N403(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

(APP. NO. 166 OF 1982)

ROT KAMDA

V.

ROBERT MAIMA

Mount Hagen: Kidu CJ
10 December 1982

KIDU CJ: The Appellant was convicted by the Mt. Hagen Local Court on the 10th of August, 1982 of the offence of driving whilst unlicensed. This offence is provided for in Section 21(a) of the Motor Traffic Act (Ch. No. 243 of the Revised Laws of Papua New Guinea) as amended by Act No. 41 of 1981. It reads:

"21. 	Unlicensed drivers.
	(Subject to this Act, a person who -

(a) 	drives a motor vehicle on a public street without being licensed for the purpose; or

(b) 	employs or permits an unlicensed person to drive a motor vehicle on a public street,

	is guilty of an offence.

	Penalty: A fine of not less than K10.00 and not more than K500.00."

The Appeal is against the whole of the decision and the grounds relied upon are:

"(a) 	That a Court no longer has power to impose a sentence of imprisonment for this offence.

(b) 	That there was insufficient evidence to warrant a conviction.

(c) 	That the sentence was in all the circumstances manifestly excessive."

I set out hereunder what the Court Record says:

"10/8/82
LC 5509
Police v. Rot Kamda
Section 21 (a) M.T.A.
K100.00 C/Bail
Charge put and elements explained Deft. elect Local (Court).
Upon plea: Not true. I had Class III licence. Licence produced by the Police clearly to have expired on the 14/1/82.
Court enters plea of guilty.
Facts read:
Locus Standi: Police tricked me and booked me.
Allocatus:
I want a fine.
A/R
Married, 2 children, Villager. Previous convictions, see Statement of Facts.
Court Order:
Court finds the defendant guilty as charged, convicted and sentenced to two (2) months imprisonment in hard labour.
K100.00 bail refunded."

The Statement of Facts reads:

"On Monday the 9th of August, 1982 at about 11.00am police sat (sit) a road block at Paiyer river road, upon checking all vehicle and driving licences of all drivers, Police stopped the defendant who is now before the Court was driving a motor vehicle Toyota Dyna Registration number ACM.137 travelling inbound towards Hagen town with loaded (sie) of passengers. Police checked with the drivired (sie) licence found the defendant had a class three (3) provisional (licence) which was already expired on the 14th January, 1982 and haven’t renewed yet and continue on driving around with (out?) having licence. The defendant was arrested brought to the Station where he was cautioned and charged with the offence and placed in the cells.

Remarks. Deft. is a married man with two kids, and self-employed as a driver.

Previous Convictions. Deft. Appear Mt. Hagen L/Court on 14/4/82 unlicence P.M.V. No witness. Case dismissed 25/5/82 appear L/Court Mt. Hagen for unlicence P.M.V. No witness case dismissed."

I allowed the appeal and quashed the conviction and sentence on the ground that the Appellant had been convicted without a trial after he had very clearly pleaded not guilty.
In a criminal case when an accused person pleads not guilty the prosecution must adduce evidence and prove its case beyond reasonable doubt. A person who pleads ‘Not Guilty’ is innocent until found guilty. I refer Magistrates to section 37(4)(a) and s.37(4)(e) of the Constitution:

"37(4)(a) "A person charged with an offence -

(a) shall be presumed innocent until proved guilty according to law ......,. and

(b) shall be permitted to defend himself before the Court in person or .......".

The Appellant was found guilty after he had pleaded not guilty without the Court calling on the prosecution to prove its case. He was also denied the Constitutional right to defend himself.

Magistrates must always remember that a plea of not guilty means that the prosecution must embark on its responsibility of proving its case according to law. It has the onus of proving each element of the offence charged beyond reasonable doubt.

It was illegal for the Magistrate in this case to enter a plea of guilty when the Appellant had quite clearly pleaded not guilty.

The learned Magistrate seems to have forgotten what section 38(e) of the Local Courts Act says:

"38. The following rules of procedure shall be followed by Local Courts in criminal cases:-

(e) if the defendant does not plead guilty, the Court shall first hear the evidence of the prosecutor followed by his witnesses, and may then proceed to hear the evidence of the defendant and any witness whom he desires to call; ..."

Section 38 is in mandatory terms and must be followed strictly. The failure to observe the dictates of its provision invalidates the proceedings. Although the question of sentence does not really arise I make some observation for the benefit of Magistrates.

