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Kombo v Vapipi [1975] PNGLR 233 (6 April 1973)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 233 - Nori Kombo v Vapipi

[1975] PNGLR 233

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PAUL NORI KOMBO

V

VAPIPI

Rabaul

Raine J

20 February 1973

6 April 1973

CRIMINAL LAW - Police offences - “Being without lawful means of support” - Elements of offence - Relevant considerations - Plea of guilty - Police offences (New Guinea) Ordinance 1925-1966, s. 69[cclxxxiii]¹.

The appellant was convicted on a plea of guilty by a local court magistrate of an offence under s. 69 of the Police Offences (New Guinea) Ordinance 1925-1966 of being an idle and disorderly person and sentenced to two months’ imprisonment. The facts given to the court were: “On the 19th day of September, 1972, the defendant was seen at 2nd 22nd street sitting on the grass, when stopped to talk to him the defendant stood up and walked away from us to (an) other street. He was then stopped at Bay Road and (we) asked him where (whether) he was working and he stated that he was not working for 3 weeks 2 days, and he was accompanied to the Police Station, and he was told that it was wrong for not working, for 3 weeks 2 days. The defendant was charge(d) and placed in the cell, he has no money. The defendant is a single man.”

On appeal against conviction and sentence,

Held

(1)      Section 69 of the Police Offences (New Guinea) Ordinance 1925-1966 is aimed at clearing streets of people who are likely to get into trouble and become disorderly because they have no money and nothing to do with their hands and their minds; it is not directed to the punishment of poverty.

Zanetti v. Hill[1962] HCA 62; , (1962) 108 C.L.R. 433 at pp. 441 and 449 applied.

(2)      Relevant matters for consideration include the fact that a man has not got a job, the fact that he has no money or very little money and the fact that he is being helped by kindly wantoks who house and feed him: but these matters whether taken in conjunction or taken singly, are not conclusive.

Guidelines for police and magistracy outlined at p. 244.

(3)      A defendant should be required to plead to an offence alleged under the section ab initio.

Zanetti v. Hill[1962] HCA 62; , (1962) 108 C.L.R. 433 at pp. 438, 441, 442, 443 and 444; Lee Fan v. Dempsey[1907] HCA 54; , (1907) 5 C.L.R. 310 at pp. 316, 321 and 322 referred to.

(4)      A plea of guilty to an offence alleged under the section should be regarded with caution; it is not irrevocable. Inquiries should still be made of why the man is out of work etc. so that the real situation is ascertained; it may well be that a plea of guilty is quite inappropriate.

Daniel v. Belton, (1968) 12 F.L.R. 101 at p. 106 and Maima v. Sma [1971-72] P.N.G.L.R. 49 at p. 54 referred to.

(5)      The appeal should be allowed: the lack of material in the record of the lower court proceedings creating such uncertainty that it would be dangerous to uphold the conviction; the failure to investigate more thoroughly and the reliance by the magistrate on the mere fact that the appellant had no money and had been out of work for over three weeks also making it unsafe to maintain the conviction.

Appeal

This was an appeal against conviction and sentence in relation to an offence of “being without lawful means of support” under s. 69 of the Police Offences (New Guinea) Ordinance 1925-1966.

Counsel

N. R. Cowdery, for the appellant (accused).

T. R. Bredmeyer, for the respondent (Crown).

Cur. adv. vult.

6 April 1973

RAINE J: The appellant was convicted by a local court magistrate of an offence under s. 69 of the Police Offences (New Guinea) Ordinance 1925-1966 and sentenced to imprisonment with hard labour for a period of two months.

Section 69 reads:

“69(1) where any police officer has reasonable cause to believe that any person has no lawful means of support or has insufficient lawful means of support he may arrest that person, either with or without warrant, and bring him before a Court or may summon him to appear before a Court.

(2)      If that person fails to prove to the satisfaction of the Court that he has sufficient lawful means of support or that such means of support as he has are lawful, he shall be deemed to be an idle and disorderly person within the meaning of the last preceding section.

(3)      The fact any person charged under this section can produce or prove that he possesses money or property shall not be taken into account in deciding the charge against that person unless he shows by his own or other evidence that he honestly obtained the money or property.”

It seems that this section, or sections very similar to it, originated in Tudor times and the history of the provision is referred to by Dixon CJ in Zanetti v. Hill[cclxxxiv]². In Daniel v. Belton[cclxxxv]³ Blackburn J refers to Zanetti v. Hill (supra) and also to Lee Fan v. Dempsey[cclxxxvi]⁴ and goes on to say:

“Nothwithstanding this judicial interpretation, the provision still contains difficulties of construction and application. It must be a difficult provision for the police to administer and for justices of the peace to apply. The difficulties fall into two classes, those relating to procedure and those involved in the determination whether, in any given case, the accused has no, or insufficient, lawful means of support.”

