[1971-72] PNGLR 78

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

RE BAKER

Rabaul & Port Moresby
Prentice J

25-26 March 1971
14 April 1971

CRIMINAL LAW - Procedure - Committal proceedings - Proceedings in the hearing of the accused - Accused deaf mute - Charge read over to accused - Charge to be explained to accused - His answers to be written and read back to him - Inability to communicate fully with accused by interpreter - District Courts Ordinance 1963-1970, ss. 100-110[lxiii]1.

CRIMINAL LAW - Procedure - Ex officio indictment - No committal proceedings - Extent of right to present ex officio indictment without committal proceedings.

R., charged with the indictable offence of unlawful wounding, was deaf and dumb. In the committal proceedings taken in respect of this charge the prosecution sought to have R.’s brother sworn as interpreter into sign language. The magistrate was not satisfied that the brother could properly translate the charge or fully interpret the proceedings to the accused. The magistrate reached the conclusion that the requirements of ss. 100-110 of the District Courts Ordinance 1963-1970 could not be observed in the conduct of any committal proceedings in relation to that charge and held that he had no jurisdiction to hear and determine such committal proceedings and directed that the accused be discharged.

Held

On the return of an order to show cause under s. 21 of that Ordinance why the magistrate ought not to be directed to hear and determine the information, that in the conduct of those committal proceedings, the magistrate should have exercised his power to require the presence of the most suitable interpreter and means available for communication with the accused, and, carrying out formally and so far as the circumstances would permit the requirements of ss. 100-110, should have proceeded to hear and determine the proceedings and, if the evidence adduced justified committal, to commit the accused for trial.

Opinion expressed by Prentice J. that the extent to which the right in the executive in the Territory of Papua and New Guinea to lay an ex officio indictment where no committal proceedings have been conducted has not been fully considered in R. v. Burusep, [1963] P. & N.G.L.R. 181, and R. v. Ebulya, [1964] P. & N.G.L.R. 200.

Order to show cause under the District Courts Ordinance 1963-1970, s. 21.

On 4th January, 1971, Michael Neil Baker laid an information that Robert Susma (the accused) unlawfully wounded one Anton Marea. On 29th January, 1971, the magistrate at Rabaul held that he had no jurisdiction to hear and determine committal proceedings in respect of the indictable offence alleged and discharged the accused.

On 8th March, 1971, on the application of the Crown, an order was made (Prentice J.) under s. 21 of the above-mentioned Ordinance directing that the magistrate and the accused (the respondents) show cause why an order should not be made directing the magistrate to proceed and hear and determine the information.

All the relevant facts appear in the judgment hereunder.

Counsel
Pratt, for the Crown.
Baulch, for the respondents.
Cur. adv. vult.

14 April 1971

PRENTICE J:  On 8th March, on the motion of Mr. N. Pratt on behalf of the Crown, made with the consent of Mr. Baulch given on behalf of the respondents, the magistrate and the accused in a matter before the magistrate (Baker v. Susma), I made an order under s. 21 of the District Courts Ordinance 1963-1970, that the respondents show cause why an order should not issue to the said magistrate requiring him to hear and determine an information. The relevant information was dated 4th January, 1971, and alleged an unlawful wounding of one Anton Marea by one Robert Susma.

I heard argument in support of and against the making of the said order absolute at Rabaul on 25th and 26th March, 1971. It was not argued that no power lay in this Court to make the order sought (cf. the case of the prerogative writs see Ex parte Cousens[lxiv]2 and Ex parte Lyndon[lxv]3). The affidavit of Michael Neil Baker of 2nd March, 1971, avers that as the informant in the said charge against Robert Susma he attended in Mr. T. Mitchell R.M.’s court on 29th January, 1971. The defendant was then present in court and represented by Mr. Baulch. Following the reading of the charge and before plea taken, on a submission by Mr. Baulch, the learned magistrate ruled in effect that he had no jurisdiction to hear and determine the said information. A copy of the magistrate’s reasons for so ruling was annexed to the applicant’s affidavit. The charge being under s. 323 of the Code was in relation to an indictable offence.

