Papua New Guinea Law Reports - 1978
[1978] PNGLR 421
SC139
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
CONSTITUTIONAL REFERENCE NO. 3 OF 1978
IN THE MATTER OF S. 11(3) OF THE INTER-GROUP FIGHTING ACT 1977.
Waigani
Prentice CJ Saldanha J Andrew J
30 October 1978
8 November 1978
CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Construction - Presumption of innocence -”Particular facts ... particularly within his knowledge”- Participation in inter-group fighting - Burden of proof on accused - Legislation invalid - Inter-Group Fighting Act 1977, s. 11(3)[dcxiv]1 - Constitution s. 37(4) (a).
STATUTES - Validity of legislation - Severability - Inter-Group Fighting Act 1977, s. 11(3)[dcxv]2 - Burden of proof placed on accused - Provision contrary to s. 37(4)(a)[dcxvi]3 of Constitution - Sub-section non-severable under s.10 of Constitution - Whole of section invalid.
CRIMINAL LAW - Evidence - Burden of proof - Presumption of innocence - Participation in inter-group fighting -”Particular facts ... particularly within his knowledge”- Burden of proof on accused - Legislation invalid - Inter-Group Fighting Act 1977, s. 11(3)[dcxvii]4 - Constitution s. 37(4) (a)[dcxviii]5.
The Inter-Group Fighting Act 1977 is expressed to be an Act to provide for the suppression of fighting between inter-groups and the creation of offences in relation to inter-group fighting and for related purposes. Section 11 thereof creates the offence of taking part in an unlawful assembly that becomes involved in inter-group fighting and s. 11(3) provides:
“A person charged with an offence against this section is guilty of that offence unless he proves, to the satisfaction of the court, that he did not take part in the actual fighting.”
On a reference pursuant to s. 18 of the Constitution of the Independent State of Papua New Guinea, for determination of the question whether s. 11(3) of the Inter-Group Fighting Act 1977 contravened s. 37(4)(a) of the Constitution, which provides:
“A person charged with an offence shall be presumed innocent till proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would with the exercise of reasonable care be, particularly within his knowledge.”
Held
(1)      (Prentice CJ dissenting). The fact whether an accused person, charged with an offence contrary to s. 11 of the Inter-Group Fighting Act 1977, did or did not take part in the actual fighting is not a fact “peculiarly within his own knowledge” within the meaning of s. 37(4)(a) of the Constitution.
Attygalle and Anor. v. The King [1936] A.C. 338; R. v. Oliver [1944] 1 K.B. 68; R. v. Ewens [1967] 1 Q.B. 322; R. v. Scott (1921) 86 JP. 69; R. v. Edwards [1974] 2 All E.R. 1085; John v. Humphreys [1955] 1 All E.R. 793; and R. v. Turner [1814-23] All E.R. 713 at p. 715 referred to.
(2)      (Prentice CJ dissenting). Accordingly s. 11(3) of the Inter-Group Fighting Act 1977 is invalid because it places upon an accused person the onus of proving that he did not take part in the actual fighting when that particular fact is not peculiarly within his knowledge and thus contravenes the fundamental right of presumption of innocence as contained in s. 37(4)(a) of the Constitution.
(3)      As s. 11(3) of the Inter-Group Fighting Act 1977 cannot be regarded as severable under s. 10 of the Constitution the whole of s. 11 must be regarded as being invalid.
In Reference No. 1 of 1976 (P) [1976] P.N.G.L.R. 537 and Strickland v. Rocla Concrete Pipes Ltd. (1971) 124 C.L.R. 468 referred to.
Reference
This was a reference to the Supreme Court pursuant to s. 18 of the Constitution of the Independent State of Papua New Guinea which provides that “where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal other than the Supreme Court, the court ... shall refer the matter to the Supreme Court ...”.
The matter referred by the National Court was as follows: “Is the Inter-Group Fighting Act 1977 invalid in that it contravenes s. 37(4)(a) of the Constitution of the Independent State of Papua New Guinea”.
Counsel
G. C. Lalor, to argue the affirmative case.
D. W. Baker, to argue the negative case for the Principal Legal Adviser to the National Executive.
N. W. King, to argue the negative case.
Cur. adv. vult.
8 November 1978
PRENTICE CJ: A reference pursuant to s. 18 of the Constitution has been made to this Court from the National Court sitting in Mount Hagen, for an answer to the question posed as follows:
“Is the Inter-Group Fighting Act 1977 invalid in that it contravenes s. 37(4) (a) of the Constitution of the Independent State of Papua New Guinea.”
On the hearing of the Reference it was agreed that the Court should be asked to restrict its inquiry to the validity of s. 11(3) of the Act.
