[1971-72] PNGLR 49

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

MAIMA

v

SMA

Kavieng Rabaul & Port Moresby
Prentice J

12 March 1971
26-27 March 1971
14 April 1971

CRIMINAL LAW - Police offences - "Being without lawful means of support" - Evidence of such offence - Severity of sentence - Principles of sentencing - Police Offences Ordinance (N.G.) 1966, 68[xxx]1, 69[xxxi]2.

CRIMINAL LAW - Procedure - Circumstances in which plea of guilty should be entered.

The accused was charged in a Local Court of "being without lawful means of support, Contra s. 69(1) of the Police Offences Ordinance (N.G.) 1966". He was convicted. He appealed, inter alia, on the ground that the information disclosed no offence.

Held
On appeal from the Local Court: The information, by incorporation of the reference to s. 69(1) made clear the offence with which the accused was being charged. An offence is provided for by s. 69 by a reference back to s. 68. Assuming the information to be defective in substance or form, no objection should be taken or allowed to it provided it does disclose an offence.

Ex parte Lovell (1938) 38 S.R. (N.S.W.) 153, followed.

Nothing in the record of the Local Court indicated that the procedure set out in s. 38 of the Local Courts Ordinance 1963-1966 was not followed in the conduct of the appellant’s summary trial. After the facts alleged against the appellant were read out in the hearing before the Local Court the appellant said that he had nothing to say. The Magistrate constituting the Local Court entered a plea of guilty. The basic facts were that a local constable had arrested and brought before the Local Court the appellant who was a considerable distance from his home district, was living in a camp, had been unemployed for four months, was collecting food from old gardens, and was undernourished in appearance. The Magistrate, who reported upon the appeal that he thought that the appellant would receive good feeding, good housing, and good exercise in gaol imposed the maximum sentence permissible of six months’ imprisonment with hard labour. Further grounds of appeal relied on by the appellant were (1) that there was no evidence to support the charge, (2) that a plea of guilty should not have been entered, and (3) that the sentence was excessive.

Held

Further on the appellant’s appeal from the Local Court: (1) that there was ample evidence before the Local Court to support the charge, (2) that until material to the contrary was pointed out or appeared the regularity of the entry of the plea of guilty should be presumed, and (3) that in imposing the sentence awarded the magistrate allowed himself to be influenced by extraneous considerations and that a sentence of imprisonment with hard labour for one month ought to be substituted.

The considerations affecting the penalty for the offence of being an idle and disorderly person discussed and the circumstances in which the maximum permissible sentence should be awarded referred to.

Appeal under the Local Courts Ordinance 1963-1966, s. 43.

Ben Hambakon Sma (the appellant) having been arrested and charged, was convicted by the Local Court at Kavieng as being "without lawful means of support contra s. 69(1) of the Police Offences (New Guinea) Ordinance 1966" and sentenced to six months’ imprisonment with hard labour.

The appellant appealed against his conviction and sentence to the Supreme Court of the Territory of Papua and New Guinea. The grounds of the appeal and the relevant facts appear in the reasons for judgment hereunder.

Counsel

J. R. Baulch, for the appellant.
A. Pierce, for the respondent.
Cur. adv. vult.

14 April 1971

PRENTICE J:  An appeal has been brought herein against a conviction in the Local Court at Kavieng after the appellant had been arrested and charged, in the words of the "information", as being "without lawful means of support contra Sec. 69(1) of the Police Offences (New Guinea) Ordinance 1966". The sentence of six months’ imprisonment with hard labour was the maximum which the Local Court could impose.

The appeal was supported on four grounds: (a) that it was wrong in law in that the information disclosed no offence; (b) that the plea of guilty should not have been entered; (c) that there was no evidence to support the charge; and (d) on the ground of severity.

NO OFFENCE DISCLOSED BY THE INFORMATION

Section 68 of the Police Offences Ordinance establishes an offence of "being an idle and disorderly person"; and categories of persons who may be so convicted are set out in sub-ss. (1)(b) to (f). Section 69 provides that a person arrested on reasonable constabular belief that he has no lawful (or insufficient lawful) means of support, and who fails to discharge the onus then placed on him of establishing that he did have such or sufficient lawful means of support, is to "be deemed to be an idle or disorderly person". The appellant contends that the offence established by sec. 69 is of "being an idle or disorderly person". There is no such offence as "being without lawful means of support" in the Territory of New Guinea. He relies on the principles examined and applied in Collins v. Mycock[xxxii]3 and Kereku v. Dodd[xxxiii]4.

