N380(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

BETWEEN:

FRANK KIKOLI
APPELLANT

AND:

JOHN KOVEA PIPILA
RESPONDENT

Waigani: Kidu CJ
23 April 1982

KIDU CJ: On the 21st of April, 1982, I allowed this Appeal and quashed the conviction and sentence of the Boroko District Court dated the 5th of February, 1982. That Court had no jurisdiction to hear and determine the matter. I give my reasons now.

In an Information dated the 5th day of February 1982 the Informant, Police Constable Frank Kikoli charged the Appellant for an alleged offence under section 2(1)(b) of the Vagrancy Act 1977. Section 2 reads as follows:

"2. POWERS OF POLICE

(1) 	Where a policeman believes on reasonable grounds that a person in a town:

(a) 	has no lawful means of support; or

(b) 	does not have sufficient means of support,
	
	he may:

(c) 	apply to a Court for the issue of a summons directing that person to appear before the Court at the time specified in the summons; or

(d) where he considers that it would not be practicable to apply for a summons under paragraph (c), he may arrest the person and take him to the nearest police station,

	in order that the person may be dealt with under Section 3"

(2) 	Where a person has been arrested under Subsection (1) and taken to a police station, the officer-in-charge of the police station shall take the person or cause him to be taken before a Court without delay."

Section 2 does not create an offence. It merely gives Police the power to summon or arrest a person they believe to be either without lawful means of support or without sufficient lawful means of support. Such a person should be taken before a Court to be dealt with under Section 3 of the Act. Under this provision a Court has the power to make "Exclusion Orders". The hearing under this provision is not criminal in nature. Section 3 provides as follows:

"3. EXCLUSION ORDERS

(1) 	Where a person appears or is brought before a Court, and that person fails to satisfy the Court that he has:

(a) 	lawful means of support; or

(b) 	sufficient lawful means of support,

	the Court may make an order against that person.

(2) 	Subject to Subsection (3), and order under Subsection (1) may require the person named in the order to:

(a) 	leave the town in which he was found or the province or district in which that town is located; and

(b) 	remain out of the town, province or district, as the case may be, for such period not exceeding six months as is specified in the order.

(3) 	Before making an order under Subsection (2), the Court shall satisfy itself that:

(a) 	the person does not have a home in the town, province or district from which it is proposed to exclude him; or

(b) 	that the person has a home in another town, province or district.

(4) 	For the purposes of Subsection 3:

(a) 	the relevant facts shall be ascertained as at the date of making the order; and

(b) 	a temporary absence not exceeding two years shall not affect the continuity of residence.

(5) 	An order under this section may be made subject to conditions including a condition that the person shall comply with the order to leave the prohibited area within such time as is specified in the order unless before the expiration of that time he obtains lawful employment in the area".

Section does not empower the Court to impose a penalty as for an offence.
The combined effect of sections 2 and 3 may be summarised as follows:

(1) 	It is not an offence to be without lawful means of support or sufficient lawful means of support.

(2) 	A person believed to be without lawful means of support or without sufficient lawful means of support, may be taken to Court.

(3) 	The Court may make exclusion orders.

There are six (6) sections in the Vagrancy Act 1977. Section 5 creates the only offences and these offences are:

(a) 	failing or refusing to obey a summons issued under S.2(1) (c);

(b) 	failing or refusing to obey an exclusion order;

(c) 	failing or refusing to comply with any condition of an exclusion order;

(d) 	failing or refusing to comply with a direction under Section 4(4).

In this case the Court record quite clearly reveals that the Appellant was charged with a non-existent offence, convicted and sentenced to four months in hard labour. Quite apart from this the Constitution has been breached. Section 37(2) of the Constitution provides, inter alia, as follows:

"Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty of which is not prescribed by, a written law."

There is no prescribed offence known to the law as being without lawful means of support or being without sufficient means of support.

Magistrates and Policemen ought to read the Vagrancy Act 1977 carefully. Perhaps their reading of this Act might prevent grave injustice being done to people like the Appellant.

ORDER: Appeal allowed and conviction and sentence of the Boroko District Court quashed.

Solicitor for Appellant: Public Solicitor
Counsel: D. Koeget
Solicitor for Respondent: Public Prosecutor
Counsel: Kina Bona and Roy Tiden.