R v Ngena [1983] SBHC 1; [1983] SILR 1 (20 January 1983)

(1983) SILR 1

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 14 of 1982

R.

V

NGENA

Beforly C.J.

Date: 20th January 1983

Murder - suicide pact - reduction to manslau - application of s. 4 U.K. Homicide Act - "acts of general application" Con; Constitution Schedule 3 paragraph 1 - "subject to any Act of Parliament".

Facts:

The accused was charged with murder. In his statements he had alleged the existence of a suicide pact between himself and the deceased. The Defence sought to rely upon section 4 of the Homicide Act 1957 of the United Kingdom as reducing the offence from murder to manslaughter.

Held:

The Homicide Act 1957 of the United Kingdom was an act of general application for the purposes of Schedule 3 paragraph 1 of the Constitution as it is "one that regulates conduct or condition which exists amongst humanity generally and in a way applicable to humanity generally". However it must be read "subject to any Act of Parliament" of Solomon Islands. As Parliament had enacted a comprehensive Code dealing with criminal acts, including homicide, in the Penal Code the Homicide Act 1957 of the United Kingdom is "subject to" that Code and that Code prevented the Homicide Act 1957 from applying in Solomon Islands.

Ruling accordingly.

For Crown: L. Holt
For Accused: K. Brown

Daly CJ: The accused having pleaded Not Guilty to murder contrary to section 193 of the Penal Code I have been asked by both the Crown and Defence to hear and determine a legal point prior to hearing evidence as this point may effect the way in which the trial proceeds.

The point is raised by the learned Public Solicitor who argues it with his usual verve and acumen. It is, is section 4 of the Homicide Act 1957 of the Parliament of the United Kingdom ("the 1957 Act") applicable in a trial for murder before the High Court of Solomon Islands? Section 4 of the 1957 Act as enacted and in force on 1st January 1961 reads as follows:-

"4 Suicide pacts

(1) It shall be manslaughter, and shall not be murder, for a person acting in pursuance of a suicide pact between him and another to kill the other or be a party to the other killing himself or being killed by a third person.

(2) Where it is shown that a person charged with the murder of another killed the other or was a party to his killing himself or being killed, it shall be for the defence to prove that the person charged was acting in pursuance of a suicide pact between him and the other.

(3) For the purposes of this section "suicide pact" means a common agreement between two or more persons having for its object the death of all of them, whether or not each is to take his own life, but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact."

This section is contained in Part I of the 1957 Act which deals with certain general aspects of the law relating to homicide. Part II of the 1957 Act deals with liability to the death penalty and Part III deals with the form and execution of the death sentence.

What is common ground between the parties is that there is no similar provision in the Penal Code of Solomon Islands (Cap. 5) which relates to suicide pacts; the only reference to suicide being in section 212 which relates to aiding and abetting, counselling or procuring the suicide of another or an attempt to commit suicide.

However other provisions in similar terms to the other sections in Part I of the 1957 Act have been incorporated in the Penal Code which came into force upon 1st April, 1963; section 1 (constructive malice) is incorporated in section 194 of the Penal Code; section 2 (diminished responsibility) in section 196; and section 3 (provocation) in section 198.

The omission to include in the Penal Code a provision similar to section 4 of the 1957 Act where other provisions of that Act have been incorporated can then in my judgment, only be regarded as a deliberate act of the legislature and in drawing up the Code for the criminal law for Solomon Islands, it must be taken that the legislature decided that a similar provision to section 4 was not desirable.

It would, as the learned Director of. Public Prosecutions points out, have been an easy matter to incorporate such a provision in the Code.

The learned Public Solicitor, however, asks me to look first at the legislative history 'and in particular at the criminal law applicable in Solomon Islands when the Penal Code came into force on the 1st April 1963. This was contained basically in section 15(1) of Western Pacific (Courts) Order 1961 ("the 1961 Order") which provided so far as is relevant that:-

"Subject to the provision of this Order and any Rules made thereunder and to any law for the time being in force in any territory the ….. criminal jurisdiction of the High Court shall, in so far as circumstances admit, be exercised upon the principles of and in conformity with -

(a) the statutes of general application in force in England on the 1st day January 1961 .....

