Samana v Waki [1984] PNGLR 8 (23 January 1984)

Papua New Guinea Law Reports - 1984

[1984] PNGLR 8 - Utula Samana v Demas Waki 

[1984] PNGLR 8

N449

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

UTULA SAMANA

V

DEMAS WAKI

Lae

Amet J

18-19 January 1984

23 January 1984

INFERIOR COURTS - District Courts - Practice and procedure - Information - Amendment - Where variance between charge and evidence - When amendment permissible - District Courts Act 1963, s. 40.

POLICE OFFENCES - Using insulting words - Breach of peace “likely to take place” - Test objective - Test for “insulting words” - Test for “likely” - What constitutes “breach of peace” - Summary Offences Act 1977, s. 7(b).

Section 40 of the District Courts Act 1963 provides:

“No objection shall be taken or allowed to an information or to a summons or warrant to apprehend a defendant issued upon an information, for an alleged defect in the information in substance or in form, or for a variance between it and the evidence in support thereof, and any such variance may be amended by order of the court at the hearing.”

Held

(1)      Section 40 permits amendment of an information which may result in the charging of a cognate offence or an offence constituted by facts which would themselves be part and parcel of the offence originally charged, or where the amended charge could in the first place have been stated in the alternative: it does not permit an amendment which would result in a charge of some new offence of a different nature.

Mitchell v. Myers [1955] WALawRp 6; (1955) 57 W.A.L.R. 49 at 52; and Higgon v. O’Dea [1962] W.A.R. 140 at 143, adopted and applied.

(2)      Accordingly, amendment pursuant to s. 40 of a charge under s. 7(b) of the Summary Offences Act 1977, of using insulting words with intent to provoke a breach of peace, to a charge under s. 7(b) of using insulting words whereby a breach of the peace was likely to take place was a permissible amendment.

(3)      On a charge of using insulting words the test of whether the words used are insulting is whether the speaker as a reasonable person should in all the circumstances expect that the recipient would be insulted, and not merely hurt as to his feelings but insulted to the extent that he was deeply offended or outraged.

Siwi Kurondo v. Lindsay Dabiri (Miles J., unreported National Court judgment No. N 258 dated 26 September 1980); and Barunke Kaman v. L. Dabiri (Bredmeyer J. unreported National Court judgment No. N 277(L) dated 19 November 1980), followed.

Ball v. McIntyre (1966) 9 F.L.R. 237, considered.

(4)      On a charge of using insulting words whereby a breach of peace was likely to take place, the test is whether there was in fact a tending towards or a real possibility of an actual assault or public alarm taking place at the precise point in time following the use of the words and in the circumstances then existing: what may or could have taken place dependent upon the reaction of the recipient of the conduct complained of is irrelevant.

Siwi Kurondo v. Lindsay Dabiri (Unreported National Court judgment No. N 258 dated 26 September 1980) adopted and applied.

Cases Cited

Ball v. McIntyre (1966) 9 F.L.R. 237.

Barunke Kaman v. L. Dabiri (Bredmeyer J. unreported National Court judgment No. N277(L) dated 19 November 1980).

Higgon v. O’Dea [1962] W.A.R. 140.

Mitchell v. Myers [1955] WALawRp 6; (1955) 57 W.A.L.R. 49.

Siwi Kurondo v. Lindsay Dabiri (Miles J. unreported National Court judgment No. N258 dated 26 September 1980).

Appeal

This was an appeal against conviction and sentence on a charge of using insulting language whereby a breach of the peace was likely to take place contrary to s. 7(b) of the Summary Offences Act 1977.

Editorial Note

An appeal herefrom was dismissed. See Public Prosecutor v. Utula Samana [1984] P.N.G.L.R. 301.

Counsel

T. Doherty and L. R. Heanao, for the appellant.

I. Brown and S. Kamekan, for the respondent.

Cur. adv. vult.

