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Papadakis Re the Senior Magistrate of The National Capital District District Court at Boroko v The State [1977] PNGLR 313 (30 September 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 313 - Ex Parte John Papadakis Re the Senior Magistrate of The National Capital District District Court at Boroko v The State

[1977] PNGLR 313

SC121

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

EX PARTE JOHN PAPADAKIS

RE: THE SENIOR MAGISTRATE OF THE NATIONAL CAPITAL DISTRICT AT BOROKO AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Prentice DCJ Raine Williams JJ

27 September 1977

30 September 1977

PREROGATIVE WRITS - Prohibition - District Court - Order nisi following amendment of information - Magistrate’s decision within jurisdiction - Prohibition not available.

INFERIOR COURTS - District Court - Jurisdiction - Power to decide rightly or wrongly within jurisdiction - Appeal appropriate remedy for error.

Held

(1) Prohibition does not lie for error of law unless there is an excess of jurisdiction.

Halsbury’s Laws of England 3rd ed. Vol. 11 par. 120 referred to.

(2) Where jurisdiction is given to decide a question there is power to decide it rightly or wrongly, and not only power to decide it rightly.

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

(3) Whether or not an information charging an offence punishable by way of summary conviction before a District Court, or an amended information is a good one disclosing an offence, is a matter within the jurisdiction of the District Court.

(4) Where an information charging an offence punishable by way of summary conviction before a District Court was amended at the hearing and thus incorrectly framed, that was a mistake made in a proper exercise of jurisdiction for which prohibition would not lie, and for which the appropriate remedy would be by way of appeal to the National Court.

Colonial Bank of Australasia & Anor v. Robert Willan [1874] UKLawRpPC 8; (1874) L.R. 5 P.C. 417. The Queen v. The Commissioners for Special Purposes of the Income Tax [1888] UKLawRpKQB 130; (1888) 21 Q.B.D. 313 and The King v. Nat Bell Liquors, Limited [1922] 2 A.C. 128 referred to.

Prohibition

This was the return of an order nisi for prohibition sought against the Senior Magistrate of the National Capital District Court of Boroko, prohibiting the continuance of proceedings in the District Court against the applicant. The proceedings came before the Magistrate by way of information charging an offence punishable on summary conviction, and contrary to s. 9(2) of the Crocodile Trade (Protection) Act 1966-70. During the hearing an application to amend the information was granted, the Magistrate indicating that the information as amended charged a valid offence (this not in law being so). After obtaining an adjournment of the proceedings an order nisi for prohibition was obtained from a Judge of the National Court.

Counsel

L. K. Young, for the applicant. See infra p. 319 for a summary of submissions made.

B. M. Ryan, for the respondent (informant) and the Magistrate. See infra p. 320 for a summary of submissions made.

Cur. adv. vult.

30 September 1977

PRENTICE DCJ: The applicant moves to have an order nisi prohibiting the continuance of proceedings against him in the District Court, made absolute.

An information was laid against him in the following terms alleging that:

“While holding Crocodile Buyer’s Licence No. CB56 and Crocodile Exporter’s Licence No. CE30, was, without reasonable excuse, in possession of 3 crocodiles dealt in contrary to restrictions imposed by Regulation 8 of the Crocodile Trade (Protection) Regulations 1970-5, to wit 3 crocodile of which the belly-width exceeded 510mm. thereby contravening the provisions of Section 9(2) of the Crocodile Trade (Protection) Act 1966-70.”

Section 9 of the Crocodile Trade (Protection) Act 1966-1970 reads as follows:

“9(1) The Regulations may prohibit or restrict in relation to the whole Territory or to a part of the Territory the taking, killing, sale, barter, exchange of, or trading or dealing in, for money or moneys worth, all or any crocodiles of a particular species or below a minimum size or above a maximum size.

(2) The holder of a licence or a person required to hold a licence under this Act shall not without reasonable excuse (the burden of proof to which lies upon him), take, kill, buy, sell, barter, exchange, or trade or deal in, a crocodile or the skin of a crocodile, or be in possession of the skin of a crocodile taken, killed, sold, bartered, exchanged, or traded or dealt in, contrary to any restrictions imposed under the last preceding subsection.

