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Craig v Kappu [1964] PNGLR 96 (3 March 1964)

Papua New Guinea Law Reports - 1964

[1964] PNGLR 96 - Frederick Alan Craig v Martin Kappu

[1964] PNGLR 96

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

FREDERICK ALAN CRAIG

V

MARTIN KAPPU

Rabaul

Ollerenshaw J

3 March 1964

MOTOR TRAFFIC - Prosecution for failing to produce licence - Power to require - Implied and express powers - Officer acting “in the execution of his duty” - Officer “to do all things in his power” - Time for production - Motor Traffic Ordinance 1950-1963, sections 8 (1) 20 and 30, Regulation 16.

S. 8 (1) of the Motor Traffic Ordinance 1950 reads:

“A driver of a motor vehicle who, when required by a member of the Police Force in the execution of his duty under this Ordinance or the Regulations, to produce his licence, fails to do so, shall be guilty of an offence.”

A complaint under this section was laid in the District Court at Rabaul against the respondent. At the hearing the magistrate dismissed the complaint on the ground that neither in section 8 nor in any other section of the Ordinance is power given to a member of the Police Force to require production of a driving licence. The phrase “in the execution of his duty under this Ordinance or the Regulations” indicated to the magistrate that direct express power requiring production must be found in the Ordinance.

On appeal to the Supreme Court.

Held:

Power to require production arises from s. 8 (1) by necessary implication. The officer may require such production only in circumstances where it is in the execution of his duty under the Ordinance or Regulations. It is not necessary for the Legislature directly to forbid a certain act when it makes the commission or ommission of such an act an offence. The term “all things in his power” in s. 30 is not confined to “legal power” but simply denotes as absolute duty on the police officer to ensure observance of the Ordinance and Regulations within the limits of his capacity or ability, provided he does not act illegally.

Order granted allowing appeal and quashing dismissal by magistrate with direction to remit case to District Court for hearing.

Price v. Mulraney [1956] VicLawRp 23; (1956) V.L.R. 677 referred to

Motor Traffic Act (1909) (N.S.W.) Reg. 64

Road Traffic Act (1960) (U.K. s. 225 (4)

Motor Car Act (1951) (Vic.)

OLLERENSHAW J:  This is an appeal against the adjudication of a Magistrate, sitting in the District Court at Rabaul, whereby he dismissed an Information laid by the Appellant against the Respondent on the ground that the Information disclosed no offence.

The information was laid under subsection (1) of section 8 of the Motor Traffic Ordinance, No. 28 of 1950, which subsection enacts as follows:

“8.

(1)      A driver of a motor vehicle who, when required by a member of the Police Force in the execution of his duty under this Ordinance or the Regulations, to produce his licence, fails to do so, shall be guilty of an offence.”

It is convenient to mention here that section 20 of the Ordinance prescribes the penalty in the case of a contravention of any provision of the Ordinance in these terms:

“20.    A person who commits an offence against or contravenes any provision of this Ordinance or the Regulations shall, where no other penalty is provided, be liable in respect of any such offence or contravention to a penalty not exceeding Fifty pounds or imprisonment for three months.”

The information is in these terms:

“At Rabaul on the 1st day of September, 1963, Martin Kappu, aged about thirty years, of Nonga Sawmill, Nonga, Rabaul, being the driver of a motor vehicle, to wit, a Nissan utility, registered number TP&NG 19.474, was required by a member of the Police Force, to wit, Sub Inspector Craig, in the execution of his duty under this Ordinance or the Regulations, to produce his licence and did fail to do so, contrary to section 8 (1) of the Motor Traffic Ordinance.”

The learned Magistrate appears to have been impressed by the absence from the Ordinance of any direct affirmative requirement of a driver of a motor vehicle to produce his licence, the subsection merely making it an offence to fail to do so, and also by the absence from the Ordinance and Regulations of any requirement, direct or indirect, of a driver of a motor vehicle to carry his licence with him such as is found in some comparative legislation.

However, so far as I understand his Reasons for his decision the learned Magistrate really based his finding and dismissal of the Information upon his conclusion that a member of the Police Force is not given any power in section 8 (1), or elsewhere in the Ordinance, to require a driver to produce his licence. He was moved to this conclusion, in the main, by the presence in the subsection of the words “... in the execution of his duty under this Ordinance or the Regulations . . .”, which he noted were not contained in the corresponding sections of the comparative legislation of Victoria and Queensland (to which I may add New South Wales).

Because of the absence of any direct express power given in the subsection to a member of the Police Force to require production of a licence and because of the presence therein of these words “. . . in the execution of his duty under this Ordinance or the Regulations . . .” the learned Magistrate considered that the subsection was not-to use his own words - “self-contained” and that the power to require production of a licence, if any, must be found elsewhere in the Ordinance. His search for it was not successful.

