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SCR No 2 of 1980; Re S14(2) Summary Offences Act [1981] PNGLR 50 (6 March 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 50 - SCR No 2 of 1980; Re S14(2) Summary Offences Act 

[1981] PNGLR 50

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

(S.C.R. NO. 2 OF 1980)

IN THE MATTER OF S. 37(4)(A) OF THE CONSTITUTION AND S. 14(2) OF THE SUMMARY OFFENCES ACT 1977 AND IN THE MATTER OF A REFERENCE UNDER S. 18(2) OF THE CONSTITUTION

Waigani

Kearney DCJ Andrew J Miles J

25 August 1980

27 February 1981

6 March 1981

CRIMINAL LAW - Evidence - Onus of proof - Presumption of innocence - Proof of facts peculiarly within knowledge of accused - “Grounds for believing that cheque (passed) would be paid in full on presentation” - State of bank account facts “peculiarly within his knowledge” - “According to law” - Summary Offences Act 1977, s. 14[cii]¹ not inconsistent with Constitution s. 37(4)(a).

CRIMINAL LAW - Particular offences - Passing valueless cheque - Defence - “Reasonable grounds for believing that cheque (passed) would be paid in full on presentation” - State of bank account facts “peculiarly within his knowledge” - Onus of proof - Reasonableness of grounds requires proof on balance of probabilities - Summary Offences Act 1977, s. 14[ciii]² - Constitution s. 37(4)(a).

CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Construction - Onus of proof in criminal matters - Presumption of innocence - Innocent until proved guilty “according to law” - Facts peculiarly within knowledge of accused - Defendants burden discharged on balance of probabilities - Constitution s. 37(4)(a) - Summary Offences Act 1977, s. 14[civ]³.

The facts upon which a person bases his belief that a cheque which he passes will be paid in full by the bank when presented, are facts which are either peculiarly within the knowledge of the person passing the cheque, or would be with the exercise of reasonable care, within the meaning of s. 37(4)(a) of the Constitution; whether or not these facts constitute reasonable grounds is a matter for determination by the court before whom the defence is raised, and the defendant discharges such a burden of proof upon the balance of probabilities.

S.C.R. No. 1 of 1980; Re s. 22a of the Police Offences Act (Papua) 1912 (repealed) [1981] P.N.G.L.R. 28 followed.

The phrase “according to law” in s. 37(4)(a) of the Constitution refers to the whole body of law in the country as exhaustively defined in s. 9 of the Constitution; it includes both the Statute law and the underlying law.

Per Curiam:

It would be unconstitutional to place upon the accused the ultimate burden of establishing his innocence with respect to the elements of the offence charged.

Reference.

This was a reference under s. 18 of the Constitution of the Independent State of Papua New Guinea of a “question relating to the interpretation or application of any provision of a Constitutional Law”, by a magistrate hearing a charge under s. 14 of the Summary Offences Act 1977, of passing a valueless cheque. The question referred is set out at p. 54.

Counsel:

J. Karczewski, for the informant.

A. Amet, for the defendant.

A. Pert, for the Principal Legal Adviser to the National Executive Council.

Cur. adv. vult.

6 March 1981

KEARNEY DCJ:  Mr. Rambio received a public utilities bill from his town council. He paid it by a cheque. The amount of the cheque was more than the amount which stood to the credit of his bank account. His bank therefore refused to pay out on the cheque. The council informed the police, and the police charged Mr. Rambio with passing a valueless cheque.

The offence of passing a valueless cheque is created by s. 14 of the Summary Offences Act 1977, as follows:

Section 14(2) of the Summary Offences Act 1977 which provides a defendant charged with the offence of passing a valueless cheque with a defence “if the person charged proves that he had reasonable grounds for believing that the cheque would be paid in full on presentation”, is not inconsistent with s. 37(4)(a) of the Constitution; and s. 14 is not a law which creates an offence of which a person charged is not presumed innocent until proved guilty according to law.

