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Garo v The Police [1985] PNGLR 320 (27 November 1985)

Papua New Guinea Law Reports - 1985

[1985] PNGLR 320 - Omaro Garo v The Police 

[1985] PNGLR 320

SC304

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT RESERVATION NO 4 OF 1985;

RESERVATION PURSUANT TO S 15 OF THE SUPREME COURT ACT; OMARO GARO

V

THE POLICE

Waigani

Kidu CJ Pratt Cory JJ

24 September 1985

27 November 1985

STATUTES - Operation and effect - Repealed law - Treated as never having existed.

STATUTES - Interpretation - Presumptions - Legislature does not make mistakes - Courts bound by.

STATUTES - Interpretation - Amending legislation - Legislation amending principal Act without apparent advertence to intervening repealing legislation - Criminal Code (Ch No 262), s 420 - Criminal Code (Minimum Penalties) Amendment Act 1983 (No 10 of 1983), s 22.

CRIMINAL LAW - Sentencing - Minimum penalties - Summary proceedings before grade V magistrates - Confined to penalties in Criminal Code (Ch No 262), s 420 - Criminal Code (Minimum Penalties) Amendment Act 1983 (No 10 of 1983), s 22.

Held

(1)      A repealed law is to be treated as never having existed.

Kay v Goodwin [1830] EngR 605; (1830) 6 Bing 576 at 582; [1830] EngR 605; 130 ER 1403 at 1405; Surtees v Ellison [1829] EngR 594; (1829) 9 B & C 750 at 752; [1829] EngR 594; 109 ER 278 at 279, followed.

(2)      In interpreting legislation a court is bound to proceed upon the assumption that the legislature does not make mistakes.

Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531 at 549, followed.

(3)      Accordingly (Cory J dissenting) where a District Court constituted by a grade V magistrate deals with an offence specified in the Criminal Code, Sch 2, the Court is bound by the penalties provided for in the Criminal Code, s 720, and introduced by the Criminal Code (Minimum Penalties) Amendment Act 1983, which provides that the offender shall be fined a sum not less than K100 and not exceeding K200 or imprisoned for a term not less than three months and not exceeding six months.

Cases Cited

Bristol Guardians v Bristol Waterworks Co [1914] UKLawRpAC 7; [1914] AC 379.

Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531.

Kay v Goodwin [1830] EngR 605; (1830) 6 Bing 576; 130 ER 1403.

Surtees v Ellison [1829] EngR 594; (1829) 9 B & C 750; 109 ER 278.

Reservation of Question of Law

This was the hearing of a question of law reserved under the Supreme Court Act (Ch No 37), s 15. The question reserved appears at the beginning of the reasons for judgment of Kidu CJ hereunder.

Counsel

P Aeava and B McMillan, to argue the negative case.

E Kariko, to argue the affirmative case.

Cur adv vult

27 November 1985

KIDU CJ: This Court is asked to answer the following question:

“Where a District Court constituted by a Magistrate Grade V deals with an offence specified in Schedule 2 of the Criminal Code (Ch No 262) then does such a Court have jurisdiction to impose some other form of punishment despite the fact that s 420 of the Criminal Code has been amended by s 22 of the Criminal Code (Minimum Penalties) (Amendment) Act 1983, No 10 of 1983, which provides that the offender shall be fined a sum not less than K100.00 and not exceeding K200.00 or imprisonment for a term not less than three months and not exceeding six months.”

The Sch 2 offences are indictable offences which can be dealt with summarily by virtue of the Criminal Code (Ch No 262), s 420(1), by grade V magistrates. The problem this Court must deal with has arisen out of one of the amendments to s 420 enacted by Parliament. As at 1 January 1982, as a result of the Criminal Code (Indictable Offences) Act 1980 (No 28 of 1980), s 420 read as follows:

“When a person is charged before a District Court constituted by a Magistrate Grade V with an offence specified in Schedule 1A, the Court shall deal with the charge summarily according to the procedure set out in s 421, and may impose a penalty not exceeding the maximum period of imprisonment specified in the last column of that Schedule” (See Revised Laws, Ch No 262, as amended at 1 January 82).