23 January 1984

AMET J: The appellant was convicted in the Lae District Court on 7 December 1983 of an offence that he on 16 November 1983, “did use insulting words whereby a breach of the peace was likely to take place” contrary to s. 7(b) of the Summary Offences Act 1977, and was sentenced to the minimum period of three months’ imprisonment with hard labour. Section 7(b) provides as follows:

“A person who:

(b)      uses threatening, abusive or insulting words with intent to provoke a breach of the peace or whereby a breach of the peace is likely to take place is guilty of an offence.

Penalty: Imprisonment for a term of not less than three months and not exceeding one year.”

The appeal is against both conviction and sentence. Five grounds of appeal were listed but only four were relied upon. They were:

GROUND 1

There was a miscarriage of justice in that the magistrate assumed the role of the prosecutor.

GROUND 2

The conviction was against the weight of the evidence.

GROUND 3

The sentence was manifestly excessive.

GROUND 4

The imposition of minimum penalty was unconstitutional.

GROUND 5

The conviction was bad in law.

FACTS

For the purposes of the appeal the magistrate found the following facts. On the morning of 16 November 1983 at about 9.30 a.m. a demonstration by about 400 young people was proceeding along Huon Road towards the Provincial Government Offices. This was apparently in protest over the recruitment policies of the Defence Force. They were to have been received by the Morobe Premier Mr Utula Samana, the appellant. However, at the Lae Secretarial College the demonstration was stopped by the Lae Police Station Commander Inspector Tamarua, who told the young people that the Provincial Government had cancelled the demonstration and would not receive it. This was not true. Several leaders of the demonstration rushed off to the Provincial Government Offices to find out from the Premier if this was true. Inspector Tamarua had arrived earlier and was advising the Premier that the demonstration had been dispersed but had not told the Premier that he, Inspector Tamarua had falsely told the demonstrators that the Provincial Government had cancelled the demonstration. The Premier was understandably angry upon hearing this from the leaders of the demonstration who arrived shortly after at the Provincial Government Offices. He then rushed off with the leaders who came to see him in his car to the scene of the dispersed demonstration. The appellant and the three leaders met some of the demonstrators near Seeto Kui’s store in Ninth Street. The young people were excited on seeing the appellant. He told the demonstrators that the police had no right to stop their demonstration. He made reference to the fact that the police had previously allowed the members of the Ahi Association to demonstrate and block the Butibam bridge. The young people were angry and uneasy. The young people then regrouped and marched along Ninth Street onto Coronation Drive and proceeded in the direction of the Provincial Government Offices. At this time the number of young people involved was in the vicinity of 100. As the demonstration proceeded along Coronation Drive, on the left hand side, there was a great deal of shouting and general noise and chanting of slogans related to or directed at the police. The demonstrators were angry at the police and this anger was encouraged by the actions and words of the appellant.

The appellant carried a megaphone and led the demonstration marching in the front line. Coronation Drive goes past the police station to the Provincial Government Offices. When the demonstration reached the police station, it stopped and faced the police station which is on the right. The demonstrators were still shouting and calling out. The appellant using the megaphone directed words at the police station. It was at this time that the appellant used the words complained of which were, “Mugugia get out of this Province. Piss off from here.”

The appellant said in his evidence that these words were used at the end of a speech in which he complained about certain actions of the police, referring to several recent incidences involving the police and alleging that police were using force at their disposal to suppress constitutional rights of the people. The magistrate accepted that the appellant used more words than those which were complained of. None of the other witnesses were able to relate exactly the context in which these words complained of were used. The magistrate found these words to have been used in English.

As the demonstration approached the police station, Chief Superintendent Mugugia, the divisional commander of police for ‘C’ division who was in his office at the Police Station, heard his own name and the word police being used and came out of his office with Chief Inspector Tomonmon the Provincial Police Commander. They stood on the steps of the divisional headquarters building and saw the appellant in front of the demonstrators shouting towards the police station with the megaphone. Mugugia then heard the appellant use the words complained of, and he was angered and insulted by the actions of the appellant towards him. Mugugia was so angered by the actions of the appellant that he had to go back into his office. The magistrate found he could not be satisfied beyond reasonable doubt that the appellant actually saw Mugugia at the time he was speaking but the magistrate was satisfied that the appellant at least believed that Mugugia was present.