Provided that the said ... statutes of general application shall be in force only as far as the circumstances of any particular territory and its inhabitants permit and subject to such qualifications as local circumstances render necessary."

Prior to the commencement of the Penal Code there was very little legislation enacted by the Solomon Islands legislature relating to substantive criminal law and nothing which touched upon suicide although the Punishment for Murder Ordinance imposed the death penalty and made provisions about the procedure for execution of the death penalty as from 5th September 1956. Thus the words in the first part of section 15(1) of the 1961 Order do not require consideration in relation to Part I of the 1957 Act in which section 4 is contained although it would have done in relation to Parts II and III of that Act which deal with capital murder and the death penalty which were dealt with in the Punishment for Murder Ordinance of the Solomon Islands legislation. Nor has there been any suggestion that the proviso to subsection 15(1) of the 1961 Order is. to be applied to Part I of the 1957 Act and therefore it is not necessary to consider whether the circumstances of Solomon Islands permitted application of Part I of that Act or whether it required qualification for local circumstances. Thus the sole question to be answered in 1961 was, is the 1957 Act a statute of "general application"….?

Assuming for the moment that the 1957 Act was such an act then Part I of it was part of the criminal law of Solomon Islands as at 1st April, 1963. The learned Public Solicitor then suggests that consideration must be given to whether or not Part I of the 1957 Act and in particular section 4 was repealed by the Penal Code which came into force on that date. To follow counsel's argument through, he points out that as the Penal Code makes no express repeal of section 4 of the 1957 Act and is silent on the question of suicide pacts the repeal of section 4 can only be said to be by implication and, in accordance with the principles of interpretation, unless there is repugnancy; unless, in other words, it is impossible to construe the latter statute without contradiction of the earlier statute, then the earlier statutory provision continues in force. In the case of two penal statutes, says counsel, repeal by implication should only take place where there is total inconsistency between the earlier and the later statute. Thus in this case, where there is no inconsistency, the Penal Code cannot be said to have repealed by implication section 4 of the Homicide Act. In addition the learned Public Solicitor argues that section 4 of the 1957 Act was saved by section 2(a) of the Penal Code which provides:-

"Except as hereinafter expressly provided nothing in this Code shall affect (a) the liability, trial or punishment of a person for an offence against the common law or against .... any other law in force in Solomon Islands other than this Code.

The argument as to implied repeal raises a number of interesting points and I have not had the benefit of argument by counsel on the cases which are said to support the statements of general principle. Much as one respects the views of text book writers there is no substitute for reference to the authorities themselves. However in my judgment it is not necessary for me to consider those cases because I am of the view that this argument is unsound for two reasons. The first is that the use of the word 'repeal' in relation to what happened in 1963 when the Penal Code was enacted is inapt. The words of section 15(1) of the 1961 Order make it clear that the courts of each country were entitled to regard. the statutes of the United Kingdom Parliament as subject not only to their own laws but also to their circumstances and to apply them 'with such qualifications as local circumstances permitted. To apply to a legal situation couched in such wide terms the rigorous rules developed for statutory interpretation in the courts of England dealing with a fixed set of statutes which are inviolable is an approach which would seem. to defeat the terms of section 15(1) of the 1961 Order. Of course such rules might well be helpful with our own statutes but, in considering a possible difference between a Solomon Islands statute and a United Kingdom statute applied by section 15(1) of the 1961 Order, in my judgment, such rules should not be strictly applied.

The second reason is that in 1983 we are concerned not with the terms of the 1961 Order but with the terms of the Solomon Islands Independence Order 1978 ("the 1978 Order") and the Constitution scheduled to that Order which came into operation on 7th July 1978. In the 1978 Order itself by section 5(1) "the existing laws" are preserved and "shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity" with the 1978 Order and the Act under which it was made. "Existing laws" are widely defined in section 2(1) of the 1978 Order as inter alia "any Acts of the Parliament of the United Kingdom … Ordinances … having effect as part of the law of Solomon Islands .... before the appointed day …"

In fact on the appointed day, section 15(1) of the 1961 Order was still in force having been preserved by section 11(1) of the Solomon Islands Courts Order 1975 (Legal Notice No. 53 of 1975). Therefore it would at first sight appear that the question raised as to the applicability of section 4 of the 1957 Act would turn on the question whether or not that section was an "existing law" on 7th July 1978 that is, was it part of an Act of Parliament of the United Kingdom having effect as part of the law of Solomon Islands? For the answer to this question one would have to return to the 1961 Order and the Penal Code.