With great respect to Blackburn J I entirely agree with what his Honour says about the difficulties of construction and application. I myself have found great difficulty in construing s. 69 (supra) despite the decisions of the High Court that Blackburn J refers to and which I have closely examined myself. It is convenient to set out the section considered by Blackburn J in Daniel v. Belton (supra). It reads:

“Any person who having no visible lawful means of support or insufficient visible lawful means of support, on being thereunto required by any Justice or having been duly summoned for that purpose or brought before any Justice, does not give a good account of his means of support to the satisfaction of the Justice, shall be deemed an idle and disorderly person within the meaning of this Ordinance, and shall be guilty of an offence. Penalty: Imprisonment for two months.”

It is also convenient to consider the terms of the Western Australian section considered in Lee Fan v. Dempsey (supra) and Zanetti v. Hill (supra). This provision is as follows:

“65.    Every person who shall commit any of the next following offences shall be deemed an idle and disorderly person within the meaning of this Act ...

(1)      Every person having no visible lawful means of support or insufficient lawful means of support, who being thereto required by any Justice, or who having been duly summoned for such purpose or brought before any Justice, shall not give a good account of his means of support to the satisfaction of such Justice.”

Blackburn J also refers, in Daniel v. Belton (supra), to an unreported case of Dobson v. Reynolds decided by Burbury CJ in the Supreme Court of Tasmania in 1965. I have not got a copy of the Chief Justice’s reasons for judgment but some useful extracts are set out at p. 106 of Daniel v. Belton (supra). In addition a reference to the case appears at par. 4262 of the 1972 A.L.M.D. This reads:

“4262(6)        Vagrancy — Absence or insufficiency of visible means of support — Plea of guilty — Whether further sworn proof necessary

A plea of guilty to a charge under s. 5 (1) of the Police Offences Act 1935 (Tas.) does not dispense with the need for the prosecution to establish a prima facie case by sworn testimony. Section 5 (2) of the Act, which provides that if a defendant fails to prove to the court that he has sufficient lawful means of support he shall be guilty of an offence, requires that a defendant charged under sub-s. (1) shall be given a distinct and proper opportunity to show cause against conviction by proving that he has sufficient lawful means of support. It must be made clear to him that he can show cause against conviction. Further, a plea of guilty to a charge could only constitute an admission that the complainant had reasonable cause to believe that the defendant had no lawful means of support, i.e., an admission of the facts alleged in the complaint. It could not constitute an admission that the condition precedent to conviction under s. 5 (2) had been fulfilled.

Dobson v. Reynolds (1965) [1969] Tas. S.R. 125 (note). (Tas. Sup. Ct., Burbury CJ)”

Unfortunately I have not got the 1969 Tasmanian State Reports as we do not get the loose parts here and only get the bound volume which apparently will incorporate Tasmanian Supreme Court judgments for 1971-1972. However, the note in the Digest seems to indicate that Dobson v. Reynolds (supra) has been referred to and noted in some detail in a later decision of the Tasmanian Supreme Court. Because of some observations made by Blackburn J in Daniel v. Belton (supra) it is convenient to set out the terms of the Tasmanian statute, which is the Police Offences Act 1935. It reads:

“(1)    Where any police officer has reasonable cause to believe that any person has no lawful means of support or has insufficient lawful means of support, he may arrest such person, without warrant, and bring him before a court or may make a complaint against him, charging him with being a person without sufficient lawful means of support.

(2)      If such person fails to prove to the court that he has sufficient lawful means of support, or that such means of support as he has are lawful, he shall be guilty of an offence. Penalty: Six months’ imprisonment.”

It will therefore be seen that the Western Australian, Tasmanian, Northern Territory and New Guinea provisions are all slightly different, and I have given anxious thought as to whether this causes me to distinguish the cases to which I have referred from the case that I am considering.

In my opinion, there is no real distinction at all except procedurally. For instance, in the New Guinea section a police officer has to have reasonable cause to believe that a person has no lawful means of support or insufficient means before he arrests that person, which he may do either with or without warrant and then bring the alleged offender before a court, either under arrest or by way of summons. In the Western Australian section much the same is provided but the justice himself may call somebody up to give a good account of his means, presumably on occasions when the justice sees a derelict in his court, or even outside his court.

