[1973] PNGLR 304

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

REGINA

V

S. M. AND OTHERS

Port Moresby
Minogue CJ Clarkson Prentice JJ

30 April 1973
7 May 1973

CRIMINAL LAW - Practice and procedure - Alternative verdicts - Unlawfully killing - Wilful murder - Manslaughter - The Criminal Code (Queensland, adopted) ss. 576[cccxxxvi]1, 577[cccxxxvii]2.

The alternative verdicts of unlawfully doing grievous bodily harm, unlawfully assaulting and thereby doing bodily harm, unlawfully wounding and unlawfully assaulting, described in the second paragraph of s. 577 of the Criminal Code (Queensland, adopted) are available on any indictment for an unlawful killing whether wilful murder, murder or manslaughter.

Appeal

Three accused were indicted on a charge of wilful murder and acquitted. It was argued that there was evidence of at least an unlawful assault by each of the accused and that this was an alternative verdict available pursuant to the second proviso to s. 577 of the Criminal Code (Queensland, adopted). The trial judge Frost S.P.J., rejected this argument, holding that he could not by virtue of s. 576 of the Criminal Code (Queensland, adopted) bring in any verdict other than wilful murder, murder or manslaughter.

The following question of law was referred to the Full Court pursuant to s. 29 of the Supreme Court (Full Court) Ordinance 19.

“Did I err in law in holding that the second proviso of s. 576 contained in s. 577 of the Criminal Code has no application to an indictment charging wilful murder?”

Counsel

J. Greville-Smith and J. Warry for the appellant (Crown).
The respondents were not represented by counsel.
Cur. adv. vult.

7 May 1973

MINOGUE CJ: I agree that the question referred to us should be answered “yes” for the reasons about to be delivered by Clarkson J.

CLARKSON J: On 16th March, 1973, in the criminal sittings of this Court at Goroka the three accused were acquitted on an indictment that they had wilfully murdered one Peter Moini.

At the trial counsel for the Crown in his final submissions to the court maintained that if the accused were acquitted of wilful murder, murder and manslaughter, there was evidence of at least an unlawful assault by each of the accused and that this was an alternative verdict available to the trial judge. However, the trial judge rejected this contention holding that no verdict other than wilful murder, murder or manslaughter was open to him and has referred to the Full Court the following question: “Did I err in law in holding that the second proviso to s. 576 contained in s. 577 of the Criminal Code has no application to an indictment charging wilful murder?”

The two sections referred to read as follows:

“576.   Upon an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or of the crime of manslaughter, if either of those crimes is established by the evidence, but not, except as herein expressly provided, of any other offence than that with which he is charged.

Upon an indictment charging a person with the crime of murder, he may be convicted of the crime of manslaughter, if that crime is established by the evidence, but not, except as herein expressly provided, of any other offence than that with which he is charged.

Upon an indictment charging a person with the crime of manslaughter he cannot, except as herein expressly provided, be convicted of any other offence.

577.    Provided that upon an indictment charging a person with the wilful murder or murder of any person, or with unlawfully killing any person, if upon the evidence it appears that the person alleged to have been killed was a child of which a woman had recently been delivered, the accused person may be convicted of the offence of preventing the child from being born alive by an act or omission of such a nature that, if the child had been born alive and had then died, he would be deemed to have unlawfully killed the child, or of the offence of endeavouring by a secret disposition of the dead body of the child to conceal the birth, if either of those offences is established by the evidence.

Provided also that upon an indictment charging any person with unlawfully killing any other person, the accused person may be convicted of any of the following offences:

(a)      Unlawfully doing grievous bodily harm to the person; or

(b)      Unlawfully assaulting the person and thereby doing him bodily harm; or

(c)      Unlawfully wounding the person; or

(d)      Unlawfully assaulting the person,

if that offence is established by the evidence.”

Reference will also be necessary to form 178 of the Criminal Practice Rules.

Section 576 and the first paragraph of s. 577 reproduce the sections of the Queensland Criminal Code of the same numbers. The second paragraph of s. 577 was added here in 1923.

As at 1952 s. 576 and s. 577 stood in their present form. The Criminal Code Amendment (New Guinea) Ordinance, No. 58 of 1952, was assented to by the Administrator on 19th March, 1952, and on 14th August, 1952, notification appeared in the Government Gazette that the Ordinance had not been disallowed by the Governor-General in Council (see ss. 49 and 50 of the Papua New Guinea Act 1949-50). However, s. 2 of that Ordinance provided that the Ordinance should come into operation on a date to be fixed by the Administrator by notice in the Gazette but no such notice was ever given.

