Papua New Guinea Law Reports - 1982
[1982] PNGLR 122
SC223
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SUPREME COURT REFERENCE NO. 1A OF 1981
IN THE MATTER OF S. 37(4) AND S. 37(5)
OF THE CONSTITUTION
AND IN THE MATTER OF THE VALIDITY OF S. 19AB(2)(E)(III) 
OF THE MOTOR TRAFFIC ACT 1950, S. 138A(1)(B) OF THE DISTRICT COURTS ACT 1963, AND S. 38A(1)(C) OF THE LOCAL COURTS ACT 1963
AND IN THE MATTER OF A SPECIAL REFERENCE UNDER S.19 OF THE CONSTITUTION
BY THE PUBLIC SOLICITOR
Waigani
Kidu CJ Kearney DCJ Greville Smith Andrew Kapi JJ
30-31 July 1981
2 August 1981
22 March 1982
VEHICLES AND TRAFFIC - Offences - Traffic infringement - Traffic infringement summons - Acts requiring court to record plea of guilty on non-appearance - Validity of legislation - Motor Traffic Act 1950, s. 19ab(2)(e)(iii)[vii]1 - District Courts Act 1963, s. 138a(1)(b)[viii]2 - Local Courts Act 1963, s. 38a(1)(c)[ix]3 - Constitution, s. 37(4)[x]4, s. 37(5)[xi]5.
CRIMINAL LAW - Criminal responsibility - Proof of guilt - Traffic infringement summons - Acts requiring court to record plea of guilty on non-appearance - Validity of legislation - Motor Traffic Act 1950, s. 19ab(2)(e)(iii)[xii]6 - District Courts Act 1963, s. 138a(1)(b)[xiii]7 - Local Courts Act 1963, s. 38a(1)(c)[xiv]8 - Constitution, s. 37(4)[xv]9, s. 37(5)[xvi]10.
CONSTITUTIONAL LAW - Separation of powers - Legislation providing for certain curial procedures - Criminal offence - Act requiring court to record plea of guilty on non-appearance - Validity of legislation - Whether usurpation of judicial function.
STATUTES - Validity - Offences for traffic infringement - Acts requiring court to record plea of guilty on non-appearance - Right to have charge proved - Motor Traffic Act 1950, s. 19ab(2)(e)(iii)[xvii]11 - District Courts Act 1963, s. 138a(1)(b)[xviii]12 - Local Courts Act 1963, s. 38a(1)(c)[xix]13 - Constitution, s. 37(4)[xx]14, s. 37(5)[xxi]15.
CONSTITUTIONAL LAW - Basic rights - Protection of the law - Offences - Right to have charge proved - Traffic infringement summons - Acts requiring court to record plea of guilty on non-appearance - Validity of legislation - Motor Traffic Act 1950, s. 19ab(2)(e)(iii)[xxii]16 - District Courts Act 1963, s. 138a(1)(b)[xxiii]17 - Local Courts Act 1963, s. 38a(1)(c)[xxiv]18 - Constitution, s. 37(4)[xxv]19, s. 37(5)[xxvi]20.
Amendments made to s. 19ab(2)(e)(iii) of the Motor Traffic Act 1950, s. 138a(1)(b) of the District Courts Act 1963, and s. 38a(1)(c) of the Local Courts Act, 1963, enabled police officers to issue summonses for traffic infringements; such summonses containing the information that if the fine therein imposed was paid within 14 days that would be the end of the matter and if not paid, the charge would come before the court designated in the summons and should the defendant fail to appear by counsel or in person, the court if “satisfied that the Traffic Infringement Summons has been served ... shall record a plea of guilty and shall consider the sentence which shall be pronounced in open Court ...”.
On a reference to determine the validity of the amendments,
Held
(1)      The curial procedure set out in the legislative provisions referred:
(a)      does not permit of the proof of guilt required by s. 37(4)(a) of the Constitution to sustain a conviction; and
(b)      denies a defendant the hearing by a court guaranteed him by s. 37(5) of the Constitution; and
(c)      (Greville Smith J. not deciding) involves a purported exercise by the Parliament of that judicial authority of the People in respect of criminal offences which is vested exclusively in the National Judicial System;
and the sections of the several Acts are accordingly unconstitutional.
(2)      (Per Kearney Dep. C.J. and Kapi J.); The phrase “according to law” in s. 37(4)(a) of the Constitution encompasses all the laws of the country, including the underlying law.
(3)      (Per Greville Smith J., Kidu C.J. agreeing.); The summary hearing required by s. 37(5) of the Constitution is a trial before a magistrate.
Cases Cited
Clyne v. East (1967) 68 S.R. (N.S.W.) 385.
Liyanage v. The Queen [1967] 1 A.C. 259.
Police, Commissioner of v. Tanos (1958) 98 C.L.R. 383.
Oxford, Ex parte; re Anderson (1969) 89 W.N. (N.S.W.) 226.
R. v. Brentford Justices; Ex parte Catlin [1975] 2 W.L.R. 506.
S.C.R. No. 1 of 1980; Re Police Offences Act [1981] P.N.G.L.R. 28.
