IN THE SUPREME COURT
OF THE TERRITORY OF
PAPUA AND NEW GUINEA

Appeal No. 11 of 1962

IN THE MATTER of the NATIVE Administration
Ordinance 1921-1951

- and –

IN THE MATTER of an Appeal from the Court 
of Natives Affairs

BETWEEN: 

HAGAI SALE
Appellant

- and –

TOHIAN
Respondent

PORT MORESBY
7th May 1962

Mann C.J. : This was an appeal by one of a large number of natives from the Island of Buka, who were, .on the 1st March 1962 convicted by a court of Native Affairs held at Sohano, Bougainville, of wilfully obstructing William Michael Burns, a senior Inspector of Police, in the performance of his duties. According to the Information as amended by the Magistrate for Native Affaire during the hearing, this constitutes an offence contravening Regulation 81 (c) of the Native Administration Regulations.

The first two grounds of appeal raise the point that Inspector Burns was not a member of any relevant Court or an officer having jurisdiction or authority under the Native Administration Regulations so as to come within Regulation 81 (c), which is a Regulation concerned to protect Courts for Native Affairs in relation to natives who commit contempt of Court. These two grounds of appeal are so manifestly right that I need not go into great detail.

It appears from the transcript that "the Defendants in question were at first charged with riotous behaviour, an offence to be found in the Regulations, but that during the hearing the Magistrate formed the opinion that the real substance of the matter was that they had wilfully obstructed Senior-Inspector Burns. Inspector Burns' instructions, apparently received from administrative headquarters in Port Moresby, were to arrest these people for non-payment of tax and take them to a Court at Sohano. There is nothing on the record to suggest that any proceedings had been commenced by a Court at Sohano, or that Mr. Burns bore the authority of any such Court, so to bring him within the scope of Section 81. An argument was put for the Respondent that Mr. Clancy was present at the time, but Mr. Clancy's substantive capacity is as District Officer for Bougainville District. He is also a Magistrate for Native Affairs but there is nothing to suggest that he was acting in that capacity. Further it seems to me to be plain from the Magistrate's expressed views, that his appreciation of the offence was wilful obstruction of Inspector Burns and other police and not of obstructing the Court.

The offence of obstructing police in the execution of their duty is provided for under the Police Offences Ordinance and would give the Defendants the right to be tried in the District Court. It is not an offence which may be dealt with in a Court for Native Affairs, but it seems clear that point did not occur to the Magistrate.

A good deal of argument was directed to the other grounds of appeal, and since several irregularities were revealed, I think that I should make some further observations, which although not directly necessary for the determination of the particular case not before me, may be of some assistance to Magistrate in Courts of Native Affairs.

Gound 3 was that the proceedings were not conducted as required by the Regulations and Ground 4 was that evidence was given by persons not competent to be heard by a Court of Native Affairs. This ground was occasioned by the fact that the only evidence given was given by Europeans who could not be compelled to give evidence in a Court of Native Affairs and are not subject in any way to control by that Court.

At the commencement of the trial of this section the Magistrate received what purports to be an "Information" indicating that the Magistrate appreciated that the Informant, who was apparently selected for that role because he is in fact a native, had no personal interest in the subject matter of the proceedings such as to make it appropriate for him to appear as "Complainant" and make a Complaint. (See Kwale Taunau v. Const. Iwas. Papua. 21-3-60). The obvious person to "make a Complainant" about obstruction to Mr. Burns was Mr. Burns himself, but the Regulations do not allow a European to be a Complainant. This is established in a number of cases, including Topore and Ors.v. Cockburn Appeal No. 2 of 1961.

The Regulations only provide for one means for persons other than a Magistrate, to commence proceedings in a Court for Native Affairs, and that is by Complainant which is defined as "a Complainant in any civil or criminal matter" and provides the foundation upon which all the procedural rules are based. There is no procedure whereby a person not directly concerned can commence proceedings upon Information. This is the context of the rules, was as I think, intended. It is true that a Magistrate has power under Regulation 23 to commence proceedings himself, and there is no reason why he should not receive an "Information" if he took this course. In this case I think he rightly refrained from doing so. 

I think that the Magistrate was correct in not allowing the Informant to make a Complainant, for he had no personal interest in the proceedings, but this should have been taken as added reason for referring the matter to the District Court. The whole scope of the regulations dealing as they do with matters arising between natives and excluding from the Court any concern with Europeans, were intended, in my view, to provide rough and ready administration of justice in circumstances far removed from the situation which occurred on Buka Island, which constituted essentially a conflict between the Administration and an organized group of advanced natives.

The original charge of riotous behaviour, was explained to the Defendants in a batch of about 49 at the one time. One of the Defendants remarked that they, the natives, had had no clubs or other arms with them on this occasion, and the Magistrate then informed the Defendants that he would direct pleas of "Not Guilty" to be entered and he invited any Defendant who wished to claim that he was not present at the incident, to come forward as his case could be heard separately. No further individual explanations were given at this stage, but the invitation was given to any Defendant, who did not understand, to come forward.

The Magistrate states that he was satisfied that the Defendants understood the nature of the proceedings. 

