Criminal Appeal Case No. 32 of 1988
DIRECTOR OF PUBLIC PROSECUTIONS
V
NOEL BOWIE
;
(Ward C.rd C.J.)
Hearing: 22 September 1988
Judgment: 13 October 1988
Gross indecency - section 155 of the Penal Code- whether sect5 conflicts with
sectisection 15 of Constitution - if so whether the whole or any part of section 155 void -
discrimination on grounds of sex.
Facts:
The Director of Public Prosecutions appealed against the acquittal of the respondent on
a charge of gross indecency. The Principal
Magistrate acquitted the respondent on the
reasoning that section 155 of the Penal Code conflicts with section 15 of the Constitution
and is thus void. The DPP appealed on the ground that the Magistrate had erred
in holding
that section 155 of the Penal Code conflicted with section 15 of the Constitution and
thereby rendered section 155 of the Penal Code null and void.
Held:
(1) Section 155 of the Penal Code limits the offence to cases of gross indecency by
male persons with male persons. There being no similar provision relating
to females,
there is inconsistency with section 15 of the Constitution.
(2) Subsection 9 of section 15 of the Constitution does save certain provisions made
under section 9(2) and section 13(2) of
the Constitution where such provisions are
inconsistent with s. 15 but only in so far as those provisions relate to privacy
and free
association.
(3) Subsection 9 of Section 15 of the Constitution does not save inconsistency in
provisions made in the interests of public
morality and public health of which section 155
of the Penal Code is one.
(4) The intention of the Legislature was to make it an offence to indulge in acts of
gross indecency.
(5) The removal of the word "male" in section 155 of the Penal Code would
make the offence no longer discriminatory.
(6) The real question is whether what remains is so inextricably bound up with the part
declared invalid that what remains
cannot independently survive or whether on a fair
review of the whole matter it can be assumed that the Legislature would
have enacted what
survives without enacting the part that is ultra vires. Attorney-General for Alberta v.
Attorney General for Canada [1947] A.C. 503 applied.
(7) The removal of the word "male" does not prevent the remainder of s. 155
having a clear and complete meaning.
(8) The removal of the word "male" in section 155 of the Penal Code corrects
the inconsistency with section 15 of the Constitution and also increases the scope of the
felony of gross
indecency to include acts of gross indecency between two females or
between a male and a female. Under s.5 of the Solomon
Islands Independence Order 1978 the
section continues to have effect but is to be construed with such modifications as are
necessary to bring it into conformity with the Constitution, i.e. in this case, by the
deletion of the word "male".
Appeal allowed. The court ordered that the case be tried de novo before a different
magistrate should the respondent return to
the jurisdiction.
Cases referred to:
Attorney General for Alberta v. Attorney General for Canada [19471] A.C. 503
F. Mwanesalua, DPP, for the Crown
Accused not present and not represented
WARD CJ: This is an appeal by the Director of Public Prosecutions against
the learned Principal Magistrate's acquittal of the respondent
on a charge of gross
indecency contrary to section 155 of the Penal Code. The offence was alleged to have been
committed with one Ben Tadabara, referred to by the prosecution as the victim despite
the
fact that, on their own case, he appears to have been equally involved. He was not charged
and was called by the prosecution
as one of their five witnesses of the incident that gave
rise to the charge.
At the close of the prosecution case, counsel for the respondent submitted that section
155 of the Penal Code conflicted with section 15 of the Constitution and should be
considered void to the extent of the conflict. The learned trial
Magistrate agreed and
concluded his ruling:-
"I find as a matter of law that section 155 Penal Code conflicts with the
Constitution and is void. I need not consider the other points made on the facts and on
this ground
alone find that there is no case to answer".
Although the record does not show it, he must then have acquitted the accused under
section 196 of the Criminal Procedure Code.
The Director of Public Prosecutions appeals against the acquittal on the single
ground:-
"That the learned Magistrate erred in holding that section 155 of the Penal Code
conflicted with section 15 of the Constitution and thereby rendering section 155 of the
Penal Code null and void."
