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Ebulya, Regina v [1964] PNGLR 200 (26 May 1964)

Papua New Guinea Law Reports - 1964

[1964] PNGLR 200 - Regina v Ebulya

[1964] PNGLR 200

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

EBULYA

Mount Hagen & Port Moresby

Mann CJ Ollerenshaw J Smithers J Minogue J

13 December 1963

2-4 March 1964

26 May 1964

CRIMINAL LAW - Committal for sentence - Indictment for more serious offence - Ex officio indictment - Motion to quash - Interpretation of legislation adopted into the Territories in bulk - Implied repeal - Dangers of committing for sentence where defendant ignorant and unrepresented - Inappropriateness of power of judges in Papua to indict - Effect of judges sitting in banco - Criminal Code ss. 560, 561, 600 - District Courts Ordinance 1924-1961 s. 111 - Criminal Procedure Ordinance of 1889 (New Guinea Adopted) ss. 3, 12 - Criminal Code Amendment Ordinance of 1909 - Laws Repeal and Adopting Ordinance 1921-1952 ss. 15, 21.

The accused was charged upon information in the District Court at Mount Hagen in the Territory of New Guinea with unlawful and indecent assault and after the conclusion of the evidence he was committed for sentence on that charge pursuant to s. 111 of the District Courts Ordinance 1924-1961. Subsequently an indictment was presented to the Supreme Court (comprising the judges in banco) charging the accused with rape. Upon motion to quash the indictment:

Held:

By the whole Court, that the indictment was valid, the motion to quash should be refused and the accused should be arraigned before a single judge upon a charge of rape.

Per Mann CJ:  The indictment should be sustained as presented pursuant to ss. 3 and 12 of the Criminal Procedure Ordinance of 1889 (Adopted). Section 561 of the Criminal Code forms part of the law of the Territory of New Guinea but it is incapable of having an effect which would over-ride s. 3 of the Criminal Procedure Ordinance of 1889 (Adopted). R. v. Burusep and Others, (1963) 2 P and N.G.L.R. 181, not followed on this point.

Per Ollerenshaw J:  The indictment should be sustained as presented pursuant to ss. 3 and 12 of the Criminal Procedure Ordinance of 1889 (Adopted). Section 561 of the Criminal Code does not form part of the law of the Territory of New Guinea.

Per Smithers and Minogue JJ:  The indictment should be sustained as presented pursuant to s. 561 of the Criminal Code; however because of s. 600 of the Code where there has been a committal for sentence the accused has the right to have that committal disposed of before being indicted under s. 561 of the Code or s. 12 of the Criminal Procedure Ordinance of 1889 (Adopted) for any other offence arising out of the evidence upon which he was committed for sentence; to the extent that ss. 561 and 600 of the Code and s. 111 of the District Courts Ordinance 1924-1961 conflict with s. 3 of the Criminal Procedure Ordinance of 1889 (Adopted) s. 3 is not the law.

Per Mann CJ:  S. 561 of the Code may be used in Papua provided the requirements of s. 3 of the Criminal Procedure Ordinance of 1889 have been satisfied. Observations on the use of the Criminal Procedure Ordinance of 1909.

Per Ollerenshaw J:  S. 561 of the Code is not operative in Papua. Observations on the Criminal Procedure Ordinance of 1909.

Per Ollerenshaw J:  It is not necessary or desirable that a nolle prosequi be entered where an indictment is presented upon a charge other than the charge in the committal; this should only be done where the appropriate official declines to lay any charge.

Per Smithers and Minogue JJ:  S. 561 forms part of the law of Papua.

The following further matters were discussed: the dangers of proceeding under s. 600 of the Code where the accused is ignorant and has not had the benefit of legal advice; the present inappropriateness of s. 12 of the Criminal Procedure Ordinance of 1889 as in force in Papua; the effect of the judges sitting in banco; the principle of implied repeal in statutory interpretation; the principles to be applied in interpreting legislation adopted in bulk in the Territory of Papua or of New Guinea.

The following cases were discussed:

Crocker v. Knight [1891] UKLawRpKQB 189; (1892) 1 Q.B 702

R. v. Bernasconi [1915] HCA 13; (1915) 19 C.L.R. 629

Sutherland v. R. [1934] HCA 59; (1934) 52 C.L.R. 356

Booth v. Booth [1935] HCA 15; 1934-1935) 53 C.L.R. 1

Tursi v. Tursi (1958) P. 54

Murray v. Brown River Timber Co. Ltd. (reported in this Volume)

R. v. Burusep and Others (1963) 2 P. and N.G.L.R. 181.[clxv]¹ 

Motion to Quash Indictment:

The facts and the relevant legislative provisions appear in the judgments of Mann C.J. and Ollerenshaw J. hereunder.

Counsel:

Greville Smith (with him Pratt) for the Crown.

Germain for the accused, in support of the Motion.

C.A.V.

MANN CJ:  In this case all the judges of this Court have agreed to sit together to hear argument on a preliminary submission raised by the Defence and to express their opinions on the points raised. It is not clear what will be the weight of a decision arrived at by the four judges, especially in the event of a disagreement, but since the questions involved are likely to affect a substantial part of the criminal work of the Supreme Court, it was thought desirable for the views of all the judges to be consulted in the one case.

The main point involved arose in the earlier case of The Queen v. Burusep and Ors[clxvi]², which came before me at Wewak. I delivered my reasons for judgment in Port Moresby on the 6th December, 1963. I concluded that s. 561 of the Criminal Code is not part of the law in force in New Guinea and that in consequence the Crown cannot use ex-officio indictments under that section, in a case where a person has not been validly committed for trial by a magistrate.

In the present case we have had the benefit of more detailed argument, and on this occasion the further question has arisen - whether a person who has been committed for sentence instead of being committed for trial can be indicted and brought before the Supreme Court.

The stautory provisions which give rise to the present questions may be tabulated as follows:

1886.  The Queensland Justices Act established a novel procedure under which a person who admitted that he was guilty of an offence and stated that he did not desire to have the witnesses called before the Supreme Court, could be committed by a magistrate to the Supreme Court “for sentence” instead of “for trial”. The consequential procedure in the Supreme Court was part of s. 113 of this original Act, and the substance of it now appears as s. 600 of the Criminal Code.

1888.  By Ordinance of the Administration of British New Guinea which came into effect on the 17th September, 1888, there was a general adoption of the Queensland law in force so far as applicable to the circumstances of the Possession. This Ordinance adopted the Queensland Justices Act of 1886, including the provisions prescribing the new procedure for committal for sentence, but excluded provisions dealing with trial by jury.

1889.  On the 27th April, 1889, the Criminal Procedure Ordinance was passed as an original Ordinance of the Territory of British New Guinea. For the present purposes ss. 3 and 12 are important. Section 3 contains a prohibition against any case being brought under the cognizance of the Supreme Court unless the person charged has been committed for trial in the Supreme Court by a magistrate after investigation of the facts. Section 12 empowers the Chief Judicial Officer, on receipt of the depositions, to take any of several courses of action, one of which is to lay a charge. For this purpose he is authorised to lay any charge which is supported by the evidence.

1889.  On the 23rd November, 1899, the Ordinance of 1888, so far as it is provided for a general adoption of Queensland law, was expressly repealed, and in the Schedule of the legislation (No. VI of 1889) adopted in its place, appears the Justices Act of Queensland of 1886. This is adopted to the extent to which it is applicable and subject amongst other things to the Ordinances of the Territory.

1902.  In 1902 the Criminal Code Ordinance of Papua was passed. Instead of merely adopting the Criminal Code from Queensland, the Ordinance itself sets out provisions which are identical with those of the Queensland Criminal Code Act, which set out the Code in the First Schedule. The Papuan Ordinance provides that the Code “is hereby adopted and shall be the law” of the Territory. By this Ordinance part of s. 113 of the Justices Ordinance was repealed, following the Queensland provisions, and s. 600 was inserted in its place.

1912.  The Justices Ordinance of Papua came into force. It expressly repealed the Justices Act of Queensland, as adopted, but restored the machinery whereby a magistrate was authorised to commit a person for sentence.

1921.  By the Laws Repeal and Adopting Ordinance, both the Criminal Code of Queensland, in a specified form, and the Criminal Procedure Ordinance of Papua were adopted for New Guinea to the extent to which they were in force and applicable, and subject to Ordinances of New Guinea.

1924.  By Ordinance of the Territory of New Guinea, a substantial amendment of s. 12 and other sections of the Criminal Procedure Ordinance of Papua, as adopted, was introduced. This consisted of transferring to the Crown Law Officer two of the powers formerly exercised by the Chief Judicial Officer, and eliminating the alternative powers. Thus the Crown Law Officer was empowered either to indict the accused for the offence charged or for some other offence supported by the evidence, or to decline to lay a charge.

The argument advanced by the Chief Crown Prosecutor involves taking a somewhat narrow view of the words by which adopted legislation is brought into force and relies on subsequent expressions of legislative intention as constituting implied repeals of Ordinances previously adopted or enacted. In the course of this argument, several anomalies and misunderstandings as to what was the law in force for the time being were revealed, and the argument supposes that the legislature has on occasion acted in error as to the state of the law in force.

To summarise this argument, it comes to this: the committal for sentence procedure was brought into operation in British New Guinea in 1888. The Criminal Procedure Ordinance, which was passed in 1889, was inconsistent with the committal for sentence procedure, for it required that all accused persons be committed for trial and not for sentence. Therefore there was a pro tanto repeal of the Courts and Laws Adopting Ordinance of 1888, and the committal for sentence procedure ceased to apply. In 1902 the Criminal Code was enacted as part of the express law of the Territory, and s. 600 contemplates the existence of a power in a magistrate to commit for sentence. The Code also contains complete provisions covering the kind of procedure which was prescribed in the Criminal Procedure Ordinance, so that apart from s. 21 which precluded trial by jury, and which on the authority of Sutherland v. The King[clxvii]³ must be taken to be in force, substantially the whole of the Criminal Procedure Ordinance was by implication repealed by the Criminal Code Ordinance.

If the absence of a Justices Ordinance left the committing magistrate without power to commit for sentence, this merely had the effect of leaving s. 600 in force as law but unusable until, in 1912, a new Justices Ordinance was passed. The fact that the Justices Ordinance 1912 purported to repeal the Queensland Justices Act, as adopted, reveals only a legislative error, for that Act was not then in force as adopted law.

When in 1921 the New Guinea Laws Repeal and Adopting Ordinance purported to adopt both the Queensland Criminal Code and the Papuan Criminal Procedure Ordinance so far as they were then in force, this may reveal merely another legislative error, for the Criminal Procedure Ordinance was substantially not in force, but so far as the present questions are concerned, the only provisions which were adopted into New Guinea were the provisions of the Criminal Code. The size of any legislative error is reduced because it was contended that some sections of the Criminal Procedure Ordinance were not the subject of implied repeal in Papua (for example, s. 21 dealing with trial by jury), so that the adoption of the Criminal Procedure Ordinance, so far as it was in force, must be taken to indicate a legislative intention that only the few sections which were not the subject of implied repeal were to take effect.

Thus it was argued that the Criminal Code is wholly in force in New Guinea and anything inconsistent with the Criminal Code to be found in the Papuan Criminal Procedure Ordinance is not in force and was not adopted.

This argument, in my view, suggests too much readiness to adopt an implied repeal of legislation and ignores several indications of legislative intention pointing to a contrary view. Some of these are minor matters, whilst others are more important.

It is clear that both in Papua and New Guinea relevant provisions of the Criminal Procedure Ordinance have been amended from time to time and additional provisions have been enacted which must be construed together with the original Criminal Procedure Ordinance.

In Papua the following Ordinances were passed:

1909.  The Criminal Procedure Ordinance of 1909. This was not expressed as an amendment to the earlier Criminal Procedure Ordinance, but was expressed as an Ordinance to amend criminal procedure. It is not expressed in the language of the Criminal Code, although the expression “Crown Prosecutor” does occur in the Code in ss. 567-8. The Ordinance introduces provisions enabling Crown Prosecutors to be appointed tb prosecute in their own name, by indictment. The form of indictment adopted is that set out in the Criminal Code. These provisions would have been largely unnecessary if the Criminal Code, alone, were in force.

1939.  The Criminal Procedure Ordinance of 1939 is directed to be read and construed with the Criminal Procedure Ordinance of 1889 and the Central Court Ordinance of 1925. This is the clearest indication that the legislature of Papua in 1939 believed that the Criminal Procedure Ordinance of 1889 was in force and intended that subject to the additions incorporated in 1939, it should continue to be in force.

The opinion of the Papuan legislature expressed in 1939 is of no direct assistance in determining what was in force in New Guinea in 1921 when the Ordinance was adopted, but this Ordinance, considered together with other indications of legislature opinion and intention, affords confirmation that in both Territories over a very long period of time the Criminal Procedure Ordinance of 1889 was regarded as being in force in Papua notwithstanding the adoption of the Criminal Code.

In New Guinea in 1924 the legislature amended the Criminal Procedure Ordinance in relation to s. 12, when it passed the District Courts Ordinance, 1924, which provided, for the first time in New Guinea, legislation dealing with committals for trial before Magistrates in cases of indictable offences. The previous legislation enacted in 1921 and coming into force when the Administration of New Guinea was taken over from the war-time Military Administration, was set out in the Judiciary Ordinance of 1921, and so far as material to the present case, it continued the former practice of vesting substantial criminal jurisdiction in the District Officer.

The amendments set out in the District Courts Ordinance of 1924 of New Guinea are the clearest indication that the New Guinea legislature believed and intended that s. 12 of the Papuan Criminal Procedure Ordinance of 1889 was in force in New Guinea. If it were thought that s. 3 of that Ordinance were not in force, because it was repealed by the Criminal Code, it is difficult to see what purpose would be served by amending and preserving s. 12 alone, having regard to the existing procedural provisions of the Code, e.g., ss. 560 and 561.

