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Mala v Kukwa [1974] PGSC 23; [1974] PNGLR 54 (12 February 1974)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 54 - Naira Sawawa Mala v Dosawa Kukwa

[1974] PNGLR 54

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

NAIRA SAWAWA MALA

V

DOSAWA KUKWA

Port Moresby

Williams J

7 December 1973

12 February 1974

INFERIOR COURTS - District Courts - Local Courts Jurisdiction - Jurisdiction to hear and determine charges under Native Regulations.

JUSTICES - Practice and procedure - Summary trial of indictable offences - Election to be tried in District Court - Election not given - Proceedings void - Local Courts Ordinance 1963-1966, s. 14 (1) (b)[lxiv]¹, s. 15[lxv]² and s. 38 (c)[lxvi]³.

On the hearing in a Local Court of an offence against s. 84 (2) of the Native Regulations of having sexual intercourse with a female well knowing her to be married, the Magistrate failed to comply with s. 38 (c) of the Local Courts Ordinance 1963-1966 which provides in the case of proceedings referred to in s. 15 of the Local Courts Ordinance, that at the commencement of the trial the defendant shall be informed that he may elect to have the matter dealt with before the District Court.

Held

N1>(1)      The District Court in Papua has jurisdiction to hear and determine charges under the Native Regulations.

Joseph Kembu v. Eko Mason [1971-72] P. & N.G.L.R. 407 followed.

N1>(2)      The effect of s. 14 (1) (b) of the Local Courts Ordinance 1963-1966 is that a Local Court has no jurisdiction over proceedings referred to in s. 15 of the Ordinance, namely proceedings civil or criminal where jurisdiction is vested in a Local Court and also in a District Court in which a party elects to be dealt with in a District Court.

N1>(3)      The Local Court, having failed to comply with s. 38 (c) of the Local Courts Ordinance 1963-1966, had no jurisdiction to entertain the present proceedings and the lack of jurisdiction had the effect that the purported trial and sentence were void.

Parisienne Basket Shoes Pty. Ltd. v. Whyte [1938] HCA 7; (1937-38) 59 C.L.R. 369 applied.

N1>(4)      The Supreme Court may entertain an appeal from an erroneous decision of the Local Court (albeit a nullity), and dispose of it in any of the ways referred to in s. 43 (1) of the Local Courts Ordinance.

Crane v. Director of Public Prosecutions [1921] 2 A.C. 299, and Ah Yick v. Lehmert [1905] HCA 22; (1905) 2 C.L.R. 593 referred to.

N1>(5)      The matter should be remitted for rehearing in the District Court.

Appeal

This was an appeal against conviction and sentence of an offence against s. 84 (2) of the Native Regulations. The only ground argued on appeal was that the Local Court Magistrate who heard and determined the charge had no jurisdiction in the matter in that he failed to comply with the provisions of s. 38 (c) of the Local Courts Ordinance.

Counsel

A. J. Cavit,, for the appellant.

J. P. Warry, for the respondent.

Cur. adv. vult.

12 February 1974

WILLIAMS J: The abovenamed appellant was on 1st August, 1973, convicted by a Local Court of an offence against s. 84 (2) of the Native Regulations in that he had sexual intercourse with a female well knowing her to be married to another man. He was sentenced to imprisonment with hard labour for four months.

A number of grounds of appeal have been raised but one only of these was argued on the appeal against conviction. That was that the learned Magistrate had no jurisdiction to hear and determine the matter in that he failed to comply with the provisions of s. 38 (c) of the Local Courts Ordinance.

Section 38 (c) of the Local Courts Ordinance so far as is relevant, is in the following terms:

N2>“38.    The following rules of procedure shall be followed by Local Courts in criminal cases:

...

(c)      at the commencement of the trial, the nature and particulars of the complaint shall be explained to the defendant in a language which, in the opinion of the Court, he understands and the Court shall in the case of a proceeding referred to in section 15 of this Ordinance, 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;

...”

It is common ground (and indeed acknowledged by the learned Magistrate in a report furnished by him) that there was no compliance with the latter portion of s. 38 (c), that is, that it was not explained to the defendant that he was entitled to have the matter dealt with by a District Court and he was not asked to make an election.

It is necessary to read s. 38 in conjunction with certain other sections of the Ordinance. Section 13 sets out in general terms the jurisdiction of a Local Court. Section 14 then places some limitations upon the jurisdiction expressed generally in s. 13. Section 14 so far as is relevant for present purposes provides:

N2>“14(1) A 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;

...”

Section 15 is in the following terms:

N2>“15.    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 be so heard and determined.”

Part V of the Local Courts Ordinance contains provisions relating to the transfer of proceedings from the Local Court to another Local Court or from a Local Court to a District Court.

In effect therefore s. 14 (1) (b) of the Local Courts Ordinance provides that a Local Court has no jurisdiction over proceedings referred to in s. 15 of the Ordinance, namely proceedings civil or criminal where jurisdiction is vested in a Local Court and also in a District Court in which a party elects to be dealt with in a District Court.

The question thus arises as to whether a District Court has jurisdiction to hear and determine a charge of the kind brought against the appellant.

It was not contested by Counsel for the respondent that a District Court had jurisdiction to hear and determine the charge made against the appellant. A detailed examination of the relevant legislation applying to this question in New Guinea was made by Kelly J. in Joseph Kembu v. Eko Mason[lxvii]⁴ and he reached the conclusion that a District Court had jurisdiction in New Guinea. After an examination of the relevant legislation applicable to Papua I reach the same conclusion.

I am accordingly of the opinion that in the circumstances the Local Court had no jurisdiction to entertain the matter. Indeed this was common ground between counsel for the respective parties although the consequence that flows from this conclusion is in issue.

