[1973] PNGLR 53

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

REGINA

V

B.P.

Port Moresby
Minogue CJ Kelly Williams JJ

5-6 September 1972
25 October 1972

APPEAL - Question of law arising at or in connection with trial - Determination of question - Whether determination mandatory or discretionary - Criteria for exercise of discretion - Supreme Court (Full Court) Ordinance, 1968, s. 30[xxxvi]1.

CRIMINAL LAW - Appeal - Question of law arising at or in connection with trial - Determination of question - Whether determination mandatory or discretionary - Criteria for exercise of discretion - Supreme Court (Full Court) Ordinance, 1968, s. 30[xxxvii]2.

An indictment for perjury by one B.P. contained eleven assignments of perjury. At the trial it was ruled that none of the assignments was material and the accused was acquitted. The question whether the trial judge erred in law in ruling as he did was referred to the Full Court pursuant to s. 30 of the Supreme Court (Full Court) Ordinance, 1968.

Held

(1)      Section 30 (4) of the Supreme Court (Full Court) Ordinance 1968, which states that the Full Court may determine a question so referred confers no right on any person to whom the power to call for a stated case is given: it authorizes but does not compel the Full Court to give advisory opinions.

Saffron v. The Queen (1953), 88 C.L.R. 523; Ward v. Williams (1954-55), 92 C.L.R. 496; The King v. Mitchell, Ex parte Livesey, [1913] 1 K.B. 561; In re Baker, Nichols v. Baker (1890), 44 Ch. D. 262; R. v. S. (1953), 53 S.R. (N.S.W.) 460 and R. v. P.M., [1971-72] P. & N.G.L.R. 222 referred to.

(2)      The proper criteria which should guide the court in the exercise of its discretion as to whether it should give the opinion sought are: whether the questions of law submitted to it involve a general principle on a matter of general importance and whether a wrong decision if not corrected may set a precedent for other courts of first instance.

Saffron v. The Queen (1953), 88 C.L.R. 523 referred to.

(3)      In the circumstances, no general principle having been involved, nor any precedent set, the giving of an advisory opinion under s. 30 of the Supreme Court (Full Court) Ordinance 1968 would not serve any useful purpose and the question contained in the reference should not be answered.

Appeal

This was a reference pursuant to s. 30 of the Supreme Court (Full Court) Ordinance, 1968 of a question arising in the course of a trial on a charge of perjury. Further facts and the relevant points raised in argument appear in the judgment.

Counsel

Waight, for the appellant.
Hoath, for the respondent.

25 October 1972

MINOGUE CJ KELLY WILLIAMS JJ: This is a reference pursuant to s. 30 of the Supreme Court (Full Court) Ordinance 1968 of a question arising in connextion with the trial of one B.P. on a charge of perjury. The indictment contained eleven assignments of perjury. In the course of the trial the learned trial judge firstly ruled that five of the assignments were not material and subsequently, on a submission that the accused had no case to answer, his Honour ruled that none of the remaining assignments was material and he accordingly acquitted the accused. The question which is now referred to this Court, assuming it to be one of law and thus coming within s. 30, is whether the learned trial judge erred in law in ruling as he did.

Counsel for the respondent has taken two preliminary points, first, that the question does not raise a question of law as envisaged by s. 30 (1) of the Ordinance and, alternatively, that if it does raise such a question, the court in its discretion should decline to answer it as it is not a question of substance nor will the answer serve any useful purpose. The court decided that at this stage it should hear argument only on the second point. As to this, counsel for the Crown submits that the court has no discretion and is obliged to answer the question and, alternatively, if there is a discretion it should be exercised in favour of determining the question.

For the present purposes the relevant provisions of s. 30 are sub-ss. (1) to (5) which are as follows:

“30(1) A court by which any person is tried and acquitted shall, if so requested by the prosecutor upon, or within forty days after, the conclusion of the trial, refer for decision by the Full Court any question of law arising at or in connexion with the trial.

(2)      No request under sub-s. (1) of this section shall be made without the consent of the Secretary for Law.