Under s. 69, if a person fails to prove that he has sufficient lawful means of support, or that his means of support are lawful, he shall be deemed to be an idle and disorderly person within the meaning of s. 68 and that being so is guilty of an offence. In the Northern Territory there is the same deeming provision whereas in Tasmania there is no deeming provision as is seen by reference to s. 5 (2).

Blackburn J in Daniel v. Belton (supra) referred to Dobson v. Reynolds (supra) and quoted from the reasons for judgment of Burbury CJ, and later proceeded to distinguish the Tasmanian provision from the Western Australian provision considered by the High Court in Lee Fan v. Dempsey (supra) and Zanetti v. Hill (supra) at pp. 105-106. His Honour’s judgment reads:

“His Honour decided that the plea of guilty in that case, which was taken as soon as the charge was read, was invalid. He held that the Tasmanian provisions were not to be distinguished in substance from those considered by the High Court in Lee Fan v. Dempsey and in Zanetti v. Hill. He said, inter alia: ‘A plea of guilty to a charge could I think only constitute an admission that the complainant had reasonable cause to believe that the defendant had no lawful means of support, i.e. an admission of the facts alleged in the complaint. I am unable to agree with the submission that a plea of guilty could also constitute an admission that the condition precedent to conviction under s. 5 (2) has been fulfilled. If after the applicant had pleaded guilty the justices had plainly afforded the defendant an opportunity to adduce evidence before they convicted him then the conviction might be good. As I interpret their notes, the defendant was only called upon to say something in mitigation of penalty after the justices found the charge proved. As I have said, I think the proper procedure is for the defendant not to be called upon at all until the prosecution has first made out a prima facie case.’

With very great hesitation, I am unable to regard this decision of his Honour as one which I should follow in the appeal before me. I find difficulty in agreeing that the Tasmanian provisions are ‘not to be distinguished in substance from those considered by the High Court in Lee Fan v. Dempsey and Zanetti v. Hill’. With great respect, it would appear to me that the principle enunciated in Lee Fan v. Dempsey, namely that the failure to give a good account of the defendant’s means of support is not an element in the offence, but a condition precedent to conviction, is difficult to apply to the Tasmanian provision.”

I appreciate that Blackburn J only makes what I might call a tentative distinction, because his Honour says a little later at p. 106:

“But it is presumptuous of me to differ from his Honour on a question of the construction of a Tasmanian statute. I am content to rest my decision on this point on the ground that s. 56 (1) (a) of the Northern Territory Ordinance does not mean that on a complaint charging this offence the provisions of s. 67 of the Justices Ordinance are to be understood in any different sense from that which they bear in other connexions.”

My first impression when this matter was argued, and at that stage I did not have Dobson v. Reynolds (supra) in mind, was to tend to the view that some sort of procedure akin to committal proceedings had to take place before an accused person was called upon to plead to the charge and make any explanation that he could about his means and his affairs generally. I still feel somewhat attracted to this proposition but I think that this is so because it was my initial reaction to the section and at the time that I so reacted I had not read the High Court decisions with sufficient care, in fact my recollection is that one of them was not available and that I did not read it at all. But some extracts from the High Court judgments that I will presently set out demonstrate that what I have called my initial reaction was incorrect. In Lee Fan v. Dempsey (supra) at p. 316 Barton J said:

