Wonom, The State v [1975] PNGLR 311 (6 October 1975)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 311 - The State v John Mogo Wonom 

[1975] PNGLR 311

SC86

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE STATE

V

JOHN MOGO WONOM

Port Moresby

Frost CJ Raine Williams JJ

2 October 1975

6 October 1975

CRIMINAL LAW - Practice and procedure - Indictments - Indictments to be presented in the name of “the State”.

Indictments presented under the Criminal Code (Queensland adopted) after Independence Day, 16th September, 1975, should be entitled in the name of “The State” and the learned prosecutor should be described as acting on behalf of the State.

(Per Raine J and Williams J): Under the Constitution of the Independent State of Papua New Guinea, the people having judicial authority lodged in them, have vested the administration of justice, not in the Queen as Head of State, but by virtue of s. 158 thereof, in the National Judicial System, which consists of Courts which the people themselves have created. Accordingly it is appropriate that proceedings be brought by the people in their collective corporate name “The State”.

(Per Frost CJ) To effectuate the use of the forms and proceedings after Independence Day, s. 98(1) of the Interpretation (Interim Provisions) Act 1975 requires the substitution of the expression “The State” in an indictment where the expression “The Queen” was formerly used; and this accords with the words and spirit of the Constitution of the Independent State of Papua New Guinea, under which the Queen as Head of State has no prerogative function to prosecute offences, whether that function be considered to be an executive or a judicial function.

Case Stated

This was a case stated under the provisions of s. 20 of the Supreme Court Act 1975 by Raine J as follows:

1.       On Friday the 19th day of September, 1975 an indictment dated the eighteenth day of September, 1975 and signed by Leonard William Roberts-Smith being a person duly appointed to sign Indictments and present Indictments, was presented by Mr. Karzcewski of Counsel, who announced that he appeared on behalf of the State before me sitting in the National Court at Port Moresby.

2.       A copy of the said indictment is annexed hereto.

3.       The accused JOHN MOGO WONOM who was present in Court, was duly arraigned and pleaded guilty to both counts in the said indictment.

4.       At the hearing the said prisoner was represented by Mr. Lupalrea of Counsel on behalf of the Public Solicitor’s Office.

5.       I recorded a verdict of guilty on both counts and remanded the said prisoner for sentence until Monday the 22nd day of September, 1975.

6.       On Saturday the 20th day of September, 1975 I first became aware that the indictment was entitled in the name of “The State” and not in the name of “The Queen” and that the said Leonard William Roberts-Smith was described in the body of the indictment as “duly appointed to prosecute for the State”.

7.       Accordingly on Monday the 22nd day of September, 1975 I advised both Counsel who were then present at the National Court that the case would be adjourned until Tuesday the 23rd day of September, 1975 so that I might further consider the validity of the style and title used in the indictment.

8.       On Tuesday the 23rd day of September, 1975 Messrs. Roberts-Smith and Karzcewski of Counsel appeared for the prosecution and Messrs. Pratt and Andrew of Counsel appeared for the accused. Counsel for the accused moved for arrest of judgment under s. 649 of the Criminal Code on the basis that the indictment was entitled in the name of The State and not in the name of The Queen and was thus a nullity.

9.       Following the application for an order under the said motion I ordered as follows:

(a)      The question of law namely whether the title of the proceedings should be in the name of The Queen or The State be reserved for consideration by the Supreme Court.

(b)      The accused is sentenced to be imprisoned with hard labour on each count for a period of fourteen months.

(c)      The conviction be respited until the question of Law has been considered and decided by the Supreme Court.

(d)      The prisoner to remain in prison pending the decision of the Supreme Court.

(e)      No order made on the motion for arrest of judgment.

The questions reserved for the opinion of the Supreme Court were:

1.       Whether the indictment should be entitled in the name of The Queen or The State or otherwise.

2.       Whether the Learned Prosecutor should be described as acting on behalf of The State or on behalf of The Queen or otherwise.

3.       Whether the indictment as presented is a nullity and the proceedings therein are void ab initio.

4.       Whether the Motion for arrest of judgment should be granted.

J S. Aoae Principal Legal Adviser to the National Executive Council, by leave, to support the form of indictment.

