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Kepi v Kaua [1982] PGNC 10; N378(M) (15 April 1982)

N378(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL 49 OF 1982

BETWEEN:

KAU KEPI
APPELLANT

AND:

MICAH KAUA
RESPONDENT

Lae: Bredmeyer J
13 April 1982; 15 April 1982

APPEAL - District Court - Grade V Magistrates have no jurisdiction to hear indictable offences committed before 15th August 1981.

Criminal Code, s.432.
District Courts Act 1963, s.44.

REASONS FOR DECISION

BREDMEYER J: This appeal raises an important jurisdictional point. Does a magistrate Grade V have power to try an offence listed under Schedule 1A of the Criminal Code which occurred before 15th August 1981?

I am told that the District Court file on this matter is missing but counsel by agreement have supplied me with certain key details and the magistrate has supplied his reasons for decision. The key details are that the defendant Kau Kepi was charged with an offence of obtaining K5,500 by false pretences on 19th May 1980. He was charged with a second offence of obtaining K6,000 by false pretences on 19th June 1980. Both charges under s.416(1) of the Criminal Code were laid on 4th October 1981. He pleaded guilty to both charges before a Grade V Magistrate, Mr. P. White, in the Lae District Court on 4th December 1981 and was sentenced to two years imprisonment with hard labour on each charge cumulative, a total term of four years imprisonment.

The appellant appealed against sentence only and the magistrate has supplied detailed reasons for the sentences imposed. Included in those reasons is the learned magistrate’s view that he now considers that he had no jurisdiction to try the charges. Neither counsel who appeared before me was willing to argue this jurisdictional point. They were content that I should hear and determine the appeal against sentences, but I consider that, once I become aware of a jurisdictional doubt, I would be failing in my judicial duty to uphold the laws of this country if I did not resolve the point, however inconvenient the result may be to the appellant or the State.

The jurisdictional problem arose in this way. On 15th August 1981 Grade V Magistrates, also known as Principal Magistrates, were given jurisdiction to try seventy-five different indictable offences listed in Schedule 1A of the Criminal Code. This was achieved by amendments to the Code made by the Criminal Code (Indictable Offences) Act 1980 and amendments to the District Courts Act made by the District Courts (Hearing of Indictable Offences) Act 1980 both of which came into force on 15th August 1981. The key section conferring jurisdiction on the Grade V Magistrates is the new s.432 of the Criminal Code which reads:

"432. Indictable Offences that may be dealt with summarily

When a person is charged before a District Court constituted by a Magistrate Grade V. with an offence specified in Schedule 1A, the Court shall deal with the charge summarily according to the procedure set out in s.433, and may impose a penalty not exceeding the maximum period of imprisonment specified in the last column of that Schedule."

That section is silent on whether a Grade V. Magistrate can hear a Schedule 1A offence committed before 15th August. Neither is there any guidance in any of the other sections. I agree with Mr. White and consider that a Grade V. Magistrate has no power to hear a Schedule 1A offence committed before 15th August. There are two rules of statutory construction which lead me to that view. The first is the presumption against ousting established jurisdictions. This is expressed in Maxwell, Interpretation of Statutes (12th ed.) Chap. 7, p. 153 as follows:

"A strong leaning exists against construing a statute so as to oust or restrict the jurisdiction of the superior courts. Although this feeling may owe its origin to the contests for jurisdiction between the various courts in former times, when the judges’ emoluments depended mainly upon fees, "the well-known rule that a statute should not be construed as taking away the jurisdiction of the courts in the absence of clear and unambiguous language to that effect" now rests on a reluctance to disturb the established state of law or to deny to the subject access to the seat of justice. (Footnotes in the quotation omitted)

That rule applies to statutes creating tribunals and also, I consider, to inferior courts. Prior to 15th August 1981 the National Court had an exclusive jurisdiction to try most of the offences listed in Schedule 1A, for example, wounding, dangerous driving causing death, and break and enter, and a concurrent jurisdiction with the District and Local Court to try a few of the Schedule offences, for example, stealing and false pretences where the value of the property did not exceed K200, etc.. There are no express words in the new s.432 or elsewhere in the amending statutes taking away that exclusive and concurrent jurisdiction from the National Court and, in view of that rule of construction, I am not willing to interpret s.432 so as to oust the National Court’s jurisdiction before 15th August.