“It is contended for the appellant that justices who act under this provision are performing, not a judicial, but a ministerial or administrative duty, and that if a justice is not satisfied that the person before him has given a good account of his means of support, the justice is not entitled to convict, but that the person, before he can be found guilty, must be brought before another justice and the facts which constitute the offence must be proved over again before he can be called on for a defence. This is tantamount to saying that a second complaint must be laid against him (for it would be a strange thing to inquire whether he is an idle and disorderly person without a complaint in the first instance), and that unless this be done he is entitled to be acquitted or discharged, notwithstanding that he has had an opportunity of rebutting the inference which undeniably arises from the fact of his being without visible or sufficient lawful means of support. I cannot accede to that contention. It is, in effect, to say that in dealing with people, who in a vast number of cases cannot be dealt with at all unless summarily, the formalities are to be gone through which are necessitated upon magisterial inquiries into indictable offences, and that the justice is really called upon to perform a process equivalent to a committal for trial, with the result of a second investigation upon the same evidence for the prosecution which the accused person has already failed to rebut, and with the further grotesquerie that, if due effect be given to the final words of the sub-section, guilt is only to be established finally by proving to the second justice that the accused has failed to satisfy the mind of the first. Obviously such a construction of the Act would lead to absurd and futile results, and it should be avoided, according to ordinary rules of interpretation, if there is another and a more reasonable construction fairly open. Fortunately the position is a safer one, and the practice sanctioned by usage, until recently unbroken, rests upon the plain words of the enactment. The conviction prescribed in s. 65 is for the comprehensive offence of ‘being an idle and disorderly person’, and the section embraces eight specific sets of facts any of which will prove the commission of that offence, just as the next section (66) embraces twelve separate sets which are each sufficient to prove a person to be a ‘rogue and vagabond’, and the 67th section includes three other classifications, under any one of which a person may be brought for proof that he is an ‘incorrigible rogue’. Apart from procedure, there are in sub-s. (1) of s. 65 two things which constitute the probanda: (a) that the person has no visible lawful means of support or insufficient lawful means of support; (b) that he fails to satisfy the justice by a ‘good’, which means a reasonably credible, account, and not what is commonly called a ‘thin’ one, that he has actual, that is, sufficient means of support. Unless he can do that the prima facie case arising by inference from the absence or insufficiency of means, of which some evidence must first be given (see per Hood J, Appleby v. Armstrong [1901] VicLawRp 58; (1901) 27 V.L.R. 136, at p. 138; [1901] VicLawRp 58; 23 A.L.T., 35) remains unrebutted, and the justice may and should convict and punish, and there an end. Notwithstanding the rather incautious application of the word ‘offence’ to them in the opening words of the section, instead of to the real offence of being an idle and disorderly person, to which the word ‘conviction’ clearly applies, the matters specified in the several sub-sections are just the evidentiary ingredients of the offence in its eight phases. In sub-s. (1), indeed, the failure to satisfy the justice may be due to entire absence of evidence of actual lawful means as well as from unsatisfactory or insufficient evidence thereof, and there is no compulsion upon the accused to give evidence personally, as seems to be supposed. The person liable to conviction under s. 65 (1) as an idle and disorderly person, in that he has no lawful means of support, is, therefore, a person whose means of support are non-apparent or insufficient, in the absence of evidence either on his own part, or on that of others, or both, giving an account of his means of support good enough to satisfy the tribunal. If the man cannot satisfy the tribunal he may be convicted, and I cannot imagine why the appellant should conceive it necessary that he should be tried over again before that tribunal or another one.”

At pp. 321, 322 Isaacs J said:

“A person appears, suppose to a constable, to be going about at large without any visible lawful means of support, and therefore to be a menace to society. It is of importance to protect the public by means of preventive as well as punitive measures, and so the legislature has declared that such a person shall be deemed an idle and disorderly person, unless he can satisfy a justice, notwithstanding appearances, or what may be called the prima facie conclusion which a fair-minded and careful observer would come to regarding his means, that he really has sufficient lawful means of support. The word ‘deemed’ is significant; the person apparently without lawful means of support is in law considered dangerous, unless he shows the contrary. He may be charged with being an idle and disorderly person as having no lawful means of support; he may be summoned upon that charge for the ‘purpose’ of giving a good account of his means if he can, it being essential, however, that the prosecution should first establish that he is without visible lawful means of support; or he may be brought before the justice by warrant or summary arrest as prima facie an offender; and, assuming the onus of proof in the first instance is satisfied by the prosecution, he is then required to displace it, otherwise he may be convicted.

There is nothing new in this method of procedure, nothing unjust or out of harmony with the ordinary course of summary criminal procedure. The case is one requiring more prompt treatment than usual — rather than dilatory process; and, so far as I can ascertain, there is not, nor has there ever been in any State or Colony including New Zealand (see Curran v. O’Connor 12 N.Z.L.R. 442), any difficulty in administering the law so interpreted with justice and efficacy.”

In Zanetti v. Hill (supra) at p. 438 Dixon CJ said:

“Jackson SPJ set this conviction aside for reasons which are explained in a judgment which laid down this proposition: ‘It seems to me that Lee Fan’s case in the High Court, and Egan’s case ((1949) 51 W.A.L.R. 83) in our Full Court, clearly establish that under this section the onus is on the prosecution to prove that an accused person has no visible lawful means of support, and although it does not seem directly adverted to in either of those cases I do not doubt that the onus is on the prosecution to prove these facts beyond reasonable doubt. Since Woolmington’s case ([1935] A.C. 462) this has been taken in every criminal prosecution — and this, undoubtedly, is a criminal prosecution — to be the standard of proof which is required of the prosecution, and if we are to substitute some other lesser standard then I do not know what it is.’