S.C.R. No. 2 of 1980; Re s. 14 of the Summary Offences Act 1977 [1981] P.N.G.L.R. 50.
S.C.R. No. 4 of 1980; Re petition of M. T. Somare [1981] P.N.G.L.R. 265.
United States v. Klein (1870) 80 U.S. 128; 20 L. ed. 519.
Williams, Ex parte; re Singleton (1928) 28 S.R. (N.S.W.) 616.
Reference
This was a reference by the Public Solicitor pursuant to s. 19 of the Constitution of three questions which are set out at the commencement of the reasons for decision of Kidu C.J. hereunder.
Counsel
A. Amet, for the Authority referring under s. 19 of the Constitution, (the Public Solicitor).
R. Gunson, for the Principal Legal Adviser, intervening.
Cur. adv. vult.
22 March 1982
KIDU CJ: In this Reference by the Public Solicitor pursuant to s. 19 of the Constitution, the Court's opinion is sought on the following questions:
“1.      Is s. 38a(1)(c) of the Local Courts Act (an amendment to the Principal Act made by s. 6 of the Local Courts (Traffic Infringement Summons) Act 1981) unconstitutional in that it contravenes s. 37(5) of the Constitution?
2.       Is s. 138a(1)(b) of the District Courts Act (an amendment to the Principal Act made by s. 4 of the District Courts (Traffic Infringement Summons) Act 1981) unconstitutional in that it contravenes s. 37(5) of the Constitution?
3.       Is s. 19ab(2)(e)(iii) of the Motor Traffic Act (an amendment to the Principal Act by s. 3 of the Motor Traffic (Traffic Infringement Summons) Act 1981) unconstitutional in that it contravenes s. 37(5) of the Constitution?”
Sections 19ab(1) and (2), and s. 19ac(1) of the Motor Traffic Act 1950 provide as follows:
19ab.  TRAFFIC INFRINGEMENT SUMMONS
(1)      Where it appears to a member of the Police Force or a prescribed officer that a person has committed a prescribed offence against this Act, that member of the Police Force or prescribed officer may serve on that person a Traffic Infringement Summons.
(2)      A Traffic Infringement Summons shall be in the prescribed form and shall:
(a)      be directed against the person named therein as the person alleged to have committed the prescribed offence; and
(b)      specify the alleged offence; and
(c)      specify the penalty prescribed for that offence; and
(d)      specify the Court to the Clerk of which the penalty may be paid within a period of 14 days commencing on the day following the day on which the Traffic Infringement Summons is served; and
(e)      state that in the event of:
(i)       payment of the penalty at the Court and within the period specified the case will not be called in Court; and
(ii)      non-payment of the fine at the Court within the specified period the case will be called on the first day on which the Court sits following the expiry of the specified period; and
(iii)     the person named in the Traffic Infingement Summons not appearing or not being represented when the case calls in Court under Sub-paragraph (ii), a plea of guilty shall be recorded and the case dealt with in accordance with the procedure of the Court; and
(iv)     the person named in the Traffic Infringement Summons wishing to plead not guilty or otherwise wishing to be heard by the Court, he should appear or be represented in the Court on the first day on which the Court sits following the expiry of the specified period.
19ac.  PROCEDURE ON TRAFFIC INFRINGEMENT SUMMONS
(1)      The procedure following the service of a Traffic Infringement Summons shall be as follows:
(a)      a defendant may pay the specified penalty to the Clerk of the specified Court within the specified period;
(b)      in the event of payment under Paragraph (a), the matter proceeds no further;
(c)      in the event of non-payment under Paragraph (a), the case is called in the specified Court on the first day on which the Court sits following the expiry of the specified period;
(d)      where the case is called under Paragraph (c) and the defendant is not present or represented, a plea of guilty shall be recorded and the matter dealt with in accordance with the procedure of the Court;
(e)      where the case is called under Paragraph (c) and the defendant is present or represented, the matter shall be dealt with in accordance with the procedure of the Court.
Section 138a(1) of the District Courts Act 1963 provides as follows:
138a.  PRACTICE AND PROCEDURE IN CASES COMMENCED BY A TRAFFIC INFRINGEMENT SUMMONS
(1)      The following rules of procedure shall be followed by District Courts in cases commenced by a Traffic Infringement Summons:
(a)      where the defendant has not made payment to the Clerk of the Court specified in the Traffic Infringement Summons of the sum specified therein within the time specified therein, the case shall be called in that Court on the first day on which that Court sits following the expiry of a period of 14 days commencing on the day following the day on which the Traffic Infringement Summons was served;
(b)      where the defendant does not appear and is not represented when the case is called in Court, and the Court is satisfied that the Traffic Infringement Summons has been served, the Court shall record a plea of guilty and shall consider its sentence which shall be pronounced in open court;
(c)      where the defendant appears or is represented when the case is called in Court, the nature and particulars of the alleged offence shall be explained to the defendant in a language which he understands and he shall be asked whether he admits or denies the alleged offence;
(d)      where the defendant does not plead guilty the trial shall proceed in accordance with the provisions of Sections 135, 136 and 137 as if a Traffic Infringement Summons was an information of a simple offence;
(e)      where the defendant pleads guilty, the Court shall consider its sentence which shall be pronounced in open court.