The argument advanced by the Crown fails to meet this point. Moreover, reliance on the doctrine of implied statutory repeal, would produce the result that the 1924 amendment of this Ordinance in New Guinea either affected a substantial repeal of procedural provisions of the Criminal Code, or alternatively was nugatory.

There is another weakness in the argument advanced by the Crown, again because it relies on a strict interpretation of expressions such as “in force” in the adopting Ordinances. If this same test is applied to the New Guinea Ordinance of 1921 which adopted the Criminal Code, the conclusion might well be that no Code was ever adopted. It is only adopted so far as it is “in force”, but the Code which is specified in the Schedule never in fact existed in that form and was therefore in fact never in force in Queensland. The Code is substantially the Code of 1899 with amendments specified in the Schedule of the adopting Ordinance, omitting the amendments which were made by the Criminal Code Act of 1913, but incorporating subsequent amendments brought in by the Criminal Code Act of Queensland (No. 2) of 1913. The 1913 amendments which were not adopted introduced substantial changes in the form in which the Code was expressed, and since the amendments adopted included those subsequent in date, the New Guinea Ordinance on a strict view of its own terms has purported to adopt a Code which was never in force in Queensland.

We are without judicial decisions of long standing in the Territory to assist us. Up until 1957 the practice of the Judges in Circuit cases in Papua was to follow the procedure laid down in the Criminal Procedure Ordinance; to go out on Circuit alone and without a Prosecutor and to lay the charges themselves. In cases heard in Port Moresby the practice of using indictments signed by the Crown Law Officer appears to have been established some time before 1957. This practice would be referable to the Criminal Procedure Ordinance 1909. In about 1912 it appears that some doubt may have been entertained whether the Criminal Procedure Ordinance or the Criminal Code, or both, were in force, and that at that time the Papuan judges had a preference for the kind of procedure set out in the Criminal Procedure Ordinance. At all events, in 1914 the Lieutenant-Governor of Papua purported to appoint the Judges of the Central Court, and in 1922 the Registrar, as Officers who were authorised to sign and present indictments. (See Annotated Laws of Papua, Volume II, p. 1236, note.)

This language suggests that the appointment was made with a view to satisfying the provisions of the Queensland Criminal Code, if applicable, which required an indictment to be signed and presented by an authorised Officer or by the Crown Law Officer, but it is noteworthy that the appointment, perhaps as a precaution, does not specify that it is in fact made for the purposes of the Code, or that it is limited to the exercise of powers conferred by the Code. This appointment does not assist in ascertaining what was the law in force at the time, but it does indicate the possibility that the question received some kind of judicial attention. We have, however, no records of any judicial determination having been made as to what was then the law in force in Papua, but the practice followed is known.

I have previously had to consider difficulties arising out of apparently inconsistent adoptions of legislation in the early days of the Territory. In Murray v. Brown River Timber Co. Ltd.,[clxviii]⁴ it was argued that in Papua there was no defence of contributory negligence because the common law adopted in Papua specified the common law at present in force in England, which by virtue of the Law Reform (Contributory Negligence) Act of 1945, no longer included the principles which give rise to the defence of contributory negligence.

In Booth v. Booth[clxix]⁵ the High Court had to decide a question of adoption of the statutory laws and the principles and rules of common law and equity under the Laws Repeal and Adopting Ordinance of New Guinea. A strict approach to the subject would have resulted in an interpretation of the adopting provisions which would leave a legal “vacuum” in relation to the capacity of a married woman to own property, since the Married Women’s Property Act was not expressly adopted either from England or from Queensland, and the common law principles were not strictly “in force” in England because the field had been substantially covered by legislation.

All the Justices came to the conclusion that it was the intention of the adopting Ordinance that the law adopted should support the existence of capacity in married women to own property. They considered that the argument that Common Law Rules applicable to a subject dealt with by legislation could not be considered as being “in force”, could not be allowed to produce the result that there was a legal “vacuum”.

At p. 30 of the Report in the joint judgment of Rich and Dixon JJ. it is stated, “But it is impossible to suppose that the Ordinance really meant to leave outside the scope of the law the whole topic of married women’s property. It is so evidently the intention of the Ordinance to introduce, subject to local Ordinances and to the specified enactments of Queensland and Papua, the whole content of English law applicable to the circumstances of New Guinea that a very wide meaning should be given to Section 16 in spite of the difficulties which its language presents.”.

All three Judges suggested that the expression “the principles and Rules of Common Law and Equity” should be broadened sufficiently to include either equitable or statutory provisions applicable, in order to give effect to the presumed intention of the Ordinance to adopt an entire set of laws.

In The King v. Bernasconi[clxx]⁶ the High Court had to decide whether consistently with the provision of s. 80 of the Constitution, a person might be tried on an indictment for a criminal offence in Papua without a jury. Section 21 of the Criminal Procedure Ordinance provides that such trials should be held before the Chief Magistrate sitting alone, and this provision was evidently construed to mean simply that the trial should be without a jury. Not much attention appears to have been given to the question of whether the law of Papua in 1915 disentitled an accused person to trial by jury. It is evident that the view generally held in Papua at the time was that the Criminal Procedure Ordinance was in force, notwithstanding the Criminal Code, and that s. 21 was effective to prevent trial by jury. This case came before the High Court in 1915 at which date the Jury Ordinance of 1907 was in force. This provided for the exceptional case of a European charged with a capital offence, and in such a case provided for a trial before a jury of four persons. Section 1 of the Ordinance then goes on to declare, “Save as aforesaid the trials of all issues both civil and criminal shall as heretofore be held without a jury.” If the argument advanced on behalf of the Crown in the case at present before us were valid, the Jury Ordinance of 1907 would have brought about a substantial change in the law, for it would have been clear that there was, prior to 1907, a general right to trial by jury.

In 1915 when Bernasconi’s Case[clxxi]⁷ was decided, s. 604 of the Criminal Code was in a different form from that in which it now appears in relation to the Territory. It then provided that if the accused person pleads any plea, or pleas other than the plea of Guilty, or a plea to the jurisdiction by the Court, he is, by such plea, without any further form deemed to have demanded that the issues raised by such plea, or pleas, shall be tried by a jury, and is entitled to have them tried accordingly. Surely, if the Criminal Procedure Ordinance of 1889 were substantially repealed by the Criminal Code in Papua and no longer in force as law, s. 21 of the Criminal Procedure Ordinance could not have stood alone against s. 604 of the Criminal Code, as it then appeared.

The only detailed reference to this question in the judgments in Bernasconi’s Case[clxxii]⁸ was by Griffith C.J. who, in referring to the Queensland Criminal Code in its application to Papua, refers, on p. 633, to the substance of s. 604 of the Code, and says, “It did not, however, occur to anyone that this provision introduced the system of trial by jury into the Possession or that the expressed provisions of Section 21 of the Ordinance of 1889 were repealed or superseded.”. The declaration set out in the Jury Ordinance of 1907 as to the previous state of the law must have set the question at rest.

In Sutherland v. The King,[clxxiii]⁹ the High Court concluded that in New Guinea, s. 21 of the Criminal Procedure Ordinance is applicable, and excludes trial by jury in that Territory. This case was decided in 1934, long after the Criminal Code had been adopted into New Guinea, and long after the change brought about by the Papuan Ordinance No. 15 of 1920, whereby the words in s. 604 or the Code “shall be tried by a jury”, had been amended to read, “shall be tried according to law”. It was in this form that the Code was adopted into New Guinea. In the light of the provisions of the Code as they then stood, Dixon J. (as he then was) said that the provisions of the Code relating to trial by jury “contained very many provisions which are directed to trial by jury and suppose its existence. But it must be remembered that all these laws are only incorporated in New Guinea insofar as they are applicable.”. His Honour decided that Clause 21 was applicable and that notwithstanding the Papuan Jury Ordinance of 1907, which had not been adopted in New Guinea, it remained in force to the extent of precluding any general right to trial by jury. The case was not concerned to decide whether, at that time and in the form in which s. 21 of the Criminal Procedure Ordinance would be applicable to New Guinea, a person of European descent, charged with a capital offence, would be entitled to trial by jury. The opening words of the judgment of Dixon J. have been taken as meaning that at this time there was no right to trial by jury in New Guinea in any case, but the question whether Clause 21 was adopted with or without exception in favour of trial by jury in European capital cases was not before the Court. At p. 361, however, there is clear authority for the proposition that a statutory provision adopted, subject to its being in force and applicable, is effectively adopted, notwithstanding that its operation in practice may be varied as a result of other legislation which was not adopted at the same time.

The question before us in the present case, therefore, remains unanswered. We must decide whether two apparently inconsistent pieces of legislation adopted into New Guinea in 1921 by the same Ordinance are to be regarded as wholly adopted as to both sets of conflicting provisions, or as only being adopted to the extent to which they can apply in practice after the conflicting provisions have been resolved. This becomes important because the adopted legislation would not change its meaning by virtue of subsequent enactments of Papua, but might do so from time to time under the influence of subsequent New Guinea legislation. Herein lies the danger of overstating the doctrine of implied statutory repeal. I think that the true position must be that a conflict between statutory provisions does not result in a repeal at all, but that both statutes remain in force and effect, and that it is for the Court to say as a matter of interpretation what is the net result in practice of both provisions operating together. That this process can produce varying interpretations at different times and under different circumstances is clear from Tursi v. Tursi.[clxxiv]¹⁰ 

On the face of it, it would be wrong, for example, for the Government Printer to stop printing a statute merely on the ground that the Court had determined that, as the law stood at that moment, the statute would have no effective operation. Equally, it would be wrong for the Government Printer to publish a statute, the words of which were amended by him in accordance with a determination by the Court as to the effect of a conflict of statutory provisions. Further, if two statutes were in force in Papua and the Courts had held that one could have no operation because it conflicted with the other, but this Ordinance only were adopted into New Guinea, it would hardly be said that the Ordinance was not “in force” because of the effect of the other Ordinance which was not adopted. I think that the correct position must be that when two conflicting Ordinances are both adopted, all the conflicting provisions cross the border and will be interpreted and applied by the Courts from time to time in accordance with established principles and having regard to the circumstances.

Much attention was given to this question in argument, and there was some criticism of the contentions put by the defence that a statute “in force” must include a statute standing on the Statute Book and not expressly repealed. I think that this view is correct, and that, as from time to time the adopted legislation is affected by subsequent enactments, the meaning and effect of them may be substantially changed. Since the doctrine of non-revival of statute by express repeal is itself purely a creature of statute, it is possible that an adopted provision which the Court might hold to be incapable of operation by reason of some conflict, will be “revived” by the subsequent expressed repeal of some over-riding legislation. It would be wrong, I think, in such a case to say that the subordinate piece of legislation was not “in force” at the time of adoption and therefore never became part of the law of the adopting Territory.

This may appear at first sight to be inconsistent with the conclusion of the High Court in the cases cited above. I do not think it is, for in relation to the rules of common law and equity, the High Court had to give a wide meaning to the expression “in force”, and reject the narrower meaning contended for. In Sutherland v. The King[clxxv]¹¹ the Court only decided that s. 21 of the Criminal Procedure Ordinance was in force to a sufficient extent to meet the question, and was applicable. It did not say that any statutory provision was not in force.

I think that the Court’s duty is to approach the problems and the inconsistencies apparent in the present case with the following principles foremost in mind:

(1)      In dealing with adopted legislation, adopted in the mass, it must be expected that some parts of it may prove to be quite unsuitable to the circumstances existing in the adopting country and that this may provide a foundation for an express or implied legislative intention that such provisions are not to be regarded as being part of the law. Nyali Ltd. v. Attorney-General[clxxvi]¹². Some provisions may be regarded as “ambulatory” in the sense that they become part of the standard law but are not likely to find application in practice until a later stage of development is reached.

(2)      The Court should lean against resorting to a doctrine of implied repeal in order to overcome difficulties presented by apparent conflict in statutes. Halsbury’s Laws of England, 3rd Edition, Volume 36, p. 465, para. 709.

(3)      Statutes in pari materia should be construed together as one system and as explanatory of each other. Halsbury’s Laws of England, 3rd Edition, Volume 36, p. 402, para. 607.

(4)      Later legislation may afford indications of legislative intention and may provide a new context against which several enactments in pari materia should be reassessed. Tursi v. Tursi[clxxvii]¹³.

(5)      When legislation is adopted in the mass with the apparent intention of providing a complete foundation of laws for a new country, the adopting provisions should be interpreted widely so as so give effect to that intention and so as to avoid a legal “vacuum”. Booth v. Booth[clxxviii]¹⁴.

Taking the view of the duty of this Court which I have previously indicated, and applying it to the legislation in question, the first point which arises is as to the effect of ss. 3 and 12 of the Criminal Procedure Ordinance so far as they refer to committals for trial and not to committals for sentence. This was an Ordinance of the Possession of British New Guinea passed during the time when there was a British Administration. The terms of s. 3 are, in my view, clearly protective of the rights of the subject, and in requiring a magistrate to conduct an examination of the evidence before a person could be brought before the Supreme Court on a serious charge, are of special value in a Territory when the protective processes of the law were not fully established and the machinery available could not be put into operation as speedily as might be desired.

It is true that the committal for sentence procedure had been introduced into Queensland three years before the Criminal Procedure Ordinance was passed in British New Guinea, and it appears to be equally true that this procedure was adopted into British New Guinea in 1898, that is, one year before the Criminal Procedure Ordinance. It was argued, therefore, that the distinction between committal for trial and committal for sentence was already established in the law of the Territory when the Criminal Procedure Ordinance was passed, and that prima facie committal for trial is an expression which would exclude committal for sentence.