However the Constitution itself has a relevant provision in Schedule 3 para 1 which provides:-

"1. Subject to this Constitution and to any Act of Parliament, the Acts of the Parliament of the United Kingdom of general application and in force on 1st January 1961 shall have effect as part of the law of Solomon Islands, with such changes to names, titles, offices, persons, and institutions, and as to such other formal and non-substantive matters, as may be necessary to facilitate their application to the circumstances of Solomon Islands from time to time."

In my judgment it is clear from the terms of the 1978 Order and the Constitution scheduled to it that Schedule 3 para 1 is the provision to be applied by this Court in deciding after 7th. July 1978 whether or not a statute of the United Kingdom Parliament takes effect as part of the law of Solomon Islands.

It will be noted that this paragraph does not give the flexibility of approach to the statutes of the United Kingdom Parliament embodied in section 15(1) of the 1961 Order but merely enables changes to be made to formal and non-substantive matters. There is no reference, for example, to application as 'far as circumstances admit'. It seems that the draftsmen of the Constitution were in favour of a more strict application of the Acts of the United Kingdom Parliament of general application and in force on 1^st.January 1961.

It falls therefore to me to construe the provisions of para 1 of Schedule 3 to the Constitution to answer the questions posed in this trial. In so doing there are two sub-questions I must answer:-

(a) Is the 1957 Act an act "of general application? and

(b) If the answer is yes to (a) is the application of section 4 of the 1957 Act excluded by the words "subject ... to any Act of Parliament" in Schedule 3 para 1?

In their submissions on the answer to question (a) counsel have been unable to refer me to any cases although some useful passages appear in Roberts-Wray "Commonwealth and Colonial Law". At page 556 paragraph (7) the learned author writes:-

"(7) The expression "statutes of general application" is usually regarded as descriptive of Acts of Parliament which are of general relevance to the conditions of other countries and, in particular, not based upon politics or circumstances peculiar to England. The suggestion (not confirmed on appeal) that an Act might be excluded if not applied by all Courts or to all classes of the community in England seems to be ill founded. The view, adopted by Courts in Nigeria, that a statute is not one of general application if it does not extend to Scotland and Ireland is even more out of line, for it is only the law of England that is imported."

Whilst expressing gratitude to the learned author I would prefer to frame the test in this way, that is, having regard to the statute under consideration as a whole, is it one that regulates conduct or conditions which exist amongst humanity generally and in a way applicable to humanity generally or is it restricted to regulating conduct or conditions peculiar to persons, activities or institutions in the United Kingdom or in a way applicable only to persons, activities or institutions in the United Kingdom? If the former the statute is of general application. I should add that I use the words "United Kingdom" advisedly (pace Sir Kenneth Roberts-Wray) as para 1 of Schedule 3 does not restrict our received law to be law of England.

I now turn to the Homicide Act, 1957. The long title read as follows:-

"An Act to make for England and Wales (and for courts-martial wherever sitting) amendments of the law relating to homicide and trial and punishment of murder, and for Scotland amendments of the law relating to the trial and punishment of murder and attempts to murder."

The reference to geographical locations does not, of course, prevent this being an act of general application within the test I have set out. Part I as we have seen deals with constructive malice, diminished responsibility, provocation and suicide pacts. Part II deals with liability to death penalty and Part III deals with the form and execution of the death sentence. Homicide is all too regrettably conduct which exists amongst humanity generally and Part I deals with questions commonly arising in homicide cases throughout the world. Parts II and III, dealing with the death penalty, also attempt to regulate that conduct in a way applicable to humanity generally. I therefore find that the Homicide Act 1957 is an act of general application.

Turning to question (b) I must now consider the effect of the words "subject … to any Act of Parliament" in Schedule 3 para 1 of the Constitution. The words "Act of Parliament" are not defined but in the context must mean an Act of the National Parliament of Solomon Islands. As section 5(1) of the Order provides that "existing laws shall have effect … as if they had been made in pursuance of the Constitution" that is, by the National Parliament, I hold that the expression also refers to Ordinance made by earlier legislatures. This would mean that the Penal Code is an Act of Parliament for the pursuance of this paragraph.

