IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA.

R. -v- EBULYA PILIMP

JUDGMENT

An indictment has been presented to this Court by the Chief Crown Prosecutor. The indictment is signed by the Secretary for Law purporting to act as Crown Law Officer pursuant to section 561 of the Criminal Code (Queensland, adopted) in its application to the Territory of New Guinea. The alleged offence was committed in the Territory of New Guinea. It is admitted that there has been a magisterial investigation into the facts out of which the offence is said to arise and that the investigating magistrate committed the accused for sentence pursuant to section 111 of the District Courts Ordinance (1924-1961) of New Guinea on a charge of indecent dealing with a girl under the age of seventeen years contrary to section 216 of the Code. The indictment presented to this Court is under section 348 of the Code and is for rape and is said to be based on the evidence contained in depositions taken at the magisterial investigation. No other proceedings consequent on the committal for sentence have been taken and the accused is on bail awaiting action by the Court, whether pursuant to section 600 of the Code or some other determination of the situation created by the committal for sentence.

Mr. Germaine appeared for the accused and contended that the indictment is ineffective to found any proceedings in the Supreme Court primarily on the ground that section 3 of the Criminal Procedure Ordinance, 1889, of Papua is part of the law of New Guinea and provides that except in cases of informations, known to the law of England as ex officio informations, and informations by the Master of the Crown Office, no criminal case shall be brought under the cognizance of the Central Court unless the same shall have been previously investigated by a Magistrate and the accused shall have been committed for trial at such Court. The Central Court is now the Supreme Court.

He said that the accused person has not been committed for trial on the charge of rape or on any charge. He contended that the committal for sentence did not constitute committal for trial. He said further, and I agree, that this is not an ex officio information known to the law of England and it is certainly not an information by the Master of the Crown Office. Mr. Germaine also said that the Supreme Court cannot deal with a matter arising out of a committal for sentence at all inasmuch as section 600 of the Code is not part of the law of New Guinea.

In answer to the first contention Mr. Smith contended, in the first instance, that even if section 3 is in force in New Guinea and takes effect there, according to its terms the accused has been committed for trial within its meaning. He said that a committal for sentence under section 111 of the District Courts Ordinance of New Guinea is a committal for trial. To reach this conclusion it is necessary that the words "unless the same shall have been previously investigated by a Magistrate and the accused shall have been committed for trial at such Court," (section 3), shall be construed to include a reference to cases which have been investigated by a magistrate and in which the magistrate has committed the accused for sentence before the Supreme Court pursuant to section 111 of the District Courts Ordinance. Such an interpretation is compatible enough with the objective of section 3. The indictment of accused persons in the absence of a magisterial investigation is the mischief against which section 3 is aimed. A committal for sentence after a magisterial investigation is not within this mischief. On this question of construction the answer would seem to depend ultimately on whether a person committed for sentence suffers or enjoys what may properly be regarded as a trial. I think he does. It is certainly a trial sub modo. The proceedings before the Supreme Court are governed by election 600 of the code. They are designed to end in conviction or acquittal. A conviction can be achieved but only if there is a plea of guilty entered either in accordance with or against the will of the accused, or, in certain circumstances, after the hearing of witnesses. If the plea of guilty is entered it has "the same effect as if it had been actually pleaded," that is it operates as an admission by the accused of the elements of the offence charged. Once that occurs the issue of guilt is determined and conviction follows. It seems to me that what has occurred is that the accused has had a trial, although he has been subject to severe limitations in relation to what he may plead. The issue of guilt has been before the Supreme Court and has been tried and determined in that Court according to law. It is to be noted that section 600 of the Code refers to the proceedings as a trial. It says that in a case of a committal for sentence if a plea of not guilty is entered "the trial" is to proceed as in other cases where that plan is pleaded. In addition, regard may be had to the opening words of the section which say that when a person has been committed for sentence he is to be called upon to plead to the indictment "in the same manner as other persons". This must mean "as other persons who are on trial." It is my opinion, therefore, that a person committed for sentence under section 111 is committed for trial within the meaning of section 3.