Apparently many hundreds of men have in recent months been charged with, and many convicted and imprisoned for, offences under s. 11 of the Act. Some have appealed; and the question now before us was raised in one such appeal from a District Court.
Section 37(4)(a) of the Constitution reads:
“A person charged with an offence — shall be presumed innocent till proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would with the exercise of reasonable care be, peculiarly within his knowledge.”
The purpose of the Inter-Group Fighting Act No. 43 of 1977 which was amended by No. 37 of 1978, was expressed as being:
“To discourage fighting between groups of Papua New Guineans by providing for:
(a)      The creation of offences in relation to such fighting; and
(b)      the imposition of severe penalties for such offences; and
(c)      the collective punishment of the leaders of groups involved in fighting; and
(d)      the imprisonment of group leaders for non-payment of penalties imposed on them as a result of their groups’ participation in such fighting.”
It is desirable that Pt. III of the Act headed “Inter-Group Fighting”, be set out in full:
“10.    PREPARING TO FIGHT
(1)      For the purposes of this Act, any gathering of five or more persons any one of whom is armed with an offensive weapon which is:
(a)      taking part; or
(b)      appears to be about to take part; or
(c)      appears to be preparing to take part, in a fight with any other group of persons or a member of the other group of persons is an unlawful assembly.
(2)      A person who takes part in an unlawful assembly referred to in Sub-section (1) is guilty of an offence.
Penalty: Imprisonment for a term not exceeding two years.
11.     TAKING PART IN AN INTER-GROUP FIGHT
(1)      For the purposes of this Act, an inter-group fight is deemed to have taken place if any member of an unlawful assembly referred to in Section 10(1) assaults or attempts to assault or commences to fight with a member of another group of persons.
(2)      A person who takes part in an unlawful assembly referred to in Section 10(1) which is involved in an inter-group fight is guilty of an offence.
Penalty: In relation to an inter-group fight in which a person is killed — a term of imprisonment not exceeding five years.
In relation to an inter-group fight in which no person is killed — a term of imprisonment not exceeding three years.
(3)      A person charged with an offence against this section is guilty of that offence unless he proves, to the satisfaction of the court, that he did not take part in the actual fighting.
(4)      Nothing in Sub-section (2) shall be construed as restricting the penalty to which a person may be subject under any other law for an offence arising out of or connected with an inter-group fight.”
Section 12 goes on to deal with organising an inter-group fight and s. 13 with inciting a person to fight.
It has been contended that the offence created by s. 11 is constituted by all of its sub-sections, (1) and (2) rendering mere presence in an unlawful assembly which is involved in an inter-group fight (evidenced minimally by an attempt to assault) an offence for which a defence is provided by (3). To the extent that sub-s. (3) places the onus upon a person charged of establishing that “he did not take part in the actual fighting”, it must be held invalid.
It was further submitted, and this submission was concurred in by all counsel, that if sub-s. (3) be ruled invalid, the whole of s. 11 must fall, as sub-ss. (1) and (2) standing without (3) would constitute offences and punishment with stricter results than could have been contemplated by the Parliament.
It is my opinion that the elements of the offence of “taking part in an unlawful assembly which is involved in an inter-group fight, are to be found in the terms of s. 10 and sub-ss. (1) and (2) of s. 11. The last named sub-section, the offence having been defined, then provides appropriate penalties. The intention and effect of sub-s. (3) of s. 11 is then to provide a statutory defence to a charge of “taking part in an unlawful assembly which is involved in an inter-group fight”; the defence being that though he was a participant in such a kind of illegal assembly technically, that he did not take part in the actual fighting. It is important to note that partaking in the actual fighting is not an ingredient in the offence itself. It might have been provided in a similar way that a person should have a defence to a charge for this offence if he were over the age of 60 years. That would not I apprehend, enlarge the elements of proof of the offence to include proof of an age less than 60 (if a change of onus of proof were provided for).
It will be seen then, that on this interpretation, s. 11(3) is not a case of reversal of presumption of innocence. It is a merciful provision that despite his guilt of the offence (which is constituted exclusively and completely by ss. 10 and 11(1) and (2)) of taking part in an unlawful assembly that became involved in inter-group fighting; he may be exculpated from a conviction under s. 11(2) if he proves that (despite his guilt of the offence) he took no active part in the fighting.
It is not argued that the intended effect of the act was to make the mere preferment of a charge under s. 11(2) sufficient to establish guilt. Such an effect would clearly be contrary to s. 37(4) (a) of the Constitution in my opinion. I interpret the section to be intended to mean that a person charged with such an offence against whom the elements set out in the preceding provisions of the Act are proved, shall be guilty of that offence unless he proves to the satisfaction of the Court that he did not take part in the actual fighting.