A copy of the court record was before me and it contains the following entries:

“5/1/71. 1.30 p.m. Defendant before the Court. p.p. Ins. Fyfe. Bruno Igaloh sworn as interpreter from deaf and dumb language. Def. a deafmute. Born a mute. Charge read and explained to def. Def. replied ‘I cut him 4 times.’ No complaints. Def. remanded in custody to appear 9.30 a.m. Wednesday, 13th January, 1971. Warrant of remand issued 5/1/71.

R. Cruickshank.”

“Before ct. 13/1/71 @ 9.30 a.m. Ins. Fyfe prosecutor. Mr. Baulch from Pubsol defence. Ct. indicates that cannot proceed in matter at present. Application defence cl. for bail. Adjourned to 21/1/71 @ 9.30 a.m. Deft. released in custody of Bruno Susma brother of deft. On condition that deft. report to Police Station Rabaul between hour of 8 a.m. and 9 a.m. daily

Mitchell R.M. 13/1/71.”

“Called 9.30 a.m. 21/a/71. Ins. Fyfe for prosecution. Mr. Baulch for defence. Defence counsel submits that ct. cannot proceed because of interpretation difficulties. If no communication possible then: 1. Cannot inform deft. of charge and right of cross-exam. 2. Cannot give mandator [sic] caution in terms S.103 D.C.O. Adjourned to 25/1/71 @ 1.30 p.m. Deft. released on same conditions as earlier.

Mitchell R.M.”

Then appears notes of counsel’s argument which was apparently submitted on 25th January, 1971. This argument appears again in abbreviated form under the date 25/1/71. On a further sheet which bears the date 29/1/71 at its foot the following entry appears above the magistrate’s hand.

“Deft before ct. Ins. Fyfe prosecuting. Mr. Baulch of Pubsol defence.

Proposed interpreter Bruno examined.

Q.       (Ct) If I asked you to interpret to the defendant that he was charged with striking a particular man, say Tokambang, could you do so? A. Yes.

Q.       (Ct) Would you have to have the alleged victim here to show him the man? A. Yes. He would have to be shown.

Q.       (Ct) If I asked you to tell him that the charge was for having laid hold of him, not having struck him? A. I could not tell him this.

Ct. satisfied that degree of communication not sufficient for purposes of fully interpreting proceedings.
Rules accordingly.

Deft. discharged.”

I consider I should set out the magistrate’s reasons in full.

“I had adjourned to consider a preliminary point of jurisdiction raised by Mr. Baulch of the Public Solicitor’s Office, counsel for the defence. He argues that as the defendant is a deaf mute, and no satisfactory interpretation is available, common in such cases in the Territory, then the Court has no jurisdiction to proceed with the committal. He argues that this conclusion results from three factors: Firstly that the Court, knowing the rudimentary manner of communication between the proposed interpreter and the accused, cannot require, nor permit, the interpreter to take the oath contained in the tenth schedule of the Oaths Affirmations and Statutory Declarations Ordinance. The effect, he contends, of being unable to fully acquaint the defendant with what is said, is that he is deprived of his right of cross examination of witnesses, as well as not knowing with precision the charge that he faces
.
“Counsel has cited R. v. Gee[lxvi]4 and R. v. Phillips[lxvii]5 as authority that it would be an irregularity fatal to a committal to proceed if the defendant did not fully understand the evidence given, but I think that these may be distinguished, being based more upon ‘short cuts in procedure’ than upon understanding of the defendant.

