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Mandi v Lama [1964] PGSC 21; [1964] PNGLR 36 (30 October 1963)

Papua New Guinea Law Reports - 1964

[1964] PNGLR 36 - Sara Mandi v Lama

[1964] PNGLR 36

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SARA MANDI

V

LAMA

Wewak

Smithers J

30 October 1963

COURT FOR NATIVE AFFAIRS - Complaint disclosing no offence - Duty of Court for Native Affairs towards unrepresented accused - Distinction between failure to report a finding of property and larceny by finding - Quantum of punishment - Native Administration Regulations 1924, Regulations 95, 96.

Regulation 96 of the Native Administration Regulations 1924 provides as follows:

“If any native shall find any property he shall inform the Luluai of his village, who shall inform the District Officer or a Patrol Officer. Any Luluai or other native contravening this regulation shall be guilty of an offence. Penalty: Three pounds or imprisonment for six months or both.”

The appellant was charged in a Court for Native Affairs at Wewak upon a complaint in writing in the following terms “that at Wewak on the 6th September, 1963, he, being a native of the village of Korogo, did find a key the property of the Wewak Hospital and failed to inform anyone in authority that he was in possession of the key contrary to Regulation 96 of the Native Affairs Regulations”. He pleaded guilty and was convicted and sentenced to imprisonment for six months. On appeal to the Supreme Court:

Held:

That the conviction must be quashed on the ground that the particulars of the charge disclosed no offence.

Duty of Court for Native Affairs towards unrepresented accused considered.

Criteria for imposing punishment under Regulation 96 discussed.

The relevant facts appear from the judgment.

Counsel:

Germain, for the Appellant.

Pratt, for the Respondent.

SMITHERS J:  The appellant is a Medical Orderly living at Wewak Hospital. He was born at the village of Korogo, some 60 miles from Wewak. On the 9th September, 1963, he was charged in a Court for Native Affairs at Wewak upon a complaint in writing in the following terms, namely, “that at Wewak on the 6th September, 1963, he, being a native of the village of Korogo, did find a key the property of the Wewak Hospital and failed to inform anyone in authority that he was in possession of the key contrary to Regulation 96 of the Native Affairs Regulations.”

It is to be observed at once that on a fair reading of the particulars of the offence so alleged, the conduct described therein did not contravene Regulation 96. Indeed, what is alleged in the particulars does not constitute a contravention of any law. The phrase “contrary to Regulation 96 of the Native Affairs Regulations” adds nothing to what is particularised.

However, the defendant pleaded guilty and was convicted and sentenced to imprisonment for six months. He has served seven weeks of this sentence. He appeals against his conviction and sentence.

It is conceded by the Crown that the conviction must be set aside on the ground that the evidence set out in the complaint against the accused did not confine or limit the offence charged to one as defined by Regulation 96 and this defect was not cured either by the evidence or the finding of the magistrate. It may be that the appeal should be allowed on this ground, but for myself I prefer the more simple approach that the accused was charged with doing something not made unlawful by the Regulation or by any other law.

It appears that about 4.15 p.m. on the 6th September, the accused found a key on the roadway near the hospital and thought it was the key to two cupboards, one containing soap and other cleansing supplies and the other containing sugar and tea. “That evening” at some unspecified time the accused gave the key to another Medical Orderly and accompanied him to the soap cupboard which the other Medical Orderly opened. At that moment a Doctor came on the scene, intervened and took possession of the key. It seems that the Magistrate was not satisfied that the accused did not intend to return the key next morning to some person entitled to it.

Regulation 96 provides that if any native shall find any property he shall inform the Luluai of his village of the fact. The Regulation goes on to place an obligation on the Luluai to carry the information to the District Officer or Patrol Officer.

The only charge which could be made against the accused under Regulation 96 was that he did not report to the Luluai at his village. But in this case such a charge would have been absurd. It would have been completely unreal for the accused to have started to walk to Korogo, or try to send a message to the Luluai there either before or after the key was recovered by the doctor, or for anyone to expect him to do so.

It was, no doubt, for this reason that the particulars of the offence were drafted in the terms they were. These terms obviously reflect thinking along the following lines - “it is absurd to charge the accused with failing to tell his village Luluai but he ought to have told someone of authority at the hospital so let him be charged with that and let that be treated as an offence against Regulation 96”. After all a Luluai is a person of authority so let the regulation be read as though instead of “Luluai of his village” it said “a person of authority”.

To proceed in this manner is to do nothing less than to make a private amendment to a public law. It offends elementary principles and is not permissible. It gains no merit from the fact that it may be prompted by the praiseworthy motive of promoting law and order or from a feeling that it is thought to accord with common sense. The draftsman should never have permitted himself to indulge in such invention and the Court should have been alert to detect it and prevent damage arising therefrom.