L. W. Roberts-Smith, Public Prosecutor, and J Karczewski, to support the form of indictment, submitted that since 16th September, 1975, there was only one source of law in Papua New Guinea viz. the Constitution of the Independent State of Papua New Guinea, that the Constitution as such is autochthonous and resembles the Constitution of the United States of America rather than that of Australia, and that the real question was not whether the duty (power) to prosecute had been changed from one vested in the Queen, but rather whether that duty (power) had been established as vested in Her (or any other agency) by the Constitution; that in the absence of the Constitution specifically vesting the duty to prosecute in anyone, the duty must still be retained by the people who never divested themselves of it and accordingly prosecutions ought to be brought in their name — i.e. “The State”; that under the Constitution the delegation of judicial power from the people to the judiciary is a direct vesting not a delegation, and neither “The Crown” as an institution nor “The Queen” as Head of State being mentioned in this context, the Courts, being the Peoples’ (i.e. State) Courts, could not dispense justice in the name of any authority other than that of the People; that if the power to prosecute is regarded as part of the prerogative power, it is inconsistent with the nature and the spirit of the Constitution itself, is inapplicable and inappropriate to the circumstances of the country and was not imported as part of the adopted common law in the light of s. 86(1) of the Constitution; that if regarded merely as part of the Executive power and hence vested in the Head of State, it should not be conducted in the name of the Head of State because that would be contrary to the spirit of the Constitution, which is that all power belongs to the People, and should be exercised in the name of the People, i.e. the State — a spirit supported by the terms of the Constitution itself (e.g. s. 158) and by the Interpretation (Interim Provisions) Act 1975 (e.g. s. 98).

N. H. Pratt, Acting Public Solicitor, and W. J Andrew for the defendant, who submitted that the indictment in the name of “The State” was a nullity and should have been entitled “The Queen” or “The Queen on the advice of the National Executive Council”).

Cur. adv. vult.

6 October 1975

FROST CJ: This is a case stated by Raine J, under the provisions of s. 20 of the Supreme Court Act 1975, sitting in the National Court of Justice.

The accused, John Mogo Wonom, on 19th September, 1975, that is after Independence Day, pleaded guilty upon an indictment entitled “the State”, and was remanded for sentence. When the hearing was resumed on 22nd September, 1975, the trial judge referred to the departure from the practice in the former Supreme Court for indictments to be entitled in the name of “the Queen”, whereupon the prisoner’s counsel moved for arrest of judgment under the Criminal Code s. 649, on the ground that by reason of the change in form the indictment was a nullity.

The trial judge then made various orders and reserved the matter for the consideration of the Supreme Court. The course taken was to impose sentence and to respite the conviction until the question of law had been determined.

In this Court the Public Prosecutor appeared to support the form of the indictment as also did the Principal Legal Adviser whom the Court gave leave to intervene. The Acting Public Solicitor, who appeared on behalf of the prisoner to submit that the indictment was a nullity, argued that the indictment should have been entitled “the Queen” or “the Queen on the Advice of the National Executive Council”.

The only specific provision is to be found in the forms of proceedings contained in the Schedule to the Criminal Code Practice Rules of 1900 (Queensland adopted) which were adopted in the former Territory of Papua under the Criminal Forms Rules, 1922, made under the Criminal Code Ordinance of 1902. These Rules have been regarded as also in force in the former Territory of New Guinea under the Laws Repeal and Adopting Ordinance 1921 of that Territory, s. 13. The Rules are thus now part of the adopted law — The Constitution, Sch. 2.6.

Prior to Independence Day indictments were entitled “the Queen against AB”, in accordance with the form in Sch. I.A.1. But by reference to the Interpretation (Interim Provisions) Act 1975 the matter can be taken further, as the Public Prosecutor submitted, to support the title of “the State against AB”. Under that Act in any provision unless the contrary intention appears “the Queen” is defined as “Her Majesty Queen Elizabeth II and includes Her Majesty’s heirs and successors ...” — s. 3. That meaning is clearly not applicable to the expression to be found in the schedule of forms introduced in 1922. In my opinion the meaning is to be found under s. 98 (1) which provides that in relation to anything done or to be done on or after Independence Day, each expression set out in Col. 1 of the Table to the section, when it appears in a provision of a former Territory or a document, shall be read as a reference to the person, etc., set out in Col. 2. The appropriate expression for “the King” is “the State”. Under s. 6, in a provision unless the contrary intention appears, words importing the masculine gender include females (s. 6 (a)).

To effectuate the use of the forms of proceedings after Independence Day, in my opinion the Interpretation (Interim Provisions) Act requires the substitution of the appropriate expression, viz. “the State”.