“Secondly, imperfect interpretation prevents the Court from properly carrying out the mandatory provisions of s. 101 and s. 103 of the District Courts Ordinance. Counsel contends that ‘hearing’ denotes ‘understanding’ — s. 101, and that any attempt at compliance with this section, without proper interpretation, would be an empty sham. Further. s. 103(1) clearly requires the nature of the caution to be explained in a manner comprehensible to the accused, which is impossible without proper interpretation.

“Thirdly, the defence objects to the use of the proposed interpreter on two grounds: (a) that he was used earlier by the police, and (b) that he knows too much of the facts surrounding the alleged offence to be reliable. He suggests that the defendant should thus be discharged: R. v. Willie[lxviii]6 (N.C) 108.

“The prosecutor, in written and oral submissions, says that the Supreme Court is the only authority to decide if the accused is fit to plead. He further argues from analogy that as justices have no power to refuse to commit on grounds of insanity (R. v. Hodges[lxix]7), this being an issue for the jury, then because of s. 613 of The Criminal Code, the accused’s want of understanding is also an issue for the jury and it is improper for justices to refuse to commit only for this reason.

“Here I have not reached the stage of considering committal or otherwise. I am still upon the threshold of proceedings, asked to rule as to whether the Court can take the next step and read over and translate the charge. So, whilst this argument is highly relevant, it is not compelling. Of course, fitness to plead is also not before the Court at this stage.

“Mr. Fyfe has quoted authority in R. v. Pritchard[lxx]8 that an accused who did not understand the proceedings of a trial for felony, had to be detained as a non-sane person during the Queen’s pleasure. Because of the date of this case (1836) and the fact that here we work under a Code with clear provision as to procedure in such matters, as well as an Ordinance detailing this Court’s procedure in committal proceedings, I distinguish this case and decline to follow it.

“I cannot accept Mr. Fyfe’s submission that the Court’s empty compliance with s. 101 would satisfy the Ordinance. In committal proceedings, the defendant is required to appear in person (District Courts Ordinance, s. 100; Allen, The Justices Acts, 3rd ed. p. 258) whereas appearance by counsel is sufficient in a simple offence. It seems thus that the more serious charge requires the presence of the defendant for the purposes other than ornament, and it would not be sufficient that his counsel hears and understands all parts of the proceedings.

“Mr. Baulch, when asked if in his submission such a deaf-mute defendant is immune from all criminal proceedings, initially suggested that it would seem so, but later contended that it was open to the Crown to exercise its power of ex officio indictment.

“In my reading of R. v. Ebulya[lxxi]9 both Smithers and Minogue JJ. agreed that an ex officio indictment was possible notwithstanding there was no committal for trial although both entered a caveat against such a practice without full prior magisterial investigation. But such a case as the present was not in the contemplation of either of the learned judges, and it may well be that, if the law is as I see it, an exception would be made in such a case, undesirable as it may well be, but purely by force of circumstances.

“Because of this opening to allow for such a defendant to be brought before the Supreme Court, to be properly dealt with under the relevant sections of the Code, then the argument that to render the provisions of ss. 101 and 103 of the District Courts Ordinance a mandatory as opposed to directory interpretation, would negate the relevant provisions of the Code (s. 613 and others) must lose its otherwise compelling force. I therefore need also consider no suggestion of repeal by implication, as the statutes may quite consistently stand together.

“I should mention, too, that the indication by Mr. Baulch that he could not continue in the case after argument of the preliminary point, would have caused me further concern had I arrived at a decision other than that of my present ruling. Whilst it is doubtless proper for him to so indicate if these are his instructions, should they arise from a lack of autonomy of the Deputy Public Solicitor in Rabaul and a need for reference elsewhere, then perhaps this policy may benefit from further consideration by those concerned
.
“As I am unsatisfied by the degree of communication between the proposed interpreter and the accused, and consider that the mandatory provisions of the District Courts Ordinance cannot thus be carried out, I rule that I have no jurisdiction to proceed with this hearing and discharge the defendant.

“Having found for the defence upon one of his grounds of objection, it is not necessary for me to rule on the other submissions and I accordingly make no further comment thereon.”