I cannot agree with this interpretation of the section or sub-section, upon which I think Woolmington’s case (supra) has no bearing. It is legislation belonging really to the period of its origin and it creates a situation hardly compatible with the view that the preliminary condition must be proved beyond reasonable doubt. I think that it is enough for the prosecution to raise a reasonable or probable presumption of the absence or insufficiency of visible lawful means of support and then the accused may be put to giving a good account of his means of support to the satisfaction of such justice(s) or magistrate.”

At pp. 441, 442 the judgment of Kitto J reads:

“Section 65 (1) is not without its difficulties of construction, but in the main they disappear, I think, when considered in the light of the judgments delivered in this Court in Lee Fan v. Dempsey and although I do not commit myself to everything that was said by Richards J in Taylor v. Lenthall ([1930] S.A.S.R. 413) I think that no little assistance is to be gained from a reading of it. Clearly the provision is not directed to the punishment of poverty. It does not imply that there is some standard of living to be regarded as a norm, and provide for the punishment of a person as idle and disorderly because he is unable to maintain that standard. Provisions in the terms of s. 65 (1) seem always to have been understood, as far as I can gather from the cases, as taking a person’s actual standard of existence and addressing themselves to the means that he has for his support at that standard. If he either has no lawful means of support visible (in the sense of being apparent to a person exercising reasonable means of inquiry, as Bowen LJ translated the word in Lea v. Parker ((1884) [1884] UKLawRpKQB 167; 13 Q.B.D. 835, at p. 841), or has some but not sufficient lawful means of support, the section dubs him an idle and disorderly person and provides for his being imprisoned, provided that a condition is first fulfilled. The condition is that after opportunity given he does not give the justice before whom he comes a good, that is credible, account of his means of support to the satisfaction of the justice. The reason for so treating him is obvious: a person whose means of support so far as they are lawful are insufficient for the way he is living may fairly be regarded as belonging to a class of persons likely to resort for their support to activities from which society needs to protect itself. The concern of the provision, therefore, in the case of a person who is found to have some means of support not shown to be unlawful, is with the lawfulness or unlawfulness of the rest of the means by which he may support himself. It is, I think, a question, not as to whether he has enough to buy the next meal and to provide somewhere for his family to lay their heads the next night — not a question to be answered in his favour by a finding that he has a house, a car and forty pounds or fifty pounds — but a question of his current mode of living and of the sufficiency of the resources available to him for sustaining that mode of living without resort to unlawful practices. In my opinion it is erroneous to dismiss a charge under s. 65 (1) simply because the defendant has some means of support which, so far as appears, are lawful.

It is hardly necessary to emphasize, fifty years and more after the decision in Lee Fan v. Dempsey, that the words of s. 65 (1) referring to a failure to give a good account do not describe an ingredient in the offence; they describe only a condition which must be fulfilled before a defendant can be convicted. The complaint in the present case rightly alleged the offence as being deemed an idle and disorderly person on 11th July, 1961, because of having no visible lawful means of support or insufficient lawful means of support, making no mention of his not giving a good account. I respectfully agree with Jackson J that the respondent could not properly be convicted of the offence unless the magistrate were satisfied beyond a reasonable doubt of the facts alleged. I can see no reason for excluding a charge under s. 65 (1) from the application of the jealously guarded principle upon which justice is administered under our system, that save where the legislature has shown a contrary intention a person is not to be convicted of any offence, great or small, unless the tribunal of fact before which he is charged is satisfied beyond a reasonable doubt that every element of the offence exists. Of course this does not mean that the case for the prosecution must be proved beyond a reasonable doubt before there is a case for the defence to answer. The question whether there is a case to answer, arising as it does at the end of the prosecution’s evidence in chief, is simply the question of law whether the defendant could lawfully be convicted on the evidence as it stands, — whether, that is to say, there is with respect to every element of the offence some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred. That is a question to be carefully distinguished from the question of fact for ultimate decision, namely whether every element of the offence is established to the satisfaction of the tribunal of fact beyond a reasonable doubt. See May v. O’Sullivan ((1955) [1995] HCA 38; 92 C.L.R. 654).”