The second rule of statutory construction which supports my view is that penal statutes should be construed narrowly in favour of the person proceeded against. I cite from p.238 of the 12th edition of Maxwell, cited above:

The rule that statutes imposing criminal or other penalties should be construed narrowly in favour of the person proceeded against was more rigorously applied in former times when the number of capital offences was still very large, when it was still punishable with death to cut down a cherry-tree, in an orchard or to be seen for a month in the company of gipsies... .

The principle applied in construing a penal Act is that if, in construing the relevant provisions, "there appears any reasonable doubt or ambiguity," it will be resolved in favour of the person who would be liable to the penalty. "If there is a reasonable interpretation which will avoid the penalty in any particular case," said Lord Esher M.R., "we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the settled rule for the construction of penal sections.". (Footnotes in the quotations omitted.)

The Criminal Code (Indictable Offences) Act 1980 is not strictly a penal statute. It does not create any new offences or impose any new penalties. It is a jurisdiction-conferring statute giving the Grade V Magistrates power to try certain offences which formerly could only be tried by Judges. But I consider that like a penal statute where any reasonable doubt exists that doubt should be resolved in favour of the defendant. Prior to 15th August 1981 a defendant charged with any of the offences enumerated in the Schedule had a right to be tried by the National Court of Justice. That right was absolute in relation to most of the Schedule offences, such as dangerous driving causing death and burglary, but the defendant could waive it in relation to a few offences, such as minor stealing and minor false pretences, and elect to have a summary trial see the repealed ss.433 and 468 of the Code. The National Court is a superior court to the District Court in the hierarchy of courts established in Papua New Guinea so in theory a defendant should get a better trial and better justice in the National Court. There are no express words in the new s.432 taking away the defendant’s right to be tried by the National Court for an indictable offence committed before 15th August 1981 and I consider that I should not interpret that section against the defendant as removing that right from him.

There is a second reason why the District Court did not have jurisdiction to hear the charges. Section 44 of the District Courts Act 1963 reads:

"44. Limitation of Proceedings

In any case of a simple offence, unless some other time is limited for laying an information by the law relating to the particular case the information may only be laid within six months after the time when the matter of the information arose."

That section was not altered by the amendments I have mentioned. "Simple offence" is defined in s.5 as an offence punishable on summary conviction. The Schedule 1A offences fall within that category. When a Grade V Magistrate hears a Schedule 1A offence he is conducting a summary trial of an indictable offence and is bound by that section. In this case the two informations before the magistrate were laid about 15 months after the offences were committed and were thus out of time.

The magistrate thus had no jurisdiction to try the charges because they were committed before the 15th August 1981 and the informations were laid out of time for summary trial. An error of jurisdiction always amounts to a substantial miscarriage of justice. I therefore allow the appeal, quash the convictions and sentences and order the Lae District Court to rehear the charges according to law. That presumably means that a magistrate must conduct a committal hearing unless the State can present an indictment under s.538 or s.628 of the Code. The State’s power to present an indictment under these sections is limited and before taking any action under these sections I would refer the prosecutor to a study of Smedley v. The State SC 182 of 1980. I will now hear counsel on the question of bail.

(Counsel then made submissions on bail)

Mr. Sevua has requested bail for his client. He says the appellant has won the appeal and should be freed. He said his client was on cash bail prior to his summary conviction and answered that bail. Mr. Noka, counsel for the respondent, agreed with that submission, but I do not agree and have decided to refuse bail. The appellant has won the appeal but the criminal charges laid by the police are still against him. He was tried by a court which did not have jurisdiction: now he must be tried by a court which does. They are serious charges totalling K11,500. He has pleaded guilty to them once. He is likely to be convicted again and to get a gaol term for these charges. He thus has an incentive to run away and not to appear at his trial if granted bail. I remand him in custody for twenty-one days to give the State time to consider its position. If at the end of that time the State has not commenced the committal hearing and obtained a further remand from the magistrate, or indicted the defendant without a committal, then he will be released.

Solicitor for Appellant: Public Solicitor
Counsel: M. Sevua
Solicitor for Respondent: Public Prosecutor
Counsel: V. Noka