Papua New Guinea Law Reports - 1978
[1978] PNGLR 404
SC138
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
CONSTITUTIONAL REFERENCE NO. 2 OF 1978 IN RE THE CORRECTIVE INSTITUTIONS ACT 1957
Waigani
Prentice CJ Saldanha J Andrew J
2 October 1978
25 October 1978
CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Corrective institution offences - Right of appeal - Statutory provision denying right of appeal invalid - Ad hoc procedure for appeal - Corrective Institutions Act 1957, s. 30[dxcvii]1 - Constitution s. 37 (15)[dxcviii]2, s. 22, s. 185.
CRIMINAL LAW - Administration of prisons - Corrective institution offences - Right of appeal - Statutory provision denying right of appeal unconstitutional - Ad hoc procedure for appeal and enforcement of constitutional rights - Nature of proceedings before corrective institution officers - Corrective Institutions Act 1957, s. 30[dxcix]3- Constitution s. 37(15)[dc]4, s. 22, s. 185.
Section 30 of the Corrective Institutions Act 1957 provides: “There is no appeal from a finding or extension of sentence made or imposed under this Part”. Part IV of the Act which contains s. 30 deals with corrective institution and police lock-up offences.
Section 37(15) of the Constitution of the Independent State of Papua New Guinea provides that “every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law”.
Held
(1)      Section s. 30 of the Corrective Institutions Act 1957, insofar as it purports to deny any right of appeal from decisions of the court authorized by that Act to deal with corrective institution offences, (both minor and aggravated) and resulting in convictions, must yield to s. 37(15) of the Constitution, and should be ruled invalid.
(2)      Accordingly, pursuant to s. 185 and s. 22 of the Constitution, the court ordered, that, pending legislation, appeal is to lie from decisions under ss. 26 and 27 of the Corrective Institutions Act to the National Court and that such appeals should be brought in accordance with the provisions of the Local Courts Act—recourse being had to a report from the presiding magistrate and affidavits when necessary.
Reference
This was a reference pursuant to s. 19 of the Constitution, which empowers the Supreme Court to “give its opinion on any question relating to the interpretation or application of any provision of a constitutional law ...”.
The questions referred were:
(1)      Is s. 30 of the Corrective Institutions Act 1957 (as amended to date) unconstitutional in that it contravenes s. 37 (15) of the Constitution;
(2)      If s. 30 of the Corrective Institutions Act 1957 is unconstitutional, then to what court does an appeal lie and what conditions precedent are necessary for the lodging of an appeal?
Counsel
G. C. Lalor, to argue the affirmative case.
D. W. Baker, to argue the negative case.
B. J Cassels, intervening, for Public Prosecutor.
Cur. adv. vult.
25 October 1978
PRENTICE CJ SALDANHA J ANDREW J: In this Reference the court is asked to answer the following questions:
(1)      “Is s. 30 of the Corrective Institutions Act 1957 (as amended to date) unconstitutional in that it contravenes s. 37(15) of the Constitution;”
(2)      “If s. 30 of the Corrective Institutions Act 1957 is unconstitutional then to what court does an appeal lie and what conditions precedent are necessary for the lodging of an appeal?”
Section 30 of the Corrective Institutions Act 1951 is as follows:
“There is no appeal from a finding or extension of sentence made or imposed under this Part.”
Part VI of the Act which contains s. 30, deals with “Corrective Institution and police lock-up offences”.
Section 37(15) of the Constitution provides that “every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law”.
In the consideration of the submissions made in the case, it is also necessary to have in mind s. 42 of the Constitution, which provides, so far as relevant:
“42(1) No person shall be deprived of his personal liberty except ...
(b)      in the execution of the sentence or order of a court in respect of an offence of which he has been found guilty ...” (emphasis ours).
And reference must also be made to s. 159 of the Constitution in the subdivision dealing with “Judicial Power”; the section provides in sub-s.
(3)      that:
“No person or body outside the National Judicial System, has, or may be given, power to impose a sentence of ... imprisonment, or to impose any other penalty as for a criminal offence ...” (the emphasis ours — the exceptions do not appear to be relevant).
The “National Judicial System” includes courts established under s. 172 of the Constitution, that is courts other than the Supreme and National Courts, as established or provided for by Acts of the Parliament.
The provisions of the Corrective Institutions Act 1957 which are relevant to this Court’s inquiry, are ss. 25-30 inclusive. Section 25 defines “corrective institution and police lock-up offences”, some of which are coeval with offences under other statutes, such as common assault, tampering with property, stealing, damaging property; others are “disciplinary” offences connected with the management of a penal institution. Sections 26, 27, and 28 read as follows:
“26.    A visiting justice may take evidence and examine a detainee touching a corrective institution or police lock-up offence alleged to have been committed by him and, if satisfied that the detainee is guilty of the offence, may sentence him to imprisonment for a term not exceeding one month in addition to the term which he is serving at the time of the offence.