There are several unsatisfactory aspects of the foregoing which is taken substantially from the Magistrate's own account of what took place.

In Topore v. Cockburn (referred to above) and in Tumaia v. Gaine 16th January 1958, it was pointed out that the Regulations do not provide for a plea of Guilty or Not Guilty to be taken. There is sound reason for this, for a plea of Guilty is a formality of substantial significance, requiring great care, and a Magistrate adopting the practice of using this expression in Courts for Native Affairs, might mislead himself into omitting to observe his duty to apply his mind to the question whether, even if the Defendant admits the Complaint, justice requires that evidence should be called.

When a Complainant has been made and thoroughly explained to each Defendant, the Magistrate should ask each Defendant in terms of Regulation 28, whether he admits or denies the Complaint. He should not be asked whether he is Guilty or Not Guilty.

If the Defendant admits the Complaints, the Magistrate is not bound to hear evidence from the Complainant, and may take the admission as sufficient evidence to support a decision against the Defendant consistent with the terms of the Complainant and admission. If, however, the Magistrate thinks it necessary, he should still hear the Complainant and his witnesses, and he must in every case apply his mind carefully to this question, in relation to each Defendant.

Whether the Defendant admits or denies the Complaint, he must also be asked before any judgement is given, whether he wishes to say anything with regard to the Complaint, and if he does he must be allowed to make his statement and to call witnesses if he so desires. All this applies to cases where the Defendant admits the Complaint. If he does not admit the truth of the Complaint Regulation 30 prescribes the course to be followed.

The effect of taking a plea of guilty or not guilty in other jurisdictions is quite different. A plea of Guilty, so long as it stands on the record, is a bar to an acquittal, and disentitles the Defendant to a trial on the merits. Every trial in a Court of Native Affairs is a trial on the merits, on evidence which must be properly tendered to the Court, even if the only evidence is the admission of the Defendant given in terms of Regulation 28.

In the present case, since the Magistrate entered a plea of "Not Guilty" evidently to protect the interests of the accused persons, the procedural defect involved could not constitute in any sense a miscarriage of justice, and would not of itself be grounds for setting aside the decision. Although this point has been covered in earlier decisions, I think it necessary and desirable for me to repeat what I have said on other occasions, in the absence of an effective means of conveying all these decisions to officers who sit as Magistrates in Courts of Native Affairs.

Although the entering of a plea of Not Guilty instead of recording a statement that each Defendant did not admit the Complaint does not appear to me to be significant in the present case, it may have diverted the Magistrate's attention from the requirement of Regulation 30, a mandatory provision to the effect that the Court shall first hear the evidence of the Complainant and his witnesses etc. The Regulation also provides that after the Complainant has said all that he himself wishes to say, the Defendant may ask the Complainant questions touching the matter, which questions the Complainant must answer. The express provisions of Regulations 35 and 36 for example, show that the attendance of the Complainant at the hearing is regarded as essential. An argument under Ground 3 of the Notice of Appeal was to the effect that the Complainant was a compulsory witness and that he should have been questioned at the beginning of the case whether he wanted to tender any evidence or not.

I think that the correct view is that there was no Complainant in this case and that the proceedings were deficient for that reason, the magistrate not having commenced the proceedings under Regulation 23. In this specifically limited jurisdiction it is not right to adopt by way of analogy procedures of other Courts where official Informants may commence proceedings and are not required to give evidence.

In the Court of Native Affairs I think the intention is that in every case the Complainant must come forward and give evidence and submit to questioning, so that his Complaint is genuine. In this case if the Informant had been called and questioned, it would no doubt have been obvious that he had no interest. It is true enough that every citizen in the community has a proper interest to see that the law is enforced and that wrongdoers are brought to Court, but this is an interest pertaining to every Informant, and the Regulations have apparently referred to limit the jurisdiction of the Court to matters in which the natives before the Court have an interest.

In Topore's Case attention was also drawn to the practice, which has evidently been followed in many cases in the past, of dealing with large batches of natives accused of like offences, addressing them by way of explanation, and then calling upon anybody who does not understand or does not admit the offence or wants to raise some other matter, to step forward and speak. This practice is to be thoroughly condemned. As I pointed out in that case, it "is rather like telling a company of soldiers, that anybody who was not prepared to volunteer for extra duty must leave the ranks and. stand to one side of the parade ground". "In view of the very nature of the case and of the element of community action which was an essential feature, it might have been extremely difficult for an innocent individual to come forward and deny the Complaint." 

Further I should add that it deprives the Magistrate of any reliable impression of several material matters, which in these circumstances, tend to remain within the mind of each individual native.

Another apparent result of the procedure adopted for mass hearings, was that in the course of his address to the natives and his explanation, and before he had heard any evidence in the case, the Magistrate appears to have assumed that anybody who was present on the occasion in question was necessarily guilty of the offence. I do not for a moment doubt that after hearing the evidence this might well have been a fair inference, but the explanation offered by the Magistrate and his invitation to any Defendant who wished to claim that he was not present at the incident, to come forward and have his case heard separately, seems to suggest that at a stage at which he was not entitled to draw any inferences, he already saw the group of Defendants as people engaged in a common purpose, rather than as a number of separate individuals each of whom was entitled at that stage of the trial, to have his own personal conduct thoroughly investigated by the Court.