The magistrate found beyond reasonable doubt that the words complained of were insulting in the circumstances prevailing at the time. When the appellant used these words there was an immediate reaction from the demonstrators. They shouted and screamed words such as “Piss off, “Piss off” “Full support” and also by waving their hands. The magistrate found, satisfied beyond reasonable doubt, that there could have been a breach of the peace if Mugugia had not remained “cool” and consequently found the offence proven against the appellant and returned a verdict of guilty.

It appears then that at this stage the learned magistrate without yet recording a conviction against the appellant proceeded to administer the allocutus or in other words ask the appellant if he wished to say anything in relation to punishment. Counsel for the appellant then addressed the court in relation to the court’s discretionary powers in relation to conviction and sentence and in particular the application of s. 138 of the District Courts Act 1963. The magistrate, after a careful assessment of all the circumstances and in particular the matters he was directed to take into account under s. 138 exercised his discretion to convict the appellant and imposed the mandatory minimum sentence of three months’ imprisonment. I shall return to the exercise of this discretion later as a substantial ground of appeal was advanced against the magistrate’s exercise of it, in the way he did, as being erroneous.

GROUND OF APPEAL 1

Turning now to the grounds of appeal. The first, that there was a miscarriage of justice in that the magistrate assumed the role of the prosecutor, was abandoned and not argued. I deal with the four grounds that were argued in the chronological sequence of the proceedings in the District Court and not in the sequence in which they were argued as they were disjointed.

GROUND OF APPEAL 5

I deal firstly with the fifth ground, that the conviction was bad in law. It was directed at the procedure adopted by the magistrate in amending the information alleging a different offence from that with which the appellant was originally charged. This, it was submitted, the learned magistrate was not allowed nor entitled to do and that it was such an irregularity amounting to an error in law vitiating the conviction. It amounted to a substantial miscarriage of justice, it was submitted.

It is necessary for the consideration of this ground of appeal to set out the procedure adopted by the magistrate. The appellant was originally charged with an offence under the same s. 7(b) of the Summary Offences Act 1977 of using insulting words with intent to provoke a breach of the peace. I note here that the information referred to the contravention of s. 7(a) and that the magistrate also referred to it as being s. 7(a) but it is in fact s. 7(b) as counsel corrected before me. It is not material, as being a formal defect which could properly have been corrected by the magistrate as envisaged by the powers under s. 40 of the District Courts Act, the section material to this ground of appeal.

The appellant pleaded not guilty to the charge when put to him. The prosecution then called three witnesses. At the close of the case for the prosecution, counsel for the appellant made submissions that there was no case for the appellant to answer. The court adjourned overnight to consider the submissions. Upon resumption the next day, the court indicated to counsel for the informant that in its view it could not lawfully convict the appellant on the charge then before it, but that there was evidence on which it could lawfully convict the appellant on a charge of using insulting words whereby a breach of the peace was likely to take place. The court then indicated to counsel for the informant that it was a matter for him what steps he took in view of that indication by the court. Prosecuting counsel then made application under s. 40 of the District Courts Act for leave to amend the information in the way indicated by the court. Counsel for the appellant then sought an adjournment to prepare submissions in reply to the application. On resumption counsel for the appellant made submissions opposing the application for amendment to the information. The court ruled granting the application and amending the information accordingly under s. 40 of the District Courts Act. At the invitation of the court, counsel for the appellant then made a further submission on the basis that there was no evidence on which the court could find that a breach of the peace was likely to take place. The court ruled that there was a case to answer on the amended charge. I note this invitation and submission to be somewhat superfluous in view of the court’s earlier indication. At this stage counsel for the appellant sought and was granted a further adjournment pursuant to s. 41 of the District Courts Act. Upon resumption the next sitting day, the appellant gave evidence and called two witnesses in support. That then is the procedure adopted pursuant to s. 40 and s. 41 of the District Courts Act.