It would appear to this Court that two questions arise for consideration; does section
155 conflict with the Constitution and,
if it does, is the whole or any part of the
section void as a result?
The relevant parts of section 15 of the Constitution read:
"15(1) Subject to the provisions of subsection (5), (6) and (9) of this
section, no law shall make any provision that
is discriminatory either of itself or in its
effect.
(4) In this section, the expression 'discriminatory' means affording different
treatment to different persons attributable
wholly or mainly to their respective
descriptions by race, place of origin, political opinions, colour, creed or sex whereby
persons of one such description are subjected to disabilities or restrictions to which
persons of another such description
are not made subject or are accorded privileges or
advantages which are not accorded to persons of another such description."
Subsections (5) and (6) have no bearing on this appeal but, in view of the submissions
by the Director of Public Prosecutions,
I set out subsection (9).
"(9) Nothing contained in or done under the authority of any law shall be held
to be inconsistent with or in contravention
of this section to the extent that the law in
question makes provision whereby persons of any such description as is mentioned
in
subsection (4) of this section may be subjected to any restriction on the rights and
freedoms guaranteed by sections
9, 11, 12, 13 and 14 of this Constitution, being such a
restriction as is authorised by section 9(2), 11(6), 12(2), 13(2)
or 14(3), as the case
may be."
Miss Corrin, who represented the respondent at the lower court, was not instructed for
the appeal and, as the respondent has
left the country, there was no one to put the
respondent's case in this Court. However, it is clearly stated in the record of
the lower
court and can be stated simply.
Section 155 of the Penal Code provides:-
"155. Any male person who, whether in public or private, commits any act of
gross indecency with another male person,
or procures another male person to commit any
act of gross indecency with him, or attempts to procure the commission of any
such act by
any male person with himself or with another male person, whether in public or private
shall be guilty
of a felony, and shall be liable to imprisonment for five years."
Thus the offence is plainly restricted to male persons and the terms of section 15 of
the Constitution are clear. No law shall
make any provision that, either of itself or in
its effect, affords different treatment to different persons attributable wholly
or mainly
to their sex.
It would be hard to imagine a clearer case. Section 155 limits the offence to cases of
gross indecency by male persons with male
persons. There is no similar provision relating
to females and, thus, there is an inconsistency with section 15.
The Director of Public Prosecution suggests that, by section 15(9), anything done under
sections 9(2) and 13(2) that also breaches
section 15 shall not be held to contravene the
latter section. In each of those sections there is a reference to provisions
made in the
interests, inter alia, of public morality and public health and those, he says, would
cover the offence under
section 155. However, if this argument is to succeed, it is
necessary to interpret section 15 far too widely. Sections 9(2)
and 13(2) exclude certain
provisions from the general protection of the rights to privacy and free association
respectively.
If such provisions also conflict with section 15, they are saved by section
15(9) but it only saves those provisions in relation
to privacy and free association and
cannot be extended to save any provisions made in the interests of public morality and
public health generally.
As I have said, I am firmly of the opinion that section 155 is inconsistent with
section 15(1) and is not saved by any other
provision so I must now consider the effect of
that inconsistency.
By section 2 of the Constitution, "if any law is inconsistent with this
Constitution, that other law shall, to the extent of the inconsistency, be void."
There appears to have been no discussion of this aspect in the lower court. The learned
magistrate concluded that the section
was void in its entirety but gave no reasons for
that finding. I feel it is a matter requiring careful examination. The words
of section 2
are clear and unambiguous but the question the court must answer and the learned
magistrate does not appear
to have considered, relates to the effect of the words "…
to the extent of the inconsistency…"
What is the extent of the inconsistency between section 155 and section 15? I would
suggest it certainly does not offend section
15 to make it a criminal offence to indulge
in acts of gross indecency. That was the intention of the Legislature and the Constitution
gives it the clear right to pass such laws. The only inconsistency is in the inclusion of
the restrictive or, in the terms
of section 15, discriminatory word ‘male’. If
that word is removed whenever it appears in section 155 the offence
would no longer be
discriminatory. It would, in fact, read in a similar way to almost every other section in
Part XVI of
the Code which, for example, makes it an offence for "any person" to
commit such acts as rape and buggery without
any limitation by reference to the sex of the
offender.