“14.    VALUELESS CHEQUES

(1)      A person who obtains, or pays for, any goods, money, valuable security, credit, benefit or advantage by passing a cheque which is not paid on presentation to the bank against which it is drawn is guilty of an offence.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.

(2)      It is a defence to a charge for an offence against Sub-Section (1) if the person charged proves that he had reasonable grounds for believing that the cheque would be paid in full on presentation.

(3)      The fact that at the time the cheque was passed there was some funds to the credit of the account against which the cheque was drawn is not, of itself, a defence to a charge of an offence against Sub-Section (1).”

Mr. Rambio appeared before the District Court. He pleaded not guilty. Before the police led evidence, defence counsel submitted that s. 14 is invalid and ineffective, and hence creates no offence, because s. 14(2) requires a defendant to prove his innocence, and this is inconsistent with the Constitution, s. 37(4)(a), which provides:

“(4)    A person charged with an offence—

(a)      shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would with the exercise of reasonable care be, peculiarly within his knowledge;”

The magistrate thereupon referred this constitutional point to this Court, in accordance with the Constitution, s. 18(2).

I have had the benefit of reading the opinion of Miles J., we agree on the answer to the question referred, but it is desirable that I express my own reasons.

The question is whether s. 14(2) of the Summary Offences Act 1977 is a law of the type authorized by the proviso to the Constitution, s. 37(4)(a). This involves two matters:

The first is whether the defence in s. 14(2) involves the proof of facts “peculiarly within his knowledge”. The facts upon which a person bases his belief that a cheque which he passes will be paid in full by the bank when presented—the grounds of his belief—are the facts as to the operations on the bank account in question, including any arrangements with the bank as to payment of overdrawn cheques. I consider that these are facts which are either peculiarly within the knowledge of the person passing the cheque; or would be, if he exercised reasonable care.

The second matter is whether there is any other limitation upon the “particular facts” as to which the normal onus of proof can be reversed under the proviso, when s. 37(4)(a) is read as a whole.

The main thrust of the Constitution, s. 37(4)(a) is to place upon a prosecutor the burden of proving the guilt of a person charged with an offence. In my opinion the phrase “according to law” refers to the whole body of law in the country, as exhaustively defined in the Constitution, s. 9; it includes both the statute law and the underlying law.

By the underlying law that burden on the prosecutor is discharged only when he proves beyond a reasonable doubt that the defendant is guilty; that is, that the defendant is criminally responsible for the offence charged.

The Constitution, s. 37(2) requires every offence (except contempt of court) to be defined by a written law. To define an offence is to specify its elements.

A prosecutor must therefore prove against a defendant beyond a reasonable doubt every element of the offence charged, as defined by the law creating that particular offence; and, in our system, this burden must also take into account the general provisions as to criminal responsibility set out in Ch. 5 of the Criminal Code. That means, so far as concerns the matter of mistake dealt with by s. 14(2) of the Summary Offences Act 1977, that in general where the evidence clearly raises a possible issue of mistake of fact, exculpatory of criminal responsibility under s. 24 of the Criminal Code, the underlying law requires the prosecutor to prove beyond a reasonable doubt that the defendant did not have the necessary honest and reasonable but mistaken belief. However, s. 24 of the Code contemplates that its operation may be excluded as regards particular offences; and s. 14(2) of the Summary Offences Act 1977 purports to be such a statutory exclusion.

If there were no proviso to the Constitution, s. 37(4)(a), s. 14(2) would I think, clearly be a “law” within the meaning of that word in the phrase “according to law”. But it is clear, I think, that the proviso is intended to ensure that, as regards laws which place an onus of proof on a person charged with an offence, only such of those laws as meet the requirements of the proviso are valid, and are “law” within the phrase “according to law”. In my opinion, such a law cannot require a defendant to prove against himself facts which establish any element of the offence as defined, because that would be inconsistent with the presumption of innocence which is the main thrust of the Constitution, s. 37(4)(a). But if such a law provides an excuse or justification or defence, which assumes the existence of the facts which establish the elements of the offence as defined, and is established by proof of additional facts— “particular facts”—of a special character, that is, facts peculiarly within the defendant’s knowledge, the reverse onus is valid by virtue of the proviso.