Penalty: Four hundred dollars.”

Regulation 8 of the Crocodile Trade (Protection) (Amendment) Regulation 1974 made under the Act, by Statutory Instrument No. 1 of 1975, provides as follows:

“8. RESTRICTION ON SIZE OF CROCODILES WHICH MAY BE PURCHASED, ETC.

The purchase, sale, barter, exchange, trading, dealing of or in, for money or money’s worth, or possession of any crocodile of which the belly-width or horn-back width exceeds 510mm. is prohibited.”

After the taking of the prosecution evidence the court was moved to rule that there was no case to answer. The learned magistrate held that there was a case to answer. The applicant himself then gave evidence in his own defence. An application was made thereafter for amendment of the charge by deletion of the words “dealt in”. The application was opposed on the ground that the information after such an amendment would disclose no offence. Leave was granted and the amendment made, and the magistrate ruled that the amended information did disclose an offence. The order nisi was then obtained.

A preliminary point was argued in this court that prohibition did not lie, for that the magistrate was properly exercising his jurisdiction, in which process he was entitled to go wrong as well as to go right — that no excess of jurisdiction or denial of natural justice occurred — and that if the District Court’s final decision were to be in error on the facts and law — it was corrigible only by way of appeal to the National Court.

It was submitted by Mr. Young that counsel for the informant would concede that there was no such offence known to the law as “being in possession of crocodile skins of which the belly-width exceeded 510mm.” (i.e. that here possession of such skins did not constitute their possessor an offender). Once the learned magistrate concluded that “mere possession” was sufficient to constitute an offence, then he could be prohibited from proceeding further with a charge unknown to the law, it was said. Reliance was placed on Davies v. Andrews[cccxi]¹, and De Faro v. Rankin[cccxii]².

That reg. 8 cannot create the offence of possessing skins in excess of prescribed size (as was submitted), does I think flow from a reading of s. 9 which empowers (only) the making of regulations prohibiting the “taking, killing, sale, barter, exchange of or dealing in ... crocodiles below a minimum size or above a maximum size”; and also creates the offence of “being in possession of the skin of a crocodile taken, killed, sold, bartered, exchanged or traded or dealt in contrary to any restrictions imposed ...” Regulation 8 will be seen in its terms to have gone beyond the powers granted in s. 9(1) when it purported to prohibit “possession of any crocodile ...” (exceeding 510mm.); and to that extent it is admitted to be ultra vires. However, Mr. Young concedes that reg. 8 may be construed “by the use of a blue pencil” as at least imposing a restriction upon the size of crocodiles which may be purchased.

Mr. Ryan for the informant, while admitting the ultra vires nature of part of reg. 8, nevertheless developed an interesting, if not altogether at this stage persuasive argument, that the information could be construed as a valid one with the aid of s. 71 District Courts Act, subject to its calling for particularization against duplicity, if such were sought. Section 71 reads as follows:

“(1) Where a person is charged before a court with a simple offence, an exception, exemption, proviso, excuse or qualification (whether it accompanies the description of the offence in the section of the law creating the offence or not) need not be specified or negatived in the information.”

Under this argument unspecified matters of qualification should be inferred, so that the information be seen as relating to “possession of the skins of crocodiles taken, killed, sold, bartered, exchanged or traded or dealt in above the size of 510mm. belly-width”.

Detailed argument on the point has not been heard; but I consider it sufficiently arguable to illustrate that the application for prohibition is misconceived. Prohibition may be refused if there be doubt in fact or law whether the inferior court is exceeding its jurisdiction or acting without jurisdiction (Halsbury, 3rd ed., Vol. 11, par. 215, p. 116). Other factors pointing in the same direction are that it would have still been open to the learned magistrate to have changed his mind, or his expressions of reasons, if the unfinished case had been allowed to proceed. Further application to amend the information might on reflection have been made and allowed, if such could be held permissible.

