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David v Kalasim [1986] PNGLR 241 (2 December 1986)

Papua New Guinea Law Reports - 1986

[1986] PNGLR 241 - Digal David v H R Kalasim 

[1986] PNGLR 241

N576(M)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

DIGAL DAVID

V

HR KALASIM

Kundiawa

Woods J

2 December 1986

POLICE OFFENCES - Inter-group fighting - Offences - Creation of - Need for declaration of application of the Act - No general application - Inter-Group Fighting Act (Ch No 344), s 4(1), (6).

STATUTES - Interpretation - Inter-Group Fighting Act - Special nature of law - Application of - Only where declaration of application of Act - Inter-Group Fighting Act (Ch No 344), s 4(1), (6).

Held

(1)      Notwithstanding the provisions of Inter-Group Fighting Act (Ch No 344), s 4(6), properly construed, the provisions of the Act have no application unless a declaration that the provisions of the Act applies has been made pursuant to s 4(1).

Cases Cited

Koawi Nayu v Nabenduo (Unreported, National Court judgment N 291, of Narakobi J, dated 19 March 1981).

Appeal

This was an appeal against convictions on two counts of offences charged under the Inter-Group Fighting Act (Ch No 344).

Counsel

M Gene, for the appellant.

P Luben, for the respondent.

2 December 1986

WOODS J: The appellant is appealing against convictions on two counts for offences against the Inter-Group Fighting Act (Ch No 344). The offences were that on 4 May 1986 he incited two clans to take part in an inter-group fight and on 4 May 1986, he took part in an unlawful assembly. The appellant was on 21 July 1986 found guilty on both counts and sentenced to eighteen months imprisonment with hard labour on each count.

The grounds of appeal are that:

(1)      His Worship erred in law on Inter-Group Fighting Act (Ch No 344).

(2)      Penalty was excessive in the circumstances.

The basis for submitting that the magistrate erred in law is that the offences were alleged to have been committed on 4 May 1986, yet the area was not declared a fighting zone under the Inter-Group Fighting Act until 14 May 1986. Therefore it is submitted that the provisions of the Inter-Group Fighting Act did not apply over the area at the time of the alleged offences.

The magistrate in his reasons states that while it is true that the provisions of the Inter-Group Fighting Act could not apply over the area until the area is declared a fighting zone, he found that s 4(6) of the Act means that an area does not have to be declared a fighting zone before Pts 1, 11, 111 and ss 21, 23, 24, and 25 apply and the offences come under Pt 111.

The Preamble to the Inter-Group Fighting Act states:

“Being an Act to provide for:

(a)      the supression of fighting between groups; and

(b)      the creation of offences in relation to inter-group fighting, and for related purposes.”

Section 4 states as follows:

“Application

(1)      Subject to Subsections (2), (5) and (6), where the Peace and Good Order Committee for a province is satisfied that it is desirable in the interest of the preservation of peace and public order to do so, it may declare that provisions of this Act apply and have full force and effect throughout the province or in such part of the province and for such period not exceeding three months, as it considers necessary to achieve the purpose of this Act and those provisions apply and have full force and effect accordingly.

(2)      A declaration under Subsection (1) may be renewed by the Committee at any time for periods each not exceeding three months.

(3)      A declaration under Subsection (1) or a renewal under Subsection (2) of a declaration shall come into effect immediately it is made or renewed, but as soon as practicable after it is so made or renewed shall be published in the National Gazette and shall be given such publicity in the area to which it relates as the Committee considers is the most practicable means available in the circumstances to bring the fact of the declaration or renewal, as the case may be, to the notice of the people of that area.

(4)      Failure to comply with the requirements of Subsection (3) or with those requirements within a particular time, does not make the declaration or renewal invalid.

(5)      The Committee may at any time, and shall, within three days of receiving a direction to do so from the Minister, revoke a declaration under Subsection (1) or a renewal of a notice under Subsection (2) and shall, as soon as practicable after the revocation, cause a notice of the revocation to be published in the National Gazette.

(6)      Parts I, II, and III, and Sections 21, 23, 24 and 25 apply in all areas of Papua New Guinea. (Amended by No 18 of 1981, 2.1)

(7)      The provisions of this Act do not apply except as provided by this section.”

Section 4(1) therefore provides for a declaration to be made which results in the “provisions of this Act”, applying in relation to area stated in that declaration. The implication from this is that unless a declaration is made the Act does not apply.

I find that s 4(6) is confusing. Why say the Act or relevant portions of the Act apply all over the country when the Act has just said the application of the Act requires a specific declaration. Section 4(6) includes Pt 1 of the Act which includes therefore s 4(1). We could end up going around in a circle if s 4(6) means what the magistrate suggests it means.

If a declaration under s 4(1) only means that Pt IV Group Punishment applies then why wasn’t that clearly stated in the section instead of using the general words “the provisions of this Act apply”.

This Act was clearly a special Act to provide alternate offences in situations of inter-group or tribal conflicts and s 4 is clearly headed “Application” and provides for a declaration of a specified area which thereby gives notice to everybody that quite apart from the already existing laws, this special Act with its specific offences shall apply.

There can be no other reasonable interpretation of the specific Act which is designed to deal with specific problems a special way.

In this regard I agree with Narakobi AJ in March 1981 in Koawi Nayu v Nabenduo (Unreported, National Court judgment N 291, dated 19 March 1981) when he states:

“Administrators and enforcers of this Act should not lose sight of the special nature of this law. Though it is a general law, applicable to all races and provinces (see s 3(5)), it emerges from a peculiar tribal warfare in certain highland provinces. That is one (special) feature of this legislation. The other very unique feature of this Act is that the Act does not run over an area unless and until the declaration is made.

Where a declaration is not made, other laws must operate. There are ample other laws that the State could invoke. There is the Summary Offences Act: There is the Criminal Code Act and there are others.”

I therefore find that the magistrate erred in law in finding that ss 10 to 13 of the Act apply even when a declaration of the specified area has not been made.

I uphold the appeal and quash the convictions and orders of the Magistrate.

Appeal allowed

Convictions quashed

Lawyer for the appellant: Public Solicitor.

Lawyer for the respondent: Public Prosecutor.