(3)      The question to which the request relates shall be referred by the court to the Full Court for decision, together with a statement of the circumstances out of which the question arose and such further statements as the Full Court requires.

(4)      The Full Court may determine the question so referred.

(5)      The determination by the Full Court of the question referred to it does not in any way affect or invalidate any verdict or decision given at the trial.”

On the point which we now have to determine, the fundamental question is whether the use of the word “may” in sub-s. (4) imports a discretion in the court, or whether it is mandatory for the court to determine any question properly referred which comes within sub-s. (1) namely, a question of law arising at or in connexion with the trial. It is clear that the question which has been referred is one which arose at or in connexion with the trial and for the purpose of determining this preliminary point we are prepared to assume that the question is one of law, without however deciding that this is so since we have not at this stage heard argument on that point.

Prima facie the word “may” imports a discretion. As was said by the High Court in Ward v. Williams[xxxviii]3: “. . . it is necessary to bear steadily in mind that it is the real intention of the legislature that must be ascertained and that in ascertaining it you begin with the prima facie presumption that permissive or facultative expressions operate according to their ordinary natural meaning. ‘The authorities clearly indicate that it lies on those who assert that the word “may” has a compulsory meaning to show, as a matter of construction of the Act, taken as a whole, that the word was intended to have such a meaning’—per Cussen J.: Re Gleeson, [1907] V.L.R. 368, at p. 373. ‘The meaning of such words is the same, whether there is or is not a duty or obligation to use the power which they confer. They are potential, and never (in themselves) significant of any obligation. The question whether a judge, or a public officer, to whom a power is given by such words, is bound to use it upon any particular occasion, or in any particular manner, must be solved aliunde, and, in general, it is to be solved from the context, from the particular provisions, or from the general scope and objects of the enactment conferring the power’—per Lord Selborne: Julius v. Bishop of Oxford (1880), L.R. 5 A.C. 214, at p. 235. One situation in which the conclusion is justified that a duty to exercise the power or authority falls upon the officer on whom it is conferred is described by Lord Cairns in his speech in the same case. His Lordship spoke of certain cases and said of them ‘[they] appear to decide nothing more than this: that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the court will require it to be exercised’, (1880) L.R. 5 A.C., at p. 225.”

In Ward v. Williams[xxxix]4 the court referred to legislative intervention in New South Wales to restrain what it referred to as “the development of the notion that permissive words may have a compulsive effect”. Such intervention is also to be found in Papua New Guinea, but it is restricted to Ordinances of the Territory of Papua (see s. 51 of the Ordinances Interpretation Ordinance 1949-1969) and there is no provision in the Ordinances Interpretation Ordinance in relation to Ordinances of the Territory of Papua and New Guinea, into which category the Supreme Court (Full Court) Ordinance comes, which deals with the matter in any way.

Where the subject of the statutory power is a judicial act the leading case is Macdougall v. Paterson[xl]5. This decision of the Court of Common Pleas is at variance with two decisions on the same matter by the Court of Exchequer but it has consistently been regarded as authoritative and was referred to by Windeyer J. in Finance Facilities Pty. Ltd. v. Commissioner of Taxation (Cth)[xli]6. In Macdougall v. Paterson[xlii]7 in which the statutory provision was that the court “may direct that the plaintiff shall recover his costs”, Jervis C.J. said at p. 773: “. . . when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized, to exercise the authority when the case arises, and its exercise is duly applied for by a party interested, and having the right to make the application.

For these reasons, we are of opinion, that the word ‘may’ is not used to give a discretion, but to confer a power upon the court and judges; and that the exercise of such power depends, not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises.”