I do not overlook that section 111 itself speaks of committing for sentence "instead of" committing for trial. It is reasonable, however, to have regard to the practicalities of the matter. When the accused person is told he will be committed for sentence instead of being committed for trial, he is really being told in language intelligible to him "instead of being committed for trial when the issue of guilt will depend on the evidence of the witnesses, you will be committed for trial in which the issue of guilt will be determined on a plea of guilty which may be entered on your behalf either in accordance with, or against, your will." The multiplication of instances of the use of the compendious expression "committed for sentence" in juxtaposition to committal for trial should not obscure the reality that both are committals for trial.

Accordingly, Mr. Germaine is thrown back to his alternative argument that the Supreme Court cannot deal with the case because section 600 of the Code is not in force in New Guinea.

It is my opinion that even if section 600 were not part of the law of New Guinea there would be jurisdiction in the Supreme Court to deal with an accused person committed for sentence. The terms of section 111 of the District Courts Ordinance create a situation which can only be resolved in the Supreme Court. In the absence of section 600 that Court would have to work out its own procedure in such cases.

However, the question whether section 600 is in force is obviously of considerable importance, both with respect to Papua and New Guinea, and should be examined.

The provisions of section 600 are a Queensland invention and were originally enacted in section 113 of the Queensland Justices Act of 1886. Section 113 contained two parts, one corresponding to what is now section 111 of the District Courts Ordinance and the other corresponding to what is now section 600 of the Code.

The whole of section 113 became part of the law of Papua in 1888 when it was adopted by the Courts and Laws Adopting Ordinance of that year. In April of 1889 the Papuan Criminal Procedure Ordinance, 1889, became law. A question immediately arises as to whether section 3 of that Ordinance repealed section 113 of the Justices Act 1886.

In November, 1889, the Courts and Laws Adopting Ordinance of that year repealed the Courts and Laws Adopting Ordinance of 1888 and with it the Queensland Justices Act, 1886. However, it purported to adopt again the Queensland Justices Act, 1886, but this time only so far as such adopted provisions were not inconsistent with an existing Papuan Law. The Criminal Procedure Ordinance was then an existing Papuan Law. The relationship between section 113 of the Justices Act and section 3 of the Criminal Procedure Ordinance have therefore to be considered at each stage.

If it is correct to say that committal for trial referred to in section 3 includes committal for sentence, then there was no implied repeal of section 113 by the Criminal Procedure Ordinance of 1889 because there is on this basis no inconsistency between those sections. For the same reason the existence of section 3 of the Criminal Procedure Ordinance of 1889 would be no obstacle to the effective re-enactment of section 113 of the Justices Act by the Courts and Laws Adoption Ordinance of 1889. On this basis the whole of section 113 was in force in Papua from 1888.

It seems quite clear that in 1902 and 1912 the Papuan legislature acted on the assumption that the provisions of both parts of section 113 were in force in Papua. Thus in 1902 when section 600 of the Code was enacted the enacting Ordinance expressly repealed "the last paragraph of section 113 beginning with the words 'When a defendant' and ending at the end of the section." See Schedule One of the Criminal Code Ordinance 1902. It is clear that the legislature was intending to do just what had been done in Queensland when the Code was enacted there, namely, merely transfer that part of section 113 which related to the proceedings before the Supreme Court in cases where there had been a committal for sentence from the Justices Act to the Code, leaving the Magistrates power to commit for sentence in the appropriate legislation, namely, the Justices Act (Adopted). So far as legislative words are concerned this development is agreeably completed in 1912 when that part of section 113 which still depended on the Queensland Justices Act was carried into the Papuan Justices Ordinance and the whole of the Queensland Justices Act was repealed. See Justices Ordinance 1912.

I do not think that it should be lightly concluded that an obvious legislative assumption as to the state of the law is erroneous. It is clear that in 1902 the legislature intended section 600 to complement the provisions of section 113 of the Justices Act (Adopted) believing that these provisions were in force in Papua. This belief was well justified if committal for trial included committal for sentence. It tends to confirm the validity of this construction. As a result I consider that section 600 came into Papua at a time when the other part of section 113 was in force in Papua by virtue of the Courts and Laws Adopting Ordinance, 1889. Together with that other part section 600 enacted a complete system of committal for sentence by Magistrates and trial in the Supreme Court in such cases. I have no doubt that section 600 is part of the law of Papua. Indeed for reasons which appear in my consideration of section 561 the unconditional enactment of the Code in 1902 was effective to enact section 600 whether or not committal for sentence is a committal or trial.