During 1982, s 420 was amended by the Criminal Code Amendment Act 1982 (No 12 of 1982), s 5, which replaced the word “shall” in subs (1) with the word “may” and inserted a new subs (2). So as at 1 January 1983, s 420 read as follows:

“(1)    When a person is charged before a District Court constituted by a Magistrate Grade V with an offence specified in Schedule 2, the Court may deal with the charge summarily according to the procedure set out in s 421, and may impose a penalty not exceeding the maximum period of imprisonment specified in the last column of that Schedule.

(2)      Sections 330(2), 538, 542, 543, 544, 546, 551, 564 and 603 apply to an offence dealt with under this subdivision.”

So the penalty for Sch 2 cases was provided for in Sch 2 by virtue of s 420(1). Section 420(1) contained no penalty provision.

Then in 1983 the Criminal Code (Minimum Penalties) (Amendment) Act 1983 (Act No 10 of 1983) was enacted and went into effect on 14 July of that year. Section 22 of this Act provides as follows:

“22.    Section 420 of the Criminal Code is amended by deleting the penalty provision in subsection (2) and substituting the following:

‘(2)     Where a charge is dealt with under subsection (1), the offender shall be fined a sum of not less than K100.00 and not exceeding K200.00 or imprisonment for a term not less than three months and not exceeding six months’.”

It was submitted that the amendment is ineffective because it purports to amend a non-existing provision. It was suggested that what Parliament did was to amend the repealed subs (2) of s 420. There in fact was such a provision which read as follows:

“Where a charge is dealt with under subsection (1), the offender is liable to a fine not exceeding K200.00 or imprisonment for a term not exceeding six months.”

But this provision was repealed by the Criminal Code (Indictable) Offences Act 1980. So the submission that Parliament intended to amend this repealed provision by s 22 of Act No 10 of 1983 means that Parliament made a mistake. This assertion would of course fly in the face of two well established principles. The first of these two principles is that a repealed law is to be treated as having never existed:

Tindall CJ in Kay v Goodwin [1830] EngR 605; (1830) 6 Bing 576 at 582; [1830] EngR 605; 130 ER 1403, said:

“Now it is perfectly clear, that the 5 G 2 was repealed by the Statute of the 6 G 4, c 16. I take the effect of repealing a statute to be to obliterate it as completely from the records of the Parliament as if it had never passed; and, it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted, and concluded whilst it was an existing law.”

Lord Tenterden CJ in Surtees v Ellison [1829] EngR 594; (1829) 9 B & C 750 at 752; [1829] EngR 594; 109 ER 278 at 279 said:

“It has long been established that when an Act of Parliament is repealed it must be considered (except as to transactions past and closed) as if it had never existed. That is the general rule; and we must not destroy that by indulging in conjectures as to the intention of the legislature.”

Lord Halsbury, LC in Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531 at 549 expressed the second of the two principles as follows:

“But I do not think it is competent for any court to proceed upon the assumption that the legislature has made a mistake. Whatever the real fact may be, I think a court of law is bound to proceed upon the assumption that the legislature is an ideal person that does not make mistakes. It must be assumed that it has intended what it has said, and I think any other view of the mode in which one must approach the interpretation of a statute would give authority for an interpretation of the language of an Act of Parliament which would be attended with most serious consequences.”

In view of these well established principles it must be assumed that when Parliament enacted Act No 10 of 1983 it had before it the Criminal Code as amended to date. Quite clearly then Parliament meant to delete the penalty provision in subs (1) and not subs (2). The part of subs (1) to be deleted reads:

“... and may impose a penalty not exceeding the maximum period of imprisonment specified in the last column of that Schedule.”