He did consider section 30 in these terms:

“Each European member of the Police Force shall do all things in his power to ensure that this Ordinance and the Regulations are duly observed...”

and, although he appears to have thought that the inspection of the licences of drivers of motor vehicles would be a necessary incident of the enforcement of the provisions of the Ordinance with regard to the licensing of such drivers, he considered that the word “power” in this section avoided the force of such an argument because, in his opinion, “power” meant legal power. Section 30 does not expressly confer the power to require production and the learned Magistrate considered that such a power cannot be implied from the express duty because the duty of a member of the Police Force is to do all things he is legally empowered to do.

Counsel for the Respondent adopted the reasons of the learned Magistrate, subject to this: that they fail to draw attention to what he submitted was their necessary basis, namely, yet another absence from the subsection, the absence of the word “acting” before the words “in the execution of his duty”. From this he submitted that the actual act by a member of the Police Force of requiring the production of a licence should be expressly authorised, otherwise it follows, for the reasons upon which the learned Magistrate relied, that the subsection is inoperative.

The short answer to all this is, in my judgment, that the power to require production of a licence by a driver of a motor vehicle is conferred upon a member of the Police Force by necessary implication in subsection (1) of section 8 itself. In clear and unambiguous language the subsection makes it an offence for a driver to fail to produce his licence when required to do so by a member of the Police Force in the execution of his duty under the Ordinance or the Regulations and not to imply a power to require production would render the subsection inoperative and nugatory. The books abound with cases in which statutes have been held by Courts to confer powers by implication and this, to my mind, is an obvious case. There is nothing in the circumstances, object, scheme or words of the Ordinance that would prevent such an implication and, indeed, they all fortify it.

It is true, of course, that a member of the Police Force is empowered to make his requirement only in the execution of his duty under the Ordinance or Regulations, but this is a matter for particulars (if required) and evidence. The information is drawn in the terms of the subsection and sufficiently discloses and alleges an offence and so I hold. Whether or not the member of the Police Force made his requirement in the execution of his duty under the Ordinance or the Regulations is a mixed question of law and fact to be determined when the Information is heard.

I consider that I should say something further about the particular problem with which the learned Magistrate felt himself confronted.

1.          ABSENCE OF A DIRECT STATUTORY REQUISITION TO PRODUCE A LICENCE

In legislation such as this the legislature may command persons to do or to refrain from doing a certain thing and then provide that a failure to heed its bidding shall be a punishable offence. It is equally, if not more common for the legislature simply to enact that to do or to fail to do a certain thing shall be an offence. This latter method has been adopted consistently in the Motor Traffic Ordinance itself, which does not, e.g., directly forbid a person to drive a motor vehicle without having been licensed for that purpose, or, whilst under the influence of intoxicating liquor, or, directly command a driver of a motor vehicle to stop after or report an accident, or, to give certain information in certain circumstances, and so on. All these matters are provided for simply in the terms of offences, as, too, all criminal responsibility is provided for in the Criminal Code itself, which does not in terms forbid a person unlawfully to kill another or steal, and so on.

2.         ABSENCE OF ANY PROVISION REQUIRING A DRIVER OF A MOTOR VEHICLE UPON A PUBLIC STREET TO CARRY HIS LICENCE

It is true that unlike the comparative legislation to which I have referred, neither the Motor Traffic Ordinance or Regulations require, directly or indirectly, a driver to carry his licence and I agree with the expressed opinion of the learned Magistrate that Motor Traffic Regulation No. 16, which prescribes the form of a licence with a “Note” of warning thereon to the effect that it must always be carried, does not make a failure to carry it an offence. However, I cannot see that this bears upon the particular problem in the construction of section 8 (1) with which the learned Magistrate was concerned.

The absence of a statutory requirement to carry a licence, which requirement usually appears in comparative legislation couched in the language of an offence separate from the provision for the production of the licence, and usually immediately preceding it, may bear upon the question as to whether subsection (1) of section 8 requires immediate production or merely production within a reasonable time. This question was not argued and it is not necessary for me to say more than that, whatever is the proper construction of section 8(1) in this respect, it is not necessary to allege in an Information either that the failure to produce was immediate or after the lapse of a reasonable time. It is my understanding that the practice of the Police in, e.g., New South Wales, is to allow a reasonable time for the production of a licence, although I am not aware of any authority for implying the words “within a reasonable time” in the corresponding Regulation 64 of the Regulations under the Motor Traffic Act, 1909, of New South Wales. In England production of a licence within five days after it is required will avoid a conviction under the corresponding English enactment but that is because it is expressly provided in a proviso to section 225 (4) of the Road Traffic Act, 1960, that a driver cannot be convicted of an offence under that subsection if he produces his licence as therein provided within five days after its production was required.

