Papua New Guinea Law Reports - 1974
[1974] PNGLR 201
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
REGINA
V
THE STIPENDIARY MAGISTRATE OF THE DISTRICT COURT AT PORT MORESBY, EX PARTE THE SECRETARY FOR LAW
Port Moresby
Frost ACJ Clarkson Williams JJ
30 September 1974
1 October 1974
4 October 1974
INFANTS - Crimes and offences by children - Children’s Courts - District Courts - Jurisdiction - Child Welfare Act s. 36[cclxxx]1.
On the return of an Order Nisi that a Stipendiary Magistrate of the District Court at Port Moresby and seven defendants show cause why a writ of certiorari should not issue to remove into the Supreme Court and quash the convictions of the defendants on charges of stealing, which had been dealt with by the Magistrate at a trial under s. 36 (5) of the Child Welfare Act,
Held
(1)      Section 36 (5) of the Child Welfare Act does not confer upon a District Court the jurisdiction of a Children’s Court under s. 36 (1) thereof.
(2)      The jurisdiction of the District Court is found in the District Courts Act and in the Criminal Code. The jurisdiction of the Children’s Court is to be found in s. 36 (1) of the Child Welfare Act.
(3)      A District Court when dealing with a child is exercising its ordinary jurisdiction, but may, by virtue of s. 36 (4) of the Child Welfare Act employ certain special orders provided for in s. 36 (2) thereof; and when dealing with a person under twenty-one who is not a child, and in the exercise of its ordinary jurisdiction may employ the same special orders by virtue of s. 36 (5) thereof.
(4)      The Magistrate not therefore having the jurisdiction he purported to exercise under the Child Welfare Act, the Order Nisi for certiorari should be made absolute and an order for prohibition should issue instanter and be made absolute also.
Order Nisi
This was the return of an Order Nisi that a Stipendiary Magistrate of the District Court at Port Moresby and seven defendants show cause why a writ of certiorari should not issue to remove into the Supreme Court and quash the convictions of the defendants who were convicted on charges of stealing, and remain on bail awaiting sentence. The Magistrate purported to exercise jurisdiction under the Child Welfare Act.
Counsel
J. Greville Smith and L. W. Roberts-Smith, for the applicant (Secretary for Law).
M. F. Adams and M. Kapi, for the respondents (defendants).
Cur. adv. vult.
4 October 1974
FROST ACJ CLARKSON WILLIAMS JJ: This is the return of an Order Nisi that a Stipendiary Magistrate of the District Court at Port Moresby and seven defendants show cause why a writ of certiorari should not issue to remove into this Court and to quash the convictions of the defendants who were convicted on 9th July, 1974 before the Stipendiary Magistrate on charges of stealing certain goods the property of Carpenters W.R. (P.N.G.) Ltd. (whom we shall call Carpenters), and remain on bail awaiting sentence.
The charges came before the District Court under informations alleging that the defendants concerned broke and entered a warehouse of Carpenters and therein stole a large quantity of goods to the total value of $5,190.25 the property of Carpenters. The course the proceedings took is conveniently set out in the copy of the Court record, as the learned magistrate termed it, which was certified by him. Each defendant elected to being dealt with jointly with the other defendants. It is plain from the outset that the Court embarked upon the hearing either as a trial under s. 36 (5) of the Child Welfare Act or as a preliminary hearing of the charges as indictable offences. On 9th July, 1974 some evidence was called from which it appeared that some of the property alleged to have been stolen included goods which could not have come from Carpenters’ warehouse, and statements were made by the defendants denying any breaking. The police prosecutor then applied to amend the charge in each case to one of stealing only, leave was granted and the charge was then altered, to use the term stated in the Court record, to stealing only. Each defendant then admitted the truth of the charge of stealing some property but the items and their value were not specified. Thereupon upon the application of the prosecutor the Court proceeded under the Child Welfare Act and a verdict of guilty was entered in each case. The previous convictions of three defendants were disclosed to the Court and the proceedings were then adjourned until 12th July. On that date when the hearing resumed the police prosecutor stated that each defendant except Vikain Kundy had prior convictions. The case of Vikain Kundy was adjourned until 18th October, 1974 “under the provisions of s. 36 (2) (b) (iii) for the defendant to do ten half day’s work of a civic nature at Cheshire Homes and report regularly to the Court’s Probation Officer”. The case against all the other defendants was then adjourned until 16th August, 1974 for reports and sentence, the defendants being released in the meantime on probation to report daily. The proceedings in this Court were then instituted.