The principal submission that s. 11(3) amounted to an infringement of s. 37(4) (a) of the Constitution, relied upon an interpretation of the proviso as to proof of particular facts, along the lines understood to be correct in the common law of the United Kingdom when it restricted what text book writers have come to describe as the “peculiar knowledge test” to such areas as the existence of certificates, prescriptions, licences and the like. The judicial “legislating” process in this regard seems to have reached its apex in R. v. Oliver[dcxix]6 and R. v. Edwards[dcxx]7 in which the dicta as to facts being “peculiarly within the knowledge of the accused” seemed to have been put to rest.
But the United Kingdom cases have not been concerned with situations where onus has been statutorily placed on a defendant to prove an exception or such like (see R. v. Ewens)[dcxxi]8. Spurge’s case made it clear that the judges would not extend the then so called “rule” to areas of defences established in the common law. It is I think significant when considering counsel’s submission here, to note that the Court of Criminal Appeal was apparently of the view that such matters as mechanical defect of a motor vehicle, provocation and self defence, could constitute “facts peculiarly within the knowledge of the accused” (R. v. Spurge)[dcxxii]9.
The relevant passage of the five judge court appears at p. 212 in the judgment of the court delivered by Salmon J (as he then was), when he said:
“It has been suggested by counsel for the Crown that the onus of establishing any defence based on mechanical defect must be upon the accused because necessarily the facts relating to it are peculiarly within his own knowledge. The facts however, relating to the defence of provocation or self defence to a charge of murder are often peculiarly within the knowledge of the accused since often the only persons present at the time of the killing are the accused and the deceased. Yet once there is any evidence to support these defences the onus of disproving them undoubtedly rests upon the prosecution; Woolmington v. D.P.P. There is no rule of law that when the facts are peculiarly within the knowledge of the accused, the burden of establishing any defence based on those facts shifts to the accused. No doubt there are a number of statements where the onus of establishing a statutory defence is placed on the accused because the facts relating to it are peculiarly within his knowledge. But we are not here considering any statutory defence.”
It has been urged in support of the case for an affirmative answer that the addition in the Constitution’s section of the words “or would with the exercise of reasonable care be” to the words “peculiarly within his knowledge”, should be understood as narrowing the ambit of application of the words “peculiarly within his knowledge” as previously understood in the law of the United Kingdom. It seems to me that in fact they must be regarded as widening them. The United Kingdom decisions do not seem to me to suggest that the yardstick for deciding in the exceptions and provisos cases, whether knowledge was peculiarly the accused’s own, has been the finding that such knowledge would be held only, solely, or exclusively by the accused himself.
The question of whether an accused held a certificate or licence (or suchlike) required under an exception of proviso to s. 5 was not one which involved an inquiry as to whether he alone would know that fact — obviously in many cases searches of registers could produce the necessary proof — the facts would be “peculiarly” (specially) in the knowledge of the accused but also in the knowledge (after inquiry perhaps) of others.
I construe the word “peculiarly” in the phrase “peculiarly within the knowledge of the accused” as having meant “within the knowledge of the accused in a peculiar manner or way”, in a “private or special way” or “distinctively” (see Websters Dictionary). Or in a “particular or special” way (Oxford Dictionary).
In attempting to construe the phrase in s. 37(4)(a) of the Constitution, I form the view that all manner of offences and situations was being encompassed. I remain unpersuaded that the Constitution-makers would have had their minds fixed on matters of documentary evidence such as licences, certificates, and the like, when thinking of Papua New Guinean village and community life as it was and is, and when inserting the exception as to burden of proof as to particular facts.
From our own knowledge, the facts in a tribal fight in which many hundreds may be involved on each side, moving across a wide and perhaps lengthy stretch of country, must be multifarious and confused. It is well known that with the object of not being identified by photography and singled out for prosecution, for example, tribal fighters are wearing balaclavas and other clothing to disguise themselves. It seems to me that the question of whether a particular villager took part in the actual fighting in a tribal encounter, instead of merely being present through being caught up innocently when a fight swept past where he was standing, or being present in the positive attempt to restrain or stop a fight in his capacity as a leader, peace officer or village court magistrate; would frequently be a matter both difficult of ascertainment by outsiders on the one hand, and distinctively, specially, particularly, (peculiarly), within his own knowledge on the other.
I am of the opinion that s. 11(3) of the Inter-Group Fighting Act has done no more than take advantage of the exception allowed for in s. 37(4) (a) of the Constitution, and has legitimately placed the burden of proving exculpatory matter peculiarly within his own knowledge, upon the accused. The prosecution must prove (a) a declaration that the provisions of the Act apply to the area at the particular time, (b) the existence of an unlawful assembly (s. 10(1)), (c) that a member of the unlawful assembly assaulted or attempted to assault or commenced to fight with a member of another group of persons (d) that the defendant took part in the unlawful assembly. If the defendant proves that he took no part in the actual fighting, his culpability under s. 11 is excluded though he may remain liable to conviction under s. 10 and to sentence for a lesser penalty.