It would appear to me that an appropriate form of laying the charge arising from ss. 68 and 69 would have been "being an idle and disorderly person in that on . . . he was without lawful means of support". Another possible version would have been, "On . . . he had insufficient lawful means of support and was therefore an idle and disorderly person". The question on this ground of appeal, could therefore be viewed as one of whether the magistrate (and therefore presumably this Court under s. 43 of the Local Courts Ordinance) could have treated the information as alleging the particular offence of "being an idle and disorderly person", but alleging it in a defective form. Whether its defect was one of substance or form which was corrigible, and not to be the subject of objection (s. 27, Local Courts Ordinance).

A section of the Northern Territory Ordinance corresponding to ss. 68 and 69 of the Police Offences (New Guinea) Ordinance was considered by Blackburn J. in Daniel v. Belton[xxxiv]5. The material words of the Northern Territory section are:

"Any person who having no visible lawful means of support or insufficient visible lawful means of support, on being thereunto required by any Justice or having been duly summoned for that purpose or brought before any Justice, does not give a good account of his means of support to the satisfaction of the Justice, shall be deemed an idle and disorderly person within the meaning of this Ordinance, and shall be guilty of an offence."

His Honour stated[xxxv]6:

"The essence of this offence . . . is having no visible lawful means of support or insufficient visible lawful means of support . . . that is the matter to which the Court must direct its attention. It must not allow itself to consider whether the accused was ‘idle’ or ‘disorderly’."

In Hickling v. Skerritt[xxxvi]7 on an order to review, Madden C.J. had occasion to consider the validity of a charge under the comparable s. 40 of the Victorian Police Offences Act 1890. The Victorian section provided, in the one section, that "any person who shall commit any of the next following offences shall be deemed an idle and disorderly person within the meaning of this part of this Act and shall be liable to the punishment next hereinafter mentioned". Several subsections followed setting out what those so called offences are, and amongst others sub-s. (6) provided for—"Any person found by night armed with a gun, pistol, sword, bludgeon or other offensive weapon, who being thereto required does not give a good account of his means of support and assign a valid and satisfactory reason for being so armed". In Hickling’s case[xxxvii]8 the information merely set out as the charge the words of sub-s. (6) without alleging in the first instance that the defendant was an idle and disorderly person or that he was found by night, etc. In their conviction the Magistrates repeated the words of the information without the words "idle and disorderly person". The Chief Justice came to the following conclusion at p. 325[xxxviii]9:

"There cannot be a doubt that the offence created by the section is being an idle and disorderly person, and in strictness I think the charge was not properly laid and the conviction not properly recorded. But I think that everybody interested understood what the charge really was, and evidence was directed to meet that charge. This is not a case where the error involves any substantial disadvantage to the defendant, and as I may, on the authority of s. 147 of the Justices Act 1890, amend any defects, amongst others (sic) defects of the kind in question, I should, had the case depended on this matter alone, have made the necessary amendments, which would, indeed, have been no more than a formal one."

However, as his Honour decided the case on other points his decision in this regard was obiter only.

It is to be noted that the provisions of the New Guinea Ordinance differ slightly in that s. 69 does not itself refer to the fact of "being without lawful means of support" as being one of a category of "offences".