However, there is a yet more basic reason, why, in my opinion, the order nisi should be discharged. Prohibition is a very special (sometimes discretionary) form of interference with an inferior Court’s proceedings. It is a very valuable and necessary procedure. But its use is not (especially since in Papua New Guinea another form of appeal against error is readily available — being by appeal to a judge of the National Court) lightly to be extended so as potentially to enlarge greatly the work of the difficult-to-assemble Supreme Court.

It is a basic proposition of the law of prohibition in other countries that prohibition does not lie for error of law, unless there is an excess of jurisdiction (Halsbury, 3rd ed., Vol. 11, par. 120, p. 63). In the leading case of Parisienne Basket Shoes Pty. Ltd. v. Whyte[cccxiii]³ it was enunciated by the High Court of Australia that when jurisdiction is given to decide a question there is power to decide it rightly or wrongly, and not only power to decide it rightly. The fact that a decision is erroneous does not show or suggest that it is made without jurisdiction. The issue the learned magistrate decided at the point when the proceedings in his court were adjourned, was whether the amended information before him disclosed an offence. Clearly he had jurisdiction to decide that question. He had jurisdiction to decide it rightly or wrongly; and having done so, to carry the hearing to a conclusion when appeal may then be brought. As Kennedy Allen put it (3rd ed., p, 484), “Where justices have jurisdiction no mistake made in exercise of it is a ground for prohibition; such an error is a ground for appeal, if any lies”. As Dixon J. (as he then was) said in the Parisienne Shoes case[cccxiv]⁴: “... the clear distinction must be maintained between want of jurisdiction and the manner of its exercise ...”. It is interesting that on a subsidiary question in this case his Honour stated: “... The question which arises out of the manner in which the summons was extended is whether an effective summons under the original information subsisted. This, in my opinion, is not a matter lying outside the determination of the Court of Petty Sessions upon which its jurisdiction is contingent. Subject to proceedings by way of review or appeal, the Court of Petty Sessions must decide the question before it proceeds to the merits of the charge ...”. (See also Ex parte Hulin[cccxv]⁵ and Ex parte Kennaway[cccxvi]⁶). Sir Frederick Jordan in Ex parte Silk[cccxvii]⁷ stated that: “... the modern tendency is to regard an inferior court as intended to be invested with jurisdiction to determine all matters incidental to those which it is specially appointed to decide, and to do so free from any control by means of the prerogative writs for mistakes of fact or law, although not so as to create estoppels as to matters incidental,... unless a different intention is expressed with reasonable clearness....” I would view the question of whether an information was a good one disclosing an offence, as a matter incidental to the matters for which the District Court is appointed to decide.

A further reason why prohibition should not be granted would appear to spring from the provisions of ss. 40 and 236(1) of the District Courts Act which are similar to ss. 65 and 125 of the Justices Act of New South Wales. As was pointed out by the High Court of Australia in Preston v. Donohoe[cccxviii]⁸, such sections may be construed as allowing not only the inferior court but the appeal court to make appropriate amendments. This case was followed in New South Wales by the Full Court in Ex parte Parkinson[cccxix]⁹. In De Faro v. Rankin[cccxx]¹⁰, the court would seem to have come to a similar conclusion as to whether power lay in Victoria, to prohibit for defect in an information; but the court held that prohibition did lie in the circumstances of the case, because the inferior court had finished its hearing and had committed for trial in the absence of a charge. It would indeed seem illogical if, though no objection may be taken in the inferior court itself to an alleged defect of substance and form in an information, the proceedings therein may be interrupted before possible amendment and completion, by prohibition from this court.

In my opinion the order nisi should be discharged.

RAINE J: This is an application to make absolute a rule nisi for prohibition, and the situation we are asked to regard is indeed curious.

I think that before I explain why this is so it would be useful to set out the relevant part of the Act involved, and the regulation purporting to flow from it.

The relevant Act is the Crocodile Trade (Protection) Act of 1966. The relevant section is s. 9, which reads:

(2) The holder of a licence or a person required to hold a licence under this Act shall not without reasonable excuse (the burden of proof of which lies upon him), take, kill, buy, sell, barter, exchange, or trade or deal in, a crocodile or the skin of a crocodile, or be in possession of the skin of a crocodile taken, killed, sold, bartered, exchanged, or traded or dealt in, contrary to any restrictions imposed under the last preceding subsection.