Now, it was argued by the second counsel for the appellant that the learned magistrate could not do what he purported to do under s. 40. Section 40 of the District Courts Act is in these terms:

“No objection shall be taken or allowed to an information or to a summons or warrant to apprehend a defendant issued upon an information, for an alleged defect in the information in substance or in form, or for a variance between it and the evidence in support thereof, and any such variance may be amended by order of the court at the hearing.”

It is clear from the words of the section and the authorities, both relied on in this appeal and elsewhere that a magistrate has considerable scope to deal with charges on information and that a court should not be astute to produce injustice by dismissing a complaint by reason of some unimportant error. The section quite clearly empowers a magistrate to amend an information at the hearing. It is also trite that a court could amend an information at any stage of the proceedings up until the final disposition of the case. It is also established by authority that such an amendment could be made at the volition of the court or upon application by the prosecutor. The latter course is considered preferable in order that the courts are not seen to be adopting the role of prosecutors. I refer to the two cases referred to in this appeal by both sides as authorities for these propositions. Mitchell v. Myers [1955] WALawRp 6; (1955) 57 W.A.L.R. 49 and Higgon v. O’Dea [1962] W.A.R. 140. The learned magistrate adopted the course enunciated in these two cases. I consider that the learned magistrate had applied proper principles and adopted the right procedures in amending the information and subsequent thereto. Indeed, I find that the magistrate was meticulous in ensuring that the appellant availed himself of every opportunity properly to prepare his defence and not be prejudiced by that amendment.

The essential issue remains however, whether there was “variance” in the terms of s. 40, such as could lawfully enable the magistrate to amend the information upon application. Was there variance between the original information and the evidence adduced in support thereof. The evidence quite clearly fell short of supporting the element of subjective mental intent to provoke a breach of the peace.

Counsel for the appellant submitted that the evidence adduced did not amount to variance such as could lawfully enable the magistrate to substitute by amendment a new and different offence which he did.

I find the passage cited from Mitchell v. Myers at 52 usefully sets out the test. Dwyer C.J. said as follows in relation to s. 46 of the Justices Act 1902 (W.A.), which is in almost identical terms to s. 40 of the District Courts Act:

“It does not mean some new offence unrelated to that charged in the complaint can be assumed, can be laid, or can be the subject of amendment; it would be something more than a variance if an offence of a different nature and character could be substituted for that which is set out in the complaint or is the subject matter of the charge before the Justices; but it does extend to alleging what I might call a cognate offence which is established by the evidence, that is one similar in some way to that charged, or one which would be a constituent of the actual complaint which has been laid; and by a constituent I mean what the Code calls an element or something of the sort, an ingredient involved in the complaint laid, and in that respect almost necessarily a complaint of a lesser gravity than that charged ...”

Further the Full Court of the Western Australian Supreme Court in Higgon v. O’Dea approved these propositions. Hale J. at 143 said:

“... section 46 does not permit an amendment which would result in a charge of some new offence of a different nature but it does relate to a cognate offence or an offence constituted by facts which would themselves be part and parcel of the offence originally charged; and it appears to me that it must equally permit an amendment where the two charges could in the first place have been stated in the alternative ...”

I consider that the two offences are similar in nature and character. They related to the same subject, that of preservation of public order, the facts of the amended charge form part and parcel of the original charge, they are offences within the same section and subsection, they share the same constituent elements of use of insulting words and a breach of the peace, that they could in effect be stated in the alternative, and that the amended charge is of lesser gravity than that originally charged. They are in my view cognate offences.

I find therefore that the learned magistrate had not erred in amending the information. This ground of appeal is therefore dismissed.