What then of section 600 in New Guinea? It was originally taken to New Guinea, if at all, by section 13 of the Laws Repeal and Adopting Ordinance of 1921 of that Territory. But it is said that section 600 did not become part of the law of New Guinea because what may be called the other part of section 113 of the Justices Act, 1886, (the District Courts Ordinance, section 111), did not become law in New Guinea until 1924. See District Courts Ordinance of New Guinea of 1924.

As a result it is urged that in 1921 sections 600 could have no work to do because there were then no provisions in New Guinea for committing a person for sentence and it was therefore inapplicable in that Territory.

I do not think there is any validity in this argument. The Criminal Code was introduced inter alia to equip the Supreme Court with appropriate powers to dispose of indictable criminal cases and it was most rational and "applicable" to give it powers which were well understood and might be needed at any time. How rational this was can be judged in the light of the fact that in 1924 "the other part" of section 113 of the Queensland Justices Act became section 111 of the District Courts Ordinance and provided machinery under which advantage might be taken of the provisions, ambulatory till then, of section 600.

It is then said that section 3 of the Criminal Procedure Ordinance prevented the effective enactment of section 600 in New Guinea in 1921. The adoption the Code and section 600 thereof by the Laws Repeal And Adopting Ordinance, 1921, was an adoption conditional upon the adopted provisions not being repugnant to, or inconsistent with, laws already made or that might thereafter be made. Section 3 of the Criminal Procedure Ordinance which was adopted by the same Ordinance was similarly conditionally adopted. How they might affect each other if they conflicted might be a difficult question. If one takes the provisions of section 3 as they are written it might be said that they do conflict because section 3 prohibits the bringing of any case to the cognizance of the Court otherwise than on committal for trial, whereas section 600 authorises the Court to deal with the case of a person who is before it on a committal for sentence. I think, however, that being adopted by the same Ordinance they should be interpreted so as to stand together if that is reasonable having regard to the words used. I think, so considered, they can stand together on the basis that section 600 is only an enabling section which remains ambulatory until circumstances exist under which it is lawful for cases to be brought to the cognizance of the Court after committal for sentence. So considered it does not conflict with section 3.

But, it has also to be remembered that section 3 was only adopted in New Guinea so far as it was in force in Papua in 1921. In 1912 the Papuan legislature, acting with undoubted competence, enacted the Justices Ordinance of that year which contained a direct enactment of the committal for sentence provisions of the old section 113. Also in 1902 by a direct enactment in the Criminal Code Ordinance, section 600 became law in Papua. These provisions certainly impliedly amended section 3 if, in fact, they conflicted with it.

It would follow that in 1921 the adoption in New Guinea of section 3 as then in force in Papua would not be an obstacle to the operation of the provisions of section 600. This conclusion is supported by the observations hereafter made with reference to the enactment in New Guinea of section 561. Section 600 is therefore in force in New Guinea.

Mr. Germaine said that if section 600 is in force his client would like the benefit of it. He said that under it his client has a right to be tried on the committal for sentence for indecent dealing before he is indicted h for rape or any other offence arising out of the same facts.

He said that in effect the exercise by the Magistrate of the power to commit his client for sentence effected what was in substance a statutory bargain under which his client submitted to the disabilities of section 600 on the basis that he should be indicted for the offence to which he pleaded guilty. He said that completion of process against him under section 600 may end in a conviction which would be a defence to the charge of rape and that his client should not in the circumstance, be deprived of this defence. I understood him to move to quash the indictment on that ground.

I am of opinion that in a case in which there has been a committal for sentence the accused has a right to be indicted for the offence on which he has been so committed, or at least to have that committal proceeding disposed of by one of the other procedures for this purpose as explained in the judgment of my brother Minogue in this case. The committal for sentence procedure is rather a novelty. It is designed for the convenience of the Crown in the enforcement of the law. Section 111 of the District Courts Ordinance provides that if an accused person says at the magisterial investigation that he is guilty of the particular charge against him, he is to be invited to consider whether he desires the witnesses to appear to give evidence at the Court at which he is committed. He is told that if he does not so desire he will be committed for sentence instead of being committed for trial and that he will not afterwards be able to deny his guilt. Section 600 then applies to him and provides that in such a case "he is to be called upon to plead to the indictment." I think that must mean the indictment for the offence for which he has been committed for sentence. If so, then, while the committal stands there is a statutory obligation on the Crown to indict him for that offence. This may well be of advantage to the accused as a conviction for that offence may save him from conviction for some more serious offence arising out of the same facts. I think this is supported by the other provisions of section 600. They contemplate conviction on the offence charged or any other offence of which he might have been convicted on the indictment but certainly not on a more serious offence. 

