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Prai and Ondawame v An Officer of the Government of PNG [1979] PNGLR 247 (6 August 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 247 - Jacob Hendrich Prai and Otto Ondawame v An Officer of the Government of PNG 

[1979] PNGLR 247

SC155

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

JACOB HENDRICH PRAI AND OTTO ONDAWAME

V

AN OFFICER OF THE GOVERNMENT OF PAPUA NEW GUINEA (NO. 2)

Waigani

Prentice CJ Raine DCJ Andrew J

31 July 1979

6 August 1979

IMMIGRATION AND ALIENS - Prohibited immigrants - Entry without permit - Elements of offence - Information to disclose one offence only and each element of offence - Description of offence in words similar to Act - Name of Act not necessary to information - Information in terms of s. 24(1)(a)[cclxvii]¹ Migration Act 1963 not bad for duplicity - Migration Act 1963, ss. 6(1)(a), 24(1)(a).[cclxviii]²

INFERIOR COURTS - District courts - Practice and procedure - Informations - Nature of - To disclose one offence only and each element of offence - Discription of offence in words similar to Act creating offence - Name of Act not necessary to information - Offence of being prohibited immigrant - District Courts Act 1963, ss. 38[cclxix]³, 134[cclxx]⁴.

Section 6(1)(a) of the Migration Act 1963, provides that “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.”

On appeal against convictions on pleas of guilty for being prohibited immigrants contrary to s. 24(1)(a) of the Migration Act 1963, such convictions being made on the information:

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

Held

(1)      The necessary elements of a charge of being a prohibited immigrant under s. 24 of the Migration Act 1963, are, under s. 6 thereof:

(1)      being a non-national

(2)      entering Papua New Guinea, and

(3)      not being the holder of an entry permit that was then in force.

(2)      Under s. 134 of the District Courts Act 1963, the substance of a charge (that is each element of the charge) must be put to the accused, and the accused must admit every element of the charge before he can be convicted without the magistrate proceeding to hear and determine the case.

(3)      The element of entering Papua New Guinea was implicit in the words “you were a West Irian becoming a prohibited immigrant.”

(4)      There had been a sufficient description of the offence in words similar to the Act as provided in s. 38 of the District Courts Act 1963, which imported each element of the offence.

(5)      There being no general requirement that the name of the Act creating an offence should be set out in the information alleging it, the mis-spelling of the Act could not amount to an error in law.

(6)      There being only one charge under s. 24(1) of the Migration Act 1963, the information could not be bad for duplicity where it merely stated the charge in similar words to that section.

(7)      There being no miscarriage of justice the appeal should be dismissed.

Appeal

This was an appeal against conviction by two appellants for being prohibited immigrants contrary to s. 24(1)(a) of the Migration Act 1963.

Counsel

I. R. Molloy, for the appellants.

W. J. Karczewski, for the respondent.

Cur. adv. vult.

6 August 1979

PRENTICE CJ RAINE DCJ ANDREW J: This appeal is brought against a judgment of the National Court whereby the appellants’ appeals against their convictions for being prohibited immigrants under s. 24(1)(a) of the Migration Act 1963 made by the District Court at Vanimo, were dismissed.

The point of the appeal is that the information upon which the appellants were convicted did not disclose an offence. It is said that those informations were bad for uncertainty and that they did not therefore disclose an offence. A further ground of appeal was that the appellants were not asked to plead to the charge alleged in the informations.

Section 24(1)(a) of the Migration Act 1963 is as follows:

“24(1) A NON-NATIONAL who:

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

(b)      ...

(c)      ...

is guilty of an offence.

Penalty: Imprisonment for six months.”

Section 6(1) of the Migration Act 1963 is as follows:

“6(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 informations in the case of both appellants were as follows:

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

The main ground of attack against these informations is that nowhere is it alleged that there was an entry into Papua New Guinea. It was submitted that s. 6 of the Migration Act 1963 contains three elements namely that:

(1)      a non-national ...

(2)      enters Papua New Guinea ...

(3)      not being the holder of an entry permit that was then in force.

We agree that this is so and that each element of the charge must be put to the accused. Section 134 of the District Courts Act 1963 provides:

“134.   Where the defendant is present at the hearing of an information, the substance of the information shall be stated to him and he shall be asked if he has cause to show why he should not be convicted or why an order should not be made against him, and if he has no such cause to show the court may convict him or make an order against him accordingly.”

This section is in unusual terms as it does not provide for any plea of guilty or not guilty to be taken but it is clear that if the defendant has any cause to show why he should not be convicted or why an order should not be made against him, the court is to proceed to hear and determine the case under s. 135 of the District Courts Act 1963. The accused must admit the truth of an information before he can be convicted without the magistrate proceeding to hear and determine the case. The defendant must admit every element of the charge, see Towarli Tokoi v. Bryant[cclxxi]⁵.

Neither s. 134 nor s. 135 of the District Courts Act 1963 include the word “plea” but in practice, however, the defendant is asked by the court how he pleads.

Whilst in our view the informations may lack clarity, nevertheless the element of entering Papua New Guinea is implicit in the words “you were a West Irian becoming a prohibited immigrant.” Furthermore, both appellants stated that they had heard and understood the charge and both said that it was true.

It is clear that neither appellant was denying the charge. Prior to being sentenced the first appellant, Jacob Prai, said, “We admit we do not have entry permit to enter Papua New Guinea and would like to pay fine and if we stay more two months here will be a lot of trouble because we are leaders of the West Papua movement.” The second appellant, Otto Ondawame, said, “We admit that we do not have entry permit to enter Papua New Guinea and so would like to pay fine, and if we stay more than one or two months there will be a lot of trouble because we are leaders of West Papua movement.”

In these circumstances we are unable to see that there has been any miscarriage of justice. The appellants were under no illusion as to the nature of the charges against them.

We should add that s. 38 of the District Courts Act 1963 provides:

“38(1) Such description of persons or things as would be sufficient in an indictment is sufficient in an information.

(2)      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.”

In our view there has been a description of the offence in similar words to the Act which import each element of the offence.

It was also submitted that the information wrongly described the Migration Act as the immigration Act and that this was an error of law. There is no general requirement that the name of the Act must be set out in the information and we do not believe that the mere mis-spelling amounts to an error of law.

Orginally also it was submitted that the charge was bad for duplicity but as appellants’ counsel conceded on this appeal, there is only one charge under s. 24(1)(a) of the Migration Act 1963, and no duplicity appears from the mere statement of a charge in similar words to that section.

We dismiss the appeal in each case and we confirm the convictions and sentences in each case.

Appeals dismissed.

Convictions and sentences confirmed.

Solicitors for the appellants: Craig Kirke & Wright.

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