GROUND OF APPEAL 2

The next ground of appeal I consider in proper sequence is that the conviction was against the weight of the evidence. This may be misleading and perhaps the better way to express this is against the verdict of guilty as the magistrate considered the question of conviction as a discretionary matter at a later stage. The magistrate’s findings were attacked on two bases. First, that the finding that the words complained of were insulting was against the weight of the evidence and secondly, the further finding that the words complained of were likely to cause a breach of the peace was also against the weight of the evidence.

Both these same areas have been examined closely by Miles J. in Siwi Kurondo v. Lindsay Dabiri (Unreported National Court judgment No N 258) and Pratt J. in Barunke Kaman v. L. Dabiri (Unreported National Court judgment No. N277(L)) and have been relied upon by both sides in this appeal, and so I do not propose to cover the same ground in any great detail.

It was submitted by counsel for the appellant that the words complained of were not in fact insulting in all the circumstances. It was said that the words were taken out of the context in which they were used, that is in the course of a long speech in a public demonstration. It was not argued that the magistrate had applied the wrong standards in law, but rather that when viewed more objectively in the total context of the demonstration and the subject matter of the speech that the appellant made, directed towards the police, the words complained of do not become insulting. Subjectively to Mugugia, the words were, he considered, insulting. The test is, as Miles J. said in Siwi Kurondo’s case, at 4:

“... whether the speaker as a reasonable person should in all the circumstances expect that the recipient would be insulted, and not merely hurt as to his feelings but insulted to the extent that he was deeply offended or outraged.”

Miles J. then at 4 in that case cited a passage from Kerr J. in Ball v. McIntyre (1966) 9 F.L.R. 237 at 241 and considered that passage helpful:

“Conduct which offends against the standards of good taste or good manners, which is a breach of the rules of courtesy or runs contrary to the commonly accepted social rules, may well be ill-advised, hurtful, not proper conduct ... but it may well not be offensive conduct within the meaning of the section ... different minds may well come to different conclusions as to the reaction of the reasonable man in situations involving attitudes and beliefs and values in the community, but for my part I believe that a so-called reasonable man is reasonably tolerant and understanding and reasonably contemporary in his reactions ...”.

His Honour Miles J. continued at the bottom of 4:

“In this respect I think his Worship misdirected himself in law in considering that the test of whether the words were insulting was whether the person to whom they were directed was in fact insulted.”

I consider that the magistrate whilst adverting to the proper test placed too much emphasis on the subjective reaction of Mugugia personally. Whilst the magistrate adverted to the circumstance that these words were uttered in the course of a public demonstration, I consider that insufficient weight was given to the circumstances and nature of that public demonstration, the original purpose of the demonstration and the reasons for the digression at that point in time and more importantly the context in which those words were spoken. In the words of Miles J. at 5 in Siwi Kurondo’s case:

“... the words must not be considered in isolation from the circumstances ... He did not give adequate weight to the events leading up to the use of the words.”

The speech made by the appellant at that time was obviously a political one, directed at various conducts and actions of the police related to constitutional rights and obligations of the people and the police. Miles J. said of Siwi Kurondo’s conduct in that case at 2:

“... It is of some significance, though not much, that at the time the appellant was the Premier of the Simbu Province. There was obviously some political significance in his outburst, which I think would reduce rather than increase any tendency to be insulting.”

There is in my view a very similar parallel in the outburst by the appellant in the circumstances leading up to the use of the words complained of and the context in which they were used, which in the words of Miles J. “would reduce rather than increase any tendency to be insulting.”

I refer also to Pratt J.’s, judgment in Barunke Kaman’s case at 2. His Honour cited the test as stated by Miles J. in Siwi Kurondo’s case and continued:

“... I do not take these words to mean that because a person’s over-inflated sense of his own importance or a belief in his own infallibility within the community has been called into question, that he can call in aid the provisions of the criminal law. Whilst there is no excuse for members of the community exhibiting disrespect to the police, there is also no place for thin-skinned police officers, even taking into account the special difficulties which the police face in certain areas of the Highlands.