Counsel for the appellant submitted that the decision of the Local Court is a nullity although it is voidable in the sense that it is effective until set aside by a superior tribunal and that I should merely quash the conviction and sentence.

Counsel for the respondent however contended that the conviction and sentence are complete nullities with the result that there has never been a hearing of the complaint at all. He cited in support of this proposition the case of Crane v. Director of Public Prosecutions[lxviii]⁵ and submitted that I should remit the matter to be heard according to law. He further submitted that this Court could not reverse the decision pursuant to s. 43 (5) (b) of the Local Courts Ordinance as in reality there had never been a decision given.

In Parisienne Basket Shoes Pty. Ltd. v. Whyte[lxix]⁶ the distinction was drawn between an order made with jurisdiction but erroneously and an order made without any jurisdiction at all. As to the latter case it was said by Dixon J. (as he then was) at p. 399 that “if there be want of jurisdiction then the matter is coram non judice. It is as if there were no judge and the proceedings are as nothing. They are void, not voidable”.

In my opinion the lack of jurisdiction in the Local Court in this case had the effect that the purported trial and subsequent conviction and sentence were in the words quoted from Parisienne Basket Shoes Pty. Ltd. v. Whyte[lxx]⁷, “as nothing. They are void, not voidable”.

As I have stated Counsel for the respondent contended that this Court has not the power to reverse the decision of the Local Court as there has been no decision to reverse. Carried to its logical conclusion this argument must extend to the proposition that there is no valid appeal because, pursuant to s. 43 (1) of the Local Courts Ordinance, the right of appeal is conferred upon “a person aggrieved by a decision of a Local Court.” In other words if there is no decision capable of being reversed pursuant to s. 43 (5) (b) it must follow that there is no decision giving rise to a right of appeal under s. 43 (1).

There is authority which denies the validity of this proposition. In Crane’s case[lxxi]⁸ the House of Lords was concerned with a case in which, through some misunderstanding, the appellant was charged upon an indictment and tried with another man who was separately indicted. It was held that his trial was a mistrial, a nullity and in truth no trial at all. Nevertheless, it was also held that he was “a person convicted on indictment” within the meaning of that term in the statutory provision conferring a right of appeal. Lord Parmoor at p. 337 said:

“It was necessary, in my opinion, for the purpose of doing justice in the case before the Court, to determine whether the conviction and judgment should be regarded as a nullity, and, in the event of the Court coming to that conclusion, it was their duty so to decide.”

Reference might also be made to Ah Yick v. Lehmert[lxxii]⁹. Griffith C.J. at p. 601 said:

“When there is a general appeal from an inferior Court to another Court, the Court of Appeal can entertain any matter, however arising, which shows that the decision of the Court appealed from is erroneous. The error may consist in a wrong determination of a matter properly before the Court for its decision, or it may consist in an assertion by that Court of a jurisdiction which it does not possess, or it may consist in a refusal of that Court to exercise a jurisdiction which it possesses. In all these cases the Court of Appeal can exercise its appellate jurisdiction in order to set the error right.”

It thus seems to me that this Court may entertain this appeal and may dispose of it in one or other of the ways provided in s. 43 (5) of the Local Courts Ordinance.

I am urged by Counsel for the respondent to reverse the decision of the Local Court and to quash the conviction and sentence. As an alternative, it is submitted that I should act under s. 43 (5) (d) and substitute a verdict of acquittal. In this respect it should be mentioned that some affidavits were tendered on behalf of the appellant and admitted without objection the tendency of which, if the evidence contained therein be accepted, was to show that the appellant had a good defence on the merits.

I am not disposed to follow the latter course. It seems to me that it would involve the assumption by this Court of original jurisdiction to hear the matter for the first time, a function which, to my mind, was never contemplated by the legislature when framing s. 43 (5). This Court is sitting in appellate jurisdiction.

Nor am I disposed, after some hesitation to quash the conviction and sentence and leave the matter at that. True it is, as is pointed out by Counsel for the appellant that there will be a substantial lapse of time between the date of the institution of the proceedings and the date of a rehearing of the matter and that unfortunately, the appellant spent several weeks in the Corrective Institution before being released on bail pending the determination of this appeal. On the other hand, there has never been an effective hearing of the complaint in this matter and I think that the complainant should have the opportunity of having the matter properly determined if he still wishes to pursue that course.

I have the power to remit the matter for rehearing to the Local Court or a District Court. Counsel for the appellant has intimated that in the event that I should order a rehearing of the matter, the appellant would elect to have the matter dealt with in the District Court. If I send the matter back to the Local Court then there will be a delay between the matter coming on again before the Local Court and its being sent to the District Court for hearing following an election by the appellant. I accordingly propose to order the rehearing of the matter in the District Court at Port Moresby.

I find that the previous proceedings were a nullity and I formally order a rehearing of the matter in the District Court at Port Moresby.

Rehearing in District Court ordered.

Solicitor for the appellant: G. R. Keenan, Acting Public Solicitor.

Solicitor for the respondent: P. J. Clay, Crown Solicitor.

[lxv]Infra p. 56.

[lxvi]Infra p. 55.

[lxvii][1971-72] P. & N.G.L.R. 407.

[lxviii][1921] 2 A.C. 299.

[lxix][1938] HCA 7; (1937-38) 59 C.L.R. 369.

[lxx](1937-38) 59 C.L.R. 369.

[lxxi][1921] 2 A.C. 299.

[lxxii](1905) 2 C.L.R. 593.

[lxxiii][1971-72] P. & N.G.L.R. 422.