During the hearing the only evidence called was that of three European officers. No criticism is made of these witnesses or of their evidence, or of the manner in which their evidence was taken and investigated: However it was argued that Regulation 22, which purports to be a provision enabling a person who is not a native to give evidence, is ultra vires the Regulations and void. The Regulation itself recognizes the intention of the Ordinance, expressed for example in Section 6, that the Court for Native Affairs is not to have any authority except as between natives and over natives. Thus Regulation 22 warns that a person who is not a native cannot be compelled to give evidence. An argument as to the validity of the Regulation; based on this enabling provision, seems in a curious way to be in reverse gear, but the effect of the argument was that since the Court has no control over Europeans and cannot compel them to answer questions or punish them if they fail to do so, or leave the Court having told part of their story in favour of one side and refuse to be cross-examined, it is unfair to a native party in any case to have to run the risk that his rights will be jeopardized by allowing evidence to be given by an influential witness over whom the Court has no control. 

It is not the first time that embarrassment has been caused by this Regulation and I am aware of at least two different practices followed by Magistrates when Europeans give evidence. According to one practice, a witness is sworn in the ordinary way and treated as a witness would be in any other jurisdiction, and should any difficulty arise the Magistrate would then regard it as his function to treat the matter as one going to the weight of the evidence. The other practice is for the Magistrate to inform the witness that the Court cannot exercise any control over him, and that he is free to come and go as he sees fit, and that therefore he should not be sworn, but make an unsworn statement and be invited to answer questions, rather than be subjected to cross-examination.

I have no doubt that of the two, the former is the correct practice, and if the oath administered requires a witness to tell "the whole truth", at least some sort of sanction is applied. Whilst agreeing wholeheartedly with the criticisms made of Regulation 22 in the course of the argument, I do not think that it affords grounds for saying that Regulation 22 is ultra vires. It is a provision involving discretion and I think that it's purpose is to enable the Court to decide a matter justly where it is essential that a non-native should be able to give material evidence. At the time when these Regulations were promulgated, practically the whole of the business of the Court involved only natives and in the rare case an officer of the Administration who happened to be readily available in the locality, or some other non-native similarly placed, might be a necessary and not unwilling witness; but the Court was never equipped to exercise jurisdiction in cases where in any real respect Europeans were involved, and the obvious intention was that these cases should, as a matter of justice, be brought before another jurisdiction. In more recent years there has been an obvious tendency for these Courts to be used to decide disputes between the Administration itself and natives. I express the unqualified view that it would be more in the interests of justice if in such cases and especially where non-native evidence is proposed to be given, the Magistrate declined to exercise his discretionary power under Regulations 22 and 23, and. referred the matter to a Court better equipped to try the issues in question.

I hold that the fourth ground of appeal is not established, and I think that he fifth ground, in the light of my conclusions on the first two, does not call for any decisions.

When these appeals came on for hearing, Counsel for the Appellant initiated that he would object to the admission of certain documents with Counsel for the Respondent proposed to tender in Court. The objection however, was withdrawn when it appeared that a certified copy of the proceedings in the Court for Native Affairs had not been sent to the Registrar of this Court in response to the Notice of Appeal and as provided in the Rules. I was then handed by Counsel for the Respondent, what purports to be a copy, uncertified, of the record of the Court of Native Affairs, and also a letter dated 27th April, 1962 written by the Magistrate to the Crown Solicitor. I asked for and received a copy of the Crown Solicitor's letter to the Magistrate of the 19th April 1962. Counsel on both sides asked me to determine the present appeal on these documents and without delaying the hearing to enable the Rules to be complied with.

It appears from the letters handed to me, that after the Notice of Appeal setting out the grounds of appeal had been served, the Crown Solicitor, in his capacity as practitioner for the Respondent, wrote to the Magistrate, expressing some views concerning the proceedings before the Magistrate to supply his reasons for the decisions and make further comments on matters which might affect the outcome of the appeals. 

The Magistrate in his letter of the 27th April, enclosed a copy of his reasons, with some explanations and comments in answer to the questions raised in the Crown Solicitor's letter. He adds at the foot of his letter that his general comments on the entire proceedings are being prepared and will be forwarded separately. I have not seen these comments. 

The rules governing the conduct of appeals from Courts of Native Affairs, were designed to ensure that the records of the Court appealed from are kept in proper custody and available for proper inspection until the determination of the appeal, and it is of the utmost importance that Magistrates should strictly observe these rules. Nobody is imputing any improper motive to either the Crown Solicitor or the Magistrate, but I think it undesirable for a Magistrate to. supply to one party only, answers to questions and other information which may have a material effect on the outcome of the appeal. Any additional information should at least be sent to both parties, and I think that the better practice is for the Court, on the application of the parties, to invite the Magistrate to send to the Registrar of the Court, in the form of a Report, any further information which may be required. 

The result of the Appeal is that the Appeal is allowed on grounds 1 and 2, and the conviction quashed and order appealed from set aside.