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Pukari-Flabu v Hambakon-Sma [1965-66] PNGLR 348 (25 August 1966)

Papua New Guinea Law Reports - 1965-66

[1965-66] PNGLR 348 - Pukari-Flabu v Hambakon-Sma

[1965-66] PNGLR 348

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PUKARI-FLABU

HAMBAKON-SMA

Port Moresby

Frost J

25 July 1966

25 August 1966

CRIMINAL LAW - Wilfully and unlawfully damaging property - Criminal Code - Proof of intention to cause damage - “Wilfully” wider than “intentionally” and includes “recklessness” - District Courts Ordinance 1963, ss. 225 (1), 236 (1)(c)(d)(f), 236 (2); The Criminal Code (Queensland, adopted), ss. 23, 444, 461, 462, 462 (2), 468, 469.

By s. 469 of The Criminal Code (Queensland, adopted), “Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence . . .”. By s. 468 of the Criminal Code, “Any person who wilfully and unlawfully kills, maims or wounds, any animal capable of being stolen is guilty of an indictable offence . . .”. Section 480 of the Criminal Code provides:

“When a person is charged before two justices with any of the indictable offences following, that is to say,

(a) Wilfully and unlawfully destroying or damaging any property . . .

(b) Wilfully and unlawfully killing, maiming, or wounding any animal capable of being stolen; . . .

then . . . the justices may, except as hereinafter stated, deal with the charge summarily. . . .

If it appears that the injury complained of was done in the course of hunting or fishing, or in the pursuit of game, and was not done with an intention to destroy or damage the property injured, the justices cannot deal with the case summarily.”

The accused was charged under s. 469 of the Criminal Code with wilfully and unlawfully damaging a motor car. In reply to questions by the magistrate, the accused agreed that he had deliberately thrown a bottle from a bus and that the bottle had broken the windscreen of the car. When asked if he had intended the bottle to strike the car, he replied that he did not know the vehicle was there. Upon these replies the magistrate entered a plea of guilty. The magistrate also failed to advise the accused of his right to elect to be tried by the Supreme Court.

Held:

(1) Where an offence can be dealt with summarily or by indictment, a court of summary jurisdiction must first tell the accused of his right, instead of being tried summarily, to be tried before a Supreme Court judge. Failure to observe this requirement renders a conviction a nullity.

(2) The accused admitted that he deliberately threw the bottle from the bus so no question arose whether he was excused from criminal responsibility on the ground that the act done occurred independently of the exercise of his will. But as he claimed that he did not know the vehicle was there, there was at once an issue whether the event of the bottle striking the vehicle occurred by accident, because the word “willfully” in s. 469 does not, in this case, relate to the act of throwing the bottle but to the act of damaging the motor vehicle.

(3) Section 468 and s. 469 should be read with s. 480 so as to avoid any inconsistency, by attributing to the word “wilfully” a wider meaning than “intentionally” and including “recklessness”.

(4) In the answers made by the accused to the questions put by the magistrate, there were no admissions nor could inferences be drawn either that he intended to damage the motor vehicle or that he had foreseen that his act was likely to damage a motor vehicle, or that he recklessly took the risk, thus the plea of guilty was improperly entered.

Cases Referred To:

R. v. Cockshott, [1898] UKLawRpKQB 37; [1898] 1 Q.B. 582; R. v. Salisbury & Amesbury Justices, Ex parte Greatbatch, [1954] 2 Q.B. 142; Mines v. Doddrell, [1938] SAStRp 15; [1938] S.A.S.R. 90; Peattie v. Murphy (1965), 82 W.N. (N.S.W.) 163; R. v. Durham Quarter Sessions-Ex parte Virgo, [1952] 2 Q.B. 1; R. v. Graham Campbell, Ex parte Moussa, [1921] 2 K.B. 473; R. v. Burnell, [1966] Qd.R. 348; R. v. Senior, [1898] UKLawRpKQB 205; [1899] 1 Q.B. 283; Lamberton v. Hill, [1943] VicLawRp 27; [1944] V.L.R. 11; Wells v. Hardy, [1964] 2 Q.B. 447; Canada Sugar Refining Co. v. R., [1898] UKLawRpAC 47; [1898] A.C. 735; R. v. Holroyd [1841] EngR 442; (1841), 2 M. & Rob. 339; Casewell v. Powell Duffryn, [1940] A.C. 152; R. v. Cunningham, [1957] 2 Q.B. 396; Vallance v. R. [1961] HCA 42; (1961), 108 C.L.R. 56; Eaton v. Cobb, [1950] 1 All E.R. 1016.