Section 38a(1) of the Local Courts Act, 1963, provides as follows:
38a.    PRACTICE AND PROCEDURE IN CASES COMMENCED BY A TRAFFIC INFRINGEMENT SUMMONS
(1)      The following rules of procedure shall be followed by Local Courts in cases commenced by a Traffic Infringement Summons:
(a)      the trial shall be held in open Court;
(b)      where the defendant has not made payment to the Clerk of the Court specified in the Traffic Infringement Summons of the sum specified therein within the time specified therein, the case shall be called in that Court on the first day on which that Court sits following the expiry of a period of 14 days commencing on the day following the day on which the Traffic Infringement Summons was served;
(c)      where the defendant does not appear and is not represented when the case is called in Court, and the Court is satisfied that the Traffic Infringement Summons has been served, the Court shall record a plea of guilty and shall consider its sentence which shall be pronounced in open court;
(d)      where the defendant appears or is represented when the case is called in Court, the nature and particulars of the alleged offence shall be explained to the defendant in a language which he understands and he shall be asked whether he admits or denies the alleged offence;
(e)      where the defendant does not plead guilty the trial shall proceed in accordance with the provisions of Section 38(e), (f), (g), (h) and (i) and the defendant shall be present throughout the trial, unless the Court is satisfied that he does not wish to appear and that it is proper that he be not compelled to appear;
(f)      where the defendant pleads guilty, the Court shall consider its sentence, which shall be pronounced in open court.
Section 37(4)(a) and s. 37(5) of the Constitution provide as follows:
(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;
...
(5)      Except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence, but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment, (except in default of payment of fine), to be heard summarily in his absence if it is established that he has been duly served with a summons in respect of the alleged offence.
In my opinion, the Constitution, s. 37(5), cannot be read in isolation from the preceding subsections of s. 37. One must bear in mind the purpose of s. 37, stated quite clearly in sub-s. (1) thereof:
“Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.”
One of those protections is provided for by s. 37(4)(a) which, as we have seen, provides:
“A person charged with an offence:
(a)      shall be presumed innocent until proved guilty according to law ...”
The proviso to s. 37(4)(a) is not relevant in this Reference. However, if it were, I would hold that it would make no difference to my view that a person charged with an offence is guaranteed two rights by s. 37(4)(a): first, the right to be presumed innocent of the charge; and second, the right to have the charge against him proved according to law.
Mr. Gunson of counsel for the Principal Legal Adviser argued that a court of summary jurisdiction, being a creation of statute, must follow procedures set out in the relevant statute. Therefore, he submitted, the provisions under consideration, being new statutory procedures, must be so observed. It is true that procedural laws should be adhered to, not only by courts of summary jurisdiction, but by any other courts. However, such rules must give way to specific dictates of the Constitution. One of these is the constitutional guarantee that a person charged with an offence is presumed to be innocent until proved guilty according to law.
If the term “heard summarily” in s. 37(5) is to be given the meaning contended for by Mr. Gunson, the s. 37(4)(a) guarantee would be rendered meaningless.
Section 37(4)(a) has been considered by the Supreme Court several times, and more recently in two cases to which I now make reference. The first of these is S.C.R. No. 1 of 1980; Re s. 22a of the Police Offences Act, [1981] P.N.G.L.R. 28. In this case Greville Smith J. said, at pp. 38-39:
“In my opinion, as a result of s. 37(4)(a) the law in Papua New Guinea relating to the proof of guilt in criminal cases is that the onus is on the prosecution to prove each element of the offence charged beyond reasonable doubt, subject to the following exceptions; namely:
'(a)     In the case of a defence of insanity, where there is a presumption of sound mind until the contrary is proved.
(b)      Where an enactment prohibits the doing of an act save in specified circumstances, or by persons of specified classes, or with special qualification or with the licence or persuasion of specified authorities, then once the prosecutor has proved beyond reasonable doubt the doing of the act the burden is on the person charged to bring himself within the exception or proviso, that is, to prove that he was entitled to do the prohibited act, independently of whether the facts he must prove to do so are, or would with the exercise of reasonable care be, peculiarly within his knowledge.
(c)      In the case of an enactment which places upon the person charged the burden of proving particular facts which are, or would with the exercise of reasonable care be, peculiarly within his knowledge.'
In the case of each exception the burden that rests on the accused is the legal, or as it is sometimes called the persuasive burden, not an evidentiary burden, and it is a burden of satisfying the court on a balance of probabilities, of persuading the court, on the probabilities, of the matter alleged by way of defence.”
Miles J., with whom Andrew J. agreed, said at p. 43:
“The presumption of innocence is established in the laws of Papua New Guinea by virtue of the Constitution, s. 37(4)(a), but even without the constitutional provision it would have formed part of the underlying law. And apart from the constitutional requirement that the prosecution carry the burden of proof, it is part of the underlying law that the prosecution may discharge that burden only if it proves the guilt of the accused beyond a reasonable doubt. The common law as to standard of proof is in symbiosis to the law of burden of proof. It has not been seen as inapplicable or inappropriate to the circumstances of the country, or inconsistent with custom: The State v. John Koe [1976] P.N.G.L.R. 562. The phrase `according to law' in s. 37(4)(a) encompasses, inter alia, the underlying law as to standard of proof.