I note that it has been held upon a set of somewhat unusual facts in Victoria that the words: “within a reasonable time of the happening of the accident” should be implied in a provision in the Motor Car Act 1951 of that State, which requires the driver of a motor car becoming involved in an accident to give certain particulars to a person injured, or to the owner of the property damaged, or to the representative of such person or owner: vide Price v. Mulraney[lxxix]¹ . I do not wish to be taken to agree or to disagree with that decision or its application to the construction of subsection (1) of section 8 of the Motor Traffic Ordinance and merely note it as an example of judicial implication for what assistance it may offer if and when this question arises whether the production of a licence required by the subsection is required to be immediately upon or within a reasonable time after the requirement to produce being made.

3.         PRESENCE OF THE WORDS “...IN THE EXECUTION OF HIS DUTY UNDER THIS ORDINANCE OR THE REGULATIONS”

It is true that these words do not appear in the corresponding provisions of the comparative legislation cited by the learned Magistrate and already mentioned in this judgment. However, I think that they are clearly implied in and add nothing to such corresponding provisions to differentiate them from our section 8 (1) of the Motor Traffic Ordinance. I am inclined to think that they were the learned Magistrate presiding in a Court of Petty Sessions in Sydney in a case in which the evidence showed that a Police Constable had required the production of a licence merely from vindictiveness or a sense of mischief he would make this implication and hold that no offence had been committed because the Constable had not required the production in the execution of his duty under the relevant legislation.

I may add here with respect to a submission by Counsel for the Respondent upon the absence of the word “acting” that, in my view, the subsection does not need it, expressly or by implication, an implication that could be made readily if necessary. By the terms of the subsection a member of the Police Force must make his requirement in the execution of his duty and I have already held that the power to require production is granted impliedly by the subsection.

4.         SECTION 30 OF THE MOTOR TRAFFIC ORDINANCE

I have already cited from this section which requires that: “Each European member of the Police Force shall do all things in his power to ensure that this Ordinance and Regulations are duly observed.”

It should be clear from what I have said in deciding that the Information does disclose an offence that I do not place any direct reliance upon this section in holding that a member of the Police Force has the power to require production of a licence although it is one of the provisions which do not detract from and assist the implication of the grant of such power by subsection (1) of section 8 itself.

I think, however, that I should also refer to the learned Magistrate’s interpretation of the word “power” in the phrase: “all things in his power” in this section 30. I do not agree with the interpretation of the word in a strict technical sense to mean “legal power”. The words of the section are directed to the duty of a member of the Police Force and should not be construed to place upon him the absolute duty of ensuring observance of the Ordinance and Regulations irrespective of the circumstances existing at a particular time and his physical and mental abilities in such circumstances.

I think the word “power” in this section has the same meaning as it has in the common phrase: “I will do all things in my power”, which I take to mean all things that I have the ability or capacity physically and mentally to do. Whether or not the ordinary citizen, when he uses these words, means to restrict his endeavours to what he may legally do, it is clear that the words of the section cannot and do not require or permit a member of the Police Force, when he is exerting himself to his utmost, to act illegally; he must not exceed his legal powers and privileges.

Counsel for the Respondent argued that the second part of this section 30 qualifies the first part. The second part expressly confers power upon a member of the Police Force, in all cases not expressly provided for, to give such reasonable directions as are, in his opinion, necessary for the safe and efficient regulation of traffic upon a public street. Counsel submitted that, because this second part of the section dealt specifically with the power of a member of the Police Force in cases not expressly provided for, the duty imposed upon a member of the Police Force by the first part was restricted to cases expressly provided for and did not include a duty when the power to act was implied and not expressed. In the view I have taken of subsection (1) of section 8, this submission has no bearing upon the question arising in this appeal. However, as the matter was argued, I should say that I do not agree with this submission. Each of the two parts, or limbs, of the section deals with a distinctly different subject matter. The first limb covers the general duty of a member of the Police Force under the Ordinance and Regulations, and the second limb confers upon a member certain special powers in special circumstances. I consider that each limb should be construed as a separate section, as I think they should have been drafted, and that the second part, or limb, does not qualify the first part, or limb, in the way submitted. The section has been borrowed from a clumsily drafted corresponding provision in comparative legislation.

It follows from my holding that the Information does disclose an offence that this appeal should be allowed and I make the following orders:

(1)      That the appeal be allowed,

(2)      That the dismissal of the Information laid by the Appellant Frederick Alan Craig against the Respondent Martin Kappu on the fourth day of November, 1963, be quashed, and

(3)      That the case be remitted to the District Court at Rabaul for the hearing of the said Information.

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

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

[lxxix][1956] VicLawRp 23; (1956) V.L.R. 677, Sholl J.