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Prai and Ondawame v An Officer of The State [1979] PNGLR 1 (7 December 1978)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 1

N182

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JACOB HENDRICH PRAI

AND

OTTO ONDAWAME

V

AN OFFICER OF THE GOVERNMENT OF PAPUA NEW GUINEA (NO. 1)

Waigani

Saldanha J

30 November 1978

7 December 1978

JUSTICES - Appeal - Powers on hearing - Fresh evidence - Matters which could have been proved in court below - Principles applicable - Reasonable explanation for failure to put - Credibility of fresh evidence.

JUSTICES - Procedure - Information - Form and sufficiency - Duplicity - Lack of essential element of offence - Applicability of English common law - Regard to circumstances of Papua New Guinea at present time - Rigid technicalities not adhered to - Constitution, Sch. 2.2[i]1 - District Courts Act 1963, s. 38(2)[ii]2.

CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Underlying law - Applicability of English common law - Regard to circumstances of Papua New Guinea at present time - Rigid technicalities not adhered to - Constitution, Sch. 2.2[iii]3.

On appeals against convictions on informations alleging the offences of entering Papua New Guinea without entry permits contrary to s. 24(1)(a) of the Migration Act 1963, leave was sought to admit additional evidence and it was also argued that the information was defective for two reasons, viz. it failed to allege an essential element of the offence, namely that the appellants had entered Papua New Guinea, and it was bad for duplicity in that although it alleged that the appellants were prohibited immigrants it failed to say whether they were prohibited immigrants for entering without an entry permit or for remaining in Papua New Guinea after an entry permit had expired.

Held

(1)      In the application pursuant to Sch. 2.2(1) of the Constitution of the Independent State of Papua New Guinea of the common law principles, that an information should give such particulars as may be necessary for giving reasonable information of the nature of the charge and that a conviction based on an information that is bad for duplicity is itself bad rigid adherence to the technicalities of the English common law would be inappropriate to the circumstances of Papua New Guinea at the present time and would be likely to result in injustice being done.

(2)      Where an appellant seeks on appeal, to adduce additional evidence which he failed to produce at the trial:

(a)      the appellate court is entitled to consider whether there is a reasonable explanation for the failure to produce that evidence at the proper time (i.e. on the trial)

Pearson v. Samuels (1976), 13 S.A.S.R. 428, adopted and applied; and

(b)      it is open to the appellate court to assess the credibility of the proposed additional evidence.

Ratten v. The Queen [1974] HCA 35; (1974), 131 C.L.R. 510, referred to.

(3)      In all the circumstances the fresh evidence should be rejected and the appeals should be dismissed.

Appeals

These were appeals against conviction by a magistrate in the District Court at Vanimo on 27th September, 1978, on charges of entering Papua New Guinea without entry permits contrary to s. 24(1)(a) of the Migration Act 1963.

Counsel

R. R. Douglas, for the appellants.

N. W. King, for the respondent.

Cur. adv. vult.

7 December 1978

SALDANHA J: The two appellants were convicted on the 27th September, 1978, by a magistrate in the District Court at Vanimo of the offence of entering Papua New Guinea without entry permits contrary to s. 24(1)(a) of the Migration Act 1963 and each sentenced to two months’ imprisonment with hard labour. It was alleged by the prosecution that they needed entry permits to enter Papua New Guinea by reason of the fact that they were non-nationals.

They appealed on the following grounds:

“1.      that in all the circumstances of the case the plea of guilty should not have been accepted;

2.       that the appellants at no time before conviction were informed of their rights under s. 42(2) of the Constitution;

3.       that the appellants were not informed in a language which they understood and in detail of the nature of the offence with which they were charged in accordance with s. 37(4)(b) of the Constitution;

4.       that the appellants were not given adequate time and facilities to prepare their defence in accordance with s. 37(4)(c) of the Constitution;

5.       that the appellants were not permitted the assistance of an interpreter in the court proceedings in accordance with s. 37(4)(d) of the Constitution;