There were a number of submissions put by counsel to which we do not find it necessary to refer. The main question is whether the magistrate had the jurisdiction he purported to exercise under the Child Welfare Act. For the prosecutor it is contended that s. 36 (5) does not confer upon a District Court jurisdiction to hear and determine in a summary way charges in relation to persons over the age of sixteen years but under the age of twenty-one years in circumstances where a District Court does not otherwise have that jurisdiction. The contrary view is, he stated, a common misapprehension amongst the magistrates.
For the defendants the contention is that s. 36 (5) does confer a separate jurisdiction upon a District Court to deal summarily with indictable offences committed by persons within the ages referred to.
Children’s Courts have been established under the provisions of Part VI of the Child Welfare Act. “Child” is defined to mean a boy or girl under the age of sixteen years (s. 5 (1)). Section 36 sets out the jurisdiction of a Children’s Court. Such a court “may, where a child is charged with an indictable offence (other than a homicide, rape or other offence punishable by death or imprisonment for life) hear and determine the charge in a summary manner in accordance with the provisions of this Act” (sub-s. (1)).
Sub-section (2) sets out the punishment that may be inflicted by a Children’s Court where it deals summarily with an offence other than a homicide, rape or other offence punishable by death or imprisonment for life, committed by a child. Sub-section (4) refers to a Court other than a Children’s Court, and authorizes such a Court, where it deals with an offence (other than the categories previously excepted), to exercise the powers of a Children’s Court under sub-s. (2).
In its opening words s. 36 (5) refers to a Court other than a Children’s Court. It contemplates that a Court other than a Children’s Court is dealing with an offence (other than a homicide, rape or other offence punishable by death or imprisonment for life) by a person who is not a child but is a person over the age of sixteen years but under the age of twenty-one years. For a court other than a Children’s Court to be dealing in a regular manner with an offence of the kind referred to it must derive jurisdiction from some source. In the case of a District Court this jurisdiction is conferred by the provisions of the District Courts Act and the provisions of the Criminal Code which authorize the hearing and determination in a summary way of certain indictable offences in certain circumstances. A District Court could only be dealing with the offence in a regular way if all the conditions attaching to the exercise of its jurisdiction were met otherwise that Court could not be properly seised of the matter at all.
It is put, on behalf of the defendants, that the words “treat that person as a child for the purposes of this Act” appearing in s. 36 (5) involve the notion that the court (not being a Children’s Court), if it considers it desirable, may deem the person to be a child and thereupon assume all the jurisdiction conferred upon a Children’s Court by s. 36 (1). But the powers of a court other than a Children’s Court in relation to a child are those conferred by sub-s. (4), which are confined to the exercise of the powers relating to punishment under sub-s. (2).
Further if the defendants’ contention is sound then the provision in sub-s. (5) that the court “may exercise the powers of a Children’s Court under sub-section (2) of this section in relation to that person” is superfluous.
The contrary argument is that if s. 36 (5) is to be construed as doing no more than to confer a power to inflict a punishment of the kind referred to in s. 36 (2) the words “treat that person as a child for the purposes of this Act” are equally superfluous.
Whilst the words to which we have just referred do not appear in sub-s. (4) it is evident that such words—“treat that person as a child”—could have no place in that sub-section, for the reason that it is dealing with the case where the offender is in fact a child.
Sub-section (5) however is dealing with the case where the offender is not a child. It seems to us that the words “treat that person as a child” appearing in sub-s. (5) were inserted to import the notion as distinct from the fact that the offender is a child when applying the penalty provisions contained in sub-s. (2). In other words the words “treat that person as a child for the purposes of this Act and may exercise the powers of a Children’s Court under sub-s. (2) of this section” should be read together as a whole and should be understood in the sense that the court may exercise the powers of a Children’s Court under sub-s. (2) as if the offender were in fact a child.