Appeal from District Court.

The facts appear sufficiently from the judgment.

Counsel:

Bowen, for the appellant.

Croft, for the respondent.

Cur. adv. vult.

25 August 1966

FROST J: This is an appeal brought under Part XI of the District Courts Ordinance 1963 against a decision of the learned stipendiary magistrate in the Port Moresby District Court on the 23rd May, 1966, whereby the defendant was convicted and adjudged to be imprisoned for one month on a charge of wilfully and unlawfully damaging on the 20th of May, 1966, a Holden sedan to the extent of £80.

The grounds of appeal were:

(1) that the court wrongly entered a plea of guilty on behalf of the defendant;

(2) that there was no evidence that the defendant wilfully and unlawfully damaged a motor vehicle;

(3) that the magistrate had no jurisdiction;

(4) the sentence was excessive.

The third ground was added on the hearing of appeal pursuant to leave to amend the notice of appeal which I gave, there being no objection by counsel for the respondent.

Pursuant to the Ordinance the learned magistrate forwarded a copy of the reasons given by him for the making of the conviction, which were as follows:

“Reasons for Decision.

The defendant appeared before me on the 23rd May, 1966, on the stated charge. The charge was read and explained to the defendant with the use of an interpreter. The plea was then taken in the following form, after I had been informed of the facts by the police prosecutor to enable me to take the plea.

‘It is alleged that you were travelling in a bus and you threw a bottle from the bus. Is that correct?’

Deft.: ‘Yes.’

‘The bottle you threw struck the windscreen of a motor vehicle and smashed the windscreen. Is that correct?’

Deft.: ‘Yes.’

‘Did you deliberately throw the bottle from the bus?’

Deft.: ‘Yes.’

‘Did you intend it to strike the other motor vehicle?’

Deft.: ‘I did not know the vehicle was there.’

Relying on the defendant’s answers I entered a plea of ‘guilty’ to the charge.

Dealing with the first ground of appeal, it was my opinion that the wilful element in the charge related to the actions of the defendant and did not require an intention to cause damage.

The defendant admitted to a wilful act, although he denied an intention to cause damage and for the purpose of the plea I accepted the defendant’s version of the incident.

Re the second ground of appeal: The defendant admitted that he had thrown the bottle from the bus. He denied an intention to cause damage and it was on the facts admitted that I considered the case. I consider that ‘wilfully’ related to the act and not the intention to cause damage.

His act was clearly unlawful in that it breached statutory provisions.

Re the third ground of appeal: The action of the defendant was one likely to cause personal injury and/or property damage. I considered a sentence of two months’ imprisonment with hard labour a reasonable one. It was after taking into account the antecedents of the defendant and his behaviour that I imposed the sentence of one month.

In relation to the proceedings generally: In this case the defendant was entitled to a trial in the Supreme Court. The matter could be dealt with in the District Court jurisdiction at the election of the defendant. From my record of proceedings it is apparent that I did not give him the opportunity to exercise his right of election.”

The statement of facts of which the learned magistrate was informed was as follows:

“Statement of Facts.

At about 12.45 p.m. on Friday the 20th May, 1966, Officer Cadet Hambakon-Sma was on duty at Port Moresby police station when the defendant was brought in to the station by the complainant, Peter Pako.

The complainant stated that on the 20th May, 1966, at about 12.30 p.m. he was driving his car along Karius Road towards Gabutu. As he approached the bus, the defendant, who was in that bus, threw a bottle at him and hit his windscreen of the car.

The defendant then interviewed at the station regarding the allegation of the alleged offence. The defendant was asked, admitted throwing the bottle.