In my opinion, the information here, by incorporation of the reference to s. 69(1), makes clear the offence with which the accused was being charged. An offence is provided for by s. 69 by a reference back to s. 68. Assuming the information to be defective in substance or form, no objection should be taken or allowed to it—provided it does disclose an offence, Ex parte Lovell[xxxix]10. The Local Courts Ordinance unlike the Justices Acts of some of the States does not go on to enact what should be done by the Magistrate in such a case, though it is expressly stated that he may amend a variance (between the information and the offence). Presumably he should make any necessary amendment and allow any adjournment consequentially desirable to avoid prejudice to the accused. In Ex parte McAuley[xl]11 Jordan C.J., considering the comparable portion of s. 65(1)(a) of the New South Wales Justices Act, stated:

"By virtue of this provision mistakes in stating the name of the prosecutor . . . or of the accused may be corrected . . . Section 65(1)(a) is a most valuable section, and it is import ant that it should not be whittled away by the allowance of objections to an information if they can be cured without causing injustice. As was pointed out by Griffith C.J. in Hedberg v. Woodhall[xli]12 the section means that ‘if objections are taken which really do not go to the merits of the case the magistrate is not to stay his hand, but to proceed to dispose of the case on the merits’. If the defect is curable, it is the duty of the magistrate to aid in curing it".

In a dissenting judgment Davidson J. nevertheless, expressed a like view of the section’s powers. Sir William Cullen C.J., speaking of the effect of s. 65 of the Justices Act, made plain that "cases in which some particular item has been omitted from that which would have made a complete statement of what the defendant was charged with" fall within s. 65 of the New South Wales Act (R. v. Duff[xlii]13).

I think everybody here knew what the essence of the charge was and evidence was available to support that charge, and I do not consider the accused was disadvantaged by the defect. I am of the opinion that no objection could have been allowed at the hearing before the magistrate so as to require the discharge of the instant information. However, I consider that for greater precision the information, and therefore the conviction (see the judgment of Davidson J. in Ex parte McAuley[xliii]14, should have been amended.

NO EVIDENCE TO SUPPORT THE CONVICTION

In support of the ground that there was no evidence to justify the conviction, Mr. Baulch relied on the decision of Blackburn J. in Daniel v. Belton[xliv]15. There was nothing in the statement of facts, he says, to show that having regard to the accused’s employment and station in life, to his being a New Guinean villager (cf. the Australian aborigine), that the accused was without lawful means of support—support sufficient to what appears to be the standard of living of the person under consideration (Taylor v. Lenthall[xlv]16.) I should think it clear that provision of food and shelter by wan-toks could constitute lawful means of support in many settings of Papuan and New Guinean society. But this was not stated to have occurred in this case. A consideration of the circumstances prevailing would be required. This was a matter of a local constable arresting and bringing before a local magistrate, a Chimbu man from Minj who had ceased to be employed as a plantation labourer for some four months, was living in the Chimbu camp at Kavieng, and was collecting kau kau from local old gardens. The local court magistrate would no doubt be entitled to view the facts in the light of his local knowledge (cf. Daniel v. Belton[xlvi]17 ). He specifically states in his report that the accused was under-nourished. The matter was uncontested—the accused said in court he had nothing to say. I consider there was ample material before the court on which the learned magistrate could come to the conclusion to which he did, regarding a conviction. I would dismiss the appeal on this ground.

PLEA OF GUILTY SHOULD NOT HAVE BEEN ENTERED

Mr. Baulch next contended that a plea of guilty should not have been entered in the circumstances—that the facts were not clear and that the magistrate should have been in some doubt as to the accused’s understanding of the charge both at the time of the plea and subsequently. That is, that not only at the putting of the charge to the accused, but after reading the statement of facts to him he should have had some doubt whether the accused properly understood the essence of the charge. There is nothing on the record to indicate that the correct procedure was not followed as set out in s. 38 of the Local Courts Ordinance. I consider that until material to the contrary were pointed out or appeared, I should apply the maxim omnia praesumuntur rite esse acta. From the local court magistrate’s report it appears that the order set out in the pro forma used as a court document was followed, and that after the facts were read out the accused said he had nothing to say. In fact, the form in which the information was framed would have helped the accused in my opinion, to understand the real nature of the charge. I would dismiss the appeal on this ground.

SEVERITY

On the ground of severity Mr. Baulch submitted that the facts did not warrant the maximum punishment, and that the last paragraph of the magistrate’s reasons for judgment indicated that he proceeded on a wrong principle in sentencing. In his report the learned magistrate said:

"Looking at the defendant in Court, he looked skinny and a little bit weak. No doubt that the defendant was not getting enough food (sic), his home district is too far, he cannot afford to go back there for he had nowhere to get any money to help himself to go there. If the defendant Tabi Maima could be living like that for another few months, no doubt he would be looking worse than he was.