The presumption of innocence in the common law is generally believed to have received its classic statement in the judgment of Lord Sankey in Woolmington v. The Director of Public Prosecutions (1935) A.C. 462 at p. 481. What Lord Sankey said was:
'Throughout the web of English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception.'
In commenting on Woolmington v. The Director of Public Prosecutions, (supra) Viscount Simon said with the concurrence of the other Law Lords in Mancini v. Director of Public Prosecutions (1942) A.C. 1 at p. 11: `The only exceptions arise ... in the defence of insanity and in offences where onus of proof is specially dealt with by statute.' “
In S.C.R. No. 2 of 1980; Re s. 14 of the Summary Offences Act [1981] P.N.G.L.R. 50, Kearney D.C.J. said at p. 53:
“The main thrust of the Constitution, s. 37(4)(a), is to place upon a prosecutor the burden of proving the guilt of a person charged with an offence. In my opinion the phrase `according to law' refers to the whole body of law in the country, as exhaustively defined in the Constitution, s. 9; it includes both the statute law and the underlying law.
By the underlying law that burden on the prosecutor is discharged only when he proves beyond a reasonable doubt that the defendant is guilty; that is, that the defendant is criminally responsible for the offence charged.”
The new provisions allow police officers to issue summonses for traffic infringements. The summons contains information that if the fine imposed is paid within fourteen days that is the end of the matter. If the fine is not paid the charge will come before the court designated in the summons and if the defendant fails to appear by counsel or in person the court if “... satisfied that the traffic infringement summons has been served, ... shall record a plea of guilty and shall consider the sentence which shall be pronounced in open Court”. (Emphasis mine.)
A summons contains an allegation of the commission of a traffic offence. That is all. Unless the defendant admits this allegation, the prosecution must prove the offence according to law i.e. prove to the court in the usual way beyond a reasonable doubt, that the defendant committed the offence charged. The mere fact that the summons was served and that the defendant failed to appear in court does not, in my view, constitute proof beyond a reasonable doubt that he committed the offence, nor proof that he admits the offence. The prosecution must give evidence on oath to the court and it must be admissible evidence. The court must then consider the evidence in the usual way and decide the guilt or innocence, bearing in mind the criminal burden of proof required under the law.
Section 37(5) of the Constitution is said to allow the provisions under reference. I cannot see how. It does not do away with the requirement to have a proper hearing. In my view s. 37(5) merely allows provisions to be made allowing certain summary offences to be dealt with in the absence of a defendant. A summary hearing does not involve the relaxation of the constitutional requirements of s. 37(4)(a) that a criminal charge be proved beyond a reasonable doubt, subject only to the proviso contained in that subsection.
I have had the advantage of reading the judgment of Greville Smith J. and I agree with him that a “summary hearing” means a trial before a magistrate.
The Deputy Chief Justice has made available to me his draft judgment and I agree with his Honour for the reasons he gives that the provisions referred amount to an exercise by the legislature of the judicial authority which is vested in the National Judicial System by the Constitution.
I would answer each of the three questions referred as follows:
“Yes; and it is also unconstitutional in that it contravenes s. 37(4) of the Constitution. Further, it is unconstitutional in that it purports to exercise the judicial authority of the People in respect of criminal offences, an authority vested exclusively in the National Judicial System.”
KEARNEY DCJ: The Public Solicitor seeks a binding opinion from the court under the Constitution, s. 19, whether certain laws are invalid, because, it is said, they contravene certain provisions of the Constitution.
The laws in question are certain amendments to three Acts of the National Parliament, passed in 1981 as a “package” of legislation to institute a system for the more efficient enforcement by the police of certain laws which regulate motor traffic. They provide for a special summons procedure; and for a special mode of proof in cases where a defendant does not appear in court.
Some fourteen years ago, an Act was passed to provide for the issuing by the police of “on-the-spot” infringement notices for certain motor traffic offences. A person who received such a notice could pay a prescribed penalty; if he chose to do so, the matter did not go to court. This was a first attempt to streamline the enforcement of the traffic laws, and thus to free the clogging of the courts which occurred as the police sought to prosecute many thousands of traffic infringements each year. However, it appears that many people did not in fact “pay up” voluntarily; their cases went to court, and the enforcement of the traffic laws through the courts by the normal court processes has resulted in a continuing clogging. For the police as the law enforcement agency, the major problems in the normal court process are said to be the drain on manpower and time in locating defendants to serve them with summonses when they do not voluntarily “pay up”; and then in attending court on the return date of the summons to prove the offence, even though the person summoned frequently does not appear.
Hence the new system, intended apparently to overcome these two problems of the police. I turn to the major provisions under attack.
The first of the three Acts is the Motor Traffic (Traffic Infringement Summons) Act 1981. This introduced two new provisions, s. 19ab and s. 19ac, into the Motor Traffic Act 1950. They are set out by the Chief Justice at p. 124 et seq.
