[1971-72] PNGLR 266

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

PENAJA IAPNAVA

V.

SEVERNAS MOYAS

Rabaul
Frost SPJ

23 July 1971
26 July 1971

CRIMINAL LAW - Local Court - Certificate of expediency - Failure to certify going to jurisdiction - Local Courts Ordinance 1963 - 1966, ss. 13[cccxxiv]1, 15[cccxxv]2 .

A Local Court has no jurisdiction to hear and determine a matter to which s. 15 of the Local Courts Ordinance 1963-1966 is applicable unless the Court first certifies in accordance with that section; semble failure to so certify renders subsequent proceedings in the Court a nullity.

Mames-Weviong v. Zania, [1967-1968] P. & N.G.L.R. 79 referred to; Dictum in Stefani v. John, [1947] 2 All E.R. 615, at p. 617, approved.

Considerations which a Local Court may take into account in certifying under s. 15 discussed.

Appeal From Local Court.

All other facts appear in the reasons for judgment.

Counsel:

Keenan, for the appellant.
Pierce, for the respondent.

26 July 1971

FROST SPJ:  The appellant appeals against the decision of the Local Court held at Rabaul on 10th August, 1970, whereby the appellant was convicted of having driven a motor vehicle upon a public street whilst being under the influence of intoxicating liquor, contrary to s. 9(1)(a) of the Motor Traffic Ordinance 1950-1967, sentenced to eight months imprisonment with hard labour and disqualified from holding or obtaining a licence or a permit for a period of three years. The appellant appeals against both conviction and sentence, and in this Court the two main grounds relied upon were that the Local Court had no jurisdiction to hear and determine the matter, and that the Local Court was wrong in entering that the appellant admitted the complaint.

The matter has been fully argued before me and I feel that I am now in a position, at the conclusion of the argument, to give judgment upon it. I shall deal first with the first ground. Mr. Keenan’s argument starts with this that as the offence with which the appellant was charged was a summary offence, then the District Court had jurisdiction under the District Courts Ordinance, s. 28(1), and the Local Court prima facie for the same reason had jurisdiction under s. 13 (1) of the Local Courts Ordinance 1963.

That section provides:

“Subject to this Ordinance a Local Court has jurisdiction over—

(a)      all offences against a law in force in the Territory or part of the Territory which may be dealt with summarily.”

The point of the case is the effect of s. 15 which, with s. 13, is found in Part III of the Local Courts Ordinance, which is headed “Jurisdiction”. Section 15 provides:

“Subject to the provisions of Part V of this Ordinance, if jurisdiction in respect of a matter, whether civil or criminal, is vested in a Local Court and also in some other Court, proceedings in respect of that matter may be commenced in and heard and determined by the Local Court where that Court certifies that it is expedient that the matter should be so heard and determined.”

The form which was used to set out the record of the proceedings contains the words, “Certificate under s. 15”, with the words “if applicable” added in brackets, but those former words were excised. The only inference to be drawn is that the magistrate considered that s. 15 was not applicable, and therefore did not consider whether it was expedient that the matter should be so heard and determined in the Local Court with a view to the Court giving a certificate. Mr. Keenan’s argument was that this was a matter which went to jurisdiction and that accordingly, as no certificate was given, the decision was a nullity. Mr. Pierce on the other hand, argued that s. 15 raised a matter of procedure only, and in view of all the circumstances, that no substantial miscarriage of justice had occurred and accordingly the conviction should not be disturbed. The question was argued before this Court in Mames-Weviong v. Zania[cccxxvi]3. In that case Ollerenshaw J. said that he was not at all sure that the sections referred to by counsel in that case, s. 15 and s. 38(c), went to jurisdiction, but he was able to dispose of the case without considering the question. Accordingly it is for me to give my own decision.