Before turning to the provisions of the Constitution to determine whether this interpretation is consistent with the words and spirit of the Constitution, I should refer to the foundation of the common law practice for indictments to be laid in the name of the Queen. It is clear that it springs from the Royal Prerogative and is not to be justified under any statutory power. This is explained by Blackstone in his consideration of the “principal prerogatives of the King” — Commentaries on the Laws of England, Book I, Chap. 7. (1966, Reprint), p. 253. He refers to the “capacity, in which the King is considered in domestic affairs, ... as the fountain of justice and general conservator of the peace of the Kingdom.” (op. cit. p. 257). Blackstone then refers to the power of prosecution in these terms:

“In criminal proceedings, or prosecutions for offences, it would still be a higher absurdity, if the king personally sat in judgment; because in regard to these he appears in another capacity, that of prosecutor. All offences are either against the king’s peace, or his crown and dignity; and are so laid in every indictment. For, though in their consequences they generally seem (except in the case of treason and a very few others) to be rather offences against the kingdom than the king; yet, as the public, which is an invisible body, has delegated all its power and rights, with regard to the execution of the laws, to one visible magistrate, all affronts to that power, and breaches of those rights, are immediately offences against him, to whom they are so delegated by the public. He is therefore the proper person to prosecute for all public offences and breaches of the peace, being the person injured in the eye of the law.” op. cit. at pp. 258-9.

Now under the Constitution the principles and rules of the common law which are adopted under Sch. 2.2(1) (Adoption of a common law) include the principles and rules relating to the Royal Prerogative, except (inter alia) to the extent that they are inconsistent with a Constitutional Law which, of course, includes the Constitution. (See Sch. 2.2.(1)(a) and (2); Sch. 1.2.) But an examination of the relevant constitutional provisions shows, in my opinion, that the powers associated with the structure of government exist only as defined therein, and thus to use the words of Quick and Garran in referring to the prerogative powers of the Governor-General in the Australian Constitution, have become “detached from the prerogative”. The Annotated Constitution of the Australian Commonwealth, 1901, at p. 406.

The Constitution itself is a truly autochthonous Constitution established, as the preamble recites, by the will of the people, to whom “all power belongs”. Its authority is thus original and in no way derivative from any other source. Unlike the case of Australia where the first settlers brought with them the common law, there is, to use the words of Sir Owen Dixon speaking of the American Constitution, “no anterior law providing the source of juristic authority” for the institutions of government now established. (“The Common Law as an Ultimate Constitutional Foundation”, 31 A.L.J 240.) See also Legislative, Executive and Judicial Powers in Australia, Wynes, (4th ed.), pp. 362, 364. Under the provisions of the Constitution, Her Majesty the Queen is established as the Head of State and, subject to the Constitution, the privileges, powers, functions, duties and responsibilities of the Head of State may be had, exercised and performed through a Governor-General. (s. 82). But these functions, etc. of the Head of State are as prescribed under Constitutional Laws and Acts of Parliament (s. 86 (1)). (No prosecution function is prescribed). There is then a most significant provision that in the exercise of these functions the Head of State shall act only with, and in accordance with, the advice of the National Executive Council, or other body prescribed for the purpose. (s. 86 (1) and (2)). Functions thus expressly limited in their exercise can no longer be considered as part of the prerogative. (Quick and Garran (supra) at pp. 404-406). The same conclusion follows from the Structure of Government (s. 99). That section provides that subject to and in accordance with the Constitution, the power, authority and jurisdiction of the People is to be exercised by the National Government (s. 99 (1)). It consists of three principal arms: the National Parliament — the Queen has no part —, The National Executive which consists of the Head of State acting in accordance with the advice of the National Executive Council, and the National Executive Council; and the National Judicial System, consisting of the Supreme Court, the National Court and other Courts (s. 99 (2), s. 138 and s. 139). It is significant that there is no power given to the Head of State to assent to Bills, to dissolve Parliament, or to dismiss the Prime Minister except on a motion of no confidence by the Parliament, s. 142(5). There is no Commander-in-Chief of the Defence Force (s. 201).

Leaving aside the legislative power, with which the Court is not concerned, whatever operation remains to be given to the express reservation of the principles and rules of the Royal Prerogative, under Sch. 2.2.(2), there is no provision for any prerogative exercise of executive acts. Further, the Royal Prerogative of the Monarch as the “distributor” of justice has been displaced. (I refer to the passage from Blackstone cited by Williams J in his judgment, which I have read). Accordingly the only conclusion open, in my opinion, is that the Head of State has no prerogative function under the Constitution to prosecute offences, whether that is considered an executive function as, in my opinion, it is, or a judicial function.