It is conceded by all counsel, and concurred in by the Court, that the burden of proof that he took no part in the actual fighting may certainly be discharged by the defendant on the balance of probability. (Halsbury 4th ed. vol. 11 par. 355, 3rd ed. vol. 10 at p. 437.)
Advice was sought from this Court as to the element involved in “taking part in the actual fighting”. The Statute remains silent on the subject. I would envisage that it will be necessary for the Courts concerned to look to ss. 7 and 8 of the Criminal Code in the endeavour to construe s. 11(3) of the Inter-Group Fighting Act in the light of the particular facts involved.
On this aspect I would not accept the submission on behalf of the Principal Legal Adviser (if I understand it correctly) that the onus placed on the accused by s. 11(3), could be discharged by the mere production of some evidence (irrespective of standard of proof).
Since writing the above, I have read the judgments of my brothers who have formed opinions contrary to mine. On the basis that their opinions will form the kernel of the answer to the question referred; I should express my own further view (in accordance with theirs), that if s. 11(3) is to be struck down as unconstitutional, it is not to be regarded as severable under s. 10 of the Constitution; that the whole of s. 11 must therefore be regarded as unconstitutional. However, once this question of severability was put aside, it would I consider, be perfectly open to the Parliament, if it so thought fit, to re-enact s. 11(1) and (2) to stand alone as the constituents of the offence of “taking part in an unlawful assembly which became involved in an inter-group fight”; to which charge a defence of “not taking part in the actual fighting” would not be available.
SALDANHA J: All three counsel are agreed that the question referred should have been:
“Is s. 11(3) of the Inter-Group Fighting Act 1977 invalid in that it contravenes s. 37(4)(a) of the Constitution of the Independent State of Papua New Guinea?”
The history of s. 37(4) (a) of the Constitution is as follows. It started with the Human Rights Act, 1971, s. 16(3) (a) of which provided that:
“16(3) A person charged with an offence:
(a)      shall be presumed innocent until proved guilty according to law.”
The Final Report of the Constitutional Planning Committee Pt. I at p. 5/1/24 par. 6(3) (a) recommended that the following provision should be incorporated in the Constitution, that:
“6(3)   A person charged with an offence:
(a)      shall be presumed innocent until proved guilty according to law, provided that a law may place upon a person charged with an offence the burden of proving particular facts.”
The provision ultimately incorporated in s. 37(4)(a) of the Constitution is in the following terms:
“37(4) A person charged with an offence:
(a)      shall be presumed innocent until proved guilty according to law but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would with the exercise of reasonable care be, peculiarly within his knowledge.”
It will be noticed how the Human Rights Act provided for just the presumption of innocence, that the Constitutional Planning Committee elaborated on that by recommending that a proviso should be added to the effect that the burden of proving particular facts should be placed on the accused and s. 37(4)(a) of the Constitution narrowed down the proviso by allowing this burden to be placed upon the accused only in cases where particular facts were peculiarly within his knowledge. It is necessary therefore to be strict in the interpretation of s. 37(4) (a) of the Constitution and particularly careful not to assume that there are facts peculiarly within the knowledge of the accused when this may not be so.
There is a line of English cases in which it had been held that the reason why the legal or persuasive burden had been placed on the accused was because it was supposed that there had been facts in relation to the defence which had been peculiarly within the knowledge of the accused.
Thus in R. v. Oliver[dcxxiii]10 where an appellant had been charged as a wholesaler with supplying sugar otherwise than under the terms of a licence, permit or other authority granted by the Minister of Food it was held that the onus was on the appellant to prove that he had a licence as being a fact peculiarly within his knowledge — R. v. Scott[dcxxiv]11 was cited with approval. In this case it was held that when a person was charged with an offence of supplying drugs without a licence the onus was on him to produce the licence on the ground that if he were licensed that fact was peculiarly within his knowledge.
In R. v. Ewens[dcxxv]12 the appellant was charged with being in unauthorized possession of drugs contrary to s. 1(1) of the Drugs (Prevention of Misuse) Act 1964. It was held that the onus of establishing the statutory defence was on the appellant, the fact whether or not he came within the excepted categories of s. 1(1) of the Act being peculiarly within his knowledge.
In John v. Humphreys[dcxxvi]13 where a driver of a motor vehicle had been summoned for driving without a licence it was held that the burden of proof that the defendant had a licence lay on him because that fact was peculiarly in his own knowledge.