"The above said reasons were borne in mind that the condition of the said defendant has to be improved and also that he has to be supported in some ways. Thinking that the defendant would be well fed, well housed, receiving good exercise to help his muscles and body and to keep him out of further troubles of the said old gardens, the defendant was convicted and adjudged to be imprisoned with hard labour for six months."

I am of the opinion that the learned magistrate has allowed himself to be influenced by extraneous considerations. Good feeding, housing and good exercise could no doubt be available to the accused other than in gaol; and though the magistrate no doubt was pursuing a course which would have materially assisted the physical well being of the accused, I consider he misdirected himself in so doing. In addition, he has imposed the maximum punishment open to him. The general principle is that the maximum punishment should be awarded only in the worst cases (R. v. Harrison[xlvii]18). The court must not substitute its own opinion in regard to the possible inadequacy of the statutory range of punishment allowed it, but must act judicially within that range. In other words, it could not impose the maximum punishment merely on the basis that the top limit is in its opinion inadequate. (There is no indication here that the learned magistrate actually approached the matter in that way.)

The accused was a man not shown to have been in trouble before. He had been working up until four months previously. He was a long way from his district. There were no alarming features about his arrest which suggested a potential grave delinquency. I consider that an appropriate sentence in the circumstances would have been imprisonment for one month. The accused had in fact served one month before being admitted to bail. He was before me at the hearing in Rabaul and then looked well fed and happy. I was informed by his counsel that he has re-engaged in plantation work at Kavieng. I direct that the record be amended by substituting for the words "was without lawful means of support contra s. 69(1) of the Police Offences (New Guinea) Ordinance 1966" appearing in the information and in the record of conviction, the words "was an idle and disorderly person in that he was without lawful means of support, contra s. 69(1) of the Police Offences Ordinance". I substitute for the penalty imposed by the local court magistrate a sentence of imprisonment with hard labour for one month. This sentence having already been served, I direct that the appellant be suffered to go at large.

Direction that information and record of conviction be amended. One month’s imprisonment with hard labour substituted.

Appellant discharged.

Solicitor for the appellant: W. A. Lalor, Public Solicitor.
Solicitor for the respondent: P. J. Clay, Crown solicitor.

[xxx]Section 68 provides:
(1)        Any person committing any of the following offences shall be deemed an idle and disorderly person:—

(2)        Any person convicted of being an idle and disorderly person within the meaning of the last preceding subsection shall be guilty of an offence.

[xxxi]Section 69 provides:
(1)        Where any police officer has reasonable cause to believe that any person has no lawful means of support or has insufficient lawful means of support he may arrest that person either with or without warrant, and bring him before a Court or may summon him to appear before a Court.

(2)        If that person fails to prove to the satisfaction of the Court that he has sufficient lawful means of support or that such means of support as he has are lawful, he shall be deemed to be an idle and disorderly person within the meaning of the last preceding section.

(3)        The fact that any person charged under this section can produce or prove that he possesses money or property shall not be taken into account in deciding the charge against that person unless he shows by his own or other evidence that he honestly obtained the money or property.

[xxxii] [1964] PNGLR 1.
[xxxiii] [1969-70] PNGLR 176.
[xxxiv](1968) 12 FLR 101.
[xxxv][1968] 12 FLR, at p. 103.
[xxxvi][1912] VLR. 322.
[xxxvii][1912] VLR. 322.
[xxxviii][1912] VLR, at p. 325.
[xxxix](1938) 38 S.R. (N.S.W.) 153.
[xl](1944) 44 S.R. (N.S.W.) 258, at p. 259.
[xli](1913) 15 CLR 531, at pp. 534, 535.
[xlii](1921) 41 W.N. (N.S.W.) 23.
[xliii](1944) 44 S.R. (N.S.W.) 258, at p. 262.
[xliv](1968) 12 FLR 101.
[xlv][1930] SASR 413.
[xlvi](1968) 12 FLR 101.
[xlvii](1909) 2 Cr. App. R. 94.