There is also little doubt that Parliament intended, by the same amending provision, to add a completely new subsection to s 420. This is clear from the wording of the provision:

“Where a charge is dealt with under subsection (1) ....”

So the new proposed provision cannot be part of subs (1). I consider that what Parliament intended to do was to add a subs (3) to s 420. There was, in my view, no intention to affect subs (2) at all as it contains no penalty provision but provides for certain provisions of the Criminal Code to be applicable in cases in Sch 2 dealt with by grade V magistrates. The result of the amendment to s 420 by Act No 10 of 1983, s 22, is that s 420 should now read as follows:

“(1)    When a person is charged before a District Court constituted by a Magistrate Grade V with an offence specified in Schedule 2, the Court may deal with the charge summarily according to the procedure set out in s 421.

(2)      Sections 330(2), 538, 542, 543, 544, 546, 551, 564 and 603 apply to an offence dealt with under this Subdivision.

(3)      Where a charge is dealt with under subsection (1) the offender shall be fined a sum not less than K100.00 and not exceeding K200.00 or imprisonment for a term not less than three months and not exceeding six months.”

I would answer the question reserved in the negative.

PRATT J: The Chief Justice has already set down the legislative history and amendments in this matter together with the question posed. I would summarise as follows: On 15 August 1981, by Criminal Code (Indictable Offences) Act 1980 (Act No 28 of 1980), the District Court was given a greatly increased criminal jurisdiction under the control of a newly created judicial officer termed magistrate grade V. A large number of serious offences could be dealt with either summarily by such officer, or on indictment by the National Court. Maximum periods of imprisonment up to four years could be imposed summarily, although in a number of instances, these maximum sentences were considerably less than could be imposed under indictment. Prior to this a more restricted area of minor offences could be dealt with summarily with a maximum sentence of six months or a fine of K200. In order to overcome the procedural difficulty, whereby, the more serious matters have to be commenced by information and not indictment, further amendments to the Criminal Code (Ch No 262) were brought down on 12 October 1982 (Act No 12 of 1982). The most relevant section involved was s 420 (s 432 in the unrevised Criminal Code). In 1983 Parliament started to introduce a large number of sentences under the Criminal Code which carried minimum penalties. The Schedule which was introduced by Act No 28 of 1980 giving the heavier sentencing powers to the grade V magistrates was not repealed however.

On 30 May 1983, s 22 of the Criminal Code (Minimum Penalties) Amendment Act (Act No 10 of 1983) deleted a reference to an alleged penalty provision in s 420(2) and substituted a minimum fine of K100 (maximum K200) and a minimum period of imprisonment of three months (maximum six months). Thus was introduced the first hitch because the then existing subs (2) was not a penalty provision. It was the procedural provision concerning indictments I have just referred to. Section 420(1) however did contain a penalty provision by reference to Sch 2. In my view, there is only one feasible way of resolving the difficulty, and that is to disregard the reference to subs (2) and read this as a reference to the penalty provision already contained in subs (1). It is true that such an interpretation drastically reduces the maximum penalties available to grade V magistrates, but to proceed on the basis that the Schedule has not been repealed necessitates a complete disregard for the new subs (2) altogether, despite the fact that it very clearly follows the pattern of introducing minimum penalties to the grade V jurisdiction. My interpretation also leaves extant two subsections (2) to s 420. This problem is simply overcome again by no more than the typing change, altering the new subsection from (2) to (3).

The interpretation I have placed on the Criminal Code Amendment Act 1982 (Act No 12 of 1982) has been borne out by a further amendment brought down on 7 November 1983 (Act No 29 of 1983) when a specific repeal of the penalty provisions contained in the schedule came into operation. Whatever else might be suggested from that date, the schedule penalties were no longer the law. Hence from that date also, the penalty provision of K100-K200 and three months-six months imprisonment were the only penalties available on the statute book.