It is the duty of the courts to safeguard the fine balance between freedom of speech and a genuine breach of s. 7 of the Summary Offences Act.”

The court is not here to enforce standards of conduct or morals which fall short of criminal conduct. I consider that in all the circumstances of the morning in question the words of the appellant although on the face of it insulting were not such as to so deeply offend and outrage a reasonable police officer that they constituted criminal conduct.

The second leg of this ground of appeal was that no breach of the peace was likely to take place or that the finding by the magistrate that a breach of the peace was likely to take place was against the evidence.

The short objective facts as disclosed by the evidence are as follows. There were upwards of 100 demonstrators in all. As they marched down Coronation Drive they were shouting and chanting slogans aimed at the police. They stopped in front of the police station on the opposite side of the road, the left hand side in front of the A.N.Z. Bank generally. They were making a lot of noise. They attracted a sizeable crowd of onlookers from the banks, shops and the street generally. There were about fifteen to twenty policemen and policewomen who came out of the general duty office and stood about generally watching, some on the ground, some on the concrete platform in front of the duty office. Chief Inspector Tomonmon and Chief Superintendent Mugugia stood on the steps of the divisional headquarters. The appellant addressed his remarks towards the police station. When the words complained of were spoken Mugugia returned to his office. The demonstrators shouted and screamed in support “Piss off” “Piss off” “Full support” and waved their hands. There was no evidence of reaction from the bystanders. There was no apprehension or alarm on the part of bystanders. There was no evidence of any actions on the part of the police nor indeed any reactions following the use of the words complained of. There was no movement by the police.

There was no order given to the police that they should organise themselves in readiness for a possible breach of the peace as if there was a real possibility that a breach of the peace would take place. Apart from Mugugia himself neither of the other two police witnesses, a sergeant and the P.P.C. said that they considered a breach of the peace was likely, or why and on what grounds they might have so thought, at that precise point in time following the use of the words complained of by the appellant. There was no alarm at all, by either the police, some fifteen to twenty standing about watching nor from bystanders. Indeed in the finding of the learned magistrate himself — “There was no fear immediately after the words were spoken on the part of the bystanders.” There was no evidence that following the use of the words complained of the demonstrators surged forward as if to confront the police. In the absence of evidence to the contrary it is fair to assume that they remained on the left hand side of the road and then proceeded towards the Provincial Government Offices. In the absence of any alarm by the policemen and policewomen who stood about generally watching and more particularly in the absence of evidence of any precautionary actions by the police immediately following the use of the words by the appellant, which may indicate some tension or alarm or apprehension on the part of police at least that they may have feared a likely breach of the peace, I am quite unable to share the view of the magistrate that a very serious situation had arisen. Indeed, it seems to me that after a short stop of about three to six minutes and at the most ten minutes in front of the police station to let off steam at the police, rightly or wrongly, the demonstration proceeded towards the Provincial Government Offices, its original destination.

The magistrate however does not say that the use of the words by the appellant brought about a situation whereby a breach of the peace was likely to take place. He does not say that anywhere in his judgment. All he says is that in his view a very serious situation had arisen. He proceeds however, to seemingly establish a new element in the chain of causation. He says that there could very well have been a breach of the peace if Mugugia had made the slightest move to challenge the appellant’s words, or that there could have been a breach of the peace if Mugugia had not remained “cool”, or that there was a real possibility that the demonstrators could have become violent if Mugugia had attempted to challenge the words used by the appellant even in the slightest manner.

In my view in expressing himself in that way the magistrate has erred. He appears to have placed emphasis on what may have happened or what could have happened dependent upon what the reaction of the recipient of the words complained of, may have been.