The case R. v. Edwards[dcxxvii]14 at a stroke swept aside the “peculiar knowledge test”. In this case and I quote from the headnote:
“The appellant was charged on indictment with selling by retail intoxicating liquor without holding a justices’ licence authorising the sale, contrary to s. 160(1) (a) of the Licensing Act 1964. At the trial the prosecution proved that the appellant had sold intoxicating liquor on the occasion in question but did not adduce any evidence that he was not in possession of a justices’ licence. The appellant was convicted and appealed, contending that, since the clerk to the licensing justices was required by s. 30(1) of the 1964 Act to keep a register giving particulars of justices’ licences granted in the district, the question whether a licence had been granted to him was not one peculiarly within his knowledge and accordingly the onus was on the prosecution to prove that no licence had been granted to him.”
Lawton L.J delivering the judgment of the Court of Appeal said at p. 1095:
“In our judgment this line of authority establishes that over the centuries the common law, as a result of experience and the need to ensure that justice is done both to the community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This exception, like so much else in the common law, was hammered out on the anvil of pleading. It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisos, exemptions and the like, then the prosecution can rely on the exception.
In our judgment its application does not depend on either the fact, or the presumption, that the defendant has peculiar knowledge enabling him to prove the positive of any negative averment.”
The English cases are of no assistance in the interpretation of s. 37(4)(a) of the Constitution but they serve to demonstrate, as does Attygalle’s case cited below, how easy it is to fall into the error of assuming that facts are peculiarly within the knowledge of the accused when that may not be so.
In Ceylon — now Sri Lanka — they had a provision similar to the proviso to s. 37(4)(a) of the Constitution. It was contained in the Ceylon Evidence Ordinance, No. 14 of 1895, s. 106 of which provided that:
“when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”
In Attygalle and Anor. v. The King[dcxxviii]15 the Supreme Court of Ceylon convicted Dr. Attygalle of causing one C. M. Maye, then with child, to miscarry and convicted one C. E. Fonseka of abetting the commission of the above offence. The trial judge told the jury that:
“There is a section of the Evidence Ordinance which, I think, is really the basis of circumstantial evidence so far as it occurs in Ceylon; that section says when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Miss Maye ‘— that is the person upon whom the operation was alleged to have been performed —’ was unconscious and what took place in that room that three-quarters of an hour that she was under chloroform is a fact especially within the knowledge of these two accused who were there. The burden of proving that fact, the law says is upon them, namely, that no criminal operation took place, but that what took place was this speculum examination.”
On a petition for special leave to appeal to the Judicial Committee of the Privy Council Viscount Hailsham L.C., in delivering the judgment of the court said:
“Their Lordships are of opinion that that direction does not correctly state the law. It is not the law of Ceylon that the burden is cast upon an accused person of proving that no crime has been committed. The jury might well have thought from the passage just quoted that that was in fact a burden which the accused person had to discharge.”
Of course there are statutes where the onus is placed upon the accused because of facts which are peculiarly within his knowledge and Salmon J, as he then was, in the passage from Spurge’s case[dcxxix]16 cited by the Chief Justice was referring to these statutes when he said:
“No doubt there are a number of statutes where the onus of establishing a statutory defence is placed on the accused because the facts relating to it are peculiarly within his knowledge.”
We have such statutory provisions in our Criminal Code: see ss. 436, 438 and 439.
I cannot see how the fact whether an accused person, charged with taking part in an inter-group fight, did or did not take part in the actual fighting is a fact peculiarly within his knowledge. Dozens if not hundreds of warriors on his side would know whether or not he had been actually fighting. I agree that it might be difficult to prove that he had been actually fighting. But in order to secure a conviction it is not necessary to prove that a person had been actually fighting. It is all the more odd therefore that an accused person by proving that he did not take part in the actual fighting should be able to secure an acquittal.
In my view sub-s. 11(3) is invalid because it places upon an accused person the onus of proving that he did not take part in the actual fighting when that particular fact is not peculiarly within his knowledge.
It might be thought that as all that sub-s. 11(3) does is to provide a bonus by enabling an accused person to secure his acquittal if he can prove that he did not take part in the actual fighting that there has been no serious erosion of the right to the protection of the law. I am of the opinion however that it is a bad precedent, the thin end of the wedge. The Supreme Court has been appointed the guardian of the people’s fundamental rights and freedoms as defined in the Constitution. It should be vigilant to ensure that there is not the slightest infringement of any of these rights and freedoms.
I would answer the question referred “yes”.
For reasons mentioned by the Chief Justice and Andrew J, whose judgments I have had the benefit of reading in draft form, I agree that if s. 11(3) is invalid the whole of s. 11 must fail. However if Parliament so wishes sub-ss. (1) and (2) of s. 11 can be re-enacted but sub-s. (3) must definitely be excluded.