I do not agree with this view. The purpose of s. 3 has nothing to do with the form which a trial is to take in the Supreme Court. It is simply to protect a person from being put at risk in the Supreme Court without a Magistrate’s preliminary examination. The principle sought to be established is equally applicable to any form of proceeding in a criminal matter in the Supreme Court.

We have no indication that the procedure of committal for sentence had ever been used in Papua before the Criminal Procedure Ordinance was passed. The absence of reference to this form of procedure anywhere in the Criminal Procedure Ordinance strongly suggests that the legislature did not have it in mind at all, for the Ordinance appears to me to represent something of a “little code” of criminal procedure applicable to all cases which are to come before the Supreme Court in its criminal jurisdiction.

In an Ordinance where for the purposes of its provisions a distinction is observed between committals for trial and committals for sentence one might expect this distinction to be observed throughout the Ordinance; but unless one is concerned with this distinction, the expression “committal for trial” alone, would include committal to appear upon a trial of any kind.

One does not need to go far back into British legal history to find other forms of trial than that which is generally observed today upon a plea of Not Guilty. If trial by ordeal, or by battle, or by wager of law, or by witnesses, were adopted into Papua, the words of ss. 3 and 12 would be wide enough to cover all such forms of trial. Is, therefore, a proceeding in the Supreme Court, where a person is committed for sentence, properly described as a form of trial? I think it is, because the Supreme Court must determine whether or not the accused is guilty of the offence and whether or not he should be punished, in addition to merely fixing the penalty. To take the opposite view would involve the conclusion that the authority for sending a man to gaol and keeping him there is to be found solely in the Justices Ordinance, so that in fact a person is sent to gaol without a trial. The Supreme Court should not then pronounce any order committing the accused to gaol, but should merely specify the time for his release.

I think that such a view is artificial in the extreme, and contrary to the spirit of the law. Although there is difficulty in the words used in the provisions of the Justices Ordinance which deal with committals for sentence as such, and s. 600 of the Criminal Code makes it difficult for an accused person to change his plea, there are cases not infrequently encountered in the Territory where in terms of s. 600 it is found necessary and proper to enter a plea of Not Guilty. Section 600 clearly contemplates that in some cases there would be a trial upon the merits, and that in all cases a plea is to be taken at the outset of the proceedings.

It is true that if a plea of Guilty is made and accepted, there is no trial on the merits, but in my view the taking of a plea itself constitutes a trial of the issue of whether or not a person is guilty of the offence. When a charge is laid or an indictment presented this issue arises, and is concluded by the Court adversely to the accused when he enters his plea. This becomes the foundation for the Court’s authority to order him to be punished as well as to determine the quantum of that punishment.

Accordingly, I conclude that in 1889 when the Criminal Procedure Ordinance was passed in British New Guinea, it was intended that the expression “committal for trial” should include committal for all forms of trial, including committals for sentence. I further conclude that the Criminal Procedure Ordinance did not by implication repeal the Justices Act provisions relating to committals for sentence.

Passing on to the Criminal Code Ordinance of Papua, we find in s. 561 an unlimited statutory power to indict anybody for trial in the Supreme Court. The supposed usefulness of s. 561 is that it avoids the express requirement of s. 560 that the person should have been committed for trial. The effect of s. 561 is explained by the Court of Criminal Appeal in Queensland in Regina v. Moody.[clxxix]¹⁵ 

The history of the section is indicated in the Queensland cases of Regina v. Webb[clxxx]¹⁶ and a practice adopted by the Judges in Queensland, notwithstanding the express terms of the statute, is referred to in R. v. Durnin[clxxxi]¹⁷.

I think that it is clear that s. 561 cannot stand with ss. 3 and 12 of the Criminal Procedure Ordinance. The attempts which have been made in argument to read them together only serve to illustrate the point.

One possible solution to the apparent conflict between these two Ordinances is suggested in the wording of the Criminal Code Ordinance of Papua 1902. Sections 4 and 6 of the Ordinance provide in substance that the provisions of the Code are to be exclusive subject to certain exceptions, and these sections contemplate that a person may also be tried and punished under the provisions of other statutory laws. A somewhat similar device was employed in s. 8 of the White Women’s Protection Ordinance of Papua 1926-1934 (now repealed).

Section 6 of the Criminal Code Ordinance provides that a person may be prosecuted and convicted either under the code or under the other statute but so that he is not twice punished for the same offence. These provisions suggest the possibility that it was intended to adopt the Queensland Criminal Code in its entirety as a system, although a substantial number of its provisions could not then be put into active operation in the Possession of British New Guinea because the institutions of Government were at the very beginning and had not advanced to a stage where they would be workable; for example, it seems quite clear that there were no legal officers in the Possession at that time.

It might be thought that the substantive provisions of the Code affording definitions for the range of offences provided for would have immediate application, and that a simplified set of procedural rules such as were set out in the Criminal Procedure Ordinance of 1889 were required to enable the Judge to perform on his own all of the legal functions involved in initiating, prosecuting and determining a criminal case. On this view two alternative procedures were available, and although mutually exclusive, either could be resorted to from time to time in the future, according to the circumstances, and the extent to which the legal facilities of the Possession had in the meantime developed.

I have given this indication of possible legislative intention careful thought, and it seems to me that although it would be workable in New Guinea where the Ordinances were adopted so far as applicable, it would give rise to much difficulty in Papua. If New Guinea stood alone, it might only require the Court to find that the circumstances of the Territory had changed sufficiently for the Criminal Procedure Ordinance to have become obsolete and to cease to be applicable, whereupon the procedural provisions of the Code would take over as the sole available system of procedure.

This cannot have been the state of law in Papua, however, for it would take some further expression of legislative will to indicate that the Criminal Procedure Ordinance was no longer intended to apply, for this is not adopted legislation, and remains on the Statute Book. Accordingly, it appears to be necessary to resolve what was the law in Papua at the date when, in 1921, the New Guinea Ordinance purported to adopt both the Criminal Procedure Ordinance and the Criminal Code.

I next consider to what extent the relevant provisions of these two Ordinances can be read together, and what would be the result. The Criminal Procedure Ordinance provides, in s. 3, that subject to very narrow exceptions, with which we are not here concerned, “no criminal case is to be brought under the cognizance of the Central Court” (today the Supreme Court) “unless the same shall have been previously investigated by a Magistrate...” present an indictment in any Court of criminal jurisdiction against any person for any indictable offence whether the accused person has been committed for trial or not. Section 561 is of general application and cannot be read down in such a way, for example, as would satisfy the provisions of s. 3 of the Criminal Procedure Ordinance. (See R. v. Sutton[clxxxii]¹⁸)

I find the reasoning of Lord Justice Lindley in Crocker v. Knight[clxxxiii]¹⁹, of assistance in trying to find a combination of these two provisions which would preserve the major principle involved. In Crocker v. Knight[clxxxiv]²⁰ the Trade Union Act of 1871, s. 4, contained a prohibition against legal proceedings to enforce certain obligations of a trade union to provide benefits for its members. In the amending Act of 1876 there was a new provision whereby a member of a trade union not under the age of sixteen years could nominate a person to whom sums of money not exceeding £50 “shall be paid” in the event of the death of the member. The Court of Appeal found that the main principle involved was that actions should not be brought against trade unions, and that the new procedure enabling a person to receive moneys on behalf of a deceased member were to be read down to that established principle; thus, although on the face of it the words used created a statutory obligation upon the trade union which could be enforced by an action at law, the amending Act was to be construed not as a repeal, but as providing an alternative means of satisfying an obligation to a member, still within the principle that the obligation was not to be the subject of an action at law.

I think that if the provisions of s. 3 of the Ordinance and s. 561 are to be read together, the result must be that the principle that nobody is to be brought before the Supreme Court without a magistrate’s investigation of the case becomes the guiding principle, and determines which cases may come before the Supreme Court. When this question is resolved, s. 561 merely affords the means whereby those cases which are allowed to be brought, may be brought. I think that the words in s. 561, “whether the accused person has been committed for trial or not”, must give way, once it appears that there is sufficient warrant for attributing to the legislature the intention of keeping the Criminal Procedure Ordinance in force in Papua. The words could be read as “whether the accused person has been committed for trial or sentence”, but this is evidently not the intended meaning, and is contrary to established Queensland authority.

In a case of such a direct conflict, the Criminal Procedure Ordinance should, in my view, prevail because it is on the face of it direct and not in any sense adopted legislation. It contains no indication of legislative intention that it is to be construed as adopted legislation. The Criminal Code was also the subject of direct Territorial legislation and was not conditionally adopted to the extent to which it was in force or was applicable, but it is still declared to be adopted, and was in fact adopted en masse. This circumstance, in my view, warrants attaching to the Criminal Code of Papua a lower degree of legislative intention on a specific point than in the case of the Criminal Procedure Ordinance. Nevertheless, it might prevail over other legislation in Papua which was merely conditionally adopted. The subsequent amendments to the Criminal Procedure Ordinance in Papua confirm the view that this Ordinance remained in force up to the time when it was conditionally adopted in New Guinea in 1921. The conditions for its adoption into New Guinea being satisfied, it became part of the law of New Guinea for the reasons indicated in The Queen v. Burusep & Ors[clxxxv]²¹. I am still of the opinion that in New Guinea it should prevail over the provisions of s. 561 of the Criminal Code. This position is again confirmed by the amendment of s. 12 of the Criminal Procedure Ordinance in legislation in 1924.

The view which I have taken as to the application and effect of these Ordinances has the incidental merit of achieving a degree of uniformity in the two Territories. If the protective provisions of the Criminal Procedure Ordinance are at this late stage to be taken away, it should be the responsibility of the legislature to take this step by express legislation.

Construed as above, the existing legislation affords, in my view, an adequate and workable machine to deal with all substantial cases of crime. It would be convenient to have in addition a form of ex-officio indictment for use in cases where an accused person desires that other offences should be taken into account in assessing a penalty, and the offences can be specified with sufficient particularity to warrant lodging further indictments and taking pleas of Guilty, and in cases where there has been some technical defect in the committal proceedings. I do not see any way in which I can read into these Ordinances power to use ex-officio indictments for this purpose, but the inconvenience is small and does not affect the major principles in question. I do not think that the Court has power to create this kind of machinery. If it is desired, I think that legislative sanction must be sought, and that an additional provision authorising the use of an ex-officio indictment subject to the leave of the Court would adequately serve the purpose.

For the reasons indicated above, my opinion is that the law at present in force in New Guinea as well as in Papua enables a person to be brought to trial in the Supreme Court notwithstanding that the form of his committal is for sentence only, and that therefore in such a case an ex-officio indictment is not necessary.

Except in rare cases mentioned in s. 3, I think that there must always be a preliminary investigation by a magistrate, but that when this requirement is satisfied, the accused may be charged with any offence supported by the evidence.

I should guard against the possibility of being taken to express the view that s. 12 of the Criminal Procedure Ordinance is the only statutory provision in force dealing with the laying of charges or the presenting of indictments. In Burusep’s Case[clxxxvi]²² I think that I overstated the position in saying that s. 561 of the Criminal Code was not part of the law of New Guinea. I now think that I reached this conclusion by extending the application of some of the words used in Sutherland v. The King[clxxxvii]²³ to cover something that was not decided in that case. On further consideration of what was there decided, I think that the true position is that all of these adopted provisions are part of the law of New Guinea, and that the function of the Court is to read them all together and give effect to their substance as well as it can. Thus s. 561 should be regarded as part of the law, but as being incapable under present circumstances of having an effect which would over-ride the express terms of s. 3 of the Criminal Procedure Ordinance.

It does not follow from what I have said that in Papua today all indictments must be the subject of judicial action under s. 12 of the Criminal Procedure Ordinance as it stands in Papua. I think it would be a very bad thing if judges were compelled to revert to that form of procedure. I think that the Criminal Procedure Amendment Ordinance of 1909 enables prosecutions to be handled in the same way as in New Guinea. This Ordinance adds to the criminal procedure in force in Papua, several non-exclusive and permissive provisions especially designed for the Territory. These provisions enable a Crown Prosecutor to indict in his own name but apart from one or two specific matters, give no general directions as to procedure.

The form of this Ordinance enables it to operate as an alternative to the procedure laid down in s. 12 of the earlier Papuan Ordinance which, in the light of that context, should no longer be construed as imposing upon a judge the mandatory duty to carry out the inquiry and make the decisions contemplated by s. 12. To this extent it necessarily varies the operation of s. 12.

In order to find procedural guidance applicable for the purposes of the Criminal Procedure Amendment Ordinance of 1909, I can see no reason why the provisions of the Criminal Code, so far as they are compatible, should not be used.

In the present case, therefore, I think that an ex-officio indictment is not necessary as things stand, for there is a committal in force, and s. 12 of the Criminal Procedure Ordinance is in force in New Guinea and directly authorises the present indictment to be laid. If a nolle prosequi is entered, and I do not think that this is necessary, I see no reason why an ex officio indictment should not then be used to lay any charge supported by the evidence investigated by the magistrate.

OLLERENSHAW J:  A Crown Prosecutor has presented to us an indictment, signed by the Secretary for Law, and charging Ebulya under s. 348 of the Criminal Code, that on or about 2nd March, 1963, in the Territory of New Guinea, he committed rape upon one Ot.

Counsel for the accused person has taken a preliminary objection that the indictment is a nullity and he has, in effect, moved to quash it.