And at pp. 443, 444 his Honour said:

“Before reviewing the evidence, it is perhaps desirable to add that there is nothing in Lee Fan v. Dempsey to suggest that when the prosecution’s evidence has raised a prima facie inference of no visible or insufficient lawful means of support the words relating to the defendant’s not giving a good account of his means operate to cast upon him the onus of displacing the inference. Since the defendant is, normally, in the best position to know what means of support he has, a failure by him to prove that they are all lawful may well result in the magistrate saying, as Abbott L.CJ said in R. v. Burdett ((1820) 4 B. & Ald. 95; 106 E.R. 873) ‘can human reason do otherwise than adopt the conclusion to which the proof tends?’ ((1820) 4 B. & Ald., at p. 162; 106 E.R., at p. 898). But that does not mean that the burden of proof shifts: May v. O’Sullivan ((1955) [1995] HCA 38; 92 C.L.R. 654, at pp. 657-659) and the words of the section which deal with the failure do not, I think, disclose an intention to produce that result. Their effect is only that there is to be no conviction, however strong the prosecution’s evidence may be, unless it is supported by a failure on the part of the defendant to give a good and satisfactory account after being allowed a specific opportunity of disclosing what the means of his support really are.”

Extracts from the above judgments recognize that this type of section is out of the ordinary but nevertheless it is clear that the defendant should be required to plead to the alleged offence ‘ab initio’. The magistrate hearing the case might well, having heard some of the evidence, decide that a plea of guilty is quite inappropriate. This is particularly so in proceedings in this country. It is highly likely that 95 per cent of alleged offenders will be fairly simple people and in most cases they will be apprehended by native constables. In most cases the constable will come upon a possible offender who is sitting or lying down somewhere or wandering around with apparently no set purpose. In most cases the constable will ask whether the man or woman has a job. A good many of these offences are committed in the bigger towns to which people come from all directions in search of work, and in search of a different life than the life they are used to in villages. They are often asked where they are living and reply, “With wantoks”. They are then asked whether they have any money and so very often they have not. They are then arrested and taken before a magistrate. Counsel have told me on several occasions that people such as these are wont to regard the offence alleged against them as being that they are out of work. Counsel also informed me that confusion has arisen because the view has been taken on occasions by the police and by magistrates that the fact that a man is living with wantoks tells against him and indicates that he has no lawful means or insufficient means of support.

The fact that a man has not got a job is a matter that has to be considered. So is the fact that he has no money or very little money and so is the fact that he is being helped by kindly wantoks who house and feed him.

But these matters, whether taken in conjunction, or taken singly, are not conclusive. As I understand the section it is aimed at clearing streets of people who are likely to get into trouble and become disorderly because they have no money and nothing to do with their hands and their minds but, as Kitto J said in Zanetti v. Hill (supra) at p. 441, “Clearly the provision is not directed to the punishment of poverty. It does not imply that there is a standard of living to be regarded as a norm, and provide for the punishment of a person as idle and disorderly because he is unable to maintain that standard.” I have no wish, and it would be dangerous, to lay down any strict rules that must be adhered to by magistrates hearing charges such as these. However, in a joint ‘cri de coeur’, counsel in this case asked me to give some general guidance to the police and to the Magistracy and I think that it is proper to respond to the request. I will, therefore, give a few examples which I hope will be helpful.

So far as wantoks are concerned a distinction should be made between an idler who sponges on his relatives and moves from one house to another eating other peoples’ rice and doing no work. That is one thing. But families here are kind to their relatives and quite a different situation arises than in the first example I have given, when a family takes in somebody who is temporarily down on his luck or who has come in from the village with the sincere intention of looking for a job in the town. In addition, as I well know from my own experience, relatives come from far away and have a holiday in a big town and are put up by wantoks who can afford to do so, and are glad to have them for a month or two. In such cases the visitor often helps out and assists his host in the host’s employment. I instance my own servant’s case. Two of his relatives have stayed with him. One did some useful carpentry work and the other one helped out with washing and helped in the garden.

The fact that a man has not got a job could be significant but, as I have said, is not conclusive. I have given the example of a man who is on holiday with friends. Other men might come in from the village with the firm intention of seeking employment. We all know that there are employment problems and it would be a very lucky villager who got a job in the first week that he arrived in one of the large centres. In such a case, his temporary poverty should not put him into a category where he should be deemed idle and disorderly. It is a question of degree in every case. One applies common sense tests and a few pertinent questions will soon sort out the sponger and the idler from the decent man temporarily out of work and in difficult financial circumstances. Using common sense a magistrate can make a good assessment. If somebody has been in town for three months, not tried to get work, and lived in about six different houses occupied by wantoks then that is one thing. But it is another thing when questions directed to the accused indicate that he has been to the labour officer and to several of the big stores and made other efforts to obtain employment. In such a case if his situation is obviously precarious, he should not be punished for the failure of his efforts to lead a respectable life, but should be warned that such a situation cannot go on for ever and that if he fails to get employment within a couple of weeks he should go back to his village.