The defendant was warned, arrested, charged with the present offence and detained in lawful custody.”

Under the District Courts Ordinance 1963, a person aggrieved by a conviction, order, etc., of the court may appeal to the Supreme Court from the conviction, etc., in accordance with Part XI of the Ordinance: s. 225 (1). Upon the hearing of an appeal the Supreme Court shall inquire into the matter and may, inter alia, affirm, quash or vary the conviction, etc.: s. 236 (c), remit the case for hearing or further hearing before the court which made the conviction: ibid. (d), and make such further order or other order as to costs or otherwise as the case requires: ibid. (f). An appeal shall be allowed only if it appears to the Supreme Court that there has been a substantial miscarriage of justice: s. 236 (2).

At the hearing Mr. Croft, who appeared for the respondent, conceded that the appeal should succeed on grounds (1) and (3), so it will be convenient to deal with these grounds first. The second ground is covered by the first, and it is unnecessary for me to deal with the fourth ground. The third ground of appeal is taken because the learned magistrate very properly drew attention to his omission to inform the defendant that he had a right to be tried before the Supreme Court and thus he proceeded under the summary procedure without fulfilling the prescribed steps.

The appellant was charged under s. 469 of The Criminal Code (Queensland, adopted), which provides as follows:

“Malicious injuries in general.

469. Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence which, unless otherwise stated, is a misdemeanour, and he is liable, if no other punishment is provided, to imprisonment with hard labour for two years, or, if the offence is committed by night, to imprisonment with hard labour for three years.”

When a person is charged under that section, in certain circumstances, including, inter alia, that the amount of the injury done does not exceed £100, the justices may, except as thereafter stated, deal with the charge summarily: The Criminal Code, s. 480 (1). (“Justices” must refer to magistrates under the District Courts Ordinance, as the analogous person in the Territory: Criminal Code Ordinance of 1902, s. 1.) The summary jurisdiction referred to is to be exercised subject to the Criminal Code, s. 444, which provides that before the accused person is asked to show cause why he should not be convicted, the justices are required to explain to him that he is entitled to be tried before the Supreme Court, and is not obliged to make any defence before them, and to ask him whether he objects to the charge being dealt with summarily: ibid. s. 481.

In England and the States of Australia, where certain offences can, of course, be dealt with either summarily or by indictment, it is well established that on a charge of a summary offence for which the person charged may claim to be tried by a jury, a court of summary jurisdiction must first tell the accused of his right, instead of being tried summarily, to be tried by a jury and then ask him whether he wishes to be so tried. R. v. Cockshott[cccxlii]¹; Reg. v. Salisbury & Amesbury Justices, ex p. Great-batch[cccxliii]²; Mines v. Doddrell[cccxliv]³ (Full Court). He must be so informed before he is asked to plead (ibid.). Failure to observe the requirements of the summary procedure renders a conviction a nullity (ibid.). Although trial by jury cannot be had in the Territory, the statutory requirements for the exercise of the summary jurisdiction must still be strictly observed. The legislature intended to give the accused the right of being tried by the Supreme Court for any reason which might lead him to prefer to be tried before a Supreme Court judge. (Compare R. v. Cockshott[cccxlv]⁴)

As this procedure was not observed, there was a substantial miscarriage of justice and the conviction must be set aside. Mr. Bowen asked me simply to quash it. He argued that the appellant was prejudiced because he had made admissions which could be proved in subsequent proceedings against him. He relied on Peattie v. Murphy[cccxlvi]⁵, but this case is clearly distinguishable. I see no reason why I should not follow the course taken in R. v. Durham Quarter Sessions-ex p. Virgo[cccxlvii]⁶, where the accused had also made certain admissions before the justices, and remit the case for further hearing, and I shall so order.

However, as the case is to go back for hearing it is necessary to deal with the first ground of appeal which involves the correct interpretation of s. 469. Instead of asking the appellant, “Do you plead guilty or not guilty?”, in accordance with s. 444 of the Code, the learned magistrate followed the procedure, which I understand is usual in the District Court in ascertaining the plea of an indigenous person, and put certain questions to the appellant. There would appear to be no objection to this practice: R. v. Graham Campbell, ex p. Moussa[cccxlviii]⁷.