It seems to me therefore that those provisions of the law empowering the Crown to indict for any offence disclosed by the deposition or for any offence whether or not there has been a magisterial investigation, or committal, must be read subject to the obligation of the crown in cases where the accused has been committed for sentence and the committal proceedings have not been otherwise disposed of, to indict the accused for the offence for which he was so committed. I am quite aware that section 12 of the Criminal Procedure Ordinance, in particular, and to a lesser extent section 561 of the Code, create difficulties in respect of this matter. Nevertheless there is, in my opinion, a direct statutory direction in section 600 that the accused is to be indicted for the offence in respect of which he is committed. Once he has agreed to be committed for sentence, in a sense for the convenience of the Crown, and subjected himself to all the serious disabilities that follow from that, clear words would be necessary to induce me to think that the directions of section 600 may be ignored. It is quite a reasonable view of section 12 that it was not intended to extend to cases where, as in the case of a committal for sentence, legally binding consequences concerning the trial of the offence charged have arisen out of the committal itself. Either that, or it was intended that the discretion conferred by that section should be exercised in a way which respects such legal rights.

It may be that this view would, in the end achieve little for the accused, because the Crown having presented an indictment in respect of the offence for which the accused was committed for sentence might enter a nolle prosequi under section 563 and then proceed against him for any offence open on the facts. That section applies to "any indictment" pending in the Court. Nevertheless, on the view I have adopted, a committal for sentence while it stands establishes a position in which in order to charge the accused with a more serious offence the Crown has to take the responsibility of itself depriving the accused of his prima facie privilege of being dealt with for the offence for which he has been committed for sentence. This is a step which is not lightly to be taken and there may be many cases in which the accused may reap the benefits of "agreeing" to a committal for sentence. It does not reflect well upon the administration of the law for the Crown to indulge too freely in the reversal of procedures deliberately taken against accused persons, especially where those persons have submitted to legal disabilities therein.

As the committal for sentence is still outstanding the indictment for rape must therefore either be amended to charge the accused with indecent dealing, or it must be quashed or be set aside at least pending the disposal of an indictment for indecent dealing. On the indictment for indecent dealing the Crown will have to consider whether it should enter a nolle prosequi.

I come now to the question which arises in respect of section 561. The claim of the Crown is that notwithstanding that there may have been no committal for trial the Crown Law Officer is entitled to present an indictment pursuant to section 561 of the Code. From what I have said above, such a claim, if otherwise valid, must be subject to section 600 where there has been a committal for sentence. The Code enacts: ‑

"CHAPTER LX.

INDICTMENTS

Nature of Indictments

560. - When a person charged with an indictable offence has been committed for trial and it is intended to put him on his trial for the offence, the charge is to be reduced to writing in a document which is called an indictment.

The indictment is to be signed and presented to the Court by a Crown Law Officer or some other person appointed in that behalf by the Governor in Council.

Ex Officio Informations

561. - A Crown Law Officer may present an indictment in any Court of criminal jurisdiction against any person for any indictable offence, whether the accused person has been committed for trial or not.

An officer appointed by the Governor in Council to present indictments in any Court of criminal jurisdiction may present an indictment in that Court against any person for any indictable offence within the jurisdiction of the Court, whether the accused person has been committed for trial or not."

The introduction into New Guinea of sections 561 and 600 of the Code and sections 3 and 12 of the Criminal Procedure Ordinance was effected, if at all, by the Laws Repeal and Adopting Ordinance of 1921. Section 13 of that Ordinance provided that those portions of the Statutes of the State of Queensland specified in the Second Schedule that were in force in Queensland on the 9th May, 1921 were thereby adopted as laws of New Guinea so far as the same "are applicable to the circumstances of the Territory and arc not repugnant to or inconsistent with the provisions of any law that has been or may hereafter be expressed to or extend to or be made in the Territory." One of the Statutes set forth in the Second Schedule is the Queensland Criminal Code 1899 and its First Schedule, subject to certain amendments. The First Schedule is the Criminal Code and contains sections 560 and 561 and section 600.