The commission of the offence is not dependent upon what may or could have taken place dependent upon what the reaction of a recipient of the conduct complained of may have been. Whilst the likelihood of a breach of the peace is further dependent upon whatever the reaction of a recipient may be, then no offence against the section has been committed.

It is not whether a breach of the peace could have or could very well have taken place if Mugugia reacted this way or that way, it is whether it was in fact likely to take place at that precise point in time following the use of the words, from the facts and circumstances prevailing at that point in time. The fact was that Mugugia did not react in any of the ways postulated by the magistrate. This demonstrated commendable discipline on his part and indeed as it should have been.

In my view the circumstances prior to and after the use of the words complained of by the appellant do not support the conclusion that a breach of the peace was likely to take place. Further I consider the magistrate erred in law in seeming to extend the necessary ingredients required for the commission of the offence to a further requirement dependent upon the reaction of the recipient of the conduct complained of.

I accept that the magistrate correctly perceived the meaning of the term “likely” in the expression “whereby a breach of the peace is likely to take place” to mean “tending towards” or “a real possibility of”. And I accept the meaning of the term “breach of the peace” to be as accepted by Miles J. in Siwi Kurondo’s case from Carters Criminal Law of Queensland (5th ed) at 204:

“... a breach of the peace arises where there is an actual assault, or where public alarm and excitement are caused by a wrongful act. Mere annoyance, and disturbance or insult to a person or abusive language or great heat and fury without personal violence, are not generally sufficient.”

Applying these meanings of the terms likely to cause a breach of the peace I have come to the definite conclusion that the objective facts could not support the conclusion that there was a “tending towards” or “a real possibility of” an “actual assault” or “public alarm”.

There are however authorities which caution against an appeal court disturbing finding of facts by a trial court, and I quote from Pratt J.’s judgment in Barunke Kaman’s case at 3:

“This, of course, is the very type of case where an appeal court is reluctant to substitute its own view for that of the magistrate ... But there must be something in the evidence to substantiate the finding and there should be something in the reasoning to justify the conclusion at which the court has arrived.”

I consider that the primary facts did not support the conclusions the magistrate arrived at. I consider therefore that there has been a substantial miscarriage of justice pursuant to s. 236(2) of the District Courts Act and so I allow the appeal on both legs of the appeal under this ground.

GROUND OF APPEAL 3

The next ground related to the severity of sentence but also dealt with the exercise of the discretion to convict, by the magistrate under s. 138. It was submitted that the magistrate had erred in exercising his discretion to convict. In view of my decision on the ground above it becomes unnecessary to consider this ground of appeal.

The question and the discretion whether or not to convict under s. 138 obtains only when there is a correct finding of guilty or where the charge has been lawfully proven. Because I have found that the findings were against the evidence and have upheld the appeal on the basis that a substantial miscarriage of justice has taken place, it follows that this stage is therefore not reached. But I am of the view that if I had to consider it I could not find that the magistrate erred. I consider that the process adopted was quite correct and that he considered all the matters he was directed to under s. 138 and decided to exercise his discretion in a certain way. No error has been shown and I would therefore not have disturbed his exercise of discretion to convict. However, as I said it becomes unnecessary to decide the issue. Similarly the arguments against severity of sentence become unnecessary to consider.

The last ground of appeal advanced was that the imposition of the minimum penalty was unconstitutional as being contrary to fundamental rights of freedom from inhuman treatment and rights to fair trial. In short the issue becomes irrelevant in this particular case as I am able to dispose of the case on some other ground. I therefore do not propose to refer any question for interpretation to the Supreme Court under s. 18(2) of the Constitution as urged upon me by counsel for the appellant.

The order of the court pursuant to s. 236(1) and (2) of the District Courts Act is that the appeal be allowed or upheld, conviction quashed, a verdict of not guilty be entered and the appellant discharged forthwith and bail monies be refunded.

Orders accordingly.

Lawyer for the appellant: Kirkes.

Lawyer for the respondent: L. Gavara-Nanu, Public Prosecutor.