The substance of the magistrate’s ruling appears to be stated in the second last paragraph.

The Crown contends there was no warrant for the course pursued by the magistrate. His sole duty it is said is to adjudicate on the admissibility of evidence, to follow the procedures laid down by the District Courts Ordinance, and on being satisfied that a prima facie case is shown against the accused, to commit him to the Supreme Court for trial. Should the course actually taken be correct the issue of whether this man committed the crime against him would not be justiciable. Mr. Pratt pointed to the judgment of Mann C.J. in R. v. Burusep[lxxii]10 which suggests that an ex officio indictment could be filed in England “only in cases of enormous misdemeanours tending to disturb or endanger the Government or to molest or affront the King in the discharge of his Royal functions”. He says that whatever the effect of the conflicting decisions of the judges comprising the court in Ebulya’s case[lxxiii]11, and of Frost and Clarkson JJ. subsequently following on the one hand Ollerenshaw J. and Smithers and Minogue JJ. respectively — that all judges are agreed an ex officio indictment can be presented only where there has been some committal.

I do not know that the judges of this Court have so sufficiently considered the question of the extent to which in the Territory, the right exists in the executive of laying an ex officio information where no committal proceedings have occurred, that such a statement can be said to represent the firm opinion of this bench.

However that may be, Mr. Pratt submits that the magistrate’s function is equivalent to that of the early medieval grand jury and does not include the right to inquire into the issue of whether the accused stands mute from malice prepense or from visitation of God (a matter of considerable consequence involving as it did up until 1772 the possibility of being pressed to death under peine forte et dure for refusal to accept trial by jury — and even thereafter up until 1827 muteness requiring a plea of guilty to be entered).

No direct authority could be cited as to whether committing justices may entertain the preliminary issue of justiciability of an alleged offence by a deaf mute. The English procedure for committal by justices is comparable to that obtaining in the Territory in that the accused must be present, the depositions must be read over to him and at the conclusion the statutory warning must be given to the accused. But the English authorities indicate that deaf mutes are brought to trial and their fitness to plead thereupon tried as a preliminary issue or issues (Archbold, 36th ed., paras. 464 to 466). Seemingly this has been done by a trial, first of the issue of muteness by malice or by visitation of God, secondly of whether he is fit to plead, and thirdly perhaps, of whether he is sane. Whether the latter two issues are to be raised has customarily been allowed to lie in the discretion of the defence counsel, and has on occasion been reserved as an issue until after trial of the general issue (R. v. Webb[lxxiv]12; R. v. Roberts[lxxv]13).

A consideration of R. v. Pritchard[lxxvi]14 makes clear that a fitness to plead issue in the case of deaf mutes unable to communicate, has been treated as a preliminary issue upon arraignment and not at the committal level. A further instance R. v. Daniel Whitfield[lxxvii]15 where the proceedings by Vaughan Williams J. without overtures, are described alarmingly summarily as follows:

“The defendant was deaf and dumb.

“Vaughan Williams J. directed a jury to be impanelled to try whether the defendant stood mute of malice, or from the visitation of God.

“The jury was sworn to try that question, and it was proved by Mr. Grimshaw that he had known the prisoner for fifteen years; and that during all that time he was deaf and dumb, and that he could communicate with the defendant by signs.

“Vaughan Williams J., that disposes of the first question.

“The jury found that the defendant was mute by the visitation of God.

“Vaughan Williams J. then directed the jury to be sworn to try whether the defendant was of sound mind or not
.
“Mr. Grimshaw said, ‘The defendant is a farm labourer, and he understands his work very well.’

“Vaughan Williams J. — That is not sufficient.

“Mr. Judd, the governor of the prison at Abingdon, being sworn, said, ‘The defendant has his intellects perfectly.’

“Vaughan Williams J. — That is sufficient.”

