N401(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APP. NO. 245 OF 1982

BETWEEN:

MICHAEL KROSLI

AND:

RAY CORNELIUS
(RESPONDENT)

Rabaul: Kidu CJ
25 January 1983

KIDU CJ: I dealt with this appeal in Rabaul during the November 1982 Circuit. I allowed the appeal quashed the conviction and sentence and indicated that I would publish my reasons later on and this I now do.

The Appellant, whilst serving a one month sentence at the Kerevat Corrective Institution, was charged as follows:

"While being a prisoner held in legal custody at Kerevat Corrective Institution, did eat food additional to wit the food portion assigned to other detainees."

This is an offence under s.25(t) of the Corrective Institutions Act. It carries a maximum penalty of one month imprisonment.

The Appellant was charged on the 18th of October 1982 and appeared in the Rabaul District Court the same day. He pleaded guilty to the charge and was imprisoned for two months, the sentence being made cumulative on the one month sentence he was already serving.

The facts on which the Appellant pleaded guilty are as follows -

"On 2nd October 1982 he was a prisoner at Kerevat Corrective Institution. That day, about 4.30pm, Corporal Mathew Warpuai rang the dinner bell. The appellant got his food and ate it, then he went and got another plate of rice and ate it."

The Notice of Appeal, filed on the 20th of October 1982, contains the following grounds of appeal:

(1) 	The magistrate constituting a District Court had no jurisdiction to hear an offence under section 25 of the Corrective Institutions Act;

(2) 	The magistrate acted without jurisdiction in that the information, not being signed by the informant or magistrate is a nullity;

(3) 	The sentence imposed exceeded the jurisdiction of the magistrate;

(4) 	The order of the magistrate imposing a sentence order to be cumulative is defective at law;

(5) 	The sentence imposed is manifestly excessive having regard to the circumstances of the offence.

Offences set out in section 25 of the Corrective Institutions Act are popularly known as "V.J. offences". They’re in fact technically known as Corrective Institution and Lock-Up offences. They are offences intended to keep order and discipline in Corrective Institutions. They are dealt with by Visiting Justices. Judges are Ex-Officio Visiting Justices. Other Visiting Justices (they are all Magistrates) are appointed by the Judicial and Legal Services Commission. Magistrates do not have power to deal with V.J. offences unless they are appointed by the Commission, although when they hear such offences they sit as Courts.

Neither a District Court nor a Local Court has jurisdiction to entertain Corrective Institution offences. The law is quite clear as to who has this power. Section 26 of the Corrective Institution Act says as follows:

"A Visiting Justice may -

(a) 	take evidence and examined a detainee touching a Corrective Institution or Lock-Up offence alleged to have been committed by him; and

(b) 	if satisfied that the detainee is guilty of the offence - sentence him to imprisonment for a term not exceeding one month."

The Rabaul District Court has no power to entertain Visiting Justice offences - only particular magistrates who have been appointed visiting justices have that power. A magistrate as such only gets involved in a Corrective Institution offence in cases of aggravated Corrective Institution offences. Section 27 of the Corrective Institutions Act provides as follows:

"(1) 	If, in the opinion of the Officer In Charge of a Corrective Institution or Lock-Up, a detainee has been guilty of a Corrective Institution or Lock-Up offence attended with circumstances of aggravation owing to its repetition or otherwise, the Officer shall immediately charge the detainee with the offence and report the charge to a magistrate.

(2) 	The magistrate -

(a) 	shall, as soon as possible, enquire into the charge; and

(b) 	may, if he finds the detainee guilty, sentence the detainee to imprisonment for a period not exceeding six months.

(3) 	If, on an enquiry under subsection 1, the magistrate is of opinion that circumstances of aggravation have not been shown to exist he may so fine, and may sentence the detainee for a Corrective Institution or Lock-Up offence."

Ordinary Corrective Institution offences as distinct from aggravated ones must be determined in the Corrective Institution. Section 21 of the Act in my opinion makes this clear. This section provides as follows:

"(1) 	In an enquiry into a charge of a Corrective Institution or Lock-Up offence, the witness called shall be sworn or affirmed in the manner usual in courts.

(2) 	The Visiting Justice shall make, in a book to be kept for that purpose at the Corrective Institution or Lock-Up, a note of the charge and the result of the enquiry.

(3) 	If, on the hearing of the enquiry, the Visiting Justice is of opinion that the evidence disclosed the Commissioner of Corrective Institution or Lock-Up offence, offence attended with circumstances of aggravation by reason of its repetition or otherwise, the detainee shall promptly discharged accordingly and the charge reported without delay to a magistrate, who shall hear it as soon as practicable.

(4) 	A magistrate shall take down of course to be taken down in full the evidence given at an enquiry held by him under this part, and unless the evidence has been so taken down the detainee -

(a) 	shall not be found guilty of an offence attended with circumstances or aggravation; and

(b) 	may be found guilty of, and sentence for, the Commissioner of a Corrective Institution or Lock-Up."

In this particular case the offence was an ordinary Corrective Institution offence. There was no evidence that there were any repetition of a particular offence by the particular detainee or that there were any other circumstances of aggravation. This was clearly a case which should have been dealt with by a Visiting Justice at the Corrective Institution at Kerevat.

I do not intend to make any comments on the grounds 2, 3, 4 and 5 of the In the Notice of Appeal as it is unnecessary to do so.

Lawyers for the Appellant: Public Solicitor
Lawyers for the Respondent: Public Prosecutor