The Public Solicitor relied on the Public Prosecutor’s function to control the exercise and performance of the prosecution function (s. 177) and also on the reservation of power in the Head of State, again acting with the advice of the National Executive Council to give a direction to the Public Prosecutor on any matter that might prejudice the security of Papua New Guinea (s. 176(3)(b)), as supporting indictments laid in the name of the Queen, but in my opinion these provisions do not touch the ultimate authority to prosecute offences.

There is thus no warrant for indictments to be laid in the name of the Queen.

Considered as an executive function the power to prosecute resides in the Head of State acting in accordance with the advice of the National Executive Council. For indictments to be laid in the name of “the State”, in my opinion, is entirely in accord with the spirit of the Constitution whereby the people are the source of all power, and are declared to be the State.

For the forms of indictment under the pre-Independence law as adopted to be given effect subject to the change of title to “the State” is thus a necessary adaptation to the provisions of the Constitution. See Constitution, Sch. 2.7.(1).

I would therefore answer the questions as follows:

(1)      The State.

(2)      The State.

(3)      No.

(4)      No.

Further order that the motion for arrest of judgment be refused.

RAINE J: I agree with my brother Williams that the fundamental issue to be considered on this reference to the Court is the form which The Constitution of The Independent State of Papua New Guinea takes. It is not a Constitution that continues on from something else. It is not a Constitution given to the country by somebody else, as in the case of Australia. It derives from the people of Papua New Guinea, it grew here and is given to Papua New Guinea by her own people.

The position of the Sovereign is an entirely different position than obtains in England and Australia. The Sovereign was requested by the people of Papua New Guinea to become their Queen and Head of State and having graciously consented so to become, was appointed Queen and Head of State of Papua New Guinea accordingly. See s. 82 of the Constitution. But her role as Queen of Papua New Guinea is different than her role as Queen of England or Australia.

Reading the Constitution as a whole it is clear to me that in no sense does her Majesty become invested with the power to dispense justice. The People of Papua New Guinea have that power lodged in them and have vested it in the National Judicial System. See ss. 158 and 155 of the Constitution.

The traditional role of the monarch as “the fountain of justice and general conservator of the peace of the kingdom” is not recognised by the Constitution of this country and a reading of the whole of the Constitution makes this abundantly clear to me. The traditional place in the legal system of an English King is set out in Blackstone’s Commentaries (supra), Vol. 1 (1966 Reprint) pp. 257, 258 and 259.

I find it hard to agree that s. 98 of the (Interpretation (Interim Provisions) Act of 1975 bears upon the problem. In my opinion it is not a section which gives a statutory meaning to the many expressions and words set out in the Table that follows sub-s. (1). Had this been intended I imagine that the draftsman would have used very different language when he framed the sub-section. It reads:

“(1)    In relation to anything done or to be done on or after Independence Day, each expression (subject to any limitation or qualification [appearing immediately after the expression]) set out in Column 1 of the Table to this section, when it appears in a provision of a former Territory or a document shall be read as a reference to the person, authority, matter or thing set out in Column 2 opposite that expression.” (The underlining is mine).

In my opinion the underlined words would have been expressed differently than they are had the Table been intended as an interpretation provision. However, I acknowledge that words like “shall be read as reference to” have been used in statutes elsewhere. In my opinion all that the Table does is explain to anybody reading the statutory provisions enacted in colonial times and carrying over after Independence Day that, for instance, “the central court” was at one time the senior court of the land and the equivalent of the now National Court.

For the reasons given earlier, The People having judicial authority lodged in them, and having vested it in the National Judicial System, it is appropriate and correct for the proceedings to be brought in the name of The State.

I agree with the answers given and the orders proposed by the Chief Justice. [It should be remembered that I respited the conviction and sentence. Thought should be given to this. The prisoner should be brought before me again to deal with this aspect.]

WILLIAMS J: This matter comes before the Court by way of a Case Stated. The questions raised for the determination of the Court is concerned with the presentation of indictments charging criminal offences. The indictment in the case giving rise to the Case Stated was presented on 19th September, 1975, that is, after Papua New Guinea became an Independent State. It was entitled in the name of “The State” and not in the name of “The Queen” as was the practice prior to Independence. The correctness or otherwise of entitling an indictment in the name of the State is in issue.

The learned Public Prosecutor contended that upon a consideration of a number of provisions of the Constitution of Papua New Guinea it is proper that indictments should be entitled in the name of “The State”. He was supported in this by the learned Principal Legal Adviser to the National Executive Council. The learned Public Solicitor contended that indictments should still be entitled in the name of “The Queen”.