It seems to me that any other interpretation requires not only a disregard for the enacted law but a process of speculation which is quite outside the functions of a Court. We have been urged to take not only the “purposive approach” but to extend it. It has been suggested that s 22 of Act No 10 of 1983 was an error on the part of Parliament because it had before it for amendment legislation which had already been amended but which it itself had mistakenly ignored or forgotten about. It is suggested that Parliament in fact did not know what was the current law on 30 May 1983 but had amended something which was in existence several years before but had already been amended twice (Act No 28 of 1980, and Act No 12 of 1982). There is no evidence to substantiate such a proposition. I doubt if the principle would alter even if there were.

The principle upon which the Court must proceed is that where Parliament amends a piece of legislation it must be taken to know what is the existing law and to be amending a section or sections which are part of the law of the land at the time Parliament carries out its deliberations: see Halsbury’s Laws of England (4th ed), Vol 44, par 862. To suggest that Parliament is in fact amending something which it has already either specifically or by clear implication repealed because of some error, and that it has enacted legislation not on the basis of existing law but some earlier law is in my view to invite anarchy. Parliament cannot amend that which does not exist. It can only amend a law operating at the time the vote is taken.

It has been accepted by both sides in this case that the dominant purpose in construing a statute is to ascertain the intention from the statute as a whole and within the context of the general legislative framework. Whilst the legislation, as I have interpreted it, has brought about certain illogicalities in the sentencing powers of a court, that illogicality is as much an inherent result of the introduction of minimum penalties as it is of the interpretation placed by me on the section. Despite this valid criticism, my interpretation has the advantage of making the amendments hang together as a workable whole and avoids the acceptance of argument which inferentially undermines the sovereignty and omniscience of Parliament, and implies that a court may disregard the existing law if it thinks Parliament might have made some error.

The end result is that a grade V magistrate can only impose a sentence under s 420 of the Criminal Code under the following provision:

“(1)    When a person is charged before a District Court constituted by a Magistrate Grade V with an offence specified in Schedule 2 the Court may deal with the charge summarily according to the procedure set out in Section 421.

(2)      Sections 330(2), 538, 542, 543, 544, 546, 551, 564 and 603 apply to an offence dealt with under this subdivision.

(3)      Where a charge is dealt with under subsection (1) the offender shall be fined a sum not less than K100.00 and not exceeding K200.00 or imprisonment for a term not less than three months and not exceeding six months.”

If some grade V magistrates have imposed sentences under the Schedule or from some other source such as the Criminal Code since 30 May 1983 then such sentences are void ab initio. Any persons presently serving such a sentence must be called before the same magistrate and sentenced according to the penalty laid down by s 22 of Act No 10 of 1983. If the magistrate is no longer holding judicial office then the whole case must be brought before another magistrate so that the defendant can be dealt with according to law. No doubt in many instances, the sentences served will already have satisfied the penalty provision introduced in May 1983. Thus no good purpose would be served in engaging in such an enterprise, unless the prisoner is still undergoing a sentence in excess of six months.

The appropriate authorities may of course give thought to some form of validating legislation but I suggest that such a course may create more problems than it solves. In addition, such a course would take time and would not resolve the illegal detention of any person who is currently serving a sentence under the Schedule. It is most disturbing to learn that this area of difficulty had not been referred up to the National Court long before the present reference came into existence. Therein lies the real factor which has compounded the original problem. I have not found the resolution of this problem easy and I think my answer though inevitable is not particularly satisfactory. I can only hope that the Parliament will straighten out the whole affair by completely redrafting s 420.

I would answer the question reserved in the negative.

CORY J: The question reserved for the opinion of the Supreme Court is as follows:

“Where a District Court constituted by a Magistrate Grade V, deals with an offence specified in Schedule 2 of the Criminal Code (Ch No 262) then does such a Court have jurisdiction to impose some other form of punishment despite the fact that s 420 of the Criminal Code has been amended by s 22 of the Criminal Code (Minimum Penalties) (Amendment) Act 1983, No 10 of 1983 which provides that the offender shall be fined a sum not less than K100.00 and not exceeding K200.00 or imprisonment for a term not less than three months and not exceeding six months.”