The question here for decision is whether upon the correct interpretation of s. 469, once the appellant said that he did not know the vehicle was there, which indicated that he had no intention of damaging the vehicle, and also raised the defence of accident, a plea of guilty was properly entered. If the effect of the plea was that the appellant had made no admission of the truth of the charge, it did not amount to a plea of guilty, and the proceedings were a nullity: R. v. Durham Quarter Sessions, ex p. Virgo[cccxlix]⁸.

Having regard to the appellant’s statement that he did not know the vehicle was there, and the heavy penalties provided for, his conviction under s. 469 does seem a startling decision. The learned magistrate’s view was that the proof of the charge did not require an intention to cause damage. The same question recently arose in Queensland under s. 461 of the Queensland Criminal Code, which provides that “any person who wilfully and unlawfully sets fire to ... any building or structure is guilty of a crime ...”. See R. v. Burnell[cccl]⁹. Both counsel submitted that the reasoning of this decision was equally applicable to s. 469, and that I should follow it. (The relevant provisions of The Criminal Code (Queensland, adopted) of the Territory of Papua are the same as the Queensland Criminal Code). That was an appeal by the prisoner against his conviction of the crime of arson on the sole ground of misdirection as to the element of intent in the offence as stated in s. 461 of the Queensland Criminal Code. The prisoner was indicted on two counts, one of wilfully and unlawfully setting fire to the building, and one of wilfully and unlawfully damaging certain mattresses therein under s. 469. The Full Court of Queensland held that “wilfully” as used in s. 461 means “intentionally” or “deliberately”, and for the purpose of that section proof of an intentional setting fire to the building was required. Wanstall J. specifically referred to s. 469, and expressed his view that proof of the charge under that section required proof of an intention to damage the mattresses.

If I may say so, with respect to the judges of the Full Court, this decision seems to me to be plainly right, but I shall set out my own views.

Mr. Bowen, for whose able argument I am indebted, submitted that “wilfully” in its natural meaning means intentionally, and as a matter of grammar in s. 469 it must be interpreted as applying certainly to the words “destroy or damage”. He also submitted that the learned magistrate in his interpretation of s. 469, confused the meaning of “wilfully” with the requirement that the act must be willed under s. 23 of the Code. I consider his submissions sound. “Wilfully” in the present context bears the meaning of deliberately and intentionally and not accidentally and this mental element is construed as an intention to do the act forbidden by the statute. R. v. Senior[cccli]¹⁰, per Lord Russell C.J. Indeed the problem with which the cases are generally concerned is whether the mental element thus imported by the word “wilfully” goes further than its application to the act forbidden and also indicates a knowledge of wrongdoing: Lamberton v. Hill[ccclii]¹¹ per Gavan Duffy J. (cited by Gibbs J. in R. v. Burnell[cccliii]¹². For a recent example see Wells v. Hardy[cccliv]¹³.

Now the act forbidden in the charge against the appellant was the doing of damage to a motor vehicle, so that in my opinion, as an element of the charge, if s. 469 stood alone, there must be proof of an intention on the part of the appellant to damage the vehicle.

But Mr. Croft referred me to s. 480 of the Criminal Code, and I must consider its effect to arrive at the proper interpretation of s. 469.

The relevant provisions of s. 480 are as follows:

“Offences which may be dealt with summarily:

When a person is charged before two justices with any of the indictable offences following, that is to say,

(a) wilfully and unlawfully destroying or damaging any property ...

(b) wilfully and unlawfully killing, maiming or wounding, any animal capable of being stolen; ... .........

then ... the justices may, except as hereinafter stated, deal with the charge summarily....

Now the canon of construction is that, “Every clause of a statute should be construed with reference to the context and the other clauses of the Act, so as, so far as possible, to make a consistent enactment of the whole statute ...”: Canada Sugar Refining Co. v. R.[ccclv]¹⁴.