From what I have said, I hope it is apparent that there will be many cases where the plea of guilty should be regarded with great caution and magistrates should be careful not to regard such a plea as irrevocable and immutable. They should inquire why a man is out of work and ask him what efforts he has made to obtain employment. If the police evidence is that he only exists because of help from wantoks then the magistrate should find out from the accused what the real situation is. Such inquiries might clearly demonstrate that the accused is a sponger and an idler. On the other hand, they might demonstrate that the accused is most welcome in the house of his relatives and that he is living a decent life there and assisting his hosts by looking after their children while they are away and doing small jobs for them. It might well be that a man has been retrenched through no fault of his own. I can give one example that might be of assistance, in the case of my own servant. He had a young cousin stay with him for a time, with my permission, who had been working very hard on a plantation for a couple of years. He simply got sick of plantation work and came to Port Moresby looking for more congenial employment. After about seven weeks he succeeded in finding work but in the intervening period he was being supported by my servant. In return he did odd jobs around the garden. He had no money, he had no employment. But he looked for work, and finally obtained it. And he lived quietly and respectably. He was not the sort of man who attracts s. 69.

In Daniel v. Belton (supra) at p. 106, his Honour, referring to what Burbury CJ said about the effect of a plea of guilty, said:

“Moreover, I find difficulty in understanding the notion that a plea of guilty, to be effective, must operate as an admission that the condition precedent to conviction (namely the failure to give a good account) has been fulfilled. Why is not a plea of guilty in itself a failure to give a good account?”

With great respect, I agree with Blackburn J but that is not to say that magistrates are to regard a plea of guilty to a charge under s. 69 as the be all and end all of the matter and I have dealt with this sufficiently above.

Assistance can be gained from the decision of Prentice J in Maima v. Sma[cclxxxvii]⁵. At p. 54 of his judgment his Honour said:

“No evidence to support the conviction

In support of the ground that there was no evidence to justify the conviction, Mr. Baulch relied on the decision of Blackburn J in Daniel v. Belton (1968) 12 F.L.R. 101. There was nothing in the statement of facts, he says, to show that having regard to the accused’s employment and station in life, to his being a New Guinea villager (cf. the Australian aborigine), that the accused was without lawful means of support — support sufficient to what appears to be the standard of living of the person under consideration (Taylor v. Lenthall [1930] SAStRp 65; [1930] S.A.S.R. 413). I should think it clear that provision of food and shelter by wantoks could constitute lawful means of support in many settings of Papuan and New Guinean society. But this was not stated to have occurred in this case. A consideration of the circumstances prevailing would be required. This was a matter of a local constable arresting and bringing before a local magistrate, a Chimbu man from Minj who had ceased to be employed as a plantation labourer for some four months, was living in the Chimbu camp at Kavieng, and was collecting kau kau from local old gardens. The local court magistrate would no doubt be entitled to view the facts in the light of his local knowledge (cf. Daniel v. Belton (1968) 12 F.L.R. 101).

He specifically states in his report that the accused was under-nourished. The matter was uncontested — the accused said in court he had nothing to say. I consider there was ample material before the court on which the learned magistrate could come to the conclusion to which he did, regarding a conviction. I would dismiss the appeal on this ground.”

The facts given to the learned magistrate in the instant case were as follows:

“On the 19th day of September, 1972, the defendant was seen at 2nd 22nd street sitting on the grass, when stopped to talk to him the defendant stood up and walked away from us to (an) other street.

He was then stopped at Bay Road and (we) asked him were (whether) he was working and he stated that he was not working for 3 weeks 2 days, and he was accompanied to the Police Station, and he was told that it was wrong for not working, for 3 weeks 2 days. The defendant was charge(d) and placed in the cell, he had no money.

The defendant is a single man.”

The court record shows that the defendant admitted the truth of these facts and made no statement. The record also showed that he had no prior conviction and was unemployed. In his reasons for decision the magistrate said, inter alia:

“In this case having regard to other decisions of the Supreme Court, I agree that a plea of guilty should not have been entered.

The defendant did say ‘Yes it is true’ when the charge was put to him and he admitted that the facts as stated were true. I did not ask whether he was getting any support from wantoks. He did not talk about wantoks.

As for the wording of the complaint, although the complaint states ‘reasonably believed to have no lawful means of support’, I did put it to the defendant in direct terms that he had no lawful means of support. He admitted that he had no work and he had no money. I then sentenced the defendant to what I considered to be the right penalty.”