The learned Magistrate imposed a custodial sentence of 2 months imprisonment despite the fact that s.21 of the Motor Traffic Act provides that the penalty for driving without a licence is a fine of not less than K10.00 or not more than K500,00. The learned Magistrate ignored this provision and decided that s.19 of the Local Courts Act gave him power to impose a custodial sentence for the particular offence. Section 19(1) reads:

"19(1) Subject to this Act, a Local Court, in a criminal case, may order -

(a) the imposition of a fine not exceeding K100; or

(b) the infliction of a term of imprisonment not exceeding six months, and may make such additional order (including an order for compensation to an amount not exceeding K200.00) as the justice of the case requires, but any such order shall be reasonable having regard to the nature and circumstances of the case."

The learned Magistrate’s reasons for ignoring section 21 of the Motor Traffic Act, confusing as they are, are as follows:

"Hence, I in the circumstances aw fit to exercise Section 19(1)(b) of the Local Courts Act, 1963 to impose custodial sentence as opposed to other relevant optional verdict. The word, "may", under this Section is discretionary, and I do not see any reason why magistrates in the Local Court should not rely on that Section.

The Local Courts Act is the Act of the Parliament, and I do not honestly belief this Section should only be observed as guides. If it should, the Legislature must otherwise specify with its expressed terms.

It is relatively simple to describe or define objects such as table and book. On the contrary however to define a law or its Section, no definitions can be exact since it is not objective, in the sense which applies to table or book because it is an abstract concept. With this motive and difficulties in mind the Statute or even the definitions should assist its understanding so that the magistrates in lower courts do not fall into error.

As it appears there may be many individual conflicting interpretations of Section 19(1)(b) of the Local Courts Act in different ways. As such, my view of that Section is that it should apply in the Local Court sitting without restriction.

It is a view commonly understood in law that a penalty must be prescribed by an Act of Parliament, when the question came into my mind if I had imposed a fine of K200.00. If I had done so, definitely Section 19(1)(a) of the Local Court Act would have been opened for appeal, because that Section limits a Local Court to entertain a maximum of K100.00 fine. The question now remains as to where does the truth lies when the Acts of the same Parliament are contradictory to each other especially when two months jail penalty is within the bound of my jurisdiction sitting as a Local Court Magistrate (Section 9(1)(b)). This is the zone of conflict of laws, and it is the court of appellate jurisdiction to testify, disproof or negative whether the course I took was wrong in law.

To further support what I have said, there is an interesting factor I borned in mind and felt obliged to adopt is that, there are "overwhelming majority of cases which are litigated in courts are domestic in character." In such cases all relevant facts have occured within the territory over which the court has jurisdiction and parties to the litigation are normally resident there, consequently there is no question of the court applying any law other than that of the legal system to which it belongs.

Accordingly, this proposition should nevertheless apply provided the court does not exceed its limit as fixed by the statute.

The Local Court Act is meant to cover powers and functions of that court, and so the question arises why I should be prevented from exercising Section 19(1)(b) constituting that court.

As I have pointed out in my earlier passage, the Motor Traffic Act in relation to Section 21(a) prescribed no imprisonment penalty, but only a fine of not less than K10.00 and not more than K500.00.

In this case I imposed two months jail sentence in accordance with Section 19(1)(b) of the Local Courts Act because the proceeding was heard and determined in the Local Court.

The ground of appeal was that I was wrong in law to have entertained a jail penalty when Section 21(a) Motor Traffic Act, only should have called for a fine.

My decision to have imposed a jail sentence was in accordance with the motive adopted in the "Full Court on appeal which affirmed the decision of Latham, C.J.".

During that appeal, it went on to state that, "none of their honours doubted the correctness of the reasoning of the Chief Justice, though several adduced another ground which would justify the same conclusion."

"Ever since, members of the High Court have regards Musgrare’s case authority for the proposition that a court exercision federal jurisdiction must apply the choice of law rules of the State in which it sits."

Furthermore, "if more than one state law purports to be applicable the court must apply the law of the State which has the closest connecxion with the particular matter." In the absence of statutes or definitions which prevent Local Court Magistrates from imposing jail sentence when the prescribed penalty call for a fine, I am therefore persuaded that the above principle should apply to say I was not wrong in imposing two months jail penalty.
In order to negative my judgment, the defence must overtly justify to the judge of the National Court by means of relevant authority to cogently show why Local Court magistrates should depart from using Section 19(1)(b) when dealing with Sections of law where there is no prescribed imprisonment penalty.

Mere persuassive argument by the defence should amount to a direct Contravention of doctrine of standard of proof required in criminal proceeding based on "beyond reasonable doubt."

In view of the fact that the appellant committed the same offence three times do not in law to be treated lightly. That showed a clear motive to flout the law. Accordingly, I do not see two months imprisonment as manifestly excessive in such circumstances. The law must repel against those who display disrespect particularly in the similar situation as the appellant.