The Court of Appeal in Podola’s case[lxxviii]16 commenting on Pritchard’s case[lxxix]17 said: “The words ‘If any person . . . shall be insane . . . so that such person cannot be tried upon such indictment’ contained in section 2 of the Act of 1800 have in many cases since 1800 been construed as including persons who are not insane within the M’Naghten Rules, but who, by reason of some physical or mental condition, cannot follow the proceedings at the trial and so cannot make a proper defence in those proceedings. A well-known illustration is that of a deaf mute who is also unable to write or to use and understand sign language. It was in the case of a deaf mute that Alderson B., in Pritchard, laid down the tests which ought to be applied when juries are considering whether a prisoner ought not to be tried by reason of his mental condition. These tests have been followed so often that they may be said to be firmly embodied in our law.” The Court of Criminal Appeal then went on to consider the test to be applied and its judgment continued[lxxx]18: “It is true that in the case of a deaf mute the word ‘insane’ does not strictly apply, but as was pointed out in R. v. Stafford Prison (Governor)[lxxxi]19, ex p. Emery [1909] 2 K.B. 81, by Lord Alverstone, the practice of including as coming within that word the case of persons who, from mental or physical infirmity, cannot follow what is happening in a case is in accordance with reason and common sense.”

In opposing the making of the order sought Mr. Baulch conceded that the Magistrate had no jurisdiction to decide fitness to plead. He puts his argument on a different ground. The question is not one of fitness to plead, he say, but of interpretation. His argument is, I think, fairly summarised as follows:

(a)      Sections 101 to 109 of the District Courts Ordinance require an interpretation. (The proceedings shall be “in the presence and hearing,” s. 101; “the charge shall be read to him and explained and anything he answers shall be written and read back to him,” s. 103.)

(b)      It would not satisfy the requirements of committing say, a Chinese who neither spoke nor understood English, to conduct committal proceedings without benefit of an interpreter.

(c)      The accused must have an opportunity to hear. (Deliberate refusal to hear by whatever contrivance is to be distinguished.)

(d)      Unless the provisions of the District Courts Ordinance are strictly complied with (Kumaina’s case[lxxxii]20), the proceedings would be invalid (cf. R. v. Gee[lxxxiii]21).
(e)      To proceed in the conditions obtaining here would be a nullity.

(f)      In addition, the magistrate has power under s. 28 of the Criminal Procedure Ordinance to decide whether a person does not understand the interpreter.

(g)      Part VI of the District Courts Ordinance requires the use of an interpreter.

(h)      A defendant has a right to know what is being said about him.

(i)       Magistrates in summary proceedings have long held they will not proceed if they cannot communicate with the accused.

(j)      A failure to interpret could lead to the quashing of an indictment.

(k)      The magistrate here has merely made a decision under s. 28 of the Criminal Procedure Ordinance that no interpreter was available to allow compliance with the District Courts Ordinance.

Now it is true that the Territory section differs from the U.K. provisions for committal proceedings in that it provides that the proceedings, in addition to being in the presence of the accused, shall be “in his hearing”. The Queensland section, since 1964 only, contains the Territory phrase “and hearing”. But I do not consider that the legislature would have intended to prevent a prosecution case against any accused deaf mute being investigated by a magistrate and a committal being made thereon. The provisions appear to me to be designed to prevent secrecy of proceedings and to ensure that the Court to the best of its ability, will by allowing cross examination and by carefully watching the interests of the accused, ensure that he is not improperly put in jeopardy or prejudice. The magistrate can only do the best in the circumstances prevailing. It may well be that on occasions (and no doubt the greatest lengths possible will be gone to in avoiding such a situation) interpretative and auditory difficulties will render a “hearing” by the accused defective. (Regrettably, in some Territory courts it is difficult to ensure that the proceedings are “in the hearing” of anyone.) I find myself unable to conceive that the legislature intended that committal proceedings could prove invalid merely because an accused could not hear. One can imagine cases where an accused could lip read, or could read a transcript of proceedings and comment thereon, or could communicate in sign language or could write questions and answers. Could it be said proceedings against him were not “in his hearing” and therefore invalid? If a man of normal hearing rendered himself deaf by mechanical or other means — could he subsequently, by proving that fact, invalidate the committal? Could he attempt to invalidate committal proceedings by proving that he had so intoxicated or so stupified himself with a soporific that he could neither hear nor understand the magistrate reading and making explanations under sub-ss. (1) and (2) of s. 103?