Later in the same year the Criminal Code Amendment (New Guinea) Ordinance (No. 2), No. 135 of 1952, was passed. It was assented to by the Administrator on 22nd December, 1952. No notice of disallowance was published. Section 2 was in the same terms as s. 2 of the first 1952 amending Ordinance but the Ordinance was never brought into operation. The second Ordinance, No. 135 of 1952, provided for the repeal of No. 58 of 1952. Both these 1952 amending Ordinances were repealed by the Criminal Code Amendment (New Guinea) Ordinance 1955 although as previously noted the earlier had already been repealed by the latter.

Counsel for the Crown argued that the two 1952 amending Ordinances never having been brought into operation should be treated as nullities but I am satisfied that this is too simple a view. They were undoubtedly Acts of the legislature and in certain circumstances, not applicable here, action could have been taken under them if they had been assented to but not brought into operation (see s. 31 Ordinances Interpretation Ordinance 1949-51).

Amongst the amendments intended by the first amending Ordinance was one to the second paragraph of s. 577 of the Code which would have substituted “manslaughter of” for “unlawfully killing” thus making it quite clear that that paragraph was not to apply where the person was charged with wilful murder or murder. The same Ordinance provided that form 178 of the Criminal Practice Rules was to be amended so that the operative part read: “unlawfully killed one E.F. under circumstances constituting manslaughter”. The words I have italicized being added.

The second amending Ordinance which was expressed to repeal the first contained the same proposed amendment to s. 577 but proposed no amendment to form 178 of the Rules.

Both these amending Ordinances were as I have noted expressed to be repealed by the 1955 amending Ordinance which made no amendment to either s. 577 or form 178, both of which therefore remained and still remain in the form resulting from the 1923 amendment when the second paragraph of s. 577 was added.

It seems to me impossible to say whether the amendment to s. 577 twice proposed in 1952 and then withdrawn in 1955 was intended as a substantive amendment of the law or merely to remove a doubt. All that can be said is that the legislature finally decided to leave the section as it was and we are then returned to the problem with no real assistance from the 1952 and 1955 legislation.

I come now to a consideration of the two sections.

It will be seen that the expression “unlawfully killing” in the first paragraph of s. 577 is in its context intended to encompass manslaughter only and the question briefly stated is whether the same expression used in the second paragraph should be similarly limited or whether it encompasses wilful murder, murder and manslaughter.

The problem arises because of the way in which the Code itself uses the phrase “unlawfully kills”. In ss. 300-304 inclusive it is undoubtedly used as a generic term which comprises wilful murder, murder and manslaughter while, as already mentioned, in the first paragraph of s. 577 it operates to include manslaughter alone. The problem would not arise if in that paragraph the words “or with unlawfully killing” had been rendered as “or with otherwise unlawfully killing”.

It was suggested that some assistance may be gained from the form of the indictment for manslaughter contained in form 178 of the Criminal Practice Rules.

When an Ordinance contains a rule-making power an expression used in rules so made, unless the contrary intention appears, has the same meaning as in the Ordinance. (Section 11 (a) Ordinances Interpretation Ordinance). Similarly there is authority for saying that where the construction of a statute is doubtful recourse may be had to the particular construction put on the statute by the rules, especially when the rules are made by judges who are to administer the statute. In those circumstances, rules are in effect regarded as a judicial exposition of the statute. See the cases collected in Craies on Statute Law (7th ed.) at p. 158.

In the present case recourse to this aid may be thought to yield some assistance. It is true that the form set out in the Criminal Practice Rules uses the phrase “unlawfully killed” as the operative allegation for a charge of manslaughter. It can therefore be argued that the Rules as made in Queensland constitute a judicial exposition of the Code for Queensland. In New Guinea they may even be placed as high as a legislative exposition because the Criminal Practice Rules operating in New Guinea were not made by the judges but adopted with the Code itself by s. 13 of the Laws Repeal and Adopting Ordinance 1921-39. The problem under consideration does not arise in Queensland which has no equivalent to the proviso to s. 577 which was added in New Guinea in 1923.

But it seems to me that this argument is outweighed by more powerful considerations to which I refer later.

At first sight it may be thought that the difficulty may be resolved by applying the presumption that a word used on different occasions in a statute, especially in the same section, has the same meaning. This presumption however has been described as “very slight”.

