s 1 of the Code further provides that:
    

“person employed in the Public Service” includes officers and men of the Defence Force, members of the Police Force and persons employed to execute any process of a court of justice”.

31. The fact that Parliament has deliberately sought not to exhaustively define the term “a person employed in the Public Service” is consistent with the nature and purpose of s 92.
    
32. Section 92 codifies the ancient common law offence of misconduct in public office. It recognises that those who are entrusted to exercise the power and authority of public office must be accountable to the public: The State v Joel Luma (2021) N8798; The State v Yawijah (2019) N7767. The provision is deliberately cast in broad terms. The circumstances in which the offence may be committed are broad and the conduct which may give rise to it is diverse. It applies to any person employed in the Public Service recognising that an abuse of office can occur at any level, albeit in general terms, the more senior the official the more serious the offending: Luma (supra).
    
33. Seen in this context the learned trial judge’s decision produced, with respect, the absurd result that rendered the very persons employed by the State to manage the electoral process immune from criminal prosecution in the event of an abuse of the authority of their office.
    
34. Section 92 is an important offence. It is likely that questions will arise in the future as to the meaning of “employed” and the definition of “the Public Service”, for instance regarding whether employment must necessarily be paid or permanent. Regard should always be had to ss 83A and 1 of the Criminal Code, as well as the nature and purpose of s 92 in determining such matters.
    

ANSWER

35. Based on the foregoing reasons, our answer to the question in this reference is:
    

Question	Does the phrase “Public Service” in Section 92 of the Criminal Code refer to the National Public Service under Section 188 of the Constitution?
Opinion	No. In determining the meaning of “a person employed in the Public Service” the Court should have regard to ss 1 and 83A of the Criminal Code, as well as the nature and purpose of s 92.

Judgment accordingly.

____________________________________________________________
Solicitor-General: Lawyer for the Principal Legal Adviser
Public Prosecutor: Lawyer for the Public Prosecutor
Public Solicitor: Lawyer for the Public Solicitor