It is clear from the underlying law that the defendant discharges such a burden of proof, by proof upon the balance of probabilities.

I consider that s. 14(2) of the Summary Offences Act 1977 is a law which meets the two requirements of the proviso—additional facts, of a special character—and is therefore a law within the meaning of the phrase “according to law” in the Constitution, s. 37(4)(a).

I would answer the question referred as follows:

“Section 14(2) of the Summary Offences Act 1977 is not inconsistent with s. 37(4)(a) of the Constitution; and s. 14 is not a law which creates an offence of which a person charged is not presumed innocent until proved guilty according to law.”

ANDREW J:  I have had the advantage of reading the judgments of Kearney D.C.J. and Miles J. I agree with their reasons and with the conclusion and I have nothing to add.

MILES J:  This is a reference under s. 18 of the Constitution from a magistrate sitting in the Boroko District Court to determine a charge brought by the informant Ilo Togina against the defendant Canute Rambio under s. 14 of the Summary Offences Act 1977. The question raised on this reference is similar to that raised in Supreme Court Reference No. 1 of 1980[cv]⁴ in respect of s. 22a of the Police Offences Act (Papua) 1912 now repealed and replaced by the Summary Offences Act 1977. The section relating to the offence of passing a valueless cheque has been re-enacted in s. 14 in substantially similar terms to those of the former s. 22a but with the distinct difference that the proviso relating to the defence of lack of intent to defraud has been omitted.

The question referred for decision is in these terms:

“Is Section 14(2) of the Summary Offences Act No. 35 of 1977, which requires a defendant charged under s. 14(1) of the Act, which ‘shifts the burden of proof from the prosecution onto the defendant to prove his innocence’ unconstitutional, given the provisions of guaranteed rights of s. 37(4)(a) of the Constitution of the Independent State of Papua New Guinea?”

Section 14 of the Summary Offences Act 1977 provides as follows:

“14.    VALUELESS CHEQUES

(1)      A person who obtains, or pays for, any goods, money, valuable security, credit, benefit, or advantage by passing a cheque which is not paid on presentation to the bank against which it is drawn is guilty of an offence.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding three months.

(2)      It is a defence to charge for an offence against Sub-section (1) if the person charged proves that he had reasonable grounds for believing that the cheque would be paid in full on presentation.

(3)      The fact that at the time the cheque was passed there was some funds to the credit of the account against which the cheque was drawn is not, of itself, a defence to a charge of an offence against Subsection (1).”

Counsel for the informant and for the defendant as well as counsel for the Principal Legal Adviser to the National Executive appeared in the present matter. Although all counsel agreed that the question referred should be answered in the negative, it is necessary to give a considered opinion as to the matter raised in the reference.

Mr. Karczewski who appeared for the informant argued the case for the negative and his submissions were adopted by other counsel appearing. Mr. Karczewski himself adopted the submissions earlier put by Ms. Pert on behalf of the Principal Legal Adviser to the National Executive in Supreme Court Reference No. 1 of 1980[cvi]⁵ and summarized by her in the present reference. He made further reference to the well known text on banking law, Paget’s Law of Banking (8th ed., 1972), p. 166, for the proposition that it is an implied term of the contract between a banker and customer that the banker is bound to keep matters relating to the state of the customer’s account secret. For this reason it is normally the case that the state of the account is known only to the banker (including his servants and agents) on the one hand and the customer on the other hand. The customer of course is not himself bound to keep secret matters relating to his account and he may if he wishes broadcast them to the world. As a matter of fact however, it is recognized that people keep details of their banking transactions pretty much to themselves.