The provisions of sub-para. (a) of s. 480 refer to an offence under s. 469, and of sub-para (b) to an offence under s. 468. The final paragraph is perhaps more likely to become applicable in relation to an offence under s. 468, but it could conceivably also apply to an offence under s. 469.

It is possible, I suppose, to read the final paragraph of s. 480 as negativing an intention to destroy or damage the property injured as an element of the offences stated in ss. 468 and 469, and thus in apparent conflict with those sections. But I consider that s. 480 should be read with s. 468 and s. 469 so as to avoid any inconsistency, by attributing to the word “wilfully” a wider meaning than “intentionally” and including “recklessness”.

As Glanville Williams points out, the word “wilfully” in a statute has been held to embrace recklessness (Criminal Law, The General Part, 2nd ed., p. 65). He cites R. v. Holroyd[ccclvi]¹⁵. In that case there was an indictment for unlawfully and wilfully placing on a railway certain barrows containing stone and earth in such a manner as to obstruct the railway. Maule J.’s direction to the jury was that it was not necessary that the defendant should have thrown the rubbish on the rails expressly with a view to upset the train; it was sufficient to constitute a wilful act that the accused intentionally placed the rubbish on the line knowing that it was a substance likely to produce an obstruction, and not caring whether it actually impeded the carriages or not. He also cites, although not with unqualified approval, Lord Wright’s dictum, “ ‘wilful’ is not a term of art and is often used as meaning no more than a high degree of carelessness or recklessness. It is not necessarily limited in its use to intentional or deliberate wrongdoing”: Caswell v. Powell Duffryn[ccclvii]¹⁶.

I agree with Wanstall J. in R. v. Burnell[ccclviii]¹⁷ that the heading to s. 469-“Malicious injuries in general”-may be looked at for the purpose of resolving any ambiguity. Headings of divisions are deemed to be part of the Ordinance. Ordinances Interpretation Ordinance, 1949-1965. See also the Criminal Code Ordinance 1902, s. 1. As adopted in Papua the Queensland Criminal Code was complete with headings to sections (ibid.). The authorities for the proposition that headings in a statute may be looked at for the purpose of resolving any ambiguity in the sections grouped under them are conveniently set out in Halsbury, 3rd ed., vol. 36, p. 373. It is perhaps not insignificant that in the course of the activities referred to in the final paragraph of s. 480, reckless harm may well occur.

Given this meaning, that is both of “intentionally” and “recklessly” as stated by Maule J., “wilfully” has the well established meaning of “malicious”: see R. v. Cunningham[ccclix]¹⁸. It was the meaning for which Mr. Croft argued, although he based his argument on Vallance v. R.[ccclx]¹⁹. Thus, my opinion is that, for an offence to be committed under ss. 468 and 469, it is necessary for the accused person either to intend to do the particular type of harm in fact done, or, foreseeing that such harm was likely to be done, for him recklessly to take the risk of it.

Mr. Bowen argued that I should follow Gibbs J. in R. v. Burnell[ccclxi]²⁰, who was the only judge to consider whether “wilfully” in s. 461 had the same meaning as “maliciously”. The learned judge came to the conclusion, contrary to mine, that it had the narrower meaning. However, it does not appear from the judgments that s. 480 of the Criminal Code was drawn to the attention of the Full Court.

Although it is not necessary for my decision, I should express my view that “wilfully”, when used in the other sections contained in Part XLVI of the Code (including ss. 461, 462 (2), and 468), requires, as an element in the offence, an intention to do the act forbidden, or as Douglas J. said, “connotes an element of intent in the offence of which it is descriptive”: R. v. Burnell[ccclxii]²¹. I also express my view, without finally deciding the matter, that if, as I think in s. 469 “wilfully” bears the meaning of both intentionally and recklessly as I have defined it, it bears the same meaning in the other sections in Part XLVI.

In the result, although not by the same reasoning, the mental element imported by the word “wilfully” in the sections contained in Part XLVI of the Code is to be interpreted in accordance with the view expressed by Dixon C.J. in Vallance v. R.[ccclxiii]²², that the word “intentional” in the Tasmanian Criminal Code includes, as it does at common law, “a result that a man does not desire but foresees as likely, and the risk of which he runs possibly with regret”. (Ibid., p. 61.) See also Windeyer J. at pp. 82-83. In practice the extended meaning of “wilfully” may be difficult to apply. See Glanville Williams, Criminal Law, The General Part, 2nd ed.[ccclxiv]²³, a passage which, for the purposes of this Territory, it way be useful for me to set out.