27(1)  If, in the opinion of the officer in charge of a corrective institution or police lock-up, a detainee has been guilty of a corrective institution or police lock-up offence attended with circumstances of aggravation owing to its repetition or otherwise, the officer shall forthwith charge the detainee with that offence and report the charge to a Magistrate who shall, as soon as practicable, inquire into the charge and may, if he finds the detainee guilty, sentence the detainee to imprisonment with or without hard labour for a period not exceeding six months, in addition to the term which the detainee is serving at the time of the commission of the offence.
(2)      If, on inquiry under this section, the Magistrate is of opinion that circumstances of aggravation have not been shown to exist he may so find and sentence the detainee for a corrective institution or police lock-up offence.
28(1)  In an inquiry into a charge of a corrective Institution or police lock-up offence, the witnesses called shall be sworn or affirmed in the manner usual in courts of justice.
(2)      The visiting justice shall make, in a book to be kept for that purpose at the corrective institution, a note of the charge and the result of the inquiry.
(3)      If, on the hearing of the inquiry, the visiting justice is of opinion that the evidence discloses the commission of a corrective institution or police lock-up offence attended with circumstances of aggravation by reason of its repetition or otherwise, the detainee shall forthwith be charged accordingly and the charge reported forthwith to a Magistrate who shall hear it as soon as practicable.
(4)      A Magistrate shall, on an inquiry held by him under this Part, take down or cause to be taken down in full the evidence given at the inquiry and, unless the evidence has been so taken down, the detainee shall not be found guilty of and sentenced for the commission of a corrective institution or police lock-up offence.”
The only punishment provided for is one month and six months additional imprisonment for “minor” and “aggravated” offences respectively.
It will be seen that the scheme of the Act is to allow minor corrective institution offences to be dealt with by “visiting justices” who may be “Justices of the Peace”; and corrective institution offences accompanied by circumstances of aggravation (owing to its repetition or otherwise) to be dealt with only by a magistrate. (In fact the office of Justice of the Peace has now been eliminated, and all “visiting justices” are now magistrates.) (See s. 4 District Courts (Commissioner for Oaths) Act No. 4 of 1978; and Oaths Affirmations and Statutory Declarations (Commissioner for Oaths) Act 1978.)
Though the procedure allows a minor offence to be recorded only as to the charge and its result (s. 28(2)), as contrasted with the full record required to be made by a magistrate hearing an aggravated offence (s. 28(4)); both types of proceedings require a charge, and the hearing of sworn evidence, as we interpret s. 28(1) in its apparent application to both types of offence. That the hearing need not necessarily result in a record of the evidence being kept would not we consider prevent the visiting justice’s hearing of a minor offence under s. 26 being regarded as the sitting of a “court”. The Local Courts Act makes no provision for the recording of evidence, and in fact the magistrate presiding in the Local Court usually does little more than tick off a statutory form to register procedures completed. The Local Court is nevertheless a “court” in the full sense. Many tribunals exercise jurisdiction requiring them to act judicially, without being “courts” (see Halsbury 3rd ed. vol. 9; 343: and Shell Co. Ltd. of Aust. v. Federal Commissioner of Taxation)[dci]5. Other courts such as a coroner’s court are true courts, though their function may for example be investigative only. Attempts to decide whether tribunals are exercising “judicial power” and are to be considered courts, commonly involve the enumeration of negative propositions, but are not able readily to produce affirmative definitions of the essential characteristics of a “court”, even where the decisions have been taken to the level of the Privy Council.
The provisions of the Prisons Act N.S.W., (ss. 24(3) and 25) enact similar provisions for the hearing of complaints of breaches of prison discipline, and make a similar distinction between the procedures for dealing with minor and more serious offences, to those contained in ss. 26, 27 and 28 of the P.N.G. Corrective Institutions Act. In considering whether an appeal lay from the decision of a visiting justice ordering confinement to cells for a minor offence, the Court of Criminal Appeal in N.S.W. on case stated, was of the opinion (see the judgment of Street CJ) that a prisoner so dealt with by the visiting Justice had “been adjudged to be punished”; and that “where a visiting Justice is called upon to exercise his jurisdiction under Pt. IV of the Prisons Act, he is to be regarded as presiding in a court, whatever may be the physical surroundings in which he sits. He has a statutory duty to hear and determine a complaint under s. 24(2). He is, unless he takes steps to have an ordinary criminal charge preferred, to make an ‘adjudication’ on the complaint: s. 25. If the complaint is found to be proved, he has power to punish” (R. v. Fraser)[dcii]6: and see R. v. Hull Prison Board of Visitors; Ex parte St. Germain & Ors.[dciii]7. Similarly under the Papua New Guinea Act, the visiting justice on allegation of an offence (s. 26), is to take evidence (in the manner provided by s. 28(1)) and is required to make an adjudication of satisfaction which will allow him to sentence. It is our view that when sitting under s. 26, no less than under s. 27, the visiting justice (magistrate) is sitting as a court to deal with corrective institution offences.