He relies upon these grounds:

(1)      That there is no authority for the presentation of the indictment, it being, so it is submitted, an “ex-officio” indictment purporting to be presented under s. 561 of the Queensland Criminal Code, which section, so it is submitted, is not part of the law of the Territory of New Guinea; and

(2)      That no indictment may be presented to this Court against the accused because he has not been committed for trial but has been committed for sentence under what, so it is submitted, is an effective legislative provision, and, this Court has no jurisdiction to entertain any indictment upon such a committal or by any means concern itself with him.

It is admitted by both parties that a magistrate did conduct a statutory investigation upon an information charging the accused person under s. 350 of the Code with unlawfully and indecently assaulting Ot, that upon the completion of that investigation the magistrate committed the accused for sentence before this Supreme Court upon that charge, and that, in the trial of the accused upon the present indictment, if it be sustained, the Crown will reply upon the incident and facts upon which the charge of indecently assaulting was made and investigated.

GROUND (1): THAT THERE IS NO AUTHORITY FOR THE INDICTMENT

This involves, in the main, considerations of two pieces of legislation.

The first in time is the Criminal Procedure Ordinance of 1889, which was enacted as an Ordinance of the Possession of British New Guinea on the 9th January, 1889, and came into force there on the 27th April, 1889. Such portions of this Criminal Procedure Ordinance as were in force in Papua on the 9th May, 1921, were adopted by s. 15 of the Laws Repeal and Adopting Ordinance, 1921, of the Territory of New Guinea as an Ordinance of that Territory so far as the same were applicable to the circumstances of the Territory and were not repugnant to or inconsistent with the provisions of any Act or Ordinance or subordinate enactment having the force of law that had been or might thereafter be expressed to extend to or apply to or made or promulgated in that Territory.

The second piece of legislation is: the First Schedule of the Criminal Code Act, 1899, of the State of Queensland, known “The Criminal Code of Queensland”, which Code was adopted as and to be the law of the Possession of British New Guinea on and from the first day of July, 1903, by the Criminal Code Ordinance of 1902 of British New Guinea. Such portions of this Criminal Code that were in force in the State of Queensland on the 9th May, 1921, were adopted by s. 13 of the said Laws Repeal and Adopting Ordinance as laws of the Territory of New Guinea so far as the same were applicable to the circumstances of the Territory and were not repugnant to or inconsistent with the provisions of any Act or Ordinance or subordinate enactment having the force of law that had been or might thereafter be expressed to extend to or apply to or made or promulgated in that Territory.

In adopting for the Possession of British New Guinea the Criminal Code of Queensland, the Criminal Code Ordinance of 1902 also provided that:

“...Any reference in the Code to Queensland or to persons places or subjects in Queensland shall be taken as references to the Possession or corresponding or analogous persons places or subjects in the Possession.”

Unlike comparative adopting legislation it did not expressly declare the adoption to be dependent upon the applicability of the adopted to the circumstances of the place for which it was adopted nor did it expressly exclude what in the adopted legislation was repugnant to or inconsistent with legislation that had been or might thereafter be enacted for or in the place of adoption.

In adopting for the Territory of New Guinea the Criminal Code of Queensland and the Criminal Procedure Ordinance of 1889 of the Possession of British New Guinea, known, since the Proclamation of the 1st September, 1906, as the Territory of Papua, the Laws Repeal and Adopting Ordinance, 1921, in the words which I have already cited, did expressly declare that their adoption was to be in so far as the same were applicable to the circumstances of the Territory of New Guinea and did expressly exclude what in them was repugnant to or inconsistent with legislation already, or thereafter, to be enacted there. The Laws Repeal and Adopting Ordinance also provided that:

“All or any references to authorities, persons, places, subjects, matters or things in any act, statute, law or regulation or rule hereby adopted shall be taken as referring to corresponding or analogous authorities, persons, places, subjects, matters or things in the Territory and for the purpose of facilitating the application of any of the aforesaid acts, statutes, laws, regulations or rules hereby adopted, it shall be lawful for any Court or magistrate to construe the same with such verbal alteration not affecting the substance as may be necessary to render the same applicable to the matter before the court or magistrate.”

It is convenient now to cite the legislation around which argument revolved, namely ss. 3 and 12 of the Criminal Procedure Ordinance of 1889, and ss. 560 and 561 of the Criminal Code of Queensland:

The Criminal Procedure Ordinance of 1889:

“Section 3: Except in cases of informations known to the law of England as ex officio informations and informations by the Master of the Crown Office no Criminal case shall be brought under the cognizance of the Central Court unless the same shall have been previously investigated by a Magistrate and the accused shall have been committed for trial at such Court.”

“Section 12: Whenever any person has been committed by a Magistrate for trial at the Central Court the Chief Magistrate shall consider the evidence taken in the matter by the Magistrate and at his discretion do one of the following things:

(1)      Lay or direct to be laid against the person committed any charge that the evidence appears to the Chief Magistrate to warrant.

(2)      Quash the committal.

(3)      Send the evidence and all papers back to the committing Magistrate and direct the Magistrate to obtain if possible further evidence. And if the Chief Magistrate sees fit direct the Magistrate to dismiss the case if no further evidence can be obtained.

(4)      If the alleged offence be one which the Magistrate has jurisdiction to try in a summary manner send the evidence and all papers back to the committing Magistrate and direct him to try and to deal with the matter in a summary manner which directions the Magistrate shall be bound to obey.”

The Criminal Code of Queensland:

“Nature of Indictments

Section 560: When a person charged with an indictable offence has been committed for trial and it is intended to put him on his trial for the offence, the charge is to be reduced to writing in a document which is called an indictment.

The indictment is to be signed and presented to the Court by a Crown Law Officer or some other person appointed in that behalf by the Governor in Council.”

“Ex Officio Informations

Section 561: A Crown Law Officer may present an indictment in any Court of criminal jurisdiction against any person for any indictable offence, whether the accused person has been committed for trial or not.

An officer appointed by the Governor in Council to present indictments in any Court of criminal jurisdiction may present an indictment in that Court against any person for any indictable offence within the jurisdiction of the Court whether the accused person has been committed for trial or not.”

Section 1 of the Code provides that, unless the context otherwise indicates: “The Term ‘Crown Law Officer’ means the Attorney-General or Solicitor-General.”.

Argument, perhaps of necessity, was involved and it is merely to keep this judgment from undue proportions that I do not here entertain all the submissions which fell for our consideration.

Broadly, Counsel for the accused submitted that neither s. 560 or s. 561 ever became law in the Possession of British New Guinea, or the Territory of Papua, because neither of such sections was applicable to the circumstances of that Possession in 1902 and they were repugnant to ss. 3 and 12 of the Criminal Procedure Ordinance of 1889, and particularly that s. 561 was repugnant to s. 3 of that Ordinance.

Broadly, Counsel for the Crown submitted that the enactment as the law of the Possession by the Criminal Code Ordinance of 1902 of ss. 560 and 561 of the Criminal Code of Queensland impliedly repealed or amended ss. 3 and 12 of the Criminal Procedure Ordinance of 1889 in so far as these sections stood in the way of an indictment by an appropriate Law Officer of the Crown under s. 560 or s. 561 of the Code whether or not the accused person has been committed for trial before the Central Court. He also submitted, alternatively, that neither s. 560 or s. 561 of the Criminal Code was so repugnant to either s. 3 and or s. 12 of the Criminal Procedure Ordinance that all these sections could not stand together.

It is to be observed that the Criminal Code of Queensland was adopted as and to be the law of British New Guinea without the qualification of circumstantial applicability or of repugnancy to existing laws. However, it seems tolerably clear that the adopting Ordinance did not mean quite all that it said, else, for instance, an accused resident of the Possession, later the Territory of Papua, pleading in the Central, later the Supreme Court, on or after the 27th April, 1889, any plea or pleas other than a plea of guilty or a plea to the jurisdiction of the Court, would have been entitled, pursuant to s. 604 of the Code, to have the issue raised by his pleas tried by jury, notwithstanding that s. 21 of the Criminal Procedure Ordinance of 1889 provided that trials before the Central Court shall be by the Chief Magistrate, later a judge, sitting alone: Vide The King v. Bernasconi[clxxxviii]²⁴ . So, too, certain matters arising after his conviction, such as the reservation of a question of law, would have been required to be heard and determined by a “Full Court” sitting at Port Moresby, pursuant to s. 668 et sequiter of the Code, notwithstanding that there was and could not be in the proper order of things as they were in 1902, and there is not yet provision for any such Court.

It may be said generally from the terms and provisions of the Criminal Code Ordinance of 1902 that what the legislator there was about was to introduce the body of substantive criminal law as it existed in Queensland.

Upon the conflict between s. 3 of the Criminal Procedure Ordinance and s. 561 of the Code, I would make these observations: the prohibition in s. 3 against the entertainment by the Central Court of any criminal case, other than in the case of the exceptions therein provided for, without previous magisterial investigation and committal, appears to have its historical derivation in the taking away from the English Grand Jury the power to present a man for trial on their own knowledge without any preliminary examination. There was never a Grand Jury in Queensland and the introduction there of s. 561 of the Code, with the functions thereby given to the superior Law Officers of the Crown, is explained in R. v. Webb[clxxxix]²⁵ .

In the Possession of British New Guinea there was neither a Grand Jury or such Law Officers of the Crown as an Attorney-General or Solicitor-General, or for that matter, any Officer of the Crown having the functions usually exercised by such officers except in so far as the representative, himself, of the Sovereign, the Lieutenant-Governor or Administrator, might be regarded as the person having the function of initiating criminal litigation on behalf of the Crown. I apprehend that Law Officers of the Crown essentially are persons appointed to do for the King what he could do for himself as a prosecuting litigant and it is not inapt to recall that in “Pleas of the Crown” alleged criminals were summoned to the Curia Regis by a command in the form of a Writ from the King himself under his Royal Seal.

In fact in the Possession such functions had been delegated to the Chief Magistrate by s. 12 of the Criminal Procedure Ordinance of 1889, which Ordinance itself in its s. 18 contemplates the empowering by the Administrator of some person, other than the Chief Magistrate, to fulfil these functions.

The Criminal Procedure Ordinance of 1889 reserved from the operation of its ss. 3 and 12 “cases of informations known to the law of England as ex officio informations.” The power to present such an information was not delegated to the Chief Magistrate, and, if there were no Law Officer of the Crown in the Possession, it would seem that the representative of the Sovereign would be the person to present such an information. There are now a Secretary for Law and a Crown Solicitor for these Territories.

Subsequently to the adoption of the Code, that is by the Criminal Procedure Amendment Ordinance of 1909, provision was made for the appointment of a Crown Prosecutor, permanently or temporarily, in whose name crimes and offences cognizable in the Central Court might be prosecuted by indictment in the form set out in the Criminal Code. It would seem that no such Crown Prosecutor was appointed until many years later and, in the meantime, in 1914, the Lieutenant-Governor in Council, for the purposes of s. 560 of the Code appointed to sign and present indictments in the Central Court in its Criminal Jurisdiction the judges of that Court, who included the Chief Magistrate, and its Registrar and Acting Registrar: Vide Laws of The Territory of Papua, 1888-1945, Volume II, p. 1236.

It does seem to me that at the time when the Criminal Code of Queensland was adopted for the Possession of British New Guinea there was an established procedure in operation there, that left no room for the operation of s. 561 of the Code, and in which that section could not work in the circumstances of the Possession. There was already the provision, contained in the exception with which s. 3 of the Criminal Procedure Ordinance opens, for the ex-officio and the other informations, therein mentioned, according to the law of England. As I have said these were reserved from the operation of ss. 3 and 12 of the Criminal Procedure Ordinance. All other criminal cases to be entertained by the Central Court were provided for by s. 3 and by s. 12, whereby the Chief Magistrate was given the function, after committal, of considering the evidence taken in the committal proceedings and (inter alia) of laying any charge that the evidence appeared to him to warrant.

Although my mind has fluctuated I have come to some firm conclusions. I have had the advantage of reading the judgment that has just been delivered by Mann C.J., in which he has made an amendment to the view which he expressed in R. v. Burusep and Others[cxc]²⁶ , and I agree with His Honour’s conclusion that the indictment now presented to us may be sustained as an indictment presented pursuant to ss. 3 and 12 of the Criminal Procedure Ordinance.

In my view, however, these sections were adopted into the Territory of New Guinea to the exclusion of s. 561 of the Code in any operative sense.

I have had some difficulty in understanding the reasons for the judgment of Dixon J., as he then was, in Sutherland v. The King[cxci]²⁷ . It was there argued (inter alia), on behalf of a person convicted by a Judge sitting without a jury, that s. 21 of the Criminal Procedure Ordinance of 1889, providing that criminal trials should be before the Chief Magistrate alone, had not been adopted for the Territory of New Guinea by s. 15 of the Laws Repeal and Adopting Ordinance, 1921. This was so, it was submitted, because s. 21 was not “in force”, within the meaning of those words in s. 15, in the Territory of Papua on the 9th May, 1921, having been superseded by the jury provisions of the Queensland Criminal Code, adopted there in 1902, or affected by The Jury Ordinance of 1907 of the Territory of Papua which was not adopted for the Territory of New Guinea, and had in effect, substituted a jury for the Chief Magistrate in the trial of a person of European descent charged with a crime punishable with death.

Although it was necessary for Dixon J. to consider only whether a person charged in the Territory of New Guinea with a crime not punishable with death, that is with stealing, was entitled to trial by jury, His Honour’s judgment commences with these words: “I think that it was never intended to introduce trial by jury into the Territory of New Guinea and that it has been excluded”.