A Court, such as the Court for Native Affairs, where the accused is not represented by Counsel and is likely to be entirely ignorant of the law, must always display some degree of diligence in examining the case from the point of view of the accused. Examination of these particulars from the point of view of the accused would have disclosed the discrepancy between the particulars and the regulation and would have alerted the magistrate to the possibility of error. It is clear that the magistrate treated the offence against the accused not as charging him with failing to inform the Luluai of his village of his finding of the key, but that of failing to inform some person in authority at the hospital. It was to this that the accused pleaded guilty. His plea was abortive because this was not a crime. The failure to adhere to the terms of the Regulation therefore led to a miscarriage of justice. It remains a miscarriage of justice, and one of a serious kind, notwithstanding that it may be reasonably thought that the conduct of the accused ought to be punishable as an offence. The law must be administered as it is and not as persons may consider it ought to be. New laws are to be made only by the proper authorities. I therefore quash the conviction on the ground that the particulars of the charge disclosed no offence.

I feel I should say something about the quantum of the punishment which was imposed. It was out of proportion to the alleged offence. I am not sure how this error came about but it would seem from the remarks of the Magistrate that he thought he was dealing with a charge of larceny. He went to some trouble in the matter of legal research to satisfy himself that even if the accused intended to return the key next morning it remained true that the accused had nevertheless “made an intentional and deliberate step to deprive the rightful owner of the property in the key”. This is the language of larceny. Coupled with the Magistrate’s reference to the good fortune of the accused in not being charged with breaking and entering, it seems that the Magistrate’s mind was absorbed with thoughts of crimes far removed from failing to report the finding of a key. As a matter of law the authority (R. v. Williams[xxxiii]¹), quoted by the Magistrate with respect to depriving the rightful owner of the property does not apply to wrongfully taking, under cover of an intention to return to the owner, a specific article, like a key. It applies only to things like money which will be consumed in the use the taker intends to make of them, and which, therefore, are the subject of larceny in some circumstances, although the taker may intend to make re-payment. In this case the accused would not properly have been convicted of larceny of the key even if he had been charged therewith. The offence of failing to report a finding of property is directed not to larceny by finding but to the promotion of activity designed to facilitate the recovery of lost property. Mere failure to report a finding of property is not normally an offence but in the New Guinea bush and throughout the villages it is probably good policy that it should be so. The finding of supplies lost by officers on patrol, of dangerous items like grenades and bombs, or of items the value of which might, or might not, be realised by natives, all, in the circumstances of village life, require to be reported, not primarily because they may be stolen but because, whether stolen or not, they may well be lost for ever unless they are reported. Regulation 96 is not to be used as an oblique method of convicting a person for larceny.

Larceny, whether by finding or otherwise, is actually provided for in the Regulation preceding Regulation 96. The person convicted and punished under Regulation 96 would have no immunity from conviction and punishment under Regulation 95. If, therefore, a suggestion of larceny is taken into account in punishing the accused on a conviction for breach of Regulation 96, he is necessarily exposed to double punishment for the same offence. In this case the only explanation of the severity of the sentence imposed by the Magistrate is that he must have felt that he was really dealing with larceny of the key, or perhaps of attempted larceny of some contents of the cupboard.

From what I have said as to the import of Regulation 96, it follows that the gravity of an offence in contravention of that Regulation depends upon:

N2>(a)      the extent to which the failure to report is calculated to reduce the likelihood of ultimate recovery of the property;

N2>(b)      the extent of loss, inconvenience, danger or other damage likely to result to the owner, or other persons, from failure to recover the property or from delay in its recovery, as the case may be;

N2>(c)      the degree of wilfulness in the failure to report;

N2>(d)      the existence or non-existence of intention to report the finding at some early or remote time.

The evidence that the accused used, or concurred in the use, of the key for criminal purposes is evidence of wilfulness in the failure to report, but it is not otherwise to be treated as relevant in the determination of the penalty. In any event the conduct referred to as using this key “for criminal purposes”, however it is looked at, does not rate very high in the criminal scale. That two otherwise decent and law abiding boys should have attempted, but not succeeded, to raid the soap, tea and sugar cupboard with a key which they had accidentally found and before returning the key, does not cause one to feel that one is in the area of wicked and vicious crime. That anyone could imagine that imprisonment for six months was the proper punishment for such conduct reveals a lack of appreciation of the purpose and principles of punishment. Indeed it seems to me that in this case a bond or a fine would have been nearer the mark had the accused been properly convicted of whatever offence the facts would have supported.

Conviction quashed.

Solicitor for the Appellant: W. A. Lalor, Public Solicitor.

Solicitor for the Respondent: S. H. Johnson, Crown Solicitor.

[xxxiii] (1953) 1 Q.B. 660.