Accordingly, so it was argued, the question whether a cheque will be paid in full on presentation is something ordinarily within the knowledge of the banker and the customer and no one else. If it is not within the customer’s actual knowledge, it is, to use the words of s. 37(4)(2) of the Constitution, a fact which would with the exercise of reasonable care be within his own knowledge. But apart from the banker and the customer it is not normally the case that other persons will have the means of knowledge as to whether a cheque will or will not be met in full upon presentation.

The submission is, in my view, a sound one. Because the knowledge, actual or constructive, of the bank account is normally restricted to the banker and customer, grounds for believing that a cheque will be met on presentation, may be said to be “peculiarly within the knowledge” of the customer, as something which he especially knows, as that phrase was applied in Supreme Court Reference No. 1 of 1980[cvii]⁶.

The defence available for a defendant to establish under s. 14(2) of the Summary Offences Act 1977 is however not simply that he knew or believed that a cheque would be paid in full on presentation but that he had reasonable grounds for so believing. Those grounds, for reasons stated above, are facts peculiarly within his own knowledge. Whether they are reasonable or not is a matter for determination by the court before whom the defence is raised. The reasonableness or otherwise of the grounds is not a “fact” as to which the defendant has or does not have knowledge: the fact to be proved is the state of his knowledge as constituted by the existence or absence of grounds for his belief that the cheque would be paid in full on presentation. The requirement in s. 14(2) that such grounds as exist be reasonable does not prevent those grounds from being a fact peculiarly within the knowledge of the defendant.

The further question arises in the present case as it arose in Supreme Court Reference No. 1 of 1980[cviii]⁷ as to whether on a proper construction of the whole of s. 14 of the Summary Offences Act 1977, that section is a law which removes the presumption of innocence until proven guilty according to law, regardless of whether sub-s. (2) involves the proof of a fact peculiarly within the knowledge of the person charged.

Section 14 is entitled “Valueless Cheques”. Sub-section (1) defines the offence and sets out the essential elements or ingredients. Upon proof by the prosecution of those essential elements, a defendant is liable to conviction. The defendant’s belief as to whether the cheque will be met on presentation and the grounds for any such belief are not relevant to proof of the offence. Sub-section (2) goes on to introduce new matter which the defendant may, if he wishes, raise by way of defence to the proof by the prosecution of the elements of the offence as defined.

To use the words of Laskin J. (as he then was) in Reg. v. Appleby[cix]⁸, it would be unconstitutional for a law to place upon the accused the ultimate burden of establishing his innocence with respect to any of the elements of the offence charged. The ultimate test is whether the enactment calls for a finding of guilt when, at the conclusion of the case, and upon the evidence, if any, adduced by the prosecution and by the accused, who have also satisfied any intermediate burden of adducing evidence, there is reasonable doubt of culpability. Section 14 of the Summary Offences Act 1977 is not of this character.

Since preparing these reasons I have had the opportunity of reading the judgment of Kearney Deputy C.J. with which I respectfully agree. In particular, I agree with his Honour’s remarks relating to s. 24 of the Criminal Code and with his conclusion that s. 14(2) of the Summary Offences Act would appear to operate as a statutory exclusion of s. 24 of the Criminal Code.

I would therefore answer the question referred by the magistrate in the form proposed by Kearney Deputy C.J. and remit the matter to the District Court at Boroko for determination.

Order that the question referred be answered—

“Section 14(2) of the Summary Offences Act 1977 is not inconsistent with s. 37(4)(a) of the Constitution; and s. 14 is not a law which creates an offence of which a person charged is not presumed innocent until proved guilty according to law.”

Solicitor for the informant: L. Gavara-Nanu, Acting Public Prosecutor.

Solicitor for the defendant: D. McDermott, Acting Public Solicitor.