The principle to be extracted from the cases including Macdougall v. Paterson[xliii]8 and Julius v. Lord Bishop of Oxford[xliv]9, is expressed by Ridley J. in The King v. Mitchell; Ex parte Livesey[xlv]10, thus: “The word ‘may’ when it appears in a statute of this kind is a permissive word, unless there is at the same time a right conferred upon some other person in connexion with which the permission or power is given. If that other person has a right which he is entitled to assert, then the word ‘may’ is not merely a permissive but is an enabling word, empowering the persons in question to do their duty and give effect to the right. If the object for which the power is conferred is the vindication of the right, there may be a duty cast upon the donee of the power to exercise it when required for the benefit of those who have the right. The same principle is recognized in In re Baker, Nichols v. Baker[xlvi]11. In that case Lopes L.J. said: ‘Now the word used in sub-s. 4’—i.e., of the Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 125—’is “may” and the word “may” is beyond all question potential, it implies a power; but if it is coupled with a duty on the court or the person to whom it is given to use that power in a certain particular way, it then no doubt becomes imperative.’ In other words, if a right is conferred upon one person and another person is empowered by the word ‘may’ to recognize that right, that person is not only enabled but obliged to recognize the right, not because the empowering words oblige him, but because it is his duty to recognize the right. In that sense it is true to say that ‘may’ is equivalent to ‘must,’ but in no other sense. Cotton L.J. said in the same case, ibid, at p. 270: ‘Great misconception is caused by saying that in some cases “may” means “must.” It never can mean “must,” so long as the English language retains its meaning; but it gives a power, and then it may be a question in what cases, where a judge has a power given him by the word “may,” it becomes his duty to exercise it.’ I understand that to mean that it is not the word ‘may’ which imposes the obligation, but the circumstances in which the word is used may impose the obligation. Then the word may be equivalent to ‘must.’ “ Ridley J. went on to say that all members of the Divisional Court agreed that this was the principle to be applied, although the court was divided on the application of the principle to the section there in question.

It is not without significance in our view that in New South Wales where s. 30 seems to have had its genesis only one case under the equivalent section in that State has in the twenty years of the section’s existence been thought fit to provide a judicial precedent worthy of incorporation in the Law Reports. In that case (R. v. S.[xlvii]12) Owen J. at p. 479 after having described the section as containing “very unusual provisions” went on to say that: “The purpose of that section (s. 5A of the Criminal Appeal Act) is to enable the Crown to bring before this Court decisions of law, on matters of general principle, given by courts of first instance which it thinks to have been wrongly decided and which, if not corrected, may set precedents for other courts of first instance.” Street C.J. with whom Herron J. (as he then was) agreed, had this to say at p. 474: “I do not think that it was intended that this Court should deal with questions of no general importance, the answer to which depends upon the special facts of each case, and in respect of which it is not suggested that any general principle was infringed by his Honour. To suggest that this Court can be called upon to give its attention to questions of no general interest involving no matter of principle seems to me to be stretching the general intention of s. 5A (2) (a) to an inordinate length.” It is to be observed in that case that the Court of Criminal Appeal saw fit to answer only three of the twelve questions asked although as Street C.J. said of the unanswered questions: “In one sense they may be said to have arisen as questions of law in connexion with the trial.”

In this Court in R. v. P.M.[xlviii]13, the court assumed without argument that there was a discretion to decline to answer questions and it exercised that discretion by declining to answer any of the questions submitted to it.

A perusal of the other sections of the Supreme Court (Full Court) Ordinance 1968 does not provide a solution to the meaning of the word “may” when used in s. 30 (4). True it is that there are instances where the word “shall” is used and from which it can be clearly concluded that a positive and absolute duty is intended to be imposed upon the court. See, for example, s. 21, s. 26 (4), s. 26 (5), s. 28 (1), s. 28 (3). Again in s. 28 (2) and s. 29 (1) where the word “may” is used it is clear to us that a discretion is intended to be conferred or, putting it another way, there is a power conferred upon the court but with no corresponding duty cast upon it. However, in s. 11 (1) where the word “may” is used we would hesitate to express an opinion as to whether a duty is thereby imposed upon the court, and whilst our first impression of s. 31 is that the court has a duty we would not without full argument in a case properly arising under the section express a concluded opinion. It is to be noted that the word “shall” is used in s. 30 itself in subsections other than sub-s. (4) and indeed “may” appears only in sub-s. (4) and sub-s. (6). In the latter subsection we would have thought that the Secretary for Law clearly is given a discretion.