I consider that the magistrate when presented with such a case should endeavour to carry out formally and in substance, so far as circumstances will permit, the requirements of ss. 100 to 110. He would no doubt endeavour to arrange legal representation so that cross examination of witnesses may be attempted if desired, on such instructions as can be obtained. And he may then, if the evidence justifies it, fulfil his administrative function of committing to trial. The necessary issues of fitness to plead may then be investigated at the appropriate time.

Of course, completely different considerations will apply to a magistrate trying an information for a summary offence. On such an occasion he will no doubt have to deal himself with the preliminary issue of the nature of the disability claimed, fitness to plead, and possibly later, the question of interpretation and understanding of the charge and the evidence in the trial, in accordance with s. 28 of the Criminal Procedure Ordinance and the general provisions of the law as to the necessity of understanding the procedures.

It is not without significance that the court record here shows that the charge was read to the accused and that a reply was purportedly obtained in the form “I cut him 4 times”.

I am of the opinion that in committal proceedings the magistrate should exercise his power to command the presence of the most suitable interpreter and means available for communication to the particular accused; that having done so he should proceed to hear and commit if the evidence justifies committal. The learned magistrate here has, I consider, “refused to do so” within the meaning of s. 21. It has not been argued to the contrary. My view is that the learned magistrate here should proceed to hear the evidence available in support of the charge. I propose to make absolute my order of 8th March and I order hereby that Mr. T. Mitchell, resident magistrate at Rabaul should proceed to hear and determine the information of 4th January, 1971, alleging against Robert Susma an unlawful wounding of Anton Marea. I make no order as to costs.

Order absolute.

Solicitor for the applicant: P. J. Clay, Crown Solicitor.
Solicitor for the respondents: W. A. Lalor, Public Solicitor.

[lxiii]Sections 100 to 110 set out the requirements to be observed in the conduct of committal proceedings undertaken in relation to a charge for an indictable offence. Particular provisions relevant to this report are that the proceedings shall be in the presence and hearing of the accused (s. 101), and that the charge shall be read to the accused and explained and anything which the accused answers shall be written and read back to him (s. 103).

[lxiv] (1947) 47 S.R. (N.S.W.) 145.
[lxv] (1957) 57 S.R. (N.S.W.) 626.
[lxvi] [1936] 2 All E.R. 89.
[lxvii] [1938] 3 All E.R. 674.
[lxviii] (1885) 7 Q.L.J.
[lxix] (1838) 8 C. & P. 195.
[lxx] (1836) 7 C. & P. 303.
[lxxi] [1964] PNGLR. 200, at p. 244, 245.
[lxxii] [1963] PNGLR. 181, at p. 190.
[lxxiii] [1964] PNGLR. 200.
[lxxiv]113 S.J. 304; Archbold (36 ed.) 463.
[lxxv] [1953] 2 All E.R. 340.
[lxxvi] (1836) 7 C. & P. 303.
[lxxvii](1850) 175 E.R. 488.
[lxxviii](1959) 43 Cr. App. R. 220, at p. 238.
[lxxix](1836) 7 C. & P. 303.
[lxxx](1959) 43 Cr. App. R., at p. 241.
[lxxxi][1909] 2 K.B. 81.
[lxxxii]Unreported judgment 433, Mann C.J., July 1967.
[lxxxiii][1936] 2 All E.R. 89.