Penalty: Four hundred dollars.”

It will be seen therefore that sub-s. (1) delineates the regulatory power and sub-s. (2) describes the offence. After repeal of an earlier regulation, the relevant regulation so far as these proceedings are concerned is the Crocodile Trade (Protection) (Amendment) Regulation 1974. (This is Statutory Instrument 1 of 1975). Section 2 of this reads:

“2. REPEAL AND REPLACEMENT OF SECTION 8.

Section 8 of the Principal Regulations is repealed and the following section inserted in its place:

8. RESTRICTION ON SIZE OF CROCODILES WHICH MAY BE PURCHASED, ETC. The purchase, sale, barter, exchange, trading, dealing of or in, for money or money’s worth, or possession of any crocodile of which the belly-width or horn-back width exceeds 510 mm, is prohibited.”

One John Papadakis (hereinafter called “Papadakis”), who was licensed under the Act in relation to dealings with crocodiles, was ultimately charged in the District Court under s. 9(2) (supra), as follows:

“While holding Crocodile Buyer’s Licence No. CB.56, and Crocodile Exporter’s Licence No. CE.30, was, without reasonable excuse, in possession of 3 crocodiles (dealt in) contrary to restrictions imposed by Regulation 8 of the Crocodile Trade (Protection) Regulations 1970-75, to wit 3 crocodiles of which the belly-width exceeded 510mm.”

(The words bracketed were contained in the original charge but were deleted at the end of the case by amendment.)

It is conceded by the respondent, the State, that the evidence was unsatisfactory and that Papadakis was not shown to have “dealt in” crocodiles in his possession, or, possibly alternatively, to have crocodiles in his possession that had been dealt in. Without going through the rather complicated way in which the case proceeded before the learned District Court Magistrate, the fact is, at the heel of the hunt, that his Worship allowed the charge to be amended by deleting the words “dealt in”. Thus the ultimate charge, on the face of it, alleged mere possession of crocodiles with excessive girth, and no more. Apparently the prosecutor in his Worship’s Court saw, or thought he saw, difficulties in proving that the three crocodiles had been “dealt in”, and, in addition, feared the charge might be bad for duplicity.

The learned Magistrate granted the amendment and has given clear indications that he regards the charge as a good one.

Mr. Young, then counsel for Papadakis, who now appears here in support of the rule absolute, applied for and obtained an adjournment, and sought and obtained from a judge of the National Court an order nisi. Thus the rule absolute is sought notwithstanding that no final adjudication has been made by his Worship.

I have set out the facts in short form. Mr. Young’s submissions really come down to this:

(a) The charge, after amendment, disclosed no offence under the Act, because mere possession of an oversize crocodile is not caught by s. 9(1), nor is “possession” even mentioned in that sub-section.

(b) Whilst “possession” is referred to in s. 9(2) that is a sub-section describing a particular offence, and confers no regulation-making power, and, in any event, the “possession” therein mentioned is governed by the words “take, kill, buy, sell, barter, exchange, or trade or deal in, a crocodile or the skin of a crocodile,”.

(c) Regulation 8 provides, inter alia, for mere possession to be prohibited and, to this extent, at the least, is ultra vires s. 9(1). (I must say that the words “or possession of” seemed to me to be clearly disjunctive from the preceding words, followed by a comma, in reg. 8).

(d) That if the above matters are correct that the Supreme Court, in its supervisory role, should put a stop to this prosecution, based, as Mr. Young submits, on a “non est”. Counsel puts this as a proposition of law, and also on an “ad misericordiam” basis, for Mr. Young points out that his client could be wrongly convicted, and clearly so, but, given a bond or a discharge, may be disinclined to appeal for practical reasons, and wear the conviction. Alternatively he points out that if wrongly convicted his client might have to go to gaol, I presume for non-payment of the fine, serving his time until released on an appeal being successful. Without trying to be cynical, the sad fact is that these things are facts of legal life, but I also feel they are put too high by Mr. Young. In the first case, the decision is one for the client. If his appeal is as certain to succeed as Mr. Young would say this one is, then he would possibly get his costs. In the second case it would be a very hard Magistrate who refused enough time to pay a fine to allow an appeal to be instituted and brought to a conclusion.