6.       that the appellants were not permitted to defend themselves by a legal representative of their own choice or by the Public Solicitor in accordance with s. 37(4)(e) of the Constitution;

7.       that the appellants were not permitted to communicate without delay and in private with a member of their families, or a personal friend or a lawyer of their choice, or the Public Solicitor in accordance with s. 42(2)(b) of the Constitution;

8.       that the appellants were not given an adequate opportunity to give instructions to a lawyer of their choice in the place they were detained in accordance with s. 42(2)(c) of the Constitution;

and such other grounds of appeal as shall be apparent to the appellants’ solicitors after the court record is made available.”

By the time the appeal came to be heard the appellants had served their sentences so that the appeal now is against conviction only.

At the hearing of the appeal Mr. Douglas, counsel for the appellants, sought leave to adduce additional evidence. I refused such leave, and, as the appellants’ counsel had come from Brisbane to argue the appeal and was anxious to return there as soon as possible I did not wish to delay his departure by taking time to deliver a fully-reasoned ruling. I promised to deliver this at a later date. I shall give my reasons for the ruling now before going on to consider the merits of the appeal.

Both appellants have sworn affidavits setting out the additional evidence which they sought to have admitted. There are minor differences in the two affidavits but essentially they are similar. The additional evidence was to be briefly as follows.

Jacob Hendrich Prai was the former President of the de facto Government of West Papua and the leader of a movement to resist the Indonesian colonisation of West Irian. Otto Ondawame was a subordinate officer to Prai. In the past they had on many occasions crossed the border between West Irian and Papua New Guinea at the invitation of officials or agents of the Government of Papua New Guinea for the purpose of having consultations with members of the defence force, Government officials and freedom fighters from West Irian, and, on such occasions they had entered without passports or visas, had been flown by the Government to various places and had been provided with accommodation and entertainment—all at Government expense.

In June 1978 Prai received a message from a luluai in Sokotiau village in Papua New Guinea to the effect that he was to contact a defence force officer. On the 13th September, he came to Papua New Guinea and met the luluai who confirmed that he had sent the message and that it was genuine. Presumably Prai returned to West Irian. On the 25th September, 1978, the two appellants crossed into Papua New Guinea and walked to Vanimo where they stayed at the house of a certain Fred Eiserman where they received medical treatment. They had no entry permits. Early in the morning of the 27th September they were arrested by the police. They had come to Papua New Guinea for two reasons: (a) because they thought that the officials of the Government of Papua New Guinea wanted to talk to them, and (b) because both were very sick and needed urgent medical treatment which they could not get in West Irian without endangering their lives.

The appellants’ counsel argued that if the trial magistrate had known the true facts he would not have accepted a plea of guilty, that the new facts sought to be adduced raised the defence of mistake of fact under s. 24 of the Criminal Code, and, that had these new facts been placed before the magistrate he would no doubt have entered a plea of not guilty to enable the appellants to avail themselves of the defence of mistake of fact. He alleged further that in his reasons for his decision the trial magistrate had said that when asked if they had anything to say in their defence the appellants said: “We come to (sic) here and we had no intention to spoil the safety of P.N.G. government. We come to find medicine for our legs because of the sores on them, and so, if you hold us here, we think there might be too much talk and for security purpose, we would like to finish from here. That is we want you people to cure or yield (sic) our sores and if you want to send us away, it is up to you. That’s all.”

Appellants’ counsel maintained that the reference to security of the country suggested that the appellants were saying that some people in the Government would not have liked it to have been known that the two appellants were in the country and that the magistrate should have asked them what they meant; that the magistrate was aware of the political situation, and that having regard to all these facts and the surrounding circumstances the magistrate should have been alerted to the fact that this was an unusual case and should have questioned the appellants before entering pleas of guilty. He maintains that s. 42(2) of the Constitution had not been complied with and although this was not the place to challenge the decision of the Supreme Court in Constitutional Reference No. 1 of 1977[iv]4 to the effect that confessional evidence obtained in contravention of s. 42(2) is not inadmissible, the fact that s. 42(2) had not been complied with should be taken into account by me in the exercise of my discretion whether or not to allow the fresh evidence to be adduced. Counsel for the appellants asked me to admit the fresh evidence, accept the facts stated in the affidavits as being true, allow the appeals and quash the convictions on the ground that had those new facts been known to the magistrate he would have entered pleas of not guilty.