What, then, are the powers of the Court in such a -case? Can it, having found a single
word contravenes section 15; simply delete
that word or must it, as the learned Magistrate
did, declare the whole section void?
There are cases where the inconsistent parts of a section are so inextricably bound up
with the remainder that the loss of the
part must destroy the whole. In the case Of
section 155, it is, in my view, severable without such an effect. The test of severability
was laid down by the Privy Council in the Attorney General for Alberta v. Attorney
General for Canada [19471] A.C. 503 at page 516 and has been applied more than once
since then.
"The real question is whether what remains is so inextricably bound up with the
part declared invalid that what remains
cannot independently survive or, as it has
sometimes been put, whether on. a fair review of the whole matter it can be assumed
that
the legislature would have enacted what survives without enacting the part that is ultra
vires at all".
The removal of the word ‘male’ does not prevent the remainder having a clear
and complete meaning and, therefore, being
able independently to survive.
The Constitution forms the schedule to the Solomon Islands Independence Order 1978 and
became the supreme law of the Solomon
Islands when, by section 4, that order came into
operation on Independence day, 7 July 1978.
Section 5 of the Order deals with the laws existing at that time including the Penal
Code which was enacted in 1963. It provides:
"..........the existing laws shall have effect on and after the appointed day
(7th July 1978) as if they had been made
in pursuance of the Constitution and shall be
construed with such modifications, adaptations, qualifications and exceptions
as may be
necessary to bring them into conformity with …this Order."
As I have said, I am sure that, had the legislature been considering section 155 in
pursuance of the Constitution, it would still
have made gross indecency a criminal
offence. What it would not have done would be to include the discriminatory word
‘male’,
and so this Court should regard that word alone as void.
Before leaving this matter, it would be remiss if I did not mention one substantial
effect of this decision.
The removal of that one word not only corrects the inconsistency with section 15 of
Constitution but also increases the scope
of the felony of gross indecency. As the section
is written in the Penal Code, acts of gross indecency between two females or between a
male and a female are not a criminal offence. However, if the section
is read without the
word ‘male’, all such acts will now be covered by the section.
One cannot escape the irony that, by invoking the protective provisions of the
Constitution in the aid of part of the community,
the population as a whole is now subject
to a criminal offence that had not affected it hitherto but, ironical though it is,
I feel
that is the correct result. It may well be that, in 1963 the Legislature did not even
consider the question of acts
of gross indecency between females but, had the matter been
raised and considered a reasonable possibility, I am certain the
reaction would have been
to widen the offence to include them rather than abandon all attempts to make any such
conduct
criminal.
However, in all the circumstances, Parliament may feel it is a wise precaution to
consider amending section 155 accordingly before
any such charges are laid.
For all these reasons, this appeal is allowed and the case remitted to the
Magistrate’s Court. As both the respondent and
the magistrate have left the country
since this case, I order that it be tried de novo by another magistrate should the
respondent return to the jurisdiction.
Editor's Note: Since this decision section 155 of the Penal Code has been
amended by the Penal Code (Amendment) Act 1990. This repeals section 155 and replaces it
with the following new
section-
"Indecent practices between persons of the same sex
155. Any person who, whether in public or private -
(a) commits any act of gross indecency with another of the same sex;
(b) procures another of the same sex to commit any act of gross indecency; or
(c) attempts to procure the commission of any act of gross indecency
by persons of the same sex,
shall be guilty of a felony and be liable to imprisonment for five years."
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