The case was a fresh matter brought before me in the Local Court. I was under a duty to only take a plea. If there was a denial of a charge, I could have entered a plea of not guilty and set a date for hearing. It is not the procedure in the Lower Courts to call witnesses at a fresh stage only until when it comes to a set date of adjournment. This is chiefly the procedure adopted by the courts to give ample time for both side to arrange and keep their witnesses informed.

I only went through the usual procedure and took a plea, consequently the appellant made a clear denial, and said he had a class three (3) driving licence.

However, it appeared apparent when his licence was produced to me in court that I noted that such licence had expired on the 14th January, 1982. So on the 9th August, 1982 the defendant was in fact driving without a current driver’s licence which of course amount to an offence under Section 21(a) Motor Traffic Act.

For this sole motive that I saw fit in the circumstances to enter a plea of guilty, which I rightly did.

As such, for me to call witnesses was considered immaterial by virtue of Section 589 of the Criminal Code Act Chapter 262 (revised version).

Section 589 States "an accused person may admit on the trial any fact alleged against him, and such admission is sufficient proof of the fact without further evidence. This is the basis to inquisitorial system the courts in Papua New Guinea have adopted.

This is the reason why the lawyer for the appellant did not see any evidence from the witnesses attached to court papers in a form of depositions from them. The ground of appeal that the alleged insufficient evidence to convict can be now seen as inappropriate. The learned lawyer for the appellant had failed to note Section 589 of the Criminal Code prior to embarking on such a ground.

Accordingly, and upon the upshot of the underlying rationales it is fit and just for the National Court with its appellate and inherent jurisdiction to:-

(a) Dismiss this appeal.

(b) Confirm and upheld the decision of the Local Court."

There is no conflict between section 19 of the Local Courts Act and section 21 of the Motor Traffic Act or any other Acts providing for penalties for offences. In my view section 19 merely limits the jurisdiction of Local Court Magistrates in criminal cases when imposing penalties. If the Local Court is given power to impose a fine section 19 says such a fine must not exceed K100 and if a Local Court is given the power to impose a custodial sentence then section 19 limits that power to not more than 6 months. This section in my view does not do any more than that. I refer Magistrates to the Judgment where Kearney, D.C.J. in the case of James Otto v. Jack Pewa. In that case the Appellant had been convicted of the offence of not affixing his new number plate to his motor vehicle. This is an offence under section 20 of the Motor Traffic Regulations 1967. He was brought before the Local Court at Goroka where he pleaded guilty and was then sentenced to two (2) months imprisonment. On appeal the sentence was set aside and as the appellant had already served 18 days in jail, he was released from custody. In giving his reasons for judgment Kearney, D.C.J. said as follows:

"I am informed by both counsel that the maximum penalty for the offence under this regulation remains unaltered, a fine of K20.

The Local Court had no jurisdiction to impose any term of imprisonment; as a result, there has been a substantial miscarriage of justice, and the appeal against sentence must be allowed; see, for example, Joseph Kembu v. Eko Mason. I should add on reconsideration of what I said in Kari v. Kogiam that what is involved is a challenge for the jurisdiction of the Court below, it does not matter whether this Court deals with the issue as an appeal or as an application for certiorari to quash: see Mala v. Kukua, and cases where case there are cited especially Crame v. D.P.P.

The sentence is declared to be a nullity, and is formally quashed and it expunged from the record."

In the present case the sentence imposed was null and void.

There is one thing I should add here and that is what the Constitution of Papua New Guinea says. Section 37(2) reads as followed:

"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 for which is not prescribed by, a written law."

This right emphasises two things; firstly, no person in Papua New Guinea can be convicted of any offence which is not specifically prescribed by a written law; secondly, that for a person to be convicted of an offence the second criteria or condition is that the penalty for that offence must also be prescribed by a written law. Now section 19 of the Local Courts Act neither prescribed any offence nor does it prescribed penalty of any offence. This re-enforces my view that section 19 of the Local Courts Act is merely a restriction of jurisdiction provision and nothing else.

Another comment on this particular case is the taking into account on sentence of two previous instances of the appellant being charged for driving without a licence as previous convictions. The Court Record clearly shows that this man was not convicted of those two charges. In fact the charges were dismissed because of the prosecutor failing to prosecute the charges. They are not previous convictions. The Magistrate, in sentencing, took them into account and that was reasons he gave for giving the appellant custodial sentence of two months imprisonment. It must be emphasised that when previous convictions are taken into account they must be convictions strictly so. Mere charges are not previous convictions and this is another grave error that the Magistrate made in this case.

Lawyer for Appellant: Mr. D. O’Connor
Lawyer for Respondent: Mr. G. Salika