Sub-section (4) in its plain terms authorizes only the exercise of the penalty provisions of sub-s. (2) and does not import the jurisdiction conferred on a Children’s Court under sub-s. (1). It seems unlikely that the legislature could have intended that a court (other than a Children’s Court) when dealing with a person who is not a child should have a wider jurisdiction than when dealing with a person who is a child.
It is true that the range of offences referred to in sub-s. (5) is unnecessarily wide, having regard to the limited summary jurisdiction conferred on a District Court under the Criminal Code, but that difficulty arises because the section deals also with the Supreme Court in relation to which the range of offences is entirely appropriate.
In our opinion sub-s. (5) does not confer on a court the jurisdiction of a Children’s Court under sub-s. (1). The contrary view would seem to lead to the extraordinary result that in some way the Supreme Court has been invested by s. 36 (5) with jurisdiction to dispose of indictable offences summarily.
The true position is that a District Court when dealing with a child is exercising its ordinary jurisdiction but may by virtue of s. 36 (4) employ certain special orders provided for in s. 36 (2). By virtue of s. 36 (5) again in the exercise of its ordinary jurisdiction it may employ the same orders when dealing with a person under twenty-one years who is not a child. In the context of the matters under consideration here, the jurisdiction of the Children’s Court is to be found in s. 36 (1) of the Child Welfare Act and the jurisdiction of the District Court in the District Courts Act and the Criminal Code. Accordingly upon this part of the case the defendants’ contention fails.
The counsel for the defendants sought to support the proceedings under Chapter XLIII of the Criminal Code as matters which the magistrate had jurisdiction to deal with summarily. The basis of this submission was that by reason of the omission of the magistrate to specify the value of the goods alleged to have been stolen, the greatest punishment under s. 398 of the Code to which any defendant was liable did not exceed three years so that it was a charge triable summarily under s. 443 (a) of the Criminal Code.
But in our opinion this argument cannot assist the defendants for it is plain that the magistrate purported to act exclusively under the Child Welfare Act, s. 36 (5) and did not at any stage purport to exercise the summary jurisdiction conferred by the Criminal Code. We are satisfied that he did not apply his mind to any of the essential conditions for the exercise of that jurisdiction. We refer particularly to the requirement that an explanation is required to be given to an accused person that he is entitled to be tried before the Supreme Court in the terms provided by s. 444 of the Criminal Code, and his election taken. Failure to comply with that condition in itself carries the consequence that the magistrate had no summary jurisdiction to try the case at all, so that the conviction would be a nullity. Stefani v. John[cclxxxi]2, Reg. v. Salisbury and Amesbury Justices; Ex parte Greatbatch[cclxxxii]3. Mines v. Doddrell[cclxxxiii]4, Pukari-Flaber v. Hambakon-Sma[cclxxxiv]5 and Parisienne Basket Shoes Pty. Ltd. v. Whyte[cclxxxv]6.
There has been some discussion as to the proper order which should be made.
The magistrate’s notes indicate that a verdict of guilty was entered against each accused and that one of them was in effect sentenced.
Nevertheless, because no formal order is before us it is suggested there is nothing to quash. To counter this submission the Crown sought leave to apply for an order nisi for prohibition returnable instanter.
The formal procedures of the Court should be used to give effect to the Court’s decision and not to obstruct it. The Crown’s application should be granted and both writs should issue, prohibition to prevent any further proceedings before the magistrate and certiorari to bring up and quash the orders made in the proceedings for conviction or sentence.
There should be an early rehearing before another magistrate.
Order that the order nisi for writ of certiorari to quash the convictions or sentence of the persons referred to in the order nisi be made absolute, further that an order nisi issue returnable instanter directed to the respondent to prohibit the respondent from further proceeding in the matter of the charges referred to in the order nisi for writ of certiorari herein and that such order be made absolute, further order that the matters be reheard before another magistrate.
Solicitor for the applicant: P. J. Clay, Crown Solicitor.
Solicitor for the respondents/defendants: N. H. Pratt, Acting Public Solicitor.

[cclxxxi][1948] 1 K.B. 158.
[cclxxxii][1954] 2 Q.B. 142.
[cclxxxiii][1938] S.A.S.R. 90.
[cclxxxiv][1965-66] P. & N.G.L.R. 348.
[cclxxxv](1937-38) 59 C.L.R. 369, at p. 389.
[cclxxxvi]Infra p. 210.