Section 15 of the Laws Repeal and Adopting Ordinance 1921, provides that those portions of the ordinances of the Territory of Papua specified in the Third Schedule thereto that are in force in the said Territory of Papua on the 9th May, 1921, "are hereby adopted as Ordinances" of the Territory so far as the same are applicable to the circumstances of the Territory and are not repugnant to or inconsistent with the provision of any ordinance, law etc., that has been or may hereafter be expressed to extend to or be applied to or made or promulgated in the Territory. The Third Schedule contained the Criminal Procedure Ordinance 1889.

The initial problem appears to be to ascertain with reference to sections 3 and 12 of the Criminal Procedure Ordinance 1889, what portions thereof were in force in Papua on the 9th May, 1921 and with reference to sections 560 and 600 of the Criminal Code what portions thereof were in force in Queensland on that date.

Looking first it the Criminal Procedure Ordinance 1889 it may be observed that neither section 3 nor section 12 has ever been the subject of an express repeal in Papua. To determine what portions thereof were in force in Papua on the 5th May, 1921 it is necessary to consider to what extent, if any, they were impliedly amended or repealed by sections 560 and 561 of the Criminal Code.

Sections 560 and 561 of the Criminal Code look for their enactment in Papua to the Criminal Code Ordinance 1902. This Ordinance with some disregard of grammar provides that "the provisions contained in the Criminal Code of Queensland set forth in the First Schedule to 'The Criminal Code Act 1899' of Queensland as it is amended by the Queensland Act 64 Victoria No.7 (hereinafter called "The Code") is hereby adopted and shall be the law of British New Guinea with respect to the several matters therein dealt with." It goes on to provide that any reference in the Code to Queensland or to persons places or subjects in Queensland shall be taken as references to the Possession or corresponding or analogous persons places or subjects in the Possession, (scil. of British New Guinea - now Papua).

Mr. Germaine contended, and it was so decided by the Chief Justice in December last that section 561 is not part of the law of New Guinea. This decision was based on the view that section 3 of the Criminal Procedure Ordinance of 1889 was part of the law of New Guinea in accordance with its terms and that it expressed and introduced into New Guinea a principle vital to the freedom of the individual, namely, a freedom from liability to be brought to trial merely on the initiative and at the will of the executive without any magisterial investigation, and on the view that section 561 was inoperative so far as it came into conflict with that principle.

That principle is a valid and important one, widely applied in England and normally observed in the administration of the law in most countries having a law based on the law of England. It is nevertheless true that in Queensland it has been invaded by section 561. In New South Wales and Victoria it has incomplete application. In Victoria there is a right in the executive to give notice of trial to a person not committed for trial. This right was exercised as late as 1960.

It is also said that section 561 cannot stand against section 12 of the Criminal Procedure Ordinance.

It is, of course, fundamental that a later statute repeals an earlier statute with which it is inconsistent. Lord Blackburn said in Garnett -v-Bradley, (1878) 3 A.C. at 966, that where new affirmative words are such that the previous law can well stand with it then the old and the new may stand together, but where the new are such as by their necessity to import a contradiction, the two cannot stand together, the second repeals the first. The maxim is leges posteriores contrarias abrogant. A contradiction for this purpose may be expressed or implied. A contradiction of meaning is the critical element. Meaning is to be gathered from what is expressed and it includes what is involved in and forms part of that which is expressed. See Lubrano -v- Collin and Co. Pty. Ltd. (1919) 27 C.L.R. at 118 and Rose -v- Hvric (1963) 108 C.L.R. at 353.

In favour of the contention that sections 3 and 12 were neither impliedly amended nor repealed by section 561 it is urged that section 561 never became law in Papua. It is recognised that the Ordinance introducing the Code is a later ordinance than the Criminal Procedure Ordinance made by a competent legislative body, but it is said :-

(a) that section 561 comes in, if at all, as part of a provision adopted from another country;

(b) that where a matter of principle is involved it is a sound canon of construction that an adopted provision may be required to give way to a direct enactment;

(c) that a matter of principle is involved in this issue, namely, the protection of the individual from indictment in the absence of a magisterial investigation and committal;

(d) that section 561 is inconsistent with section 12 of the Criminal Procedure Ordinance;

(e) that section 561 is inconsistent with section 3 of the Criminal Procedure Ordinance which expresses the principle.