The case of Pearson v. Samuels[v]5 is authority for the proposition that where an appellant seeks to prove in the appellate court facts which he failed to produce at the trial the appellate court is entitled to consider whether there is a reasonable explanation for the failure to mention them at the proper time. It is also open to the court to look at the evidence and to reject it if it is not credible: see Ratten v. The Queen[vi]6. Here we have a situation where the two appellants are saying that in the past they have been coming and going without passports and visas, they have been flown here, there and everywhere and been entertained—all at Government expense. Yet on this occasion when they have been arrested and charged with being prohibited immigrants, they say nothing to the magistrate about their having been welcomed in the past and their belief that they thought they had been invited. One would have expected them to express indignation at their treatment and to demand to see a representative of the Government for an explanation of this outrageous behaviour, but, instead, all they say is that they had come for medical treatment. One can only infer that this was the true reason for their entering the country.

When appellants’ counsel contends that if the facts alleged in the affidavits were true the defence of mistake of fact would have been available to the appellants, I understand him to mean that the appellants thought that the Government had waived the requirement for an entry permit as they had done in the past. There is no provision in the Migration Act enabling the Government to waive the requirement for an entry permit, and, a mistake on the part of the appellants on this point would be a mistake of law and not a mistake of fact. It would have been a mistake of fact if the appellants had mistakenly thought that an entry permit had in fact been issued. Mr. Douglas says that the additional evidence is open to this interpretation but I do not agree. The appellants have said that on every occasion in the past when they came at the invitation of the Government they came without a passport or a visa—and presumably without an entry permit. They clearly imply that they were under the impression that no entry permit would have been required on this occasion. The additional facts if true would in my opinion go to mitigation of sentence but would not affect the conviction.

I agree with Mr. Douglas that I am entitled to take into account failure to comply with the provisions of s. 42(2) of the Constitution in the exercise of my discretion to admit or not to admit the additional facts. This, however, is only one of the matters to be taken into account. But, for reasons I have given above I can see no good grounds for the exercise of my discretion in their favour.

After my refusal to admit the additional facts Mr. Douglas could only argue the merits of the appeal by reference to facts placed before the magistrate. There was very little he could add to what he had already said before, and he contented himself by merely repeating what he had said earlier, namely, that having regard to what the appellants had said the magistrate should have been on the alert, should have questioned the appellants further and having regard to all the circumstances, entered pleas of not guilty, and, this not having been done, the appeals should be allowed and the convictions quashed. The notice of appeal raises many other grounds of appeal. Mr. Douglas did not argue them—although he said he relied upon them—obviously because there is no merit in them.

In his reasons for decision the trial magistrate has said that he asked the appellants what language they wished to speak and they both said Pidgin, that when the charge was read to them they both admitted that they had no entry permits to enter Papua New Guinea. It is not in dispute that the appellants are non-nationals and that they entered Papua New Guinea without entry permits. There can be no doubt that they are guilty of an offence under s. 24(1)(a) of the Migration Act 1963. They have been rightly convicted.

After counsel for the appellants and counsel for the respondent had finished addressing me Mr. Egan, the Public Prosecutor, rose to point out that there was a possibility that the information was defective for two reasons, firstly, because an essential element of the offence, namely, that the appellants had entered Papua New Guinea, had not been averred in the information, and, secondly, because although the information alleges that the appellants were prohibited immigrants it failed to say whether they were prohibited immigrants for entering without an entry permit or for remaining in Papua New Guinea after the entry permit had expired, and, hence, that the information could be bad for duplicity.