It is, of course, most important when reading a judgment to be mindful of the particular problem it purports to resolve and, where necessary, so confine it. However, I cannot qualify such a categorical statement of Dixon J. to restrict it to the trials of persons charged with crimes not punishable with death. I would have thought that a section amended, impliedly or expressly, could be said to be “in force” only to the extent to which it was still operative as a law. Dixon J. was of the opinion that these words in Section 1 of the Jury Ordinance: “and that, save as aforesaid, the trials of all issues both civil and criminal shall as heretofore be held without a jury” did not altogether replace but confirm s. 21 subject, of course, to the amendment or alteration effected by the earlier words of Section 1 of the Jury Ordinance as to trials of persons of European descent charged with a crime punishable with death. I would say, with respect, that I find no difficulty in comprehending that opinion. However, His Honour proceeded to say not that what was left of Section 21 was in force but: “I think, therefore, that s. 21 was in force in Papua at the relevant date”. Taking this statement together with the statement with which His Honour commenced his judgment, to which I have already referred, to the effect that trial by jury had been excluded from the Territory of New Guinea, I can but think that His Honour was of the opinion that, for the purpose of the words “in force” in s. 15 of the Laws Repeal and Adopting Ordinance, s. 21 should be considered to be in force in Papua as enacted there in 1889 and to have been adopted into the Territory of New Guinea by such s. 15. Perhaps this is to because the Jury Ordinance of Papua, which impliedly amended s. 21, was not adopted into the Territory of New Guinea.

I do think that this case of Sutherland v. The King[cxcii]²⁸ supports and illustrates the theory that in the consideration of the effect and operation of legislation, which has been adopted in bulk without discrimination by such methods as were employed for these Territories, a broad and common sense view must be taken and that we should not consider ourselves unduly restricted by the ordinary canons of construction for conflicting legislation and the like: Vide (inter alia) Booth v. Booth[cxciii]²⁹.

Having regard to the general circumstances at the time of the acquisition of the new Territory and to the object, structure and words of the Laws Repeal and Adopting Ordinance, 1921, I consider that the paramount intention of the legislator responsible for this Ordinance was to adopt from Queensland, subject to the Queensland amendments noted in the Second Schedule of the Ordinance, its body of substantive criminal law as contained in its Criminal Code, as had been done for the Territory of Papua, and, at the same time, to adopt from Papua its Criminal Procedure Ordinance as it existed there alongside the Code, in effect to introduce into the Territory of New Guinea substantially the same criminal law and procedure as then existed in the Territory of Papua.

At the same time, a Supreme, at first called The Central Court was established for the Territory of New Guinea by the Judiciary Ordinance, 1921, its chief judicial personage being given the title of “Chief Judge” instead of the historically more magnificent “Chief Magistrate”. The Laws Repeal and Adopting Ordinance and the Judiciary Ordinance came into force in the new Territory on the day on which civil administration replaced the military administration there. It must have been very soon after the commencement of such civil administration that provision was made for a Law Officer of the Crown because provision is found for a “Crown Law Officer” in the Regulations made in 1922 under the Public Service Ordinance No. 14 of 1922 of the Territory of New Guinea. See also the reference to “the Crown Law Officer at Rabaul in the Judiciary Ordinance No. 3 of 1921, section 35.” In 1924 to him also were transferred the functions of the Chief Magistrate under s. 12 of the Criminal Procedure Ordinance, in its application to the Territory of New Guinea, to lay against a person committed by a magistrate for trial at the Supreme Court any charge that the evidence taken in the committal proceedings appears to him to warrant or to decline to lay a charge against such a person.

This, in my view, is the function which the Secretary for Law has exercised in signing the present indictment and I do not consider that it is necessary to support it, or that it could be supported as an indictment under s. 561 of the Code. I do not think that that section is in operation as part of the law of the Territory of New Guinea. I think that much of the confusion, some of it in my own mind, has arisen because of the use of the term “ex officio” indictment. In a loose sense it may be called an “ex officio indictment” or “information” but in reality it is an indictment under s. 12 of the Criminal Procedure Ordinance of 1889 in pursuance of the power thereby conferred on the Crown Law Officer, now the Secretary for Law, to lay any charge that the evidence taken by the committing magistrate appears to him to warrant. I consider that the term “ex officio” indictment or information properly should be confined to those informations reserved by the excepting provisions of s. 3 of the Criminal Procedure Ordinance from the operation of the rest of that section and of s. 12 of this Ordinance. In this way the confusion, which I think has arisen, would be avoided.

It will be observed that I have treated the committal for sentence, upon which the indictment is based, as if it were a committal for trial within the meaning of ss. 3 and 12 of the Criminal Procedure Ordinance and such I consider it to be, as will appear hereafter.

It will also be observed, from what I have already said, that I do not consider that s. 561 of the Criminal Code of Queensland is, or ever has been in operation in the Territory of Papua, where s. 12 of the Criminal Procedure Ordinance has not been amended as it was for the Territory of New Guinea and the power to indict for, or present any charge that the evidence taken in the committal proceedings appears to warrant has been left to the Chief Magistrate, now the Judges of the Supreme Court.

Such an amendment never having been made in the Territory of Papua, the power of Judges to indict or lay a charge under s. 12 of the Criminal Procedure Ordinance continues to exist alongside that of a Law Officer of the Crown pursuant to the Criminal Procedure Amendment Ordinance of 1909 and s. 560 of the Code, although, for many years, it was exercised by a Judge only on circuit when he was not accompanied by one of the Crown Prosecutors, such as were available in Port Moresby and are now available for all circuits and it may be considered to have fallen into disuse, if it is not superfluous or even obsolete.

Up to the time of the cessation of civil administration in the Territory of New Guinea in 1942, it was not the practice of the Judges of that Territory to go on circuit and almost all indictments were presented and criminal trials were conducted at the seat of the Supreme Court in Rabaul, where there were a Crown Law Officer and Crown Prosecutors. In these circumstances there was no need to retain the power of the Judges to indict, a power which clouded the proper separation of the functions of the executive and the functions of the judiciary. It may well be that a similar separation would have expressly found its way into Papua had it not so happened that for so long a time its Chief Executive Officer was also its Chief Judicial Officer.

Section 12 of the Criminal Procedure Ordinance, in my opinion rightly, has always been assumed to have survived the introduction of the Criminal Code of Queensland and this assumption has been acted upon in the manner I have indicated. In the circumstances now existing, to which I have also referred, I consider that this section should be amended for the Territory of Papua to bring it into line with the section as it exists for the Territory of New Guinea. Consideration should also be given to the retention for some cases, at least in both Territories of the other powers in s. 12 of the Criminal Procedure Ordinance of 1889.

I would observe in passing from this subject that, although it is submitted for the Crown that s. 561 of the Criminal Code is in operation as a law in both Territories, the Crown, as I understand its attitude, is not contending for the unrestricted right to indict in all criminal cases without preliminary complaint or information, investigation and committal.

No case has come before me, nor have I heard of any case, in which an indictment has been presented where there has not been a magisterial investigation of the facts out of which the charge in the indictment has arisen. An indictment pursuant to s. 12 of the Criminal Procedure Ordinance of 1889, as amended for the Territory of New Guinea, is used by the Crown, as far as I am aware, when it is considered that there is something wanting or inadequate in the committal or, e.g., that the person performing the functions of a magistrate has under-estimated the strength or gravity of the case and it is also considered that the accused person or persons should be put upon trial, a trial in which the defence will be conducted by counsel, and the criminal litigation in which he or they have become involved should be brought to a conclusion, one way or the other, without further delay. It seems to me, at present, that such an indictment serves a useful purpose in the circumstances of these Territories and I have not seen any reason why its use should be further statutorily controlled. The good sense of the Crown Solicitor, under judicial guidance and control, should be sufficient to prevent any abuse of its employment.

GROUND (2): THAT THERE CAN BE NO EFFECTIVE COMMITTAL FOR SENTENCE

I do not think that there is any substance in any of the arguments submitted in support of this ground. I have read the judgment delivered by Mann C.J., and the judgment about to be delivered by Smithers J., and I do not spend time again tracing the relevant legislation which Their Honours have set out as applicable in each Territory. While I do not wish to be taken to agree with all their reasons, I do agree with Their Honours’ main conclusions that magistrates in each Territory have full and effective statutory authority in a proper case to commit an accused person “for sentence” before this Supreme Court and that this Court has unquestionable jurisdiction to entertain an indictment presented to it upon such a committal. Section 600 of the Code is a law in both Territories and an appropriate provision for this purpose. I would add to what Their Honours say as to the construction to be put upon the phrase “committed for trial” that, by virtue of the relevant provisions of the Justices Ordinance, 1912 amended, of the Territory of Papua and the District Courts Ordinance, 1924 amended, of the Territory of New Guinea, s. 3 of the Criminal Procedure Ordinance of 1889 should now be read, if necessary, as if the words; “or sentence” appeared therein after the phrase “committed for trial” and s. 12 of this Ordinance as if the words “or sentence” appeared therein after the phrase: “committed by a Magistrate for trial”.

Although, as I have said, I agree with the main conclusions of Smithers J. upon a committal “for sentence”, I do not agree that such committal results from anything in the nature of a bargain, or that it confers upon an accused person the right to be indicted, or imposes upon the Crown an obligation to indict him for the offence in respect of which he has been committed for sentence. The Crown Law Officer for the Territory of New Guinea, now the Secretary for Law, may, pursuant to s. 12 of the Criminal Procedure Ordinance of 1889, amended, lay any charge against a person who has been committed that the evidence appears to him to warrant. If he decides to indict him upon a charge other than that upon which the person has been committed, nevertheless the charge laid in the indictment arises out of the evidence taken in the committal proceedings and is laid by virtue of the fact of committal. In such circumstances I do not think that it is necessary or desirable that he should enter a nolle prosequi and it may well be argued that by doing so he has exhausted his power. Such a process should be reserved for the case in which he declines to lay any charge as provided for in s. 12 of the Criminal Procedure Ordinance of 1889: (Vide generally, comparing and contrasting, Poole v. Reginam)[cxciv]³⁰.

I would refuse the motion to quash the indictment and I consider that we should direct that the accused person be arraigned and his trial proceed before a single Judge.

Although the matter was not fully argued, I would add that it seems tolerably clear that we may, sitting together, exercise the jurisdiction of this Court, which each of us may exercise singly. It is good common sense that what each of us may do singly any two, three or four of us may do together and this seems to be contemplated by s. 58 of the Papua and New Guinea Act, 1949-1963. Subsection (4) of this section provides:

“(4)    The jurisdiction of the Supreme Court may be exercised:

(a)      by a judge or judges sitting in Court, and

(b)      to the extent and in the cases provided by or under Ordinance, by a judge sitting in chambers...”

The inclusion of the plural “judges” in (a) appears to be deliberate, particularly when it is alongside (b) providing for the exercise of the jurisdiction in chambers and limiting such exercise, as is usual, to a single judge.

Although the draftsman was concerned to ensure that the jurisdiction could be separately exercised by judges sitting contemporaneously, he provided for this in the concluding words of subsection (4):

“...and the jurisdiction of the Court may be so exercised notwithstanding that the jurisdiction is being exercised at the same time by another judge or judges.”

It was unnecessary for this purpose to include the plural “judges” in (a) of the subsection.

There is a difficulty, however, in that no provision has been made for the case when there is not unanimity but disagreement between the judges sitting together, although, of course, the decision of the majority of a Court, usually, if not universally, is the decision of the Court: Vide e.g. the Commonwealth Judiciary Act, 1903 amended, s. 23.

Likewise there is no provision with respect to an even number of judges sitting together, as in the section of the Judiciary Act, which I have just cited, and is sometimes provided against, as in the case in England of the Court of Criminal Appeal; Vide Halsbury’s Laws of England, Third Edition, Volume 9, p 448. We four are sitting together because it was thought that it would be of advantage if we all heard full argument upon the challenge to the indictment.

It is true that there is no rule that a Court is bound to abide by the decisions of another court of co-ordinate jurisdiction and I would think that this applies to judges of co-ordinate jurisdiction such as we are: Vide Halsbury’s Laws of England, Third Edition, Volume 22, p. 801, where this paragraph appears:

“1689 - Decisions of co-ordinate courts.

There is no statute or common law rule by which one court is bound to abide by the decision of another court of co-ordinate jurisdiction. Where, however, a judge of first instance after consideration has come to a definite decision on a matter arising out of a complicated and difficult enactment, the opinion has been expressed that a second judge of first instance of co-ordinate jurisdiction should follow that decision and the modern practice is that a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance unless he is convinced that that judgment was wrong.”

It was the practice there enunciated that I relied upon in declining to follow the separate decisions of all my brothers when I gave judgment in The Queen v. Mamote-Kulang[cxcv]³¹ and see R. v. Manga-Gabi[cxcvi]³².

However, when we sit together as the Court and more particularly if the matter were one of practice and procedure rather than substantive law, it may be that the dictates of judicial comity require that we should accept the decision of a majority: I have not formed any conclusion.

SMITHERS J:  An indictment has been presented to this Court by the Chief Crown Prosecutor. The indictment is signed by the Secretary for Law purporting to act as Crown Law Officer pursuant to s. 561 of the Criminal Code (Queensland, adopted) in its application to the Territory of New Guinea. The alleged offence was committed in the Territory of New Guinea. It is admitted that there has been a magisterial investigation into the facts out of which the offence is said to arise and that the investigating magistrate committed the accused for sentence pursuant to s. 111 of the District Courts Ordinance (1924-1961) of New Guinea on a charge of indecent dealing with a girl under the age of seventeen years contrary to s. 216 of the Code. The indictment presented to this Court is under s. 348 of the Code and is for rape and is said to be based on the evidence contained in depositions taken at the magisterial investigation. No other proceedings consequent on the committal for sentence have been taken and the accused is on bail awaiting action by the Court, whether pursuant to s. 600 of the Code or some other determination of the situation created by the committal for sentence.