The Constitution is the creature of the people of Papua New Guinea. It asserts that “all power belongs to the people”. By its provisions various powers are conferred upon specified persons and bodies. For example, by s. 100 the legislative power of the people is vested in the National Parliament. The executive power of the people is, by s. 138, vested in the Head of State, that is, Her Majesty The Queen, such power to be exercised in accordance with Div. VII. By s. 138 the judicial authority of the people is vested in the National Judicial System.

The position of the monarch in the British system of justice is explained in Blackstone’s Commentaries (supra), Vol. 1 (1966 Reprint) pp. 257, 258 and 259 in the following terms:

“111.   Another capacity, in which the king is considered in domestic affairs, is as the fountain of justice and general conservator of the peace of the kingdom. By the fountain of justice the law does not mean the author or original, but only the distributor. Justice is not derived from the king, as from his free gift; but he is the steward of the public, to dispense it to whom it is due. He is not the spring, but the reservoir; from whence right and equity are conducted, by a thousand channels, to every individual. The original power of judicature, by the fundamental principles of society, is lodged in the society at large; but as it would be impracticable to render complete justice to every individual, by the people in their collective capacity, therefore every nation has committed that power to certain select magistrates, who with more ease and expedition can hear and determine complaints; and in England this authority has immemorially been exercised by the king or his substitutes. He therefore has alone the right of erecting courts of judicature: for, though the constitution of the kingdom hath entrusted him with the whole executive power of the laws, it is impossible, as well as improper, that he should personally carry into execution this great and extensive trust: it is consequently necessary, that courts should be erected, to assist him in executing this power; and equally necessary, that, if erected, they should be erected by his authority. And hence it is, that all jurisdictions of court are either mediately or immediately derived from the crown, their proceedings run generally in the king’s name, they pass under his seal, and are executed by his officers.”

It is to be observed from this passage that the power of judicature is lodged in society at large. But as it would be inappropriate for the people to administer justice in their collective capacity this authority has in England immemorially been exercised by the monarch or his nominees. The courts of the land are his courts and the proceedings run generally in his name. This is the foundation of the practice whereby indictments are entitled in the name of “The Queen”.

Section 82 (1) of the Constitution provides that the Queen shall be “Head of State”. Section 86 (1) provides that the privileges, powers, functions, duties and responsibilities of the Head of State are as prescribed by or under Constitutional Laws and Acts of Parliament. A number of sections in the Constitution confer certain special powers and functions upon the Head of State. There appears to be no specific provision touching the matter now in issue.

By s. 158 of the Constitution the judicial authority of the people is vested in the National Judicial System which, under s. 155, consists of the Supreme Court, the National Court and such other courts as are established under s. 172. It is thus clear that the people have vested the administration of justice not in the Head of State but in the National Judicial System which consists of courts which the people themselves have created by the Constitution. This seems to me to be a clear and distinct departure from the English situation as explained by Blackstone (supra) where the people traditionally have entrusted the administration to the monarch and the courts created by him. It seems to me that a consideration of the provisions of the Constitution to which I have referred show that the position of the monarch in the system of justice in this country is completely different from the position in England and in other countries where the traditional concept is as expounded by Blackstone (supra).

The power of judicature in this country lies in the people at large. This has been invested by the people in the courts established under the Constitution. I think it inappropriate that proceedings of a criminal nature should be brought in the name of the court, nor do I think that proceedings should be in the name of the Public Prosecutor, whose functions are defined in s. 177 of the Constitution, which, in their terms, appear inapt to meet the present situation. In my view it is appropriate that proceedings be brought by the people in their collective corporate name “The State” (s. 1).

I would answer the questions raised in the Case Stated in the way proposed by the Chief Justice.

Questions answered. — (1) The State. (2) The State. (3) No. (4) No. Order that motion for arrest of judgment be refused.

Solicitor for The Public Prosecutor: L. W. Roberts-Smith.

Solicitor for the defendant: N. H. Pratt, Acting Public Solicitor.

Editorial Note: On 24th November, 1975 the Legal Process by and against the State Act 1975 being an act to remove doubts as to the description of the State in legal process was made by the Parliament and deemed to have come into operation on 16th September, 1975. Section 1 of that Act provides “Notwithstanding any rule of law or practice to the contrary but subject to s. 3, all prosecutions upon indictment shall be in the name of the State.” Section 3 of the Act operated to save certain proceedings entitled in the name of the Queen from challenge.

<