The relevant amending s 22 in the above-mentioned Criminal Code (Minimum Penalties) (Amendment) Act 1983 (No 10 of 1983) amending s 420 is as follows:

“Section 420 of the Criminal Code is amended by deleting the penalty provision in subsection (2) and substituting the following:

‘(2)     Where a charge is dealt with under subsection (1), the offender shall be fined a sum not less than K100.00 and not exceeding K200.00 or imprisonment for a term not less than three months and not exceeding six months’.” [Emphasis mine.]

When the revised laws came into operation on 1 January 1982, the laws included therein were those applicable as at 1 January 1976 and the Criminal Code, s 420, at that time was published in Ch No 262 and read as follows:

“420.   Indictable Offences that may be dealt with Summarily

(1)      When a person is charged before a court of summary jurisdiction with:

(a)      stealing any thing of such a kind and under such circumstances that the greatest punishment to which an offender convicted of the offence is liable does not exceed imprisonment for three years; or

(b)      killing, with intent to steal the skin or carcass or any part of the skin or carcass, any animal of such a kind that the greatest punishment to which an offender convicted of the offence of stealing the animal is liable does not exceed imprisonment for three years with hard labour; or

(c)      stealing any thing from the person or another; or

(d)      stealing as a clerk or servant of any thing which is the property of his employer, or that came into his possession on account of his employer; or

(e)      making any thing movable with intent to steal it, without circumstances of aggravation; or

(f)      obtaining or procuring the delivery of any thing by a false pretence or wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, with intent to defraud; or

(g)      obtaining credit by a false pretence or any wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, or by any other fraud; or

(h)      obtaining by means of a fraudulent trick or device, any thing capable of being stolen, or inducing, by means of any such trick or device, the delivery or payment of any money, goods or other thing capable of being stolen; or

(i)       attempting to commit any of the offences referred to in the preceding provisions of this subsection; or

(j)      receiving any thing which has been obtained by means of a crime or misdemeanour of such a nature, or committed under such circumstances, that the offender who committed it might be summarily convicted under this section; or

(k)      counselling or procuring the commission of any of the offences referred to in the preceding provisions of this subsection

then if the age of the accused person at the time of the alleged commission of the offences was in the opinion of the Court greater than 12 years, and if:

(l)       the value of the property in question does not exceed K200.00; or

(m)     the age of the accused person at the time of the alleged commission of the offence did not in the opinion of the Court exceed 16 years; or

(n)      the accused person admits that he is guilty of the offence, and it appears to the Court that the nature of the offence is such, whatever may be the value of the property in question, that the offender may be adequately punished on summary conviction,

the Court may, subject to Sections 421 deal with the charge summarily.

(2)      Where a charge is dealt with under Subsection (1) the offender is liable to a fine not exceeding K200.00 or imprisonment for a term not exceeding six months.” [Emphasis added.]

Between 1 January 1976 and 30 May 1983, the date of the above Criminal Code (Minimum Penalties) (Amendment) Act 1983 Parliament had passed two separate substantial amendments to s 420, the first of which, the Criminal Code (Indictable Offences) Act 1980 (Act No 28 of 1980) had repealed the whole of s 420, including the penalty provision in s 420(2) and substituted a new section. But it is obvious that Parliament in its haste to introduce minimum penalty legislation in passing the Criminal Code (Minimum Penalties) (Amendment) Act 1983 mistakenly overlooked the amending legislation which had repealed the old s 420 and legislated as if the old s 420 was still in existence, the effect of which would have been to introduce the following emphasised amendments to the old s 420(2):

“Section 420(2) — where a charge is dealt with under subsection (1) the offender is liable to a fine not less than K100.00 and not exceeding K200.00 or imprisonment for a term not less than three months and not exceeding six months.”