I am not quite clear what the decisions were that caused the learned magistrate to say that he agreed a plea of guilty should not have been entered. There was a decision of Kelly J last year at Rabaul, namely Raboni Tiolau v. Sanapi[cclxxxviii]⁶, but his Honour has now left us and I have been unable to locate a copy of the judgment. It was not a judgment that his Honour circulated but from what counsel told me and from what I have seen in the appeal file it is clear that the learned judge was dealing with the same sort of problems as I am in this case. As I have said above, the real problem here, so it seems to me, is not whether a plea of guilty was rightly entered at the commencement of the proceedings but whether further inquiries should have been made and whether the plea should have been allowed to stand. A perusal of the statement of facts and of the reasons for the magistrate’s decision indicates to me that his worship, following the plea of guilty, regarded the fact that the appellant had no money and had been out of work for just over three weeks as conclusive. It will be seen from what I have said above that I feel that matters such as these should be further investigated by the police and/or the presiding magistrate. In some circumstances being out of work for three weeks, two days might show a complete lack of desire to seek lawful means of support. In other circumstances it might be quite understandable, where jobs are not offering. On the material before him the learned magistrate would have done well to ask the appellant why it was that he had been out of work for over three weeks. He might then have got the answer that the appellant had sought employment at a dozen different places, but without success, and that in the meantime the appellant was living with an uncle who was happy to support him for an indefinite period of time or until he obtained employment. It is significant to note that the police prosecutor in his statement to the magistrate said that the appellant “was accompanied to the police station, and he was told that it was wrong for not working, for 3 weeks 2 days”. In fact it is not wrong to fail to obtain employment for any particular period of time and to have no money, unless it is also shown that this is on account of unwillingness to work or look for work. A man who is out of work through no fault of his own and is living respectably, or as respectably as is possible in the difficult circumstances in which he finds himself, is not the sort of person struck at by s. 69. I have already pointed out that Kitto J has stated that the provision is not directed to the punishment of poverty. In Zanetti v. Hill (supra) at p. 449 Menzies J said much the same thing. His Honour said, referring to a similar section to s. 69:

“The section associated, as it has always been, with vagrancy is concerned with those unsettled and insubstantial persons whose means of livelihood, such as they are, are seemingly outside the law rather than with those who are simply poverty stricken. It is not without significance that those who offend are deemed to be both idle and dissorderly.”

In my opinion, the investigations by the police did not go far enough and this fault was not cured by the learned magistrate when the facts were placed before him. It might well be that on the facts as presented it could be said that the appellant was required to prove that he had sufficient lawful means of support and that, strictly speaking, he failed to give any assistance in this regard. However, if a prima facie case was made out it was a fairly thin one, and the learned magistrate, appreciating this, should have taken the matter further. It could well be that had he done so he would still have convicted the appellant, who might have been indolent and unwilling to work or take any steps to find work. However, having been told by the police in blunt terms that he was wrong to be without work for over three weeks the appellant might well have regarded the fact of his unemployment for that length of time as being decisive. This, combined with nervousness, might have caused him to say nothing in his defence, and failed to tell the magistrate of the manner of life he had been leading over the past three or four weeks in Lae. One does not know what might have come out.

In all the circumstances I am left with a feeling of serious unease in this case. I am of opinion that the appeal should be allowed because I think that the lack of material in the record of the lower court proceedings creates such uncertainty that it would be dangerous to uphold the conviction. In my opinion, the failure to investigate this matter more thoroughly and the reliance by the Magistrate on the mere fact that the appellant had no money and had been out of work for over three weeks makes it unsafe to maintain his conviction and I allow the appeal. I do not propose to remit the case for further hearing in view of the fact that the appellant was convicted on 20th September and bail was granted on 3rd November. My formal order, therefore, is that the conviction be quashed.

It might well be that the appellant is lucky that he had nothing to say to the magistrate because he might have only made things worse for himself. However, it seems to me that the importance of this appeal is that it has given me the opportunity to give what I hope will be guidance to magistrates when they come to consider s. 69 on subsequent occasions. As I have said, it is a most difficult section and I have every sympathy with those who are constantly dealing with it.

Appeal allowed: Conviction quashed.

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

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

[cclxxxiii]Infra p. 234.

[cclxxxiv][1962] HCA 62; (1962) 108 C.L.R. 433, at p. 437.

[cclxxxv] (1968) 12 F.L.R. 101, at p. 102.

[cclxxxvi](1907) 5 C.L.R. 310.

[cclxxxvii][1971-72] P. & N.G.L.R. 49.

[cclxxxviii]Unreported judgment dated 18th September, 1972.