Parts (a), (b) and (c) of this proposition may be accepted. It should be observed, however, that a competent legislature may change its mind even on question of principle. The real question is whether the words used by the legislature express an intention to depart from the principle in favour of some other approach to the subject matter.

Taking first the items (d) and (c), I would observe:

(i) Section 561 does not seem to me to be inconsistent with section 12 of the Criminal Procedure Ordinance so far as it relates to persons not committed for trial. It merely provides a method by which such persons, who are alleged to have offended against the law, may be put on trial. Section 12 says nothing about such persons. 

In respect of persons who have been committed for trial section 12 says that the Chief Magistrate "shall" consider evidence taken in the matter by the committing Magistrate and may himself lay or direct a charge to be laid against that person or certain other action. Section 561 may conflict with this if it means that the Magistrate is designated as the only person to lay or direct the laying of a charge in every case of committal for trial. Assuming that to be so it is obvious that to require a Chief Magistrate to play the additional role of prosecutor was itself out of harmony with principle and reflected merely the difficulty of administering the law in primitive and understaffed conditions. It was inevitable that an alternative method of bringing to trial persons who had been committed for trial would be introduced. Suction 561 provides that alternative method. It is introduced in unambiguous terms. It is a progressive move so far as it relates to the indictment of persons committed for trial. I cannot doubt that if section 12 was in conflict with section 561 it wan impliedly amended by that section.

(ii) So far as section 3 and section 561 are concerned, it is clear that they cannot stand together. Granted that section 3 expresses a principle of individual protection, there was honourable precedent in Queensland, and indeed in New South Wales and Victoria, for the invasion of that principle in favour of administrative convenience and the effective enforcement of the law. In both of those States an indictment may be presented by the Attorney General although there has been no committal for trial. As to Victoria, see Crimes Act, 1958, section 354, 13 Geo.III c.78 section 24. R. -v- Martin, 10 V.L.R. (L) 343 and R.-v- Canan (1918) V.L.R. 390. As to New South Wales see R.-v- Baxter (1914) 5 S.R. (NSW) 134 and R. -v- Webb,Q.R.443.

In these circumstances, the provisions of section 561 being considered as sufficiently respectable for the State of Queensland there seems to be little reason for rejecting it in Papua on grounds of principle. The shortage of manpower trained in the law, the notorious difficulties of communications and other conditions in Papua would strengthen the case for enacting section 561 there.

The terms of the enacting Statute are perfectly clear. It speaks of adoption, but if one desired to emphasise that a piece of adapted legislation was to be immune from any notion that it was to be considered as subservient to earlier Ordinances which it contradicts, it would be difficult to draft a provision more apt for the purpose than that used in this case. The Criminal Code is not adopted by description. That is enacted is "the provisions contained in the Criminal Code of Queensland set forth in the First Schedule." Those provisions arc "adopted as and shall be the law of British New Guinea with respect the several matters therein dealt with." The method of the indictment of persons is one of the subjects dealt with in the enacted provisions. The idea of indictment for an offence permeates the whole Code. By section 3 Crimes and Misdemeanours are categorized as indictable offences – the offenders cannot, unless otherwise expressly stated, be prosecuted or convicted except upon indictment. Chapter LX deals generally with indictments and its previsions prescribe their nature and form and lay down a comprehensive system of rules concerning them. Chapter LXI contains a detailed set of provisions setting out the effect of indictments. Alternative verdicts are provided for as arc the powers to convict for an attempt on any indictment charging a person with committing an offence. It seems inconceivable that the Papuan legislature meant to enact this comprehensive set of provisions and yet not to enact one of the sections logically placed in the whole structure.

While the principles of interpreting an adopted statute mentioned above may well assist in the case of an ambiguous provision, I cannot imagine that such a clear enactment as this one is to be controlled by an earlier inconsistent enactment on the same subject. The very purpose of the Criminal Code Ordinance was to introduce the system of criminal law and procedure of another country in a comprehensive manner. It was almost inevitable that earlier enactments would be affected. Where a later adopted enactment was to operate only subject to the existing laws, the legislature of Papua was well experienced in expressing that notion. In this case it is more than significant that words are used which are most apt to express the contrary. Conceding therefore steps (a), (b) and (c) of the contentions now under discussion, I feel that they cannot prevail against the clear terms of the enactment of 1902. Accordingly, section 3 was impliedly amended by section 561 and the principle referred to in part (c) set out above has been departed from.