ANDREW J: This is a reference under s. 18 of the Constitution. The National Court sitting at Mount Hagen has referred to the Supreme Court the following questions:
Is the Inter-Group Fighting Act 1977 invalid in that it contravenes s. 37(4)(a) of the Constitution of the Independent State of Papua New Guinea?
The question has been confined to whether s. 11(3) of the Inter-Group Fighting Act 1977 contravenes s. 37(4)(a) of the Constitution but in my view to properly decide this question it is necessary to consider the whole of Pt. III of the Act which is as follows:
“10.    PREPARING TO FIGHT
(1)      For the purposes of this Act, any gathering of five or more persons armed with offensive weapons who are:
(a)      taking part; or
(b)      who appear to be about to take part; or
(c)      who appear to be preparing to take part, in a fight with any other group of persons is an unlawful assembly.
(2)      A person who takes part in an unlawful assembly referred to in Sub-section (1) is guilty of an offence.
Penalty: Imprisonment for a term not exceeding two years.
11.     TAKING PART IN AN INTER-GROUP FIGHT
(1)      For the purposes of this Act, an inter-group fight is deemed to have taken place if any member of an unlawful assembly referred to in Section 10(1) assaults or attempts to assault or commences to fight with a member of another group of persons.
(2)      A person who takes part in an unlawful assembly referred to in Section 10(1) which is involved in an inter-group fight is guilty of an offence.
Penalty: In relation to an inter-group fight in which a person is killed — a term of imprisonment not exceeding five years.
In relation to an inter-group fight in which no person is killed — a term of imprisonment not exceeding three years.
(3)      A person charged with an offence against this section is guilty of that offence unless he proves, to the satisfaction of the court, that he did not take part in the actual fighting.
(4)      Nothing in Sub-section (2) shall be construed as restricting the penalty to which a person may be subject under any other law for the offence arising out of or connected with an inter-group fight.
12.     ORGANIZING, ETC., AN INTER-GROUP FIGHT
No person shall plan, organize or assist in the planning or organizing of an unlawful assembly referred to in Section 10(1).
Penalty: Imprisonment for a term not exceeding three years.
13.     INCITING, ETC., PERSON TO FIGHT
No person shall assist, aid, incite, encourage, urge or counsel any person to take part in an inter-group fight.
Penalty: Imprisonment for a term not exceeding two years.”
Section 37(4)(a) of the Constitution provides as follows:
“37(4) A person charged with an offence:
(a)      shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would with the exercise of reasonable care be, peculiarly within his knowledge.”
The Inter-Group Fighting Act is expressed to be an Act to provide for the suppression of fighting between groups and the creation of offences in relation to inter-group fighting, and for related purposes. The purpose of the Act is set out in s. 1.
“1.      PURPOSE OF THIS ACT
The purpose of this Act is to discourage fighting between groups of Papua New Guineans by providing for:
(a)      the creation of offences in relation to such fighting; and
(b)      the imposition of severe penalties for such offences; and
(c)      the collective punishment of the leaders of groups involved in fighting; and
(d)      the imprisonment of group leaders for non-payment of penalties imposed on them as a result of their group’s participation in such fighting.”
It is at once apparent that the Act is designed to meet the special problem of tribal fighting and for that purpose severe measures have been introduced.
There are many instances in the Criminal Law where an onus is shifted by statute from the prosecution to the accused. For example the Criminal Code Act s. 235 provides:
“235.   COMMON NUISANCES
Any person:
(a)      without lawful justification or excuse, the proof of which lies on him, does any act, or omits to do any act with respect to any property under his control, by which act or omission danger is caused to the lives, safety or health of the public.” (The emphasis is mine.)
Some other examples are s. 236 of the Criminal Code Act (suspicion of stealing cattle); s. 438 (unlawful possession of shipwrecked goods); s. 439 (offering shipwrecked goods for sale).
I turn first to s. 37(4)(a) of the Constitution and to an examination of the phrase “peculiarly within his knowledge” for the burden cast upon a defendant by s. 11(3) of the Inter-Group Fighting Act 1977 of proving that he did not take part in the actual fighting may only comply with s. 37(4)(a) of the Constitution if such participation could be said to be a fact which is “peculiarly within his knowledge”.
The phrase “facts peculiarly within the accused’s own knowledge”, had its origins in the judgment of Bayley J in R. v. Turner[dcxxx]17. His Honour was referring to rules of pleadings:
“I have always understood it to be a general rule that if a negative averment be made by any one party, which is peculiarly within the knowledge of the other, the party within whose knowledge it lies; and who asserts the affirmative is to prove it, and not he who avers the negative.”