“If the issue is whether the defendant was reckless as to a given consequence, the question is whether he foresaw the possibility of that consequence; but he will probably deny that he foresaw it, and it is impossible to look directly into his mind to know whether he is speaking the truth. Usually the question will have to be solved by examining the defendant’s conduct and his opportunities of knowledge. Yet conduct is by no means so certain a guide to the issue of recklessness as it is to that of intention. When a man bends himself to secure a result, he will often leave evidence of telltale pieces of behaviour which are inexplicable except on the assumption that he intended the result. But recklessness may be a mere passing realisation, instantly dismissed, which leaves no mark upon conduct. Also, a man is capable of self-deception: he may decide that all unpleasant result is not likely because he does not want it to be likely.

“On an issue of recklessness, these considerations may be put before the jury. There is no objection to instructing the jury to consider whether the defendant must have foreseen the consequence, but it is fatally easy to confuse this with the question whether the defendant ought as a reasonable man to have foreseen it. The latter question presupposes an objective test of the reasonable man, and the accused person’s actual foresight is immaterial. The former question is directed exclusively to the accused’s actual foresight, and the test of what a reasonable man would have foreseen is merely a step in reasoning. For example, it may be shown that the accused is mentally subnormal, or that on the occasion in question he was drunk, or suffering from some fear, anger, or other excitement which deprived him of the ability to look circumspectly to the probable outcome of his conduct. These facts would not, according to the usual view, be relevant to an issue of inadvertent negligence, if that were before the court; but they are very relevant to the issue of recklessness. They may lead the tribunal to decide that the accused did not foresee the consequence, even though a person somewhat differently situated would have foreseen it.”

Of course, at the further hearing, the extended meaning of “wilfully”, upon all the facts, may not necessarily be in issue.

Where the learned magistrate went wrong in this case was in relating the mental element connoted by the word “wilfully” to the act of throwing the bottle. But the section does not make such an act an offence; the forbidden act is the destruction or damaging of a motor vehicle (compare Eaton v. Cobb[ccclxv]²⁴). Also it seems to me that he did have in mind the general exculpatory provisions of s. 23 of the Criminal Code, which are as follows:

“23. Intention: Motive.-Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an1 event which occurs by accident.

“Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

“Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.”

The proper application of this section to the statements made by the defendant before him would have led to the following conclusions:

(1) As the defendant admitted that he deliberately threw the bottle from the bus, no question arose whether the defendant was excused from criminal responsibility on the ground that the act so done had occurred independently of the exercise of his will.

(2) As the defendant claimed that he did not know the vehicle was there, there was at once an issue whether the event of the bottle striking the vehicle occurred by accident. Accidental damage falls outside s. 469 also because it is not “wilful”.

So far as the interpretation of s. 23 is concerned, the use of the word “wilfully” in s. 469 was a sufficiently expressed declaration that the intention to cause a particular result was an element of the offence constituted by s. 469. (See also per Gibbs J. in R. v. Burnell[ccclxvi]²⁵)

Now in the answers made by the appellant to the questions put by the magistrate, there were no admissions nor could inferences be drawn either that he intended to damage the motor vehicle or that he had foreseen that his act was likely to damage a motor vehicle, or that he recklessly took the risk, and thus the plea of guilty was improperly entered.

For this reason also the conviction must be quashed.

Appeal allowed.

Conviction quashed.

Case to be remitted to District Court for rehearing.

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

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

[cccxlii][1898] 1 Q.B. 582.

[cccxliii][1954] 2 Q.B. 142.

[cccxliv][1938] S.A.S.R. 90.

[cccxlv][1898] 1 Q.B. 582.

[cccxlvi](1965) 82 W.N. (N.S.W.) 163.

[cccxlvii][1952] 2 Q.B. 1.