Mr Germain appeared for the accused and contended that the indictment is ineffective to found any proceedings in the Supreme Court primarily on the ground that s. 3 of the Criminal Procedure Ordinance, 1889, of Papua is part of the law of New Guinea and provides that except in cases of informations, known to the law of England as ex officio informations, and informations by the Master of the Crown Office, no criminal case shall be brought under the cognizance of the Central Court unless the same shall have been previously investigated by a Magistrate and the accused shall have been committed for trial at such Court. The Central Court is now the Supreme Court.

He said that the accused person has not been committed for trial on the charge of rape or on any charge. He contended that the committal for sentence did not constitute committal for trial. He said further, and I agree, that this is not an ex officio information known to the law of England and it is certainly not an information by the Master of the Crown Office. Mr Germain said that the Supreme Court cannot deal with a matter arising out of a committal for sentence at all inasmuch as s. 600 of the Code is not part of the law of New Guinea.

In answer to the first contention Mr. Smith contended, in the first instance, that even if s. 3 is in force in New Guinea and takes effect there, according to its terms the accused has been committed for trial within its meaning. He said that a committal for sentence under s. 111 of the District Courts Ordinance of New Guinea is a committal for trial. To reach this conclusion it is necessary that the words “unless the same shall have been previously investigated by a Magistrate and the accused shall have been committed for trial at such Court,” (s. 3), shall be construed to include a reference to cases which have been investigated by a magistrate and in which the magistrate has committed the accused for sentence before the Supreme Court pursuant to s. 111 of the District Courts Ordinance. Such an interpretation is compatible enough with the objective of s. 3. The indictment of accused persons in the absence of a magisterial investigation is the mischief against which s. 3 is aimed. A committal for sentence after a magisterial investigation is not within this mischief. On this question of constructon the answer would seem to depend ultimately on whether a person committed for sentence suffers or enjoys what may properly be a trial sub modo. The proceedings before the Supreme Court are governed by s. 600 of the Code. They are designed to end in conviction or acquittal. A conviction can be achieved but only if there is a plea of guilty entered either in accordance with or against the will of the accused, or, in certain circumstances, after the hearing of witnesses. If a plea of guilty is entered it has “the same effect as if it had been actually pleaded”, that is it operates as an admission by the accused of the elements of the offence charged. Once that occurs the issue of guilt is determined and conviction follows. It seems to me that what has occurred is that the accused has had a trial, although he has been subject to severe limitations in relation to what he may plead. The issue of guilt has been before the Supreme Court and has been tried and determined in that Court according to law. It is to be noted that s. 600 of the Code refers to the proceedings as a trial. It says that in a case of a committal for sentence if a plea of not guilty is entered “the trial” is to proceed as in other cases where that plea is pleaded. In addition, regard may be had to the opening words of the section which say that when a person has been committed for sentence he is to be called upon to plead to the indictment “in the same manner as other persons”. This must mean “as other persons who are on trial”. It is my opinion, therefore, that a person committed for sentence under s. 111 is committed for trial within the meaning of s. 3.

I do not overlook that s. 111 itself speaks of committing for sentence “instead of” committing for trial. It is reasonable, however, to have regard to the practicalities of the matter. When the accused person is told he will be committed for sentence instead of being committed for trial, he is really being told in language intelligible to him “instead of being committed for trial when the issue of guilt will depend on the evidence of the witnesses, you will be committed for trial in which the issue of guilt will be determined on a plea of guilty which may be entered on your behalf either in accordance with, or against, your will”. The multiplication of instances of the use of the compendious expression “committed for sentence” in juxtaposition to committal for trial should not obscure the reality that both are committals for trial.

Accordingly, Mr. Germain is thrown back to his alternative argument that the Supreme Court cannot deal with the case because s. 600 of the Code is not in force in New Guinea.

It is my opinion that even if s. 600 were not part of the law of New Guinea there would be jurisdiction in the Supreme Court to deal with an accused person committed for sentence. The terms of s. 111 of the District Courts Ordinance create a situation which can only be resolved in the Supreme Court. In the absence of s. 600 that Court would have to work out its own procedure in such cases.

However, the question whether s. 600 is in force is obviously of considerable importance, both with respect to Papua and New Guinea, and should be examined.

The provisions of s. 600 are a Queensland invention and were originally enacted in s. 113 of the Queensland Justices Act of 1886. Section 113 contained two parts, one corresponding to what is now s. 111 of the District Courts Ordinance and the other corresponding to what is now s. 600 of the Code.

The whole of s. 113 became part of the law of Papua in 1888 when it was adopted by the Courts and Laws Adopting Ordinance of that year. In April of 1889 the Papuan Criminal Procedure Ordinance, 1889, became law. A question immediately arises as to whether s. 3 of that Ordinance repealed s. 113 of the Justices Act 1886.

In November, 1889, the Courts and Laws Adopting Ordinance of that year repealed the Courts and Laws Adopting Ordinance of 1888 and with it the Queensland Justices Act, 1886. However, it purported to adopt again the Queensland Justices Act, 1886, but this time only so far as such adopted provisions were not inconsistent with an existing Papuan Law. The Criminal Procedure Ordinance was then an existing Papuan Law. The relationship between s. 113 of the Justices Act and s. 3 of the Criminal Procedure Ordinance have therefore to be considered at each stage.

If it is correct to say that committal for trial referred to in s. 3 includes committal for sentence, then there was no implied repeal of s. 113 by the Criminal Procedure Ordinance of 1889 because there is on this basis no inconsistency between those sections. For the same reason the existence of s. 3 of the Criminal Procedure Ordinance of 1889 would be no obstacle to the effective re-enactment of s. 113 of the Justices Act by the Courts and Laws Adoption Ordinance of 1889. On this basis the whole of s. 113 was in force in Papua from 1888.

It seems quite clear that in 1902 and 1912 the Papuan legislature acted on the assumption that the provisions of both parts of s. 113 were in force in Papua. Thus in 1902 when s. 600 of the Code was enacted the enacting Ordinance expressly repealed “the last paragraph of s. 113 beginning with the words `When a defendant’ and ending at the end of the section”. See Schedule One of the Criminal Code Ordinance 1902. It is clear that the legislature was intending to do just what had been done in Queensland when the Code was enacted there, namely, merely transfer that part of s. 113 which related to the proceedings before the Supreme Court in cases where there had been a committal for sentence from the Justices Act to the Code, leaving the Magistrates power to commit for sentence in the appropriate legislation, namely, the Justices Act (Adopted). So far as legislative words are concerned this development is agreeably completed in 1912 when that part of s. 113 which still depended on the Queensland Justices Act was carried into the Papuan Justices Ordinance and the whole of the Queensland Justices Act was repealed. See Justices Ordinance 1912.

I do not think that it should be lightly concluded that an obvious legislative assumption as to the state of the law is erroneous. It is clear that in 1902 the legislature intended s. 600 to complement the provisions of s. 113 of the Justices Act (Adopted) believing that these provisions were in force in Papua. This belief was well justified if committal for trial included committal for sentence. It tends to confirm the validity of this construction. As a result I consider that s. 600 came into Papua at a time when the other part of s. 113 was in force in Papua by virtue of the Courts and Laws Adopting Ordinance, 1889. Together with that other part s. 600 enacted a complete system of committal for sentence by Magistrates and trial in the Supreme Court in such cases. I have no doubt that s. 600 is part of the law of Papua. Indeed for reasons which appear in my consideration of s. 561 the unconditional enactment of the Code in 1902 was effective to enact s. 600 whether or not committal for sentence is a committal for trial.

What then of s. 600 in New Guinea? It was originally taken to New Guinea, if at all, by s. 13 of the Laws Repeal and Adopting Ordinance of 1921 of that Territory. But it is said that s. 600 did not become part of the law of New Guinea because what may be called the other part of s. 113 of the Justices Act, 1886, (the District Courts Ordinance, s. 111), did not become law in New Guinea until 1924. See District Courts Ordinance of New Guinea of 1924.

As a result it is urged that in 1921 s. 600 could have no work to do because there were then no provisions in New Guinea for committing a person for sentence and it was therefore inapplicable in that Territory.

I do not think there is any validity in this argument. The Criminal Code was introduced inter alia to equip the Supreme Court with appropriate powers to dispose of indictable criminal cases and it was most rational and “applicable” to give it powers which were well understood and might be needed at any time. How rational this was can be judged in the light of the fact that in 1924 “the other part” of s. 113 of the Queensland Justices Act became s. 111 of the District Courts Ordinance and provided machinery under which advantage might be taken of the provisions, ambulatory till then, of s. 600.

It is then said that s. 3 of the Criminal Procedure Ordinance prevented the effective enactment of s. 600 in New Guinea in 1921. The adoption of the Code and s. 600 thereof by the Laws Repeal and Adopting Ordinance, 1921, was an adoption conditional upon the adopted provisions not being repugnant to, or inconsistent with, laws already made or that might thereafter be made. Section 3 of the Criminal Procedure Ordinance which was adopted by the same Ordinance was similarly conditionally adopted. How they might affect each other if they conflicted might be a difficult question. If one takes the provisions of s. 3 as they are written it might be said that they do conflict because s. 3 prohibits the bringing of any case to the cognizance of the Court otherwise than on committal for trial, whereas s. 600 authorises the Court to deal with the case of a person who is before it on a committal for sentence. I think, however, that being adopted by the same Ordinance they should be interpreted so as to stand together if that is reasonable having regard to the words used. I think, so considered, they can stand together on the basis that s. 600 is only an enabling section which remains ambulatory until circumstances exist under which it is lawful for cases to be brought to the cognizance of the Court after a committal for sentence. So considered it does not conflict with s. 3.

But, it has also to be remembered that s. 3 was only adopted in New Guinea so far as it was in force in Papua in 1921. In 1912 the Papuan legislature, acting with undoubted competence, enacted the Justices Ordinance of that year which contained a direct enactment of the committal for sentence provisions of the old s. 113. Also in 1902 by a direct enactment in the Criminal Code Ordinance, s. 600 became law in Papua. These provisions certainly impliedly amended s. 3 if, in fact, they conflicted with it.

It would follow that in 1921 the adoption in New Guinea of s. 3 as then in force in Papua would not be an obstacle to the operation of the provisions of s. 600. This conclusion is supported by the observations hereafter made with reference to the enactment in New Guinea of s. 561. Section 600 is therefore in force in New Guinea.

Mr. Germain said that if s. 600 is in force his client would like the benefit of it. He said that under it his client has a right to be tried on the committal for sentence for indecent dealing before he is indicted for rape or any other offence arising out of the same facts.

He said that in effect the exercise by the Magistrate of the power to commit his client for sentence effected what was in substance a statutory bargain under which his client submitted to the disabilities of s. 600 on the basis that he should be indicted for the offence to which he pleaded guilty. He said that completion of process against him under s. 600 may end in a conviction which would be a defence to the charge of rape and that his client should not in the circumstances be deprived of this defence. I understand him to move to quash the indictment on that ground.

I am of opinion that in a case in which there has been a committal for sentence the accused has a right to be indicted for the offence on which he has been so committed, or at least to have that committal proceeding disposed of by one of the other procedures for this purpose as explained in the judgment of my brother Minogue in this case. The committal for sentence procedure is rather a novelty. It is designed for the convenience of the Crown in the enforcement of the law. Section 111 of the District Courts Ordinance provides that if an accused person says at the magisterial investigation that he is guilty of the particular charge against him, he is to be invited to consider whether he desires the witnesses to appear to give evidence at the Court at which he is committed. He is told that if he does not so desire he will be committed for sentence instead of being committed for trial and that he will not afterwards be able to deny his guilt. Section 600 then applies to him and provides that in such a case “he is to be called upon to plead to the indictment”. I think that must mean the indictment for the offence for which he has been committed for sentence. If so, then, while the committal stands there is a statutory obligation on the Crown to indict him for that offence. This may well be of advantage to the accused as a conviction for that offence may save him from conviction for some more serious offence arising out of the same facts. I think this is supported by the other provisions of s. 600. They contemplate conviction on the offence charged or any other offence of which he might have been convicted on the indictment but certainly not on a more serious offence.

It seems to me therefore that those provisions of the law empowering the Crown to indict for any offence disclosed by the depositions, or for any offence whether or not there has been a magisterial investigation, or committal, must be read subject to the obligation of the Crown in cases where the accused has been committed for sentence and the committal proceedings have not been otherwise disposed of, to indict the accused for the offence for which he was so committed. I am quite aware that s. 12 of the Criminal Procedure Ordinance, in particular, and to a lesser extent s. 561 of the Code, create difficulties in respect of this matter. Nevertheless there is in my opinion, a direct statutory direction in s. 600 that the accused is to be indicted for the offence in respect of which he is committed. Once he has agreed to be committed for sentence, in a sense for the convenience of the Crown, and subjected himself to all the serious disabilities that follow from that, clear words would be necessary to induce me to think that the directions of s. 600 may be ignored. It is quite a reasonable view of s. 12 that it was not intended to extend to cases where, as in the case of a committal for sentence, legally binding consequences concerning the trial of the offence charged have arisen out of the committal itself. Either that, or it was intended that the discretion conferred by that section should be exercised in a way which respects such legal rights.

It may be that this view would, in the end achieve little for the accused, because the Crown having presented an indictment in respect of the offence for which the accused was committed for sentence might enter a nolle prosequi under s. 563 and then proceed against him for any offence open on the facts. That section applies to “any indictment” pending in the Court. Nevertheless, on the view I have adopted, a committal for sentence while it stands establishes a position in which in order to charge the accused with a more serious offence the Crown has to take the responsibility of itself depriving the accused of his prima facie privilege of being dealt with for the offence for which he has been committed for sentence. This is a step which is not lightly to be taken and there may be many cases in which the accused may reap the benefits of “agreeing” to a committal for sentence. It does not reflect well upon the administration of the law for the Crown to indulge too freely in the reversal of procedures deliberately taken against accused persons, especially where those persons have submitted to legal disabilities therein.