Mr. Germaine argued, however, that even if this were so, nevertheless on the 9th May, 1921, sections 3 and 12 were in force unamended within the meaning of the expression "in force" in section 15 of the Laws Repeal and Adopting Ordinance of 1921 of New Guinea. Mr. Germaine sought to support this contention by urging that "in force" in the section did not mean in force in the sense of "expressing and enacting the law for the time being" but meant, as to a Statute, "being on the Statute book." He contended that the whole of an enactment part of which had been impliedly amended could, in the sense for which he contended, be regarded as being on the statute book. In my view this cannot be supported. No authority is quoted for it, although some support is claimed from the remarks of Dixon, J. (as he then was), in Sutherland -v- The King, 52 C.L.R.160. Apart from these remarks it is not suggested that any support for his translation of the expression "in force" can be gained from any authority.

It is worth noting that the expression "in force" is used in the Laws Repeal and Adopting Ordinance in a number of sections in its ordinary and natural sense. See sections 4(1), 5, 8(2), 12(1), 12(2), 12(3), 14, 16. In most of those sections it is obvious that the words "in force" mean "is the law". As an example, it would be utterly impossible to apply any other meaning with respect to the adoption of the rules of common law and equity that were "in force" in England on 9th May, 1921 (section 16). Indeed it is far from clear just what Mr. Germaine meant by "on the statute book". He ultimately adopted the expression "not subject to an express repeal."

In Sutherland -v- The King (supra), Dixon, J. (as he then was), said "I think it was never intended to introduce trial by jury into the Territory of New Guinea and that it has been excluded." It appears that His Honour treated the exclusion as being achieved partly by the fact that the jury provisions of the Code merely suppose but do not expressly or impliedly enact that there is to be a tria1 by jury, and, partly by the application of section 21 of the Criminal Procedure Ordinance which said, in so many words, that trials before the Central Court should be before the Chief Magistrate sitting alone. Section 21 had been affected in Papua by the Jury Ordinance, 1907, which provided that "the trial of a person of European descent charged with a crime punishable with death shall be before a jury of four persons and that save as aforesaid the trials of all issues, both civil and criminal, shall as heretofore be held without a jury." The learned Judge indicated that there was a real question as to whether the 1907 provision "altogether repealed" section 21. This was no doubt the result of the words "save as aforesaid the trials of all issues, both civil and criminal, shall as heretofore be held without a jury." Without these words there would have been an implied amendment only. The learned Judge says: "On the whole I have come to the conclusion …. it operates rather to amend it, and, subject to the alteration or amendment to confirm it in other respects. I think, therefore, that Clause 21 was in force in Papua at the relevant date."

It is clear that His Honour was not suggesting that the law in Papua at the relevant date was that set out in section 21. He points out, that that law was "altered and amended" by the 1907 Act. The suggestion is, however, that he was indicating that notwithstanding this alteration and amendment section 21 remained "in force" in accordance with its original terms for the purpose of the section 15 of the Laws Repeal and Adoption Ordinance of 1921. How else it is urged could it be decided that trial by jury in New Guinea was excluded.

It is to be observed that the offence in question in Sutherland's case was not a capital offence. Whether Section 21 was carried to New Guinea in its original terms or subject to the 1907 alteration and amendment, it was still effective to exclude trial by jury in the offence under discussion. For the purposes of the issues involved the real question was whether section 21 had been repealed in toto or not. There is ground, therefore, for thinking that when the learned Judge said that section 21 was in force he was emphasising the non repeal in toto, rather suggesting that all of it was in force. To say that all of the section as originally enacted was in force in Papua in any ordinary legal sense would have contradicted what he had already set out about the alteration and amendment of the law by the 1907 enactment. If he had meant that there was some special meaning to be attributed to the term "in force" in the Laws Repeal and Adopting Ordinance it is impossible to imagine that the matter would not have been the subject of further explanation. Reading the judgment as directed to the purpose in hand it raises no unusual notions of interpretation and thus no necessity for further explanation. In so far as the actual words used permit of the suggestion under discussion the correct view would appear to be that they were not intended to do so and can properly be interpreted as not doing so.