This view is adopted by the learned author of Craies on Statute Law (7th ed.) p. 169, where it is said: “The presumption that the same words are used in the same meaning is however very slight and it is proper, ‘if sufficient reason can be assigned, to construe a word in one part of an Act in a different sense from that which it bears in another part of an Act.’ “ Per Turner L.J. in Re National Savings Bank[cccxxxviii]3.

For reasons which I will explain I do not think that the presumption should be applied to assist in the present case.

Section 576 provides that on an indictment for wilful murder a person may be convicted of murder or manslaughter but not of any other offence except as expressly provided in the Code; that on an indictment for murder a person may be convicted of manslaughter only subject to any express provision; and that on an indictment for manslaughter a person cannot be convicted of any other offence, again subject to any express provision. This section complements s. 567 which while permitting in certain circumstances the joinder of charges of distinct offences in one indictment expressly states that it does not authorize the joinder of a charge of wilful murder, murder or manslaughter with a charge of any other offence.

The marginal note to s. 577 should not be permitted to confuse the issue. It was in any event rendered inappropriate by the addition of the 1923 proviso but in the task of construing the sections, s. 577 should be approached as if the marginal note did not exist because it is not part of the statute. (Section 27 (3) Ordinances Interpretation Ordinance). Section 577 with the removal of its marginal note may then be treated even in form as what it is in substance, namely, two separate and distinct qualifications of s. 576.

This latter point is an important one because it shows, as the question referred to the Court recognizes, that the 1923 amendment although apparently in form an amendment to s. 577 is in substance a proviso to s. 576 and not to the first paragraph of s. 577.

The two provisos contained in s. 577 are capable of quite independent operation and to ascertain the operation of the second proviso it is in fact unnecessary to refer to the first proviso. Each proviso is self-contained and they are capable of cumulative effect.

If the second paragraph stood alone it would be clear that “unlawfully killing” in that paragraph was the generic term used as in s. 300 to comprise the offences of wilful murder, murder and manslaughter referred to in s. 576. In my view the argument that the sense in which the phrase “unlawfully killing” is used in the first paragraph of s. 577 should control its sense in the second paragraph is considerably weakened by the fact that each of the two paragraphs is an independent qualification of s. 576, and that if the second paragraph is regarded as standing alone it would clearly be applicable to all forms of unlawful killing.

I also think that in attempting to resolve the ambiguity which arises one can have regard to the precision of the drafting as it finally appears in the sections to be construed. The more precise the drafting the more difficult it may be to conclude that the sense of words has changed. Apart from the particular point under consideration the effect of these sections appears clearly enough but the choice of words used could not be described as meticulous; for instance, the formula “Upon an indictment charging a person with the crime of wilful murder ...” in s. 576 becomes in the first paragraph of s. 577 “Upon an indictment charging a person ... with the wilful murder ... of any person”. Also it will be seen that “the crime of manslaughter” in s. 576 becomes in the first paragraph of s. 577 “unlawfully killing any person”.

Where different words are used on different occasions in the two relevant sections to have the same meaning, what weight should be given to the very slight presumption that the same words used on different occasions in those sections have the same meaning?

If “unlawfully killing” in the second proviso in s. 577 is read in the generic sense it results in an apparent semantic discrepancy between the two provisos but it creates no conflict in substance. The first proviso can be read congruently with s. 576 and the second proviso can also be read congruently with s. 576. Each proviso is self-contained and there is no logical necessity to refer to one for the purpose of construing the other. Whether “unlawful killing” in the second proviso is restricted to manslaughter or not, on either construction the two sections would set up an understandable and workable scheme. Which construction is to be preferred?

The matter comes to us because two judges of the Court have adopted different constructions of the relevant provisions. On 5th October, 1972, at Wabag in R. v. Komai Pian[cccxxxix]4 Kelly J. acted on the view that “unlawfully killing” in the second paragraph of s. 577 is used in a sense to include wilful murder, murder and manslaughter. This decision was given on circuit and details of his Honour’s reasons are not available.

In the case before us Frost S.P.J. has for reasons he has stated adopted the contrary view. Although I do not say there is any long-standing practice which has been universally adopted by the judges of this court and which ought to influence the construction of the relevant provisions, my impression is that there have been occasions when judges, including myself, and counsel have assumed that the view adopted by Frost S.P.J. was correct.