As the committal for sentence is still outstanding the indictment for rape must therefore either be amended to charge the accused with indecent dealing, or it must be quashed or be set aside at least pending the disposal of an indictment for indecent dealing. On the indictment for indecent dealing the Crown will have to consider whether it should enter a nolle prosequi.

I come now to the question which arises in respect of s. 561. The claim of the Crown is that notwithstanding that there may have been no committal for trial the Crown Law Officer is entitled to present an indictment pursuant to s. 561 of the Code. From what I have said above, such a claim, if otherwise valid, must be subject to s. 600 where there has been a committal for sentence. The Code enacts:

“CHAPTER LX

INDICTMENTS

Nature of Indictments

560.    When a person charged with an indictable offence has been committed for trial and it is intended to put him on his trial for the offence, the charge is to be reduced to writing in a document which is called an indictment.

The indictment is to be signed and presented to the Court by a Crown Law Officer or some other person appointed in that behalf by the Governor in Council.

Ex Officio Informations

561.    A Crown Law Officer may present an indictment in any Court of criminal jurisdiction against any person for any indictable offence, whether the accused person has been committed for trial or not.

An officer appointed by the Governor in Council to present indictments in any Court of criminal jurisdiction may present an indictment in that Court against any person for any indictable offence within the jurisdiction of the Court, whether the accused person has been committed for trial or not.”

The introduction into New Guinea of ss. 560, 561 and 600 of the Code and ss. 3 and 12 of the Criminal Procedure Ordinance was effected, if at all, by the Laws Repeal and Adopting Ordinance of 1921. Section 13 of that Ordinance provided that those portions of the Statutes of the State of Queensland specified in the Second Schedule that were in force in Queensland on the 9th May, 1921, were thereby adopted as laws of New Guinea so far as the same “are applicable to the circumstances of the Territory and are not repugnant to or inconsistent with the provisions of any law that has been or may hereafter be expressed to or extend to or be made in the Territory.” One of the Statutes set forth in the Second Schedule is the Queensland Criminal Code 1899 and its First Schedule, subject to certain amendments. The First Schedule is the Criminal Code and contains ss. 560 and 561 and s. 600.

Section 15 of the Laws Repeal and Adopting Ordinance 1921, provides that those portions of the Ordinances of the Territory of Papua specified in the Third Schedule thereto that are in force in the said Territory of Papua on the 9th May, 1921, “are hereby adopted as Ordinances” of the Territory so far as the same are applicable to the circumstances of the Territory and are not repugnant to or inconsistent with the provision of any Ordinance, law, etc., that has been or may hereafter be expressed to extend to or be applied to or made or promulgated in the Territory. The Third Schedule contained the Criminal Procedure Ordinance 1889.

The initial problem appears to be to ascertain with reference to ss. 3 and 12 of the Criminal Procedure Ordinance 1889, what portions thereof were in force in Papua on the 9th May, 1921, and with reference to ss. 560 and 600 of the Criminal Code what portions thereof were in force in Queensland on that date.

Looking first at the Criminal Procedure Ordinance 1889 it may be observed that neither s. 3 or s. 12 has ever been the subject of an express repeal in Papua. To determine what portions thereof were in force in Papua on the 5th May, 1921, it is necessary to consider to what extent, if any, they were impliedly amended or repealed by ss. 560 and 561 of the Criminal Code.

Sections 560 and 561 of the Criminal Code look for their enactment in Papua to the Criminal Code Ordinance 1902. This Ordinance with some disregard of grammar provides that “the provisions contained in the Criminal Code of Queensland set forth in the First Schedule to `The Criminal Code Act 1899’ of Queensland as it is amended by the Queensland Act 64 Victoria No. 7 (hereinafter called “The Code”) is hereby adopted and shall be the law of British New Guinea with respect to the several matters therein dealt with.” It goes on to provide that any reference in the Code to Queensland or to persons places or subjects in Queensland shall be taken as references to the Possession or corresponding or analogous persons places or subjects in the Possession (scil. of British New Guinea - now Papua).

Mr. Germain contended, and it was so decided by the Chief Justice in December last that s. 561 is not part of the law of New Guinea. This decision was based on the view that s. 3 of the Criminal Procedure Ordinance of 1889 was part of the law of New Guinea in accordance with its terms and that it expressed and introduced into New Guinea a principle vital to the freedom of the individual, namely, a freedom from liability to be brought to trial merely on the initiative and at the will of the executive without any magisterial investigation, and on the view that s. 561 was inoperative so far as it came into conflict with that principle.

That principle is a valid and important one, widely applied in England and normally observed in the administration of the law in most countries having a law based on the law of England. It is nevertheless true that in Queensland it has been invaded by s. 561. In New South Wales and Victoria it has incomplete application. In Victoria there is a right in the executive to give notice of trial to a person not committed for trial. This right was exercised as late as 1960.

It is also said that s. 561 cannot stand against s. 12 of the Criminal Procedure Ordinance. It is, of course, fundamental that a later statute repeals an earlier statute with which it is inconsistent. Lord Blackburn said in Garnett v. Bradley[cxcvii]³³, that where new affirmative words are such that the previous law can well stand with it then the old and the new may stand together, but where the new are such as by their necessity to import a contradiction, the two cannot stand together, the second repeals the first. The maxim is leges posteriores contrarias abrogant. A contradiction for this purpose may be express or implied. A contradiction of meaning is the critical element. Meaning is to be gathered from what is expressed and it includes what is involved in and forms part of that which is expressed. See Lubrano v. Gollin and Co. Pty. Ltd.[cxcviii]³⁴ and Rose v. Hvric[cxcix]³⁵.

In favour of the contention that ss. 3 and 12 were neither impliedly amended nor repealed by s. 561 it is urged that s. 561 never became law in Papua. It is recognised that the Ordinance introducing the Code is a later Ordinance than the Criminal Procedure Ordinance made by a competent legislative body, but it is said:

(a)      that s. 561 comes in, if at all, as part of a provision adopted from another country;

(b)      that where a matter of principle is involved it is a sound canon of construction that an adopted provision may be required to give way to a direct enactment;

(c)      that a matter of principle is involved in this issue, namely, the protection of the individual from indictment in the absence of a magisterial investigation and committal;

(d)      that s. 561 is inconsistent with s. 12 of the Criminal Procedure Ordinance;

(e)      that s. 561 is inconsistent with s. 3 of the Criminal Procedure Ordinance which expresses the principle.

Parts (a), (b) and (c) of this proposition may be accepted. It should be observed, however, that a competent legislature may change its mind even on a question of principle. The real question is whether the words used by the legislature express an intention to depart from the principle in favour of some other approach to the subject matter.

Taking first the items (d) and (e), I would observe:

(i)       Section 561 does not seem to me to be inconsistent with s. 12 of the Criminal Procedure Ordinance so far as it relates to persons not committed for trial. It merely provides a method by which such persons, who are alleged to have offended against the law, may be put on trial. Section 12 says nothing about such persons. In respect of persons who have been committed for trial s. 12 says that the Chief Magistrate “shall” consider the evidence taken in the matter by the committing Magistrate and may himself lay or direct or take certain other action. Section 561 may conflict with this if it means that the Magistrate is designated as the only person to lay or direct the laying of a charge in every case of committal for trial. Assuming that to be so it is obvious that to require a Chief Magistrate to play the additional role of prosecutor was itself out of harmony with principle and reflected merely the difficulty of administering the law in primitive and understaffed conditions. It was inevitable that an alternative method of bringing to trial persons who had been committed for trial would be introduced. Section 561 provides that alternative method. It is introduced in unambiguous terms. It is a progressive move so far as it relates to the indictment of persons committed for trial. I cannot doubt that if s. 12 was in conflict with s. 561 it was impliedly amended by that section.

(ii)      So far as s. 3 and s. 561 are concerned, it is clear that they cannot stand together. Granted that s. 3 expresses a principle of individual protection, there was honourable precedent in Queensland, and indeed in New South Wales and Victoria, for the invasion of that principle in favour of administrative convenience and the effective enforcement of the law. In both of these States an indictment may be presented by the Attorney General although there has been no committal for trial. As to Victoria, see Crimes Act, 1958, s. 354, 13 Geo. III c. 78 s. 24. R. v. Martin[cc]³⁶ and R. v. Canan[cci]³⁷. As to New South Wales see R. v. Baxter[ccii]³⁸ and R. v. Webb[cciii]³⁹. In these circumstances the provisions of s. 561 being considered as sufficiently respectable for the State of Queensland there seems to be little reason for rejecting it in Papua on grounds of principle. The shortage of manpower trained in the law, the notorious difficulties of communications and other conditions in Papua would strengthen the case for enacting s. 561 there.

The terms of the enacting Statute are perfectly clear. It speaks of adoption, but if one desired to emphasise that a piece of adopted legislation was to be immune from any notion that it was to be considered as subservient to earlier Ordinances which it contradicts, it would be difficult to draft a provision more apt for the purpose than that used in this case. The Criminal Code is not adopted by description. What is enacted is “the provisions contained in the Criminal Code of Queensland set forth in the First Schedule”. Those provisions are “adopted as and shall be the law of British New Guinea with respect to the several matters therein dealt with”. The method of the indictment of persons is one of the subjects dealt with in the enacted provisions. The idea of indictment for an offence permeates the whole Code. By s. 3 Crimes and Misdemeanours are categorized as indictable offences - the offenders cannot, unless otherwise expressly stated, be prosecuted or convicted except upon indictment. Chapter LX deals generally with indictments and its provisions prescribe their nature and form and lay down a comprehensive system of rules concerning them. Chapter LXI contains a detailed set of provisions setting out the effect of indictments. Alternative verdicts are provided for as are the powers to convict for an attempt on any indictment charging a person with committing an offence. It seems inconceivable that the Papuan legislature meant to enact this comprehensive set of provisions and yet not to enact one of the sections legically placed in the whole structure.

While the principles of interpreting an adopted statute mentioned above may well assist in the case of an ambiguous provision, I cannot imagine that such a clear enactment as this one is to be controlled by an earlier inconsistent enactment on the same subject. The very purpose of the Criminal Code Ordinance was to introduce the system of criminal law and procedure of another country in a comprehensive manner. It was almost inevitable that earlier enactments would be affected. Where a later adopted enactment was to operate only subject to the existing laws, the legislature of Papua was well experienced in expressing that notion. In this case it is more than significant that words are used which are most apt to express the contrary. Conceding therefore steps (a), (b) and (c) of the contentions now under discussion, I feel that they cannot prevail against the clear terms of the enactment of 1902. Accordingly, s. 3 was impliedly amended by s. 561 and the principle referred to in part (c) set out above has been departed from.

Mr. Germain argued, however, that even if this were so, nevertheless on the 9th May, 1921, ss. 3 and 12 were in force unamended within the meaning of the expression “in force” in s. 15 of the Laws Repeal and Adopting Ordinance of 1921 of New Guinea. Mr. Germain sought to support this contention by urging that “in force” in the section did not mean in force in the sense of “expressing and enacting the law for the time being” but meant, as to a Statute, “being upon the Statute book”. He contended that the whole of an enactment part of which had been impliedly amended could, in the sense for which he contended, be regarded as being on the statute book. In my view this cannot be supported. No authority is quoted for it, although some support is claimed from the remarks of Dixon J. (as he then was), in Sutherland v. The King[cciv]⁴⁰. Apart from these remarks it is not suggested that any support for his translation of the expression “in force” can be gained from any authority.

It is worth noting that the expression “in force” is used in the Laws Repeal and Adopting Ordinance in a number of sections in its ordinary and natural sense. See ss. 4 (1), 5, 8 (2), 12 (1), 12 (2), 12 (3), 14, 16. In most of these sections it is obvious that the words “in force” mean “is the law”. As an example, it would be utterly impossible to apply any other meaning with respect to the adoption of the rules of common law and equity that were “in force” in England on 9th May, 1921 (s. 16). Indeed it is far from clear just what Mr. Germain meant by “on the statute book”. He ultimately adopted the expression “not subject to an express repeal”.

In Sutherland v. The King[ccv]⁴¹, Dixon J. (as he then was) said “I think it was never intended to introduce trial by jury into the Territory of New Guinea and that it has been excluded”. It appears that His Honour treated the exclusion as being achieved partly by the fact that the jury provisions of the Code merely suppose but do not expressly or impliedly enact that there is to be a trial by jury, and, partly by the application of s. 21 of the Criminal Procedure Ordinance which said, in so many words, that trials before the Central Court should be before the Chief Magistrate sitting alone. Section 21 had been affected in Papua by the Jury Ordinance, 1907, which provided that “the trial of a person of European descent charged with a crime punishable with death shall be before a jury of four persons and that save as aforesaid the trials of all issues, both civil and criminal, shall as heretofore be held without a jury”. The learned judge indicated that there was a real question as to whether the 1907 provision “altogether repealed” section 21. This was no doubt the result of the words “save as aforesaid the trials of all issues, both civil and criminal, shall as heretofore be held without a jury”. Without these words there would have been an implied amendment only. The learned judge says: “On the whole I have come to the conclusion . . . it operates rather to amend it, and, subject to the alteration or amendment to confirm it in other respects. I think, therefore, that Clause 21 was in force in Papua at the relevant date.”