The court has been told that the essence of the new system is:
(1)      That the policeman on the beat issues and serves a traffic infringement summons on the defendant, on-the-spot, for the offence he believes has been committed. He fills in the details on the summons then and there. Having served it, he files a copy in the court, with an affidavit of service completed, in accordance with s. 19ab(3). It will be seen that police time would no longer be lost in locating defendants, thus solving the first police problem mentioned above.
It will be noted that there is no specific legislative provision empowering the police to issue the summons. Normally, a summons requiring attendance in a court issues from that court; a summons is a form of compulsory process, and the decision whether or not it should issue is arguably judicial in its nature. See R. v. Brentford Justices; Ex parte Catlin [1975] 2 W.L.R. 506. However, there may be good practical reasons why the police should issue certain summonses. The constitutionality of their doing so has not been argued, and I express no opinion on it; but certainly at the least, if the police are to issue summonses, they must be specifically empowered to do so by an Act.
(2)      That the nonappearance in court of the person summoned, following his non-payment of the prescribed penalty, results in his being recorded by the court as guilty of the offence charged, thus avoiding the necessity for the police to prove their case by having present in court to give evidence the policeman on the beat who issued the summons. Thus is solved the second major problem of the police, mentioned above.
The system is implemented in the courts by the other two Acts referred. The District Courts (Traffic Infringement Summons) Act 1981 introduces s. 138a into the District Courts Act 1963. The Local Courts (Traffic Infringement Summons) Act 1981 introduces s. 38a into the Local Courts Act 1963. These provisions are set out by the Chief Justice at p. 124 et seq.
Mr. Amet contends that each of the three provisions referred for opinion contravenes that part of the Constitution, s. 37(5), I have emphasized below:
(5)      Except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence, but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment, (except in default of payment of a fine), to be heard summarily in his absence if it is established that he has been duly served with a summons in respect of the alleged offence.
The Constitution, s. 37(4)(a), was also referred to; as far as relevant, it is as follows:
(4)      A person charged with an offence:
(a)      shall be presumed innocent until proved guilty according to law ...
It is clear that all the motor traffic offences which are to be dealt with under the new system, currently meet the requirement in the Constitution, s. 37(5), that the maximum penalty “does not include imprisonment (except in default of payment of a fine)”.
Mr. Amet's submissions are as follows. When a defendant does not appear in court on the summons return date and there is a duly completed affidavit of service on the court file, the new statutory procedure requires the court to find the defendant guilty of the offence charged. Such a procedure means that the charge has not been “heard” by the court at all; and this is contrary to the Constitution, s. 37(5) which requires that the law contemplated by the words emphasized above must provide for a hearing if a charge is to be heard in the defendant's absence from court. I note here that the Constitution, s. 37(3), requires in general terms that a person charged with an offence shall be afforded a “fair hearing ... by a court”. Bearing in mind the presumption of innocence in the Constitution, s. 37(4)(a), Mr. Amet submits the hearing required by the Constitution, s. 37(5), must be of such a nature that before a defendant is found guilty of the offence charged, when absent from court, either evidence of the offence charged must have been adduced to the court by the police, and accepted by the court as probative to the necessary standard of proof, or the court must be satisfied that the defendant wishes to plead guilty.
On what is required to constitute a “hearing”, Mr. Amet referred by way of illustration and contrast to Ex parte Oxford; Re Anderson (1969) 89 W.N. (Pt. 2) (N.S.W.) 226, a decision involving somewhat similar traffic infringement legislation with a special ex parte procedure, introduced in 1965 in New South Wales. I will examine that in some detail, as Mr. Gunson contended that the legislation now in question was very similar; it will be seen that there is a vital difference. The New South Wales legislation provided for an information to be laid and the court to issue a summons; then, though the defendant did not appear, the court could proceed to “make an order” imposing a pecuniary penalty on him, if it was satisfied that:
“the facts as alleged in the summons constitute such an offence and reasonably sufficient particulars thereof are set out in the summons.”
This legislation contemplated that the information came on “for hearing”. In Oxford's case (supra) the statutory procedures had been followed, the defendant did not appear, and the magistrate imposed a pecuniary penalty. The defendant then sought prohibition. I note that the headnote to the report refers to Mr. Oxford as having been “convicted”, but I consider that that is clearly an error; it seems to be of the essence of the special statutory procedure in New South Wales that a pecuniary penalty could be imposed by an “order”, no evidence of the commission of an offence being adduced by the police, and no conviction being recorded. I note that the Justices Act 1902 (N.S.W.) draws a consistent distinction between a “conviction” and an “order”; the former flows from an information laid for a summary offence which carries punishment by way of fine or imprisonment; the latter from a complaint which by s. 53:
“... may be made to a Justice in any case where a Justice ... has ... authority by law to make an order for the payment of money, or otherwise.”
A Justice cannot convict, unless the offence charged is proved: Ex parte Williams; re Singleton (1928) 28 S.R. (N.S.W.) 616.