Since then the phrase has been used many times in textbooks and judgments, see John v. Humphreys[dcxxxi]18; Phipson on Evidence 11th ed. p. 108; and Cross on Evidence 3rd ed. (1967) p. 81. Also, since 1816 in the common law of the United Kingdom there are a number of cases illustrating the shifting of the onus of proof on to the defendant to prove for example that he held a licence to do an act which was otherwise prohibited by a statute or that he was exempted in some way, see R. v. Scott[dcxxxii]19 and R. v. Oliver[dcxxxiii]20 where the onus was shifted to the defendant to prove that he had a licence as being a fact peculiarly within his own knowledge.
The above cases are analysed in R. v. Edwards[dcxxxiv]21 and at p. 1095 the Court of Appeal said,
“... over the centuries the common law, as a result of experience and the need to ensure that justice is done both to the community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This exception, like so much else in the common law, was hammered out on the anvil of pleading. It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the Court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisos, exemptions and the like, the prosecution can rely on the exception. In our judgment its application does not depend on either the fact, or the presumption, that the defendant has peculiar knowledge enabling him to prove the positive of any negative averment. As Wigmore pointed out in his great treatise on evidence this concept of peculiar knowledge furnishes no working rule. If it did defendants would have to prove lack of intent.” (The emphasis is mine.)
As I have already indicated there are many cases where a statute shifts onus from prosecution to defence. They must be read however in the light of s. 37(4)(a) of the Constitution which has adopted the common law concept of “facts peculiarly within his knowledge”, which I have outlined.
Section 11(3) of the Inter-Group Fighting Act 1977 sets up a defence to a charge of “taking part in an unlawful assembly which is involved in an inter-group fight” and this offence is laid down in s. 10, s. 11(1) and s. 11(2) of the Act. The onus is shifted by s. 11(3) so that it is for the defendant to prove that he did not take part in the actual fighting. What rests on him then is the legal or, as it is sometimes called, the persuasive burden of proof. It is not the evidential burden because under s. 11(3) of the Act the defendant as a person charged with an offence (under s. 10, s. 11(1) and s. 11(2)) “is guilty of that offence unless he proves to the satisfaction of the court, that he did not take part in the actual fighting”.
The difficulty in deciding what are “facts peculiarly within the defendant’s knowledge” is well described in R. v. Edwards[dcxxxv]22 “If the rule only applies when the facts constituting exculpation are peculiarly within the defendant’s own knowledge, we would have expected to have found reported cases giving some help as to how the courts were to decide this. If a query arises, should the judge or the jury decide who had what knowledge? Should evidence be called on this issue? If not, why not? ... Counsel brought no such cases to our attention and we have found none ourselves.”
In my opinion the situation of taking part in the actual fighting of an inter-group fight is not a matter peculiarly within a defendant’s knowledge. It is true that there are great difficulties of proof in identifying who actually took part in the fighting and a defendant may well know what part he took but this does not, to my mind, mean that it is peculiarly within his knowledge. A tribal fight takes place in the open; those who are charged are normally arrested in groups and the basis of the arrest is often evidence in the form of weapons they are carrying and/or evidence of participation from the police. These are general matters which in the normal course will subsequently have to be proved in court but I cannot see that they are matters peculiarly within the defendant’s knowledge. One’s partaking in the fight would in the normal course be a matter known to many people, including friend, foe and others.
In my view one guide in attempting to understand the intention of s. 37(4)(a) of the Constitution in introducing the common law concept of peculiar knowledge is the history of the concept and its present meaning in the common law. I take its present meaning to be that outlined in R. v. Edwards[dcxxxvi]23 that it does not furnish any working rule. The phrase has, however, been connected with and limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances such as in the case of R. v. Oliver[dcxxxvii]24. Thus it has found some usage in the common law in the areas of certificates, prescriptions and licences.
The narrowness of its application in the past in the common law must be construed in the context of the whole of s. 37(4)(a). The importance of the section is seen by the fact that it is contained in Division 3 (Basic Rights) of the Constitution and in Subdivision B thereof (Fundamental Rights). The presumption of innocence until proof of guilt according to law is therefore a basic and fundamental right and the proviso in the remainder of the section shows that this right may only be varied in exceptional circumstances.
In my opinion s. 11(3) of the Inter-Group Fighting Act contravenes the fundamental right of the presumption of innocence as contained in s. 37(4)(a) of the Constitution. It was agreed by all counsel and I think correctly, that if s. 11(3) was invalid the whole of s. 11 must fail as ss. 11(1) and (2) creating the offence would be more severe without s. 11(3) and this could not have been the intention of the legislature. See In Re Reference No. 1 of 1976 (P)[dcxxxviii]25 that if from the terms of an Act it appears that Parliament intended that only the Act as a whole should come into operation, then the whole would fail if there was partial invalidity. In no case can the Court be required to legislate and the reduced form or operation of the Act must result in a consistent workable and effective body of provisions: Strickland v. Rocla Concrete Pipes Ltd.[dcxxxix]26.