It is clear that His Honour was not suggesting that the law in Papua at the relevant date was that set out in s. 21. He points out that that law was “altered and amended” by the 1907 Act. The suggestion is, however, that he is indicating that notwithstanding this alteration and amendment s. 21 remained “in force” in accordance with its original terms for the purpose of the s. 15 of the Laws Repeal and Adoption Ordinance of 1921. How else it is urged could it be decided that trial by jury in New Guinea was excluded.

It is to be observed that the offence in question in Sutherland’s Case[ccvi]⁴² was not a capital offence. Whether s. 21 was carried to New Guinea in its original terms or subject to the 1907 alteration and amendment, it was still effective to exclude trial by jury in the offence under discussion. For the purposes of the issues involved the real question was whether s. 21 had been repealed in toto or not. There is ground, therefore, for thinking that when the learned Judge said that s. 21 was in force he was emphasising the non-repeal in toto, rather than suggesting that all of it was in force. To say that all of the section as originally enacted was in force in Papua in any ordinary legal sense would have contradicted what he had already set out about the alteration and amendment of the law by the 1907 enactment. If he had meant that there was some special meaning to be attributed to the term “in force” in the Laws Repeal and Adopting Ordinance it is impossible to imagine that the matter would not have been the subject of further explanation. Reading the judgment as directed to the purpose in hand it raises no unusual notions of interpretation and thus no necessity for further explanation. In so far as the actual words used permit of the suggestion under discussion the correct view would appear to be that they were not intended to do so and can properly be interpreted as not doing so.

It appears to me therefore that where the Code enacted in 1902 conflicts with the Criminal Procedure Ordinance it amends or repeals the Criminal Procedure Ordinance. It follows from this that such portion of s. 3 of the Criminal Procedure Ordinance as would otherwise forbid the bringing of a criminal case to this Court save after a committal ceased to be an absolute prohibition and did not operate to prevent the bringing before this Court of a criminal case by the method set out in s. 561 of the Code. Section 3 was thus amended to this extent and s. 12 is similarly affected. Whether this amendment operated as a repeal or a partial repeal may be a question but I do not think it necessary to grapple with it. However that may be it seems to me to be impossible to say that on the 9th May, 1921, s. 3 was in force in Papua in accordance with its terms. Before the Criminal Code Ordinance it was in force to the extent of the natural meaning of its terms and what it said was the law. After the Criminal Code Ordinance it was in force only to the extent that what it said was not modified, altered or contradicted by the later statute. There seems to be a paucity of authority as to the meaning of the expression “in force”. It seems, however, to be plain enough. When one refers to those portions of a statute that were in force on a particular date the natural meaning seems to designate those provisions of the statute which are still the law with respect to the subject matter with which they deal. If a statute expresses the law with respect to a certain subject matter in a certain way then in the absence of some repeal or amendment every portion of that statute may be said to be in force. Once some of that subject matter is dealt with by a later statute which declares the law thereon to be different from that laid down in the earlier statute then that portion of the earlier statute which declares the law on that particular matter is no longer law and cannot be said to be in force.

The Criminal Code Ordinance by s. 561 spoke on the subject of indictments in cases where there had been no committal and said that in such cases the Crown Law Officer might present an indictment to this Court. Section 3 said that except for certain exceptions not relevant for the moment, such cases could not be brought before the cognizance of this Court. Alter the Criminal Code Ordinance, the portion of s. 3 which said that such cases could not be brought before the Court no longer expressed the law. There is no legal sense in which it can be said to be in force.

If, therefore, s. 3 so far as it forbade the bringing of criminal cases before this Court other than after committal for trial was not in force after the Criminal Code Ordinance of 1902 then that portion of s. 3 was not taken to New Guinea by s. 15 of the Laws Repeal and Adoption statute of 1921.

As a result of the above there was in 1921 no obstacle to the enactment of s. 561 in New Guinea and it took effect according to its terms and it confers authority on the Crown Law Officer, or an officer appointed by the “Governor in Council” to present an indictment against any person whether or not that person has been committed for trial. The Chief Crown Prosecutor is such an appointed person.

I do not think that the 1924 amendment in New Guinea of s. 12 of the Criminal Procedure Ordinance substituting the Crown Law Officer of the Territory for the Chief Magistrate is of significance in the matter. Whether or not s. 561 was in force it was desirable to ensure that once a person was committed the evidence should be considered by the Crown Law Officer and that he should take proceedings or decline to take proceedings against the accused.

In the result, therefore, I consider:

(a)      Section 561 of the Code is in force in both Papua and New Guinea.

(b)      Section 600 of the Code is in force in both Papua and New Guinea.

(c)      In a case where there has been a committal for sentence the accused has a right to have that committal disposed of before being indicted under s. 12 of the Criminal Procedure Ordinance or s. 561 of the Code for any other offence arising out of the evidence upon which he was committed for sentence.

(d)      To the extent that ss. 561 and 600 of the Code and s. 111 of the District Courts Ordinance conflict with s. 3 of the Criminal Procedure Ordinance, that section is not the law.

I should observe that it has been in the past, and could be in the future, fraught with danger that there should be an unfettered right in the Crown or executive to bring persons to trial otherwise than after a magisterial investigation and a committal for trial. In Queensland the Supreme Court exercises a supervisory jurisdiction and this Court has a responsibility to do the same. It is my experience that the Crown is responsive to judicial opinion in particular cases but it would be a useful reform to declare by Ordinance the principles upon which the Crown might be permitted to indict in the absence of a committal for trial.

I also consider that the procedure of committal for sentence and trial in accordance with s. 600 is calculated to cause injustice. An ignorant, innocent accused person may well fatally compromise his position by a too ready acquiescence in the suggestion that he may not desire to have the witnesses at the trial. The Court should at least be given power to permit him to change his plea to not guilty in any case in which the accused satisfies the Court that he pleaded guilty through a misunderstanding, or, that on the evidence he has a reasonable chance of an acquittal.

MINOGUE J:  For the reasons he has stated I agree with the conclusions of my brother Smithers that committal for trial includes committal for sentence, that s. 600 of the Criminal Code (Queensland, adopted) forms part of the law of both Papua and New Guinea and that s. 561 of the Code similarly forms part of the law of both Territories, and that, consequently, under s. 561 the Crown Law Officer may present an ex-officio indictment whether or not the accused person has been committed for trial.

Whilst the power to prefer an ex-officio indictment without a magisterial investigation contains the seeds of danger, I cannot think that in a community which is committed to the rule of law such power is likely to be, or would be allowed to be, abused. It is a power which would but rarely and in special circumstances be used and which one would expect to be used with restraint and good sense. In any event I cannot imagine any Judge of the Supreme Court allowing a person to be arraigned on such an indictment without ensuring that he is fully aware of the case to be made against him and that he has had ample time and opportunity to prepare his defence. If it were otherwise then this country would surely be in the grip of tyranny and the existence of any law on the Statute Book could well be a mockery.

As indictment after full magisterial investigation has long been the practice both in the Territory and in the States of Australia and indictment ex-officio has been, and I have no doubt always will be, an exception to general practice, I think it desirable that some legislative guidance should be given as to the circumstances in which such an indictment may be used. Section 695 of the Code may well require the Crown Law Officer to proceed in accordance with the provisions of Chapter LXX but I am not satisfied that the requirement is mandatory and it would be helpful if the position were to be clarified by legislation.

In this case Ebulya was committed for sentence by the Magistrate on a charge of unlawfully and indecently assaulting one Ot. The indictment was presented against him in this Court charging him with committing rape on Ot. I propose to shortly state my views on the position of such a person committed for sentence upon one charge and indicted upon the same facts upon another charge. In my opinion the charge upon which he has been committed for sentence must be disposed of and that may be done in a number of ways which may vary according to whether the committal was in Papua or in New Guinea.

In both parts of the Territory if the accused person is arraigned on the charge on which he is committed for sentence then s. 600 of the Code is applicable and the Supreme Court must act according to its provisions.

The position is more complicated if the evidence as contained in the depositions taken by the committing magistrate appears to show either that a greater or lesser offence has been committed than that for which the accused person has been committed for sentence or to show that no offence has been committed.

If no offence appears to have been committed, in Papua a Supreme Court judge may act under the provisions of s. 12 and the following sections of the Criminal Procedure Ordinance of 1889 and quash the committal, or take the other steps permitted by the section. I suppose if the procedure there permitted were to be followed it would now be at the request of the Crown Law authorities. It is a procedure which seems quite anachronistic in this day and age. At the time of the enactment of the Criminal Procedure Ordinance of 1889, s. 28 of the Supreme Court Act of 1867 of Queensland empowered the Attorney-General to issue a warrant for the discharge of a person against whom he did not file an information. This Act was not adopted in British New Guinea. Its provisions would in 1888 have been quite inapplicable to the conditions of that Possession at that time and, in 1889 it would have seemed the practical thing to do to give the Chief Magistrate the powers given to him by the Criminal Procedure Ordinance. If no offence appears to have been committed and s. 12 is not availed of then, in my opinion, the Crown Law Officer must present an indictment for the offence for which the accused person was committed for sentence and then inform the Court, in accordance with the provisions of s. 563 of the Code, that the Crown will not further proceed upon that indictment.

If, on the other hand, it appears that a greater or lesser offence has been committed, the Crown Law Officer may present an indictment under s. 561 of the Code. In either of such cases, in my opinion, the accused person way upon arraignment plead not guilty to the indictment and he is not affected by the provisions of s. 600. It follows, in my view, that if such an indictment is to be presented the person accused must be notified of the intention of the Crown Law Officer in sufficient time for him to prepare his defence to the subject matter of the indictment.

In New Guinea if it appears to the Crown Law Officer that no offence has been committed, he may, in accordance with s. 12 of the Criminal Procedure Ordinance of 1889 (Papua, adopted), decline to lay a charge and then sign the Order referred to in s. 13, whereupon the person committed by the magistrate is entitled to his release from custody. If the depositions appear to show either that a greater or lesser offence has been committed for sentence, the Crown Law Officer may act either under s. 12 (supra) or under s. 561 of the Code and present an indictment for such offence as the evidence appears to warrant. In either of such cases my observations with regard to the situation in Papua are of equal application.

In both parts of the Territory if the Crown Law Officer decides to lay a charge for an offence different to that for which the accused person has been committed for sentence, the warrant of the magistrate committing for sentence must, of course, be disposed of. The Crown Law Officer should present an indictment for that offence and then enter a nolle prosequi under s. 563 of the Code.

Accordingly, in the case before us if the Crown Law Officer desires to proceed with the indictment against Ebulya for rape then, in my opinion, he must enter a nolle prosequi in respect of the indictment for unlawful and indecent dealing.

It is interesting to note that in Queensland since 1934 s. 600 has had no application in the case of aboriginals. The Aboriginals Protection and Restriction of the Sale of Opium Acts Amendment Act of 1934, in effect precludes any court, judge or justice from accepting or allowing to be recorded or entered any plea of guilty when pleaded by or on behalf of an aboriginal to any indictment, complaint or charge for or of any crime, misdemeanour or offence indictable or otherwise preferred against such aboriginal. It may be that legislative consideration should be given in this Territory to the non-acceptance by the Court of a plea of guilty where an indigenous accused person has not had the benefit of legal advice.

Motion refused and accused to be arraigned before a single judge.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitor for the Accused: W. A. Lalor, Public Solicitor.

[clxv](1963) 2 P. and N.G.L.R. 181.

[clxvi](1963) 2 P. and N.G.L.R. 181.

[clxvii](1934) 52 C.L.R. 356

[clxviii]Reported in this Volume, p. 167.

[clxix]53 C.L.R. 1.

[clxx]19 C.L.R. 629.

[clxxi]19 C.L.R. 629.

[clxxii]19 C.L.R. 629.

[clxxiii][1934] HCA 59; 52 C.L.R. 356.

[clxxiv]1958 P. p. 54.

[clxxv](1934) 52 C.L.R. 356.

[clxxvi]1956 1 Q.B. 1.

[clxxvii]1958 P. p. 54 at pp. 68 and 69.

[clxxviii]53 C.L.R. 1.

[clxxix]1887 8 Q.L.J. 102, 103.

[clxxx]1960 Q.R. p. 443.

[clxxxi]1945 Q.W.N. 35.

[clxxxii]1938 St.R.Qd. 285.

[clxxxiii][1891] UKLawRpKQB 189; 1892 1 Q.B. 702 at pp. 706, 707.

[clxxxiv][1891] UKLawRpKQB 189; 1892 1 Q.B. 702 at pp. 706, 707.

[clxxxv](1963) 2 P. & N.G.L.R. 181.

[clxxxvi](1963) 2 P. & N.G.L.R. 181.

[clxxxvii](1934) 52 C.L.R. 356.

[clxxxviii](1914-1915) 19 C.L.R. 629.

[clxxxix](1960) St.R.Qd. 443.

[cxc](1963) 2 P. & N.G.L.R. 181.

[cxci](1934) 52 C.L.R. 356.

[cxcii](1934) 52 C.L.R. 356.

[cxciii](1934-1935) 53 C.L.R. 1.

[cxciv](1960) 3 All E.R. 398.

[cxcv](1963) P. & N.G.L.R. 163.

[cxcvi](1963) P. & N.G.L.R. 97 at p. 106.

[cxcvii](1878) 3 A.C. at 966.

[cxcviii](1919) 27 C.L.R. at 118.

[cxcix](1963) 108 C.L.R. at 353.

[cc]10 V.L.R. (L) 343.

[cci](1918) V.L.R. 390.

[ccii](1904) 5 S.R. (N.S.W.) 134.

[cciii]Q.R. 443.

[cciv]52 C.L.R. 360.

[ccv]52 C.L.R. 360.

[ccvi] 52 C.L.R. 360.