Reliance was placed upon the decision of the High Court of Australia in Stratton v. Parn[dciv]8 to support the submission that a visiting justice proceeding under s. 26 is not sitting as a court. The scheme of the Western Australian Prisons Act there under examination is also similar in many respects to that in the Papua New Guinea Act. The decision of the High Court is authority in Australia to the effect that the determination of a complaint as to an aggravated offence gives rise to an appeal under the Justices Act of Western Australia by way of order to review. Any statements therein reflecting on the nature of a detention order under s. 33 of the Western Australian Act (equivalent to s. 26 of the Papua New Guinea Act), would appear to be obiter in any case. But a study of the judgment of Barwick CJ does not lead us to the conclusion that he was expressing the opinion that a determination by a visiting justice under s. 33 of the Prisons Act (W.A.) amounted to a decision of an administrative nature and not to a decision of a “court”.
We are satisfied therefore that Pt. VI’s provisions do not purport to authorize unconstitutionally the deprivation of liberty or power to punish in a body other than a “court” (s. 42, s. 159 of the Constitution) — even if one were to assume that “corrective institution offences” are to be included in the phrase “criminal offences” as used in s. 159.
That being so, decisions of the court authorized by the Corrective Institutions Act to deal with corrective institutions offences (both minor and aggravated) if resulting in convictions, must be subject to a right in the convicted person to have both conviction and sentence reviewed (s. 37(15) of the Constitution). In the sense in which used here, it seems that “review” is equivalent to “appeal”. Section 30 of the Corrective Institutions Act, insofar as it purports to deny any such right of appeal must yield to s. 37(15) and should therefore be ruled invalid (s. 10 of the Constitution). We would therefore answer question (1) yes.
No. s. 185 of the Constitution headed “Lack of Procedural Provision” is in the following terms:
“if in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy.”
And s. 22 thereof, headed “Enforcement of the Constitution” reads as follows:
“The provisions of this Constitution that recognize rights of individuals (including corporations and associations) as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of the lack of supporting, machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court in the light of the National Goals and Directive Principles, and by way of analogy from other laws, general principles of justice and generally-accepted doctrine.”
It therefore appears to be the duty of this court to make provision for appeals in the two cases in which as a matter of fact it knows this Reference to issue (s. 185), and for other appeals of a like nature that may be desired to be brought (s. 22). It is our opinion this court should rule that in regard to any convictions or sentences as to corrective institution offences under ss. 26 and 27 of the Corrective Institutions Act, an appeal shall, until legislation shall provide otherwise, lie to the National Court; and that any such appeals should be brought in accordance with the provisions of the Local Courts Act and the rules made thereunder. The lack of a court record of evidence in hearings under s. 26 should be sought to be cured by the provision of a report by the magistrate on the one hand, and, evidence by affidavit on the appellant’s behalf on the other. It would be appropriate if the Chief Magistrate were to give a “Practice Direction” that Magistrates should in fact keep a record of evidence in proceedings under s. 26 as in those under s. 27. It would also be appropriate that the Chief Magistrate advise the Magistracy, all the members of whom have been proclaimed visiting justices under s. 14 of the Act, that it may be necessary for them to give consideration and attention to other aspects of the Constitution dealing with Constitutional Rights, in hearing any complaints of such offences.
This court has been informed by the counsel for the Principal Legal Adviser, that legislation is being sought in regard to statutory provision for an appeal as to corrective institution offences. And the Principal Legal Adviser himself has been reported in the news media as having sought approval of the National Executive Council for such a legislation. It is our opinion that representation should be made that legislation of this kind respectfully be sought as a matter of urgency. It is plainly an unsatisfactory state of affairs that any such appeals should go to the National Court. Their nature is such that they require expedition of hearing, which could not be obtained to the desired degree in the National Court. And it is not fitting that appeals in such minor matters should be decided in the National Court. It is our view that a more satisfactory course would be the provision for appeals to be taken to the Senior District Court Magistrate in the Province concerned (or to his opposite number in an adjoining province in a case where the Senior District Court Magistrate himself happens to be the visiting Justice appealed from).
ORDER OF THE COURT.
The Court answers Question (1) “Yes”.
In answer to Question (2) the Court orders that pending legislation, appeal is to lie from decisions under ss. 26 and 27 Corrective Institutions Act to the National Court and that such appeals should be brought in accordance with the provisions of the Local Courts Act — recourse being had to a report from the presiding magistrate and affidavits when necessary.
Solicitor for the affirmative case: M. Kapi, Public Solicitor.
Solicitor for the negative case: B. W. Kidu, the Principal Legal Adviser.
Solicitor for the intervener: K. B. Egan, Public Prosecutor.

[dxcvii]
[dxcviii]
[dxcix]
[dc]
[dci][1931] A.C. 275 at p. 297.
[dcii][1977] 2 N.S.W.L.R. 867 at p. 871.
[dciii](1978) 66 Cr. App. R. 141.
[dciv](1978) 52 A.L.JR. 330.