In the prohibition proceedings in Oxford's case (supra) it was submitted that no penalty could be imposed unless there had been a “hearing”; and that this meant that the police must adduce sworn oral evidence to prove the facts of the offence charged, as they would be required to do under s. 75 of the Justices Act (which was excluded by the 1965 statute) in a normal summary hearing of an offence where the defendant did not appear. The Court of Appeal rejected that submission, holding that while in one sense the effect of the new provisions was that “the Information does not come before the Court for hearing at all”, there was a sufficient hearing if the special statutory provisions were adhered to; and that those provisions did not require that the facts of the offence charged be proved by evidence as facts which actually happened. The court considered that the charge was dealt with “without a hearing in the usual sense of that term”; but that the procedure did involve a hearing in the sense that the defendant “may appear and in that event the matter must be heard in the ordinary way”. At p. 229, the court said:
“Of course it is not the concern of the court to inquire whether it is right or just that a penalty may be imposed in the circumstances mentioned; that is for the parliament to decide.”
So, as I understand it, the penalty in New South Wales was imposed, not for the offence charged in the information, or indeed for any offence, but simply as a consequence of what the statutory procedure contemplated, actually occurring. That is, when there is a summons before the court containing an allegation of facts, sufficiently particularized, which constitute an offence, and there is no appearance by the person summoned, the court can impose a pecuniary penalty; whether the person summoned actually committed the offence charged, is something with which the court is not concerned, when imposing the penalty. There is no conviction but a pecuniary penalty must be paid, if imposed. It is rather difficult, I think to characterize the true nature of this penalty; it is perhaps simply a kind of fee or tax payable to the State in certain events, set in motion by the criminal process. It was apparently thought an unobjectionable procedure in New South Wales, because by s. 75b of the Justices Act, 1902, which replaced the legislation in question in Oxford's case (supra), the special ex parte procedure was extended to all summary offences; it provides for, and limits, the pecuniary penalty to one:
“... not exceeding the amount of the pecuniary penalty that might have been imposed had the defendant been convicted of the offence”. (Emphasis mine.)
The major difference between the New South Wales legislation and the provisions in question here is obvious; here the person is recorded as guilty of the charge he was summoned to answer; in New South Wales he is not guilty of any offence, and indeed, the issue of guilt is not before the court.
The well-known proposition in Commissioner of Police v. Tanos (1958) 98 C.L.R. 383 at p. 395 may be noted here:
“... it is a deep-rooted principle of the law that before anyone can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceedings he must be afforded an adequate opportunity of being heard.”
The New South Wales provision appears to satisfy that proposition. However, in this country, the Constitution, s. 37(3), requires that there be a “fair hearing” of any charge laid. While possibly that might prevent the New South Wales approach being adopted here, I doubt if it would, since the penalty is not imposed as a result of any disposition of the charge.
I turn to the legislation referred. I consider that any Act which requires a court to record a plea of guilty to an offence in circumstances in which the court is not first required to be satisfied, in its independent judgment, that the person charged wishes freely and with full understanding to admit his guilt, amounts to a usurpation by the legislative arm of government of a function reserved by the Constitution to the judicial arm of government; and is accordingly unconstitutional and a nullity, of no legal effect. I respectfully agree with the Chief Justice that the procedure set out in the provisions referred to do not amount to the summary hearing required by the proviso to the Constitution, s. 37(5), and are unconstitutional for that reason. But more fundamentally, I think, they are unconstitutional because they amount to an exercise by the legislature of the judicial authority of the people in respect of criminal offences, which by the Constitution, s. 158(1), is vested exclusively in the National Judicial System. It is of course true that judicial authority may be conferred on other tribunals under the Constitution, s. 159, but that is irrelevant for present purposes, since s. 159(3) prevents any such tribunal from imposing any penalty for a criminal offence.
It is clear from its structure that the Constitution contemplates a general separation of powers between the three principal arms of government—the legislature, executive and judiciary; see the Constitution, s. 99. As a parliamentary system with an executive responsible to Parliament, the separation of powers between the arms cannot be rigid. But the separation principle remains of basic importance in the Constitution and prohibits incursions by one arm of government upon basic functions of another. The legislation presently in question, I think, is an example of the legislature having gone too far in prescribing rules which control judicial decisions in certain cases, thus invading the realm of judicial power. It is of the essence of the judicial function that the court, when considering whether a plea of guilty should be recorded, brings to bear its own independent judgment as to whether materials put before it are probative of guilt, whether they bear that character; and also as to whether a defendant fully and freely is waiving his right to a trial, in which he cannot be convicted unless all the elements of the offence are proved against him to the required standard of proof, and is unequivocally admitting every element of the offence. The fact that the evisceration of the essential judicial function in considering whether a plea of guilty should be recorded, is achieved by the surgical knife of procedure, does not affect the character of what was done; what cannot be done directly, cannot be done indirectly. Here there are, in truth, no judicial functions for the court to perform; the legislation has wholly absorbed the judicial process.
There are many examples elsewhere of such incursions. In United States v. Klein, (1872) 80 U.S. 128; 20 L. ed. 519, a post Civil War case in the United States, the law provided that any pardoned rebel had an absolute right to the proceeds of certain of his forfeited property. The effect of the pardon by the President was that all guilt was absolved. Congress later enacted that if the pardon recited a rebel's guilt, it was conclusive evidence thereof; and no pardon was admissible in evidence in support of the ex-rebel's claim. The President's pardon was in effect annulled, the court deciding on the property claim was said to cease to have jurisdiction, and it was to dismiss the claimant's suit. This was an invasion by the legislature both of the functions of the executive and of the judiciary. As to the latter, it was contended that the court was being directed as to the precise judgment it was to give. The Supreme Court said, at p. 525:
“What is this but to prescribe a rule for the decision of a cause in a particular way?”