In Saffron v. The Queen[xlix]14 Dixon J. (as he then was) speaking for the court said of a decision of the Court of Criminal Appeal of New South Wales under s. 5A (2): “It can operate only as a judicial precedent, having at best the effect which in English jurisprudence is afforded to the decisions of a court as precedents. That is an entirely different thing from binding a right or creating a liability, or precluding a person who asserts a right or denies a liability.

I think the applicant in the present case is not affected in respect of his rights or liabilities by the determination. At most he is like any other of the Queen’s subjects, liable to have the decision cited against him as evidence of what is the state of the law.” In our view s. 30 confers no right on any person to whom the power to call for a stated case is given. It is clear from the passage cited from Saffron v. The Queen[l]15 that the rights and liabilities of a person acquitted cannot be affected by any determination which the Full Court may make and correspondingly in our view there are no rights on the part of the Crown which could be said to be affected by any such determination or by the failure of the court to make any determination at all. The court is merely being authorized to give an advisory opinion but is not being compelled to do so. With respect we agree that the proper criteria which should guide the court in the exercise of its discretion as to whether it should give the opinion sought are: whether the question or questions submitted to it involve a general principle on a matter of general importance and whether a wrong decision if not corrected may set a precedent for other courts of first instance.

Bearing these criteria in mind we come now to consider whether this is a case in which we should answer the question asked of us. Although framed as one question there are really eleven questions involved because his Honour has asked whether he erred in a ruling of non-materiality in each of eleven instances of perjury. As we see it, what the court is here being asked to do is to advise whether or not the learned trial judge was right or wrong in his application of the test of materiality to the facts of this case. From reading his Honour’s judgment it appears that the test which he applied did not depart from that propounded by the Crown. Irrespective therefore of whether this Court were to decide that the conclusion reached by the learned trial judge was right or wrong it would still in effect only be giving its opinion on the facts of this particular case. That being so, any opinion which we might give would be of limited value by way of providing any guidance for the future in perjury cases.

Whilst we are far from suggesting that perjury is not a matter of great seriousness, we are unable to see that any general principle is involved here or that any precedent has been set. All that the learned trial judge has decided is that on the facts of this case the various specific matters the subject of the respective assignments of perjury were not material to any question then depending or intended to be raised at the trial. That certainly cannot be taken to mean that, for instance, in no circumstances could testimony by a witness that he was not present at the scene of an alleged offence, if such testimony be knowingly false, be material for the purpose of a prosecution for perjury. Each case would necessarily depend on its own facts.

For these reasons we do not consider that in this instance the giving of an advisory opinion under s. 30 would serve any useful purpose and to do so would seem to smack of the vice becoming increasingly apparent in the reporting of decisions on claims in negligence actions, that is, of proliferating a mass of examples of the application of reasonably simple general principles. We therefore uphold the preliminary point and decline to answer the question contained in the reference.

Application refused.

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

[xxxvi]The relevant provisions of s. 30 are set out infra at p. 54.
[xxxvii]The relevant provisions of s. 30 are set out infra at p. 54.
[xxxviii](1954-55) 92 CLR. 496, at p. 505.
[xxxix](1954-55) 92 CLR. 496, at p. 506.
[xl](1851) 11 C.B. 755; 138 ER. 672.
[xli](1971) 45 ALJR. 615, at p. 619.
[xlii](1851) 11 C.B. 755; 138 ER. 672.
[xliii](1851) 11 C.B. 755; 138 ER. 672.
[xliv](1880) 5 App. Cas. 214.
[xlv][1913] 1 KB. 561, at pp. 566-567.
[xlvi](1890) 44 Ch.D. 262.
[xlvii](1953) 53 S.R. (N.S.W.) 460.
[xlviii] [1971-72] PNGLR. 222.
[xlix](1953) 88 CLR. 523, at p. 528.
[l](1953) 88 CLR. 523.