Section 24(1)(a) of the Migration Act 1963 as amended by the Migration (Amendment) Act 1975 (the “Act”) under which the appellants were charged provides as follows:

“24(1) A non-national who:

(a)      enters the Territory in such circumstances that he becomes a prohibited immigrant by virtue of Section 6 of this Act;

(b)      ...

(c)      ...

is guilty of an offence.”

Section 6(1) of the Act provides:

“(1)    A non-national who, not being the holder of an entry permit that is in force, enters or remains in Papua New Guinea, is a prohibited immigrant.”

The information alleged:

“That on 25th September, 1978, you were a West Irian becoming a prohibited immigrant that you were not a holder of an entry permit to enter PNG then in force under s. 6 of the immigration Act, thereby contravening s. 24(1)(a) of the immigration Act.”

There appears to be no statutory provision in our jurisdiction to the effect that an information must contain every element of an offence. There is nothing to that effect in the District Courts Act 1963. Even in England the rule which provides for the statement of an offence says that the statement need not necessarily state all the elements of the offence. This is r. 77 of the Magistrates’ Courts Rules 1952, which provides:

“77.    Statement of offence

(1)      Every information, summons, warrant or other document laid, issued or made for the purposes of, or in connection with, any proceedings before a magistrates’ court for an offence shall be sufficient if it describes the specific offence with which the accused is charged, or of which he is convicted, in ordinary language avoiding as far as possible the use of technical terms and without necessarily stating all the elements of the offence, and gives such particulars as may be necessary for giving reasonable information of the nature of the charge.

(2)      If the offence charged is one created by or under any Act, the description of the offence shall contain a reference to the section of the Act, or, as the case may be, the rule, order, regulation, by-law or other instrument creating the offence.”

The effect of omitting an element of an offence may be not to give the defendant “reasonable information of the nature of the charge”. Thus in Robertson v. Rosenberg[vii]7 the magistrates’ court took the view that the particulars given in the information were insufficient and the prosecution after being given the opportunity of giving better particulars then and there refused to do so. When the magistrates’ court dismissed the information on that account the High Court refused to interfere. In Stephenson v. Johnson[viii]8 justices convicted an appellant on an information which they considered gave the appellant reasonable information of the nature of the charge and refused to order the respondent to give any further particulars. On appeal the conviction was quashed on the ground that the information was defective in that it did not give such particulars as were necessary to give the appellant reasonable information of the nature of the charge against her as required by the Magistrates’ Courts Rules 1952, r. 77(1) and (2).

Sometimes the omission of certain elements of an offence results in a failure to disclose what offence has been committed. This is what happened in Andrias Nan Ganta v. Lewis Nandi[ix]9. The appellant was charged under s. 31(b) of the Police Offences Ordinance 1912-1966 which makes it an offence for a person to carry or have “... in his possession in a public place without lawful excuse (proof of which lies upon him) an offensive weapon”. The complainant alleged that the appellant “... was found in possession of an offensive weapon, namely a Katapel” (catapult). No reference was made to the other elements of the offence. Failure to aver that the appellant had no lawful excuse may not have been fatal to the conviction as the burden of establishing that he had a lawful excuse for carrying the weapon lay upon the appellant. The Supreme Court, as it then was, held on appeal that on the assumption that a catapult is an offensive weapon—the court left the question undecided—the failure to aver that the catapult was carried in a public place was fatal to the conviction, presumably for the reason that it is not an offence to carry an offensive weapon in a place that is not a public place.

Section 38(2) of the District Courts Act 1963 provides that “... the description of an offence in the words of the Act, order, by-law, regulation or other instrument creating the offence, or in similar words, is sufficient in law.” I am of the view that this section has been substantially complied with. The allegation that the appellants had entered Papua New Guinea is implicit in the wording of the information.

The contention that the information may be bad for duplicity arises in the following circumstances. The information refers to s. 6 of the Act and s. 6 defines a prohibited immigrant as “... a non-national who, not being the holder of an entry permit that is in force, enters or remains in Papua New Guinea”. It is argued that the use of the words “enters or remains” may have the effect of causing duplicity. I would have thought that the averment in the information “... that you were not a holder of an entry permit to enter PNG ...” showed that it was being alleged that they had entered Papua New Guinea without a valid entry permit.