The court held that the legislature could not prescribe rules of decision to the judicial department of the government in cases pending before it; and considered at p. 525 that:
“Congress has inadvertently passed the limit which separates the legislative from the judicial power.
It is of vital importance that these powers be kept distinct.”
Another example is Liyanage v. The Queen [1967] 1 A.C. 259. The Constitution of Ceylon, unlike those of the United States, Australia and Papua New Guinea, did not provide for separation of powers. The Parliament enacted temporary special retrospective Acts to cover an abortive coup d'‚tat, providing for a different mode of trial, different rules of evidence, and sentences. The Privy Council held that these Acts, directed to the trial of particular persons charged with particular offences on a particular occasion were unconstitutional and void, because they involved a usurpation and infringement by the legislature of judicial powers inconsistent with the Constitution, which manifested an intention to secure to the judiciary a freedom from political, legislative and executive control. In the course of argument the following exchange occurred, at p. 272:
“Lord Guest:
Do you say that in a criminal case a law could say to the judges that they must find the accused guilty? Do you say that that could be incorporated in a law?
Solicitor-General of Ceylon:
However shocking it might be, the answer was yes.”
It is clear from the Privy Council's decision that the answer in fact to Lord Guest's question was “no”.
See also the discussion of “legislative judgments” in Clyne v. East (1967) 68 S.R. (N.S.W.) 385 at p. 403.
I now turn to the impact of the Constitution, s. 37(4)(a). With great respect, I do not agree with the effect of s. 37(4)(a) as set out by Greville Smith J. in S.C.R. No. 1 of 1980 (supra), quoted by the Chief Justice at p. 127. Had the Constitution intended directly to entrench by s. 37(4)(a) the concept of presumption of innocence as it stood in the common law of England on 16th September, 1975, it surely would have clearly so stated. The term “law” is defined by the Constitution Sch. 1.2(1) as including the underlying law; and both Andrew and Miles JJ. in S.C.R. No. 1 of 1980 (supra) construed the word “law” in s. 37(4)(a) as encompassing all the laws of the country including the underlying law, and thus do not accept the approach of Greville Smith J. For myself, I adhere to the meaning of the phrase “according to law” I set out in S.C.R. No. 2 of 1980 (supra), quoted by the Chief Justice at p. 128. In that judgment, both Andrew and Miles JJ. appear also to adopt that view of s. 37(4)(a). It seems to me, with respect, that it is quite competent for parliament to make laws on matters which are relevant to proof of guilt, such as the mode and standard of proof in criminal cases, provided those laws fall within its law-making competence and do not invade matters exclusively within the competence of other arms or organs of government, and are otherwise consonant with the Constitution. I might add that as a result of countless decisions over the last six years, I think it is now clearly part of the underlying law of this country, appropriate to its circumstances, that guilt must be proved beyond reasonable doubt. The underlying law is shaped as much by the way it is practised as by judicial dicta.
Bearing in mind the nature of the essential judicial function, it appears to me that for an Act which provides for a mode of proving guilt, to be valid in terms of the Constitution s. 37(4)(a), its provisions must be such as to be capable of enabling a finding of guilt to the standard currently required by the underlying law, by a rational process, by an independent and impartial court charged under the Constitution, s. 158(a), with the paramount duty of dispensing justice. I consider that the provisions referred do not meet that test, and accordingly I respectfully agree with the Chief Justice that they are struck down by s. 37(4)(a).
I respectfully agree with the answer proposed by the Chief Justice to each of the questions referred.
GREVILLE SMITH J: Section 37(4) of the Constitution provides, inter alia, that “A person charged with an offence shall be presumed innocent until proved guilty according to law ...” To “prove” a person to be guilty means to establish or demonstrate the actuality of his guilt of the offence charged. This may be done either upon the person's own plea of guilty or upon evidence from which his guilt may be inferred to the requisite degree of persuasion.
The effect of the provisions contained in s. 19ac(2)(iii) of the Motor Traffic Act, s. 138a(1)(b) of the District Courts Act and s. 38a(1)(c) of the Local Courts Act would be to dispense with the proof of guilt required by the provisions of s. 37(4)(a) of the Constitution and such provisions are therefore in my view unconstitutional and nullities.
The matter may be approached in another way by looking at the provisions of s. 37(5). Consistently with the provisions of s. 37(4)(a) of the Constitution the provisions of s. 37(5) envisage a trial (which in the broad sense includes proceedings at which the person charged pleads guilty) when it makes the primary provision that except with his own consent “the trial” of a person charged with an offence shall not take place in his absence. It seems hardly necessary to define the word “trial” in the context of s. 37. However a “trial” is the action or process of putting to proof, “the formal examination of the matter in issue in a cause before a competent tribunal for the purposes of determining such issue” (Webster's New International Dictionary, 2nd ed. (1934) p. 2705, “trial” 1, 8).