I am strengthened in the view I have formed by the advice of the Privy Council in Attygalle v. The King[dcxl]27 and the dicta of Salmon J (as he then was) in R. v. Spurge[dcxli]28. In Attygalle’s case the then Ceylon Evidence Ordinance provided “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him”. At the trial of two persons accused of performing an illegal operation the Judge in the course of his summing-up said that what took place was a fact especially within the knowledge of the accused who were there and directed the jury that the law said that the burden of proving that no criminal operation took place was upon the accused. It was held that that direction did not correctly state the law. It was not the law of Ceylon that the burden is cast upon an accused person of proving that no crime had been committed.
In Spurge’s case a defence of mechanical defect had been raised. The Court of Criminal Appeal there said:
“It has been suggested by Counsel for the Crown that the onus of establishing any defence based on mechanical defect must be upon the accused because necessarily the facts relating to it are peculiarly within his own knowledge. The facts however relating to a defence of provocation or self-defence to a charge of murder are often peculiarly within the knowledge of the accused since often the only persons present at the time of the killing are the accused and the deceased. Yet once there is any evidence to support these defences, the onus of disproving them undoubtedly rests upon the prosecution: Woolmington v. Director of Public Prosecutions. There is no rule of law that where the facts are peculiarly within the knowledge of the accused, the burden of establishing any defence based on these facts shifts to the accused.
No doubt there are a number of statutes where the onus of establishing a statutory defence is placed on the accused because the facts relating to it are peculiarly within his knowledge.”  (The emphasis is mine.)
Thus it can be seen that there are many situations where facts may in some circumstances be peculiarly within the accused’s knowledge and the example given here is of an accused charged with murder where the only persons present at the time of the killing were the accused and the deceased. Yet obviously this is far different from an inter-group fight where sometimes hundreds of people are present at an event which often takes place over a considerable period of time.
No argument was advanced that s. 11(3) meant that the laying of a charge of taking part in an inter-group fight established guilt. I am unable to give the wording of the section anything other than its plain, literal meaning that when a person is charged with the offence he is at that point of time, guilty until he can prove he did not take part in the actual fighting. In my judgment this is clearly contrary to s. 37(4)(a) of the Constitution that a person shall be presumed innocent until proved guilty according to law.
I would answer the question referred, “Yes”, and as s. 11(1) and (2) of the Inter-Group Fighting Act cannot be severed from s. 11(3) so also are they invalid.
ORDER OF THE COURT:
The question referred be answered “Yes and insofar as sub-s. (3) cannot be severed from sub-s. (1) and (2) of s. 11 of the Inter-Group Fighting Act 1977 — the whole of s. 11 must therefore be considered invalid.”
Solicitor for the affirmative case: M. Kapi, Public Solicitor.
Principal Legal Adviser to the National Executive for the negative case: B. W. Kidu.
Solicitor for the negative case: K. B. Egan, Public Prosecutor.

[dcxiv]
[dcxv]
[dcxvi]
[dcxvii]
[dcxviii]
[dcxix][1944] 1 K.B. 68.
[dcxx][1974] 2 All E.R. 1085.
[dcxxi][1967] 1 Q.B. 322 at p. 329f.
[dcxxii][1961] 2 Q.B. 205 at pp. 212-213.
[dcxxiii][1944] 1 K.B. 68.
[dcxxiv](1921) 86 JP. 69.
[dcxxv][1967] 1 Q.B. 322.
[dcxxvi][1955] 1 All E.R. 793.
[dcxxvii][1974] 2 All E.R. 1085.
[dcxxviii][1936] A.C. 338.
[dcxxix][1961] 2 Q.B. 205.
[dcxxx][1814-23] All E.R. 713 at p. 715.
[dcxxxi][1955] 1 All E.R. 793 at p. 794.
[dcxxxii](1921) 86 JP. 69.
[dcxxxiii][1944] K.B. 68.
[dcxxxiv][1974] 2 All E.R. 1085.
[dcxxxv][1974] 2 All E.R. 1085 at p. 1088.
[dcxxxvi][1974] 2 All E.R. 1085.
[dcxxxvii][1944] K.B. 68.
[dcxxxviii][1976] P.N.G.L.R. 537.
[dcxxxix](1971) 124 C.L.R. 468.
[dcxl][1936] A.C. 338.
[dcxli][1961] 2 Q.B. 205.