The rule against duplicity in our jurisdiction is contained in s. 37 of the District Courts Act 1963, the relevant part of which states that “... an information shall be for one matter only”. The corresponding provision in England is contained in r. 14 of the Magistrates’ Courts Rules 1952, to the effect that an information is to be for one offence only. In England a conviction based upon an information that is bad for duplicity is bad. Thus driving a motor car at a speed or in a manner dangerous to the public are two offences: R. v. Wells; Ex parte Clifford [x]10. A conviction for driving without due care and attention or reasonable consideration for other persons using the road is bad: R. v. Surrey Justices; Ex parte Witherick [xi]11; as also is an information alleging that a person did assault or beat another: Jones v. Sherwood [xii]12; as also is an information charging the sale of food which was not of the nature or not of the substance or not of the quality demanded by the purchaser: Bastin v. Davies [xiii]13. In Mallon v. Allon[xiv]14 an information that a defendant did unlawfully “admit and allow to remain on” premises a youth apparently under eighteen years of age was held to be bad for duplicity. The section creating the offences used the words “admitted to or allowed to remain on” (emphasis mine).

So, for cases in support of the proposition that a conviction based on an information that is bad for duplicity is bad we must look to English case law—on the assumption that English cases in support of that part of the common law which forms part of our underlying law are binding on this court by virtue of Sch. 2.2(1) of the Constitution. And for the proposition that an information must give such particulars as may be necessary for giving reasonable information of the nature of the charge we must look to English common law, there being no similar provision in Papua New Guinea.

If the instant case had been tried in England the information might have been found to be defective for duplicity and for failing to give reasonable information of the nature of the charge. But it must be borne in mind that in our jurisdiction the principles and rules of English common law are adopted only “... except if, and to the extent that they are inapplicable or inappropriate to the circumstances of the country from time to time”: Sch. 2.2(1)(b) of the Constitution. And “... in relation to any particular question before a court, the operation of Subsection (1)(b) shall be determined by reference, among other things, to the circumstances of the case, including the time and place of any relevant transaction, act or event”: Sch. 2.2(4) of the Constitution.

This event occurred at Vanimo which is near the border with West Irian and remote from any big town where legal advice might be readily available. Most magistrates are not legally qualified, and, presumably the magistrate who heard this case was not so qualified. From my knowledge and experience of policemen in Papua New Guinea I would say that the policeman who drew up the information would not be expected to be acquainted with such niceties as the rule against duplicity or the rule that an information must give the defendant reasonable information of the nature of the charge. In circumstances such as those in this case I am of the view that rigid adherence to technicalities in the application of English common law is inappropriate to the circumstances of the country at the present time and is likely to result in injustice being done.

The appellants were under no illusion that they were being prosecuted for the offence that, being non-nationals they had entered Papua New Guinea without being in possession of valid entry permits, and, accordingly, their appeal is dismissed.

Appeal dismissed.

Solicitors for the appellants: Young & Williams.

Solicitor for the respondent: K. B. Egan, Public Prosecutor.


ence>[i]Infra p. 9.

[ii]Infra p. 8.

[iii]Infra p. 9.

[iv][1977] P.N.G.L.R. 362.

[v](1976) 13 S.A.S.R. 428.

[vi](1974) 131 C.L.R. 510; 48 A.L.J.R. 380.

[vii][1951] W.N. (Eng.) 97; 115 J.P. 128.

[viii] [1954] 1 W.L.R. 375; [1954] 1 All E.R. 369.

[ix][1973] P.N.G.L.R. 61.

[x](1904 91 L.T. 98; 68 J.P. 392.

[xi][1932] 1 K.B. 450.

[xii][1942] 1 K.B. 127.

[xiii][1950] 2 K.B. 579.

[xiv] [1964] 1 Q.B. 385.

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