“Trial is to find out by due examination the truth of the point in issue or question between the parties, whereupon judgment may be given.” (Co. Litt. 124b—Wharton's Law Lexicon (14th ed., 1938), p. 1011). The legislature cannot amend the Constitution by legislative re-definition of the terms contained therein, either explicitly, or, as appears to have been its endeavour in this case, by implication. Section 37(5) further provides, inter alia, by way of the one exception to its primary provision, that “provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment (except in default of payment of a fine), to be heard summarily in his absence if it is established that he has been duly served with a summons in respect of the alleged offence”.
“Summary proceedings” in law means (and the expression “heard summarily” has of course a corresponding meaning) “a proceeding ... in the nature of a trial conducted without the formalities required by the common law, as indictment, pleadings, a jury, etc. for the speedy and peremptory decision of some minor matter. All such proceedings must be authorized by statute and are for the punishment of minor offences ...” (Webster, supra, p. 2526).
“Apart from, and in the absence of, statutory definition `summary jurisdiction' and `summary prosecution' connote proceedings before magistrates or a magistrate, on a complaint or information, heard and determined summarily” (Stroud's Judicial Dictionary (4th ed., 1974) Vol. 5, p. 2682).
The District Courts and the Local Courts of Papua New Guinea are courts of summary jurisdiction. (See s. 28(1) of the District Courts Act and s. 13(1)(a) of the Local Courts Act), and in harmony with what has been said hereinbefore the general rules laid down for proceedings “in the nature of a trial”. (See s. 67 and s. 131 of the former Act and s. 38 of the latter Act.)
The effect of the provisions contained in s. 138a(1)(b) of the District Courts Act and s. 38a(1)(c) of the Local Courts Act would plainly be to allow a person charged with an offence in certain circumstances to be convicted of an offence without a trial, or anything “in the nature of a trial” or the semblance of a trial. Looked at in this way also, those provisions are seen to be in conflict with the provisions of s. 37 of the Constitution.
I would answer each question in this reference in the following terms, namely: “Yes, and also in that it contravenes s. 37(4) of the Constitution.
ANDREW J: I have had the advantage of reading in draft the judgments of my brothers the Chief Justice and the Deputy Chief Justice. I agree, and I have nothing to add. I would answer each of the three questions as their Honours would answer them.
KAPI J: I have had the advantage of reading the judgments of the Chief Justice, Deputy Chief Justice and Greville Smith J. and agree with the conclusions reached by their Honours.
In relation to the question of the proper effect of the adaptation of the common law principle of presumption of innocence through s. 37(4)(a) of the Constitution, I adopt the reasoning of the Deputy Chief Justice. The expression “according to law” in s. 37(4)(a) does not adopt any particular principle of law. It simply means “according to the laws of Papua New Guinea”. One has to go to these laws, which are set out under s. 9 of the Constitution. The relevant provision in this case is s. 9(f)—underlying law. Strictly speaking, underlying law is different from the common law of England. Common law embodies the principles which apply in England. Underlying law embodies the principles established under Sch. 2 of the Constitution; so it includes adoption of custom under Sch. 2.1, adoption of common law principles under Sch. 2.2, creation of new principles under Sch. 2.3 and the development of these principles under Sch. 2.4. See also my judgment in S.C.R. No. 4 of 1980; Re petition of M. T. Somare [1981] P.N.G.L.R. 265 at p. 284, the first Vanuatu judgment. Section 9(f) and s. 37(4)(a) (in this particular context) speak of underlying law as processed and established under Sch. 2 of the Constitution and not of the raw principles of the common law of England.
The proper view is that the presumption of innocence is applied in Papua New Guinea as a part of the underlying law through Sch. 2.2 of the Constitution. The principle is therefore subject to:
(a)      any change by the Constitution or an Act of the Parliament in the future; and
(b)      change in the circumstances of the country which may cause the principle to be altered from time to time by a process of the development of the underlying law according to Sch. 2.4.
I agree with the order proposed by the Chief Justice.
Ordered that each of the questions referred should be answered as follows:
“Yes; and it is also unconstitutional in that it contravenes s. 37(4) of the Constitution. Further, it is unconstitutional in that it purports to exercise the judicial authority of the People in respect of criminal offences, an authority vested exclusively in the National Judicial System.”
Solicitor for the Authority, referring under s. 19 (the Public Solicitor): A. Amet, Public Solicitor (in person).
Solicitor for the Principal Legal Adviser, intervening: C. Maino-Aoae, (in person).

[vii]Infra p. 124.
[viii]Infra p. 125.
[ix]Infra p. 125.
[x]Infra p. 126.
[xi]Infra p. 126.
[xii]Infra p. 124.
[xiii]Infra p. 125.
[xiv]Infra p. 125.
[xv]Infra p. 126.
[xvi]Infra p. 126.
[xvii]Infra p. 124.
[xviii]Infra p. 125.
[xix]Infra p. 125.
[xx]Infra p. 126.
[xxi]Infra p. 126.
[xxii]Infra p. 124.
[xxiii]Infra p. 125.
[xxiv]Infra p. 125.
[xxv]Infra p. 126.
[xxvi]Infra p. 126.