Upon the proper construction of the legislation the point is not easy to decide. Thus s. 14(1) provides that the Local Court has no jurisdiction over—

“(b)    proceedings referred to in the next succeeding section which a party elects to be dealt with by a District Court”,

which is stronger in its language than the words of s. 15. In fact the Local Courts Ordinance s. 38 provides in sub. par. (c) that at the commencement of the trial the nature and the particulars of the complaint shall be explained to the defendant and, in the case of a proceeding referred to in s. 15 of the Ordinance, the Court shall explain to him that he is entitled to have the matter dealt with by a District Court and is not obliged to make any defence before the Local Court and shall ask him whether he so elects. Thus, this rule of procedure was by the force of s. 14(1)(b) raised to a matter of jurisdiction, so that if in fact a party elected not to be dealt with by the Local Court but the Court proceeded to hear it, then this would not be merely a breach of a rule of procedure, but was in fact more than that—a matter which went to jurisdiction making the whole proceedings a nullity.

Another difficulty is the wording of s. 15 which upon a literal reading rather supports the view that jurisdictional requirements are prescribed only by s. 13.

However, the meaning of s. 15 should be determined by reference to all the sections in this division. I am entitled as Mr. Keenan argued under the Ordinances Interpretation Ordinance, 1949-1967 s. 27(1), to have regard to the heading as part of the Ordinance, but it seems also to me that full weight should be given to the introductory words to be found in s. 13(1)—“Subject to this Ordinance”.

Accordingly, s. 13, which deals with jurisdiction is to be read subject to s. 15 and this leads me to the conclusion that the giving of a certificate under s. 15 does become an additional condition of jurisdiction. Mr. Keenan also relied on Stefani v. John[cccxxvii]4 and especially the following statement of principle by Lord Goddard C.J.:

“Summary jurisdiction is entirely a matter of statute. The justices have power to deal with cases summarily only if they are given power by statute to do so, and if some provision in the statute is not complied with it follows that they have no jurisdiction to hear and determine.”

It is true that the statutory provision in that case which conferred on the defendant the option of trial by jury or summary trial, is one more obviously for the protection of the defendant than s. 15 in the present case, but s. 15 also contains an element of protection insofar as the question of expediency may involve the comparative ability of the Local Court or another court, to try the case.

In the circumstances of this Territory, where accused persons appear frequently in court unrepresented and are completely unfamiliar with the proceedings, it may well be that a Local Court, faced with a difficult case, in which some question of law may be involved, or some difficult questions of fact in which the evidence may be difficult to assess, would come to the conclusion that it was expedient that the matter be heard and determined not in the Local Court but in the District Court, presided over by a stipendiary magistrate. This consideration would apply not only for the protection, it is true, of the defendant, but in some cases also for the protection of the informant, because, for instance, as I pointed out in argument, if a serious matter came before the Court, the Local Court might consider that the maximum penalties which it had power to impose under the Local Courts Ordinance may not be adequate in case the Court convicted.

Accordingly in my opinion s. 15 does raise a point of jurisdiction and the words of Goddard C.J. in Stefani v. John[cccxxviii]5 are applicable and for this reason the appeal must succeed.

[His Honour then dealt with the other grounds of appeal argued.]

Conviction set aside.

Solicitor for the appellant: W. A. Lalor, Public Solicitor.
Solicitor for the respondent: P. J. Clay, Crown Solicitor.

[cccxxiv]Infra, at p. 267.
[cccxxv]Section 15 of the Local Courts Ordinance 1963-1966 provides:

“Subject to the provisions of Part V of this Ordinance, if jurisdiction in respect of a matter, whether civil or criminal, is vested in a Local Court and also in some other Court, proceedings in respect of that matter may be commenced in and heard and determined by the Local Court where that Court certifies that it is expedient that the matter should be so heard and determined.”

[cccxxvi][1967-1968] PNGLR. 79.
[cccxxvii][1947] 2 All ER. 615, at p. 617.
[cccxxviii][1947] 2 All ER. 615.