I have some sympathy with the “ad misericordiam” submission, but am not swayed by it.

(e) In passing, Mr. Young seeks to support his arguments by submitting that this is not an Act to protect crocodiles, but to protect or restrict trade in them. The Act is described as the Crocodile Trade (Protection) Act.

In answer to these submissions Mr. Ryan, who appears for the State, says:

(1) Even if, as he rather concedes, the information is defective, on the basis of it merely alleging possession, but not in a descriptive way, counsel submits that this is permissible because of the terms of s. 71 of the District Courts Act. It reads:

“71(1) Where a person is charged before a court with a simple offence, an exception, exemption, proviso, excuse or qualification (whether it accompanies the description of the offence in the section of the law creating the offence or not) need not be specified or negatived in the information.”

(2) If this submission fails, as I am very inclined to think it must, then Mr. Ryan submits that this is a totally inappropriate time to apply for a rule.

(3) Counsel also referred to s. 40 of the District Courts Act. It reads:

“40. No objection shall be taken or allowed to an information, or to a summons or warrant to apprehend a defendant issued upon an information, for an alleged defect in the information in substance or in form, or for a variance between it and the evidence in support thereof, and any such variance may be amended by order of the court at the hearing.”

(NOTE: As I understood him, Mr. Ryan agrees that when the prosecution closed its case before his Worship, and when the defence closed its case, there was no real or sufficient evidence to indicate the manner in which the crocodiles came into the hands of Papadakis).

I now turn to consider the various submissions.

1. THE S. 71 DISTRICT COURTS ACT SUBMISSION

This was not fully argued, as Mr. Ryan really thought about it on his feet, or, at any rate, late in the piece. It caught Mr. Young by surprise.

Provisions such as s. 71 have provoked a deal of discussion. But I do not think that the same situation arises here as arose in cases like Buckman v. Button[cccxxi]¹¹. I feel that in this case it is essential to stipulate precisely the sort of crocodile as to which complaint is made. I believe that this is essential, and that the descriptive part is an element in the charge that must be both particularized as well as proved. The charge should state whether it is a crocodile, or skin of one, that has been taken, or killed, or bartered, or dealt in, etc.

I gain comfort for this view from the fact that it is no offence to merely kill a crocodile. The Act is designed to control those who trade in their skins, who are holders of licences, or ought to be.

2. IS THE INFORMATION DEFECTIVE AS ULTIMATELY PLEADED?

In my opinion it clearly is. Mere possession is not struck at. I have already explained why s. 9(2) does not aid the regulation-making powers in s. 9(1). So much of reg. 8 as strikes at mere possession is “ultra vires” the Act. It seems clear enough to me that the reference to mere possession in reg. 8 was intended to be disjunctive from the opening two lines, down to “money’s worth”.

3. SHOULD PROHIBITION LIE AT THIS POINT?

In my view it should not.

There is a deal of authority on the subject. But I see no need to go beyond a case decided by a very strong court, namely Parisienne Basket Shoes Proprietary Limited and Others v. Whyte[cccxxii]¹². The dissent of Latham C.J. on one arm of the case does not affect the principles enunciated. If I might say so with very great respect, the judgments of Latham C.J., Starke J. and Dixon J. illuminate and explain the problem. Evatt and McTiernan JJ. concurred in the judgment of Dixon J. I believe that this case is accepted by Australian lawyers as laying down the law correctly, and with lucidity. I agree with respect with what the Deputy Chief Justice has said about Parisienne Basket Shoes Proprietary Limited and Others v. Whyte[cccxxiii]¹³.

I appreciate that there is a factual distinction “qua” the charges, between Parisienne Basket Shoes Proprietary Limited and Others v. Whyte[cccxxiv]¹⁴ and the instant case. But it seems to me that the distinction is not such as to assist Mr. Young.