It appears to me therefore that where the Code enacted in 1902 conflicts with the Criminal Procedure Ordinance it amends or repeals the Criminal Procedure Ordinance. It follows from this that such portion of suction 3 of the Criminal Procedure Ordinance as would otherwise forbid the bringing of a criminal case to this Court save after a committal ceased to be an absolute prohibition and did not operate to prevent the bringing before this Court of a criminal case by the method set out in section 561 of the Code. Section 3 was thus amended to this extent and section 12 is similarly affected. Whether this amendment operated as a repeal or a partial repea1 may be a question but I do not think it necessary to grapple with it. However that may be it seems to me to be impossible to say that on the 9th May, 1921 section 3 was in force in Papua in accordance with its terms. Before the Criminal Code Ordinance it was in force to the extent of the natural meaning of its terms and what it said was the law. After the Criminal Code Ordinance it was in force only to the extent that what it said was not modified, altered or contradicted by the later statute. There seems to be a paucity of authority as to the meaning of the expression "in force". It seems, however, to be plain enough. When one refers to those portions of a statute that were in force on a particular date the natural meaning seems to designate those provisions of the statute which are still the law with respect to the subject matter with which they deal. If a statute expresses the law with respect to a certain subject matter in a certain way then in the absence of some repeal or amendment every portion of that statute may be said to be in force. Once some of that subject matter is dealt with by a later statute which declares the law thereon to be different from that laid down in the earlier statute then that portion of the earlier statute which declares the law on that particular matter is no longer law and cannot be said to be in force.

The Criminal Code Ordinance by section 561 spoke on the subject of indictments in cases where there had been no committal and said that in such cases the Crown Law Officer might present an indictment to this Court. Section 3 said that except for certain exceptions not relevant for the moment, such cases could not be brought before the cognizance of this Court. After the Criminal Code Ordinance, the portion of section 3 which said that such cases could not be brought before the Court no longer expressed the law. There is no legal sense in which it can be said to be in force.

If, therefore, section 3 so far as it forbade the bringing of criminal cases before this Court other than after committal for trial was not in force after the Criminal Code Ordinance of 1902 then that portion of section 3 was not taken to New Guinea by section 15 of the Laws Repeal and Adoption Statute of 1921.

As a result of the above there was in 1921 no obstacle to the enactment of section 561 in New Guinea and it took effect according to its terms and it confers authority on the Crown Law Officer, or an officer appointed by the "Governor in Council" to present an indictment against any person whether or not that person has been committed for trial. The Chief Crown Prosecutor is such an appointed person.

I do not think that the 1924 amendment in New Guinea of section 12 of the Criminal Procedure Ordinance substituting the Crown Law Officer of the Territory for the Chief Magistrate is of significance in the matter. Whether or not section 561 was in force it was desirable to ensure that once a person was committed the evidence should be considered by the Crown Law Officer and that he should take proceedings or decline to take proceedings against the accused.

In the result, therefore, I consider:

(a) Section 561 of the Code is in force in both Papua and New Guinea.

(b) Section 600 of the Code is in force in both Papua and New Guinea.

(c) In a case where there has been a committal for sentence the accused has a right to have that committal disposed of before being indicted under section 12 of the Criminal Procedure Ordinance or section 561 of the Code for any other offence arising out of the evidence upon which he was committed for sentence.

(d) To the extent that sections 561 and 600 of the Code and Section 111 of the District Courts Ordinance conflict with section 3 of the Criminal Procedure Ordinance, that section is not the law.

I should observe that it has been in the past, and could be in the future, fraught with danger that there should be an unfettered right in the Crown or executive to bring persons to trial otherwise than after a magisterial investigation and a committal for trial. In Queensland the Supreme Court exercises a supervisory jurisdiction and this Court has a responsibility to do the same. It is my experience that the Crown is responsive to judicial opinion in particular cases but it would be a useful reform to declare by Ordinance the principles upon which the gown might be permitted to indict in the absence of a committal for trial.

I also consider that the procedure of committal for sentence and trial in accordance with section 600 is calculated to cause injustice. An ignorant, innocent accused person may well fatally compromise his position by a too ready acquiescence in the suggestion that he may not desire to have the witnesses at the trial. The Court should at least be given power to permit him to change his plea to not guilty in any case in which the accused satisfies the Court that he pleaded guilty through a misunderstanding, or, that on the evidence he has a reasonable chance of an acquittal.