What effect does that Code have on section 4 of the 1957 Act? It is conceded that if there is other provision made in the Penal Code to the 1957 Act that provision takes precedence and the 1957 Act provision does not apply. This is so with, as we have seen, constructive malice, diminished responsibility and provocation. But what is the case where the Code is silent? Counsel's main argument was addressed to the earlier history of the legislation rather than the words "subject to" but he argues that silence means that there is nothing to which section 4 of the Homicide Act could be 'subject' and therefore it would have effect as part of the law of Solomon Islands. He goes so far as submitting that "subject to" can only apply where there is a direct conflict between the U.K. statute and the Solomon Islands statute. He would also continue to urge the express preservation of section 4 of the 1957 Act by section 2(a) of the Penal Code to which I have already referred.

As far as section 2(a) is concerned I do not consider the words of that paragraph support the proposition made. That paragraph preserves "liability, trial or punishment ... for an offence.... against the common law or against any other law in force in Solomon Islands other than this Code" (My emphasis). Murder is an offence against a law in the Code so questions of liability for such an offence are expressly excluded from the terms of section 2(a) of the Penal Code. In addition the argument begs the question, is section 4 of the 1957 Act a "law in force in Solomon Islands"?

I prefer, in answering that question, to look at the Homicide Act 1957 as a whole and relate it to the Penal Code as a whole. Paragraph 1 of Schedule 3 refers to "subject … to any Act of Parliament" and "the Acts of the Parliament of the United Kingdom". It is then dealing with the legislation in terms of Acts rather than individual provisions. When we turn on this basis to the Penal Code we find that it has the long title "An ordinance to establish a Code of Criminal Law". As one would expect in such a Code there is comprehensive coverage of criminal offences and defences to them. Part XX deals with murder and manslaughter; Part XXII with offences connected with murder and suicide. The fact that the provisions differ in some respects from the law of England in 1961makes it clear that this was a Code intended for Solomon Islands and that the legislature was not merely adopting English law as at that date. Section 212 of the Penal Code, for example, embodies a provision from the Suicide Act 1961 which would not otherwise apply in Solomon Islands as it came into force after 1st January 1961.

The Homicide Act as in force on 1st January 1961 covers with some differences, the same areas of human activity and the regulation of them. It is clearly in my judgment an Act which must be "subject to" the Penal Code. In the context of a comprehensive Act of Solomon Islands existing in the same field as an Act of the United Kingdom I take the view that the provisions of the Solomon Islands Act not only take precedence where there is a conflict but also that, in order to give the words "subject to" any real meaning, the existence of the Solomon Island Act must prevent the provisions of the United Kingdom Act taking effect as part of the law of Solomon Islands even where there is no conflict. This accords, in my view, with the clear intention of the draftsmen of the 1978 Order and the Constitution as reflected in that Order and Constitution read as a whole and in particular having regard to Schedule 3 to the Constitution that the Solomon Islands legislature should be entitled to legislate for itself in relation to any subject and when it has done so, a Solomon Islands statute would be the source of law for Solomon Islands on that subject and the United Kingdom statute law would wither away whether or not there was express repeal.

Therefore in my judgment none of the provisions of the Homicide Act 1957 take effect as part of the law of Solomon Islands pursuant to para 1 of Schedule 3 of the Constitution. It follows that section 4 of that Act is not part of the law of Solomon Islands.

I should perhaps add that, if it were necessary for me to do so, I would reach the same conclusion as to the effect of the Penal Code on the Homicide Act 1957 on the basis of the terms of section 15(1) of the 1961 Order, that is, that I would hold that upon enactment of the Penal Code the High Court was no longer required by that Order to exercise jurisdiction upon the principles of or in conformity with the Homicide Act 1957 and that therefore on 7th July 1978 section 4 of the 1957 Act was not an 'existing law' for the purposes of section 2(1) of the 1978 Order.

I rule therefore in answer to the question raised: NO, section 4 of the Homicide Act 1957 of the Parliament of the United Kingdom is not applicable on a trial for murder before the High Court of Solomon Islands.

I am grateful for the assistance of counsel in relation to this interesting and important question of law.

-------------------------------------------------