Here the Magistrate, in the first place, had jurisdiction, and he exercised it. Then doubts were entertained about the charge, and he amended it. He certainly had jurisdiction to do this. If, as I think is the case, the amended charge was incorrectly framed and Papadakis convicted then it seems to me that the mistake made in a proper exercise of jurisdiction does not ground an application for prohibition. The remedy would be by way of appeal. See The Colonial Bank of Australasia & Anor. v. Robert Willan[cccxxv]¹⁵, The Queen v. The Commissioners for Special Purposes of the Income Tax[cccxxvi]¹⁶, The King v. Nat Bell Liquors, Limited[cccxxvii]¹⁷.

4. SECTION 40 OF DISTRICT COURTS ACT

This was not really argued at all, and no authority was cited. There is a similar provision, s. 65 of the Justices Act in my home State of New South Wales. As the matter was not argued I do no more than point out that it might well be that s. 40 alone is fatal to the application for a rule. See Ex parte Parkinson[cccxxviii]¹⁸ and Preston v. Donohoe[cccxxix]¹⁹.

In my opinion the rule should be discharged.

WILLIAMS J: The facts giving rise to this matter, the arguments put forward and the relevant statutory provisions are all set out in the judgments of the other members of the Court. There is no need for me to repeat them.

I agree that the rule should be discharged and I am in general agreement with the reasons given by Prentice Deputy C.J. for reaching a similar conclusion. I merely wish to add a few brief words of my own.

The proceeding came before the Magistrate by way of information charging an offence punishable on summary conviction. Thus the Magistrate had, by virtue of s. 28 of the District Courts Act, jurisdiction to hear and determine the matter. There seems to be no doubt that the offence charged was one known to the law. Whether or not the evidence adduced in support of the charge was sufficient to support the charge is beside the point for present purposes.

During the hearing an application was made to amend the information. The Magistrate was empowered to amend the information by s. 40 of the Act.

In my view the decision of the High Court of Australia in Parisienne Basket Shoes Proprietary Limited and Others v. Whyte[cccxxx]²⁰ is in point. There is no need for me to repeat the quotations from the judgments in that case which are set out in the judgment of the Deputy Chief Justice; but the case is highly persuasive authority for the proposition that a clear distinction should be drawn between want of jurisdiction and the manner of its exercise. If, in the exercise of jurisdiction, a Court errs then the proper remedy lies by way of appeal. It seems to me that in the present case the substance of the complaint by the prosecutor is that the Magistrate whilst having jurisdiction to hear and determine the complaint and to amend it erred in the manner in which he exercised his jurisdiction.

In these circumstances I do not think that a remedy by way of prohibition lies. If after the final decision by the Magistrate in the matter the prosecutor is aggrieved by the decision then the relatively simple and expeditious remedy open to him is to appeal to the National Court.

I also wish to express my reservations concerning the point raised by Mr. Ryan arising from s. 71 of the District Courts Act. As Mr. Ryan stated he had not given the matter much consideration and there was no full argument on the point. In these circumstances I refrain from any comment on the matter.

Order nisi for prohibition discharged.

Solicitor for the applicant: L. Keith Young & Associates.

Solicitor for the respondent (informant) and the Magistrate: K. B. Egan, Public Prosecutor.

[cccxi](1930) 25 Tas. L.R. 84.

[cccxii](1899) 25 V.L.R. 170.

[cccxiii](1938) 59 C.L.R. 369.

[cccxiv][1938] HCA 7; (1938) 59 C.L.R. 369 at pp. 389 and 392.

[cccxv](1965) 82 W.N. (N.S.W. Pt. 2) 232.

[cccxvi](1970) 92 W.N. (N.S.W.) 290.

[cccxvii][1939] NSWStRp 3; (1939) 39 S.R. (N.S.W.) 42 at p. 44.

[cccxviii][1906] HCA 43; (1906) 3 C.L.R. 1089 at p. 1096.

[cccxix](1909) 26 W.N. (N.S.W.) 7.