But there is a strong presumption that Parliament does not make mistakes (Halsbury’s Laws of England, (4th ed), Vol 44 par 862); the above review of the earlier legislation tends to rebut the presumption. Moreover, if blunders are found in legislation, they must be corrected by the legislature, and it is not the function of the court to repair them: Bristol Guardians v Bristol Waterworks Co [1914] UKLawRpAC 7; [1914] AC 379 at 388, referred to in Halsbury (supra) at par 862. Also if an enactment proceeds on a truly erroneous view of the law, the enactment has misfired: Halsbury (supra) at par 899.

The actual wording of s 420 just prior to the passing of the Criminal Law (Minimum Penalties) (Amendment) Act 1983 was as follows:

“(1)    When a person is charged before a District Court constituted by a Magistrate Grade V with an offence specified in Schedule 2, the Court may deal with the charge summarily according to the procedure set but in s 421 and may impose a penalty not exceeding the maximum period of imprisonment specified in the last column of that Schedule.

(2)      Sections 330(2), 538, 542, 543, 544, 546, 551, 564 and 603 apply to an offence dealt with under this subdivision.”

The Criminal Code (Minimum Penalties) (Amendment) Act 1983, which sought to amend the above was as follows:

“Section 420 of the Criminal Code is amended by deleting the penalty provision in subsection (2), substituting the following:

(2)      Where a charge is dealt with under subsection (1) the offender shall be fined a sum not less than K100.00 and not exceeding K200.00 or imprisonment for a term not less than three months and not exceeding six months.” [Emphasis added.]

The dominant purpose in construing a statute is to ascertain the intention of the legislature: Halsbury’s Laws of England (supra), par 856.

The amending Act No 10 of 1983 could not have been intended to amend the existing s 420(2) because it did not contain any “penalty” provision and there was therefore in s 420(2) nothing to “substitute”. In relation to s 420(2) the amendment then is meaningless.

If we attempt to apply the amending Act No 10 of 1983 to subs (1) of s 420 and to treat the words in the amendment “subsection (2)” as being either surplusage or a misprint for “subsection (1)”, then the effect would be:

(a)      To produce one set of maximum penalties for the District Court and another set for the National Court.

(b)      To produce one set of minimum penalties in the District Court substantially less than the penalties for the same offences in relation to Sch 2 offences in the National Court.

Such interpretation would in turn produce a strong feeling of grievance amongst those offenders who had the misfortune to be sentenced by the National Court. Courts are required to construe modern statutes on the assumption that Parliament intends them to be construed in the light of the principles of natural justice: Halsbury’s Laws of England (supra) at par 859. The suggested interpretation would be contrary to this principle. The conclusion then is that Parliament did not intend to amend s 420(1) by Act No 10 of 1983. The inference that Parliament did not intend to amend s 420(1) and thereby substantially reduce penalties for Sch 2 offences tried before a grade V magistrate, is also borne out by an examination of the other twenty-five sections of amending Act No 10 of 1983. This shows that the thrust of Parliament’s intention was to increase penalties across the board for a wide range of criminal offences and to insert minimum penalties. The conclusion is also borne out by Criminal Code (Amendment) Act 1983 (Act No 29 of 1983), passed subsequent to Act No 10 of 1983, in that it treats s 420(1) as being unamended by Act No 10 of 1983:

The Criminal Code (Amendment) Act 1983 (No 29 of 1983) amending Act says as follows:

“Section 420(1) of the Criminal Code is amended by repealing the words ‘and may impose a penalty not exceeding the maximum period of imprisonment specified in the last column of that Schedule’.”

The amendment No 10 of 1983 is then meaningless, void and of no effect.

I would answer the question yes, the penalties provided under the various sections of the Criminal Code and not the penalties suggested in the Criminal Law (Minimum Penalties) (Amendment) Act 1983.

By majority: Question answered in the negative

Lawyer for the negative case: Public Solicitor.

Lawyer for the affirmative case: Public Prosecutor.