When as here an ambiguity exists in the statute it is usual in the course of seeking a solution to consider matters of the kind to which I have referred and to have recourse to the rules in Heydon’s case[cccxl]5 which have been approved and elaborated in many subsequent cases, although some special considerations apply when construing the Code. See Bank of England v. Vagliano Bros.[cccxli]6 and Brennan v. The King[cccxlii]7. The pre-existing law, both the common law and that contained in s. 576 and the first paragraph of s. 577, strictly limited the verdicts which could be returned on an indictment for wilful murder, murder or manslaughter. The 1923 amendment was clearly designed to increase the number of alternative verdicts which could be returned; the question, as I have said, is whether the alternative verdicts are available on all charges of unlawful killing or only on a charge of manslaughter, and Heydon’s case[cccxliii]8 leads me to attempt to isolate the “mischief or difficulty” for which the pre-existing law did not provide.

I agree with Frost SPJ when he says:

“The relevant provision is an unusual one not to be found, as I understand it, in the legislation of the Australian States or of England. It was probably enacted in Papua New Guinea having regard to the difficulties of proving that death followed injuries proved to be inflicted upon a deceased person, difficulties which would obviously be encountered in criminal investigations from time to time in remote areas, particularly when carried out some time after the death was reported, when the body may have been buried and perhaps no medical officer was available.”

When a case of unlawful killing of any kind is not proved beyond reasonable doubt the accused is undoubtedly entitled to an acquittal on that charge and I do not wish to suggest that any other result could be proper. However, all judges of this Court have presided at murder trials where evidential difficulties in relation to cause of death and other matters have resulted, to the obvious surprise of the accused and his people, in complete acquittal. No doubt this was also the position in 1923. These apparently erratic results foster misunderstanding of the law, bewilderment with it and even rejection of it at a time when there is an urgent need for acceptance of national laws. The number of these apparent anomalies has been increased by the too ready assumption that s. 576 sets out all alternative verdicts available when the indictment is for wilful murder or murder.

There are occasions for instance when several men injure a victim who then dies but on indictment for wilful murder or murder for any one of a number of reasons none of the attackers is proved to have caused the victim’s death; yet all of them openly admit having attacked him. The complete acquittal of all the attackers is incomprehensible in a community which has listened to detailed accounts by each of the attackers of what he did. In such cases, a conviction for one of the lesser offences, established by the evidence, involving proof only that the accused assaulted or wounded but not that he caused death would more nearly accord with indigenous conceptions of justice, conceptions held by the vast majority of the country’s inhabitants, than does a complete acquittal.

Similar situations may occur when customary notions of what constitutes participation in an enterprise are wider than those expressed in ss. 7 and 8 of the Code.

I prefer the construction which reduces the apparently erratic operation of the law in the eyes of the vast majority of the people to whom it applies. This was a special provision made to suit local conditions and it is reasonable to conclude that the legislature intended it to operate in the way I have suggested.

Frost S.P.J. having considered this aspect commented:

“But the Legislature may well have considered that an accused person should not be hampered in his defence to the more serious charges of wilful murder or murder by also having to defend himself at the same time against a verdict for the lesser offences referred to in the proviso or that such serious charges should not thus be encouraged, if part of the proof were suspect and accordingly the Legislature may have intentionally restricted the operation of the section to cases of manslaughter.”

These are certainly relevant considerations but the weight of them is reduced when it is realized that the maximum punishment for both murder and manslaughter is the same, namely, life imprisonment and, on any interpretation, the second paragraph of s. 577 would apply where a person is indicted for manslaughter.

With these considerations in mind I think the proper way to construe the relevant sections is to treat the second paragraph of s. 577 as a distinct and separate qualification of s. 576 to be read with that section. The first paragraph of s. 577 should be treated in the same way. This approach results in no violence being done to the words and gives a reasonable, workable and readily understandable result, namely, that the alternative verdicts described in the second paragraph of s. 577 are available on any indictment for an unlawful killing whether wilful murder, murder or manslaughter.

I would therefore answer the question of law referred by the learned trial judge: “Yes”.

Prentice J I concur.

Question answered “Yes”.

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

[cccxxxvi]Infra p. 305.
[cccxxxvii]Infra p. 305.
[cccxxxviii](1866) LR. 1 Ch. App. 547, at p. 550.
[cccxxxix]Unpublished judgment of 5th Oct. 1972.
[cccxl](1584) 3 Co. Rep. 7a.
[cccxli][1891] AC. 107.
[cccxlii](1936) 55 CLR. 253.
[cccxliii](1584) 3 Co. Rep. 7a.