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

Re: TARU-MERIA

REASONS FOR JUDGEMENT

This was an application for a Writ of Habeas Corpus made on behalf of TARU-MERIA who is at present a Corrective Institution, held under warrant of commitment to appear at the Supreme Court at Tari to answer a charge of wilful murder of two women. The substantial case put forward on behalf of the applicant is that the evidence taken by the presiding Justice of the Peace during the committal proceedings was not sufficient to justify the applicant's committal for trial.

For the applicant, it was contended that there is no appeal from the decision of a Justice of the Peace committing a person for trial on an indictable offence. This is conceded by the Crown, and it appears to be clear from the definition set out in section 4 of the Justices Ordinance of Papua that a committal for trial is expressly excluded from the definition of "order" which applies to the Supreme Court from any conviction or order. These provisions are now to be found in Ordinance No. 26 of 1956. The applicant contends that there being no other remedy open to him to enable him to establish his right to liberty, a Writ of Habeas Corpus is available. 

During argument, reference was made to the provisions of the Criminal Procedure Ordinance of 1889 of Papua. Section 12 of this Ordinance imposes on the "Chief Magistrate" (now by section 49 of the Ordinances Interpretation Ordinance 1949-1959 to be read as a Judge of the Supreme Court) a mandatory duty, whenever a person has been committed for trial, to do one of four specified things. The second thing specified is to quash to committal. Other powers specified include a power to have the matter further investigated, or dealt with in a summary manner. 

It seems clear that if section 12 of the Criminal Procedure Ordinance is in operation today, there would be no occasion for the applicant to resort to a Writ of Habeas Corpus and that, therefore, this prerogative remedy would not be open to him. I think that the views expressed by Mr. McLoughlin in argument on this question are correct. The Criminal Procedure Ordinance came into force in 1889. The Queensland Criminal Code, as adopted in Papua, came into force in 1902 Section 560 of the Criminal Code and some of the subsequent sections dealing with the practice to be followed in relation to indictments are inconsistent with the procedure as a whole which is laid down in section 12 of the Criminal Procedure Ordinance of 1889. It is possible that some of the provisions of section 12 of the earlier Ordinance could stand side by side with the later provisions of the Code but, since each establishes a more or less complete set of rules of practice, and the earlier Ordinance is expressed in mandatory terms, I think that the better view is that the provisions of the Code, which were intended to operate as a Code, should be taken to have replaced entirely the provisions of section 12. The later provisions of the criminal Procedure Amendment Ordinance of 1909 touch on the same topic and, to the extent necessary, are to be taken as a modifications of the provisions set out in the Code, but are not of sufficient breadth or particularity to replace the provisions of the Criminal Code.

Accordingly, I think that the correct view is that the appropriate prerogative Writ is the only means available to the applicant to ask the Court to consider the legality of his detention and that in these circumstances he is entitled to apply for a Writ of habeas Corpus.

It was further pointed out on behalf of the Crown during argument that, by virtue of the Habeas Corpus Act of 1679 cases of persons committed for trial for treason on felony are expressly excluded from the provisions of that Act: The explanation for this exclusion by the express terms of the Act of 1679 is to be gleaned from Blackstone's Commentaries, Book 3, Edition of 1811, pages 136-137. See also Dicey, Law of the Constitution, 9th Edition, pages 216-220 and the Encyclopaedia of the Laws of England, 2nd Edition, Volume VI, page 479, one of several such Acts, was to afford a speedy means of enabling prisoners wrongly detained in prison to bring their claims to liberty before the Courts. There had been many abuses of the liberty of the subject as a result of delays by Judges, prison officers and others. The Act only sought to deal with those cases where a more summary form of procedure would clearly be appropriate, that is, to cases of the less serious classes of offences where a person could be let out on bail in most cases without injury to the public interest. Cases of treason or felony were excluded, but not so as to exclude any right to apply for a Writ of Habeas Corpus.

The Act did not deal with the substantial right to liberty which may be protected by the Writ but only dealt with the procedure to be applied in certain classes of cases. All other cases, including cases of committal for trial for treason or felony, were left to be dealt with according to the older forms of procedure. The beneficial results flowing from the Act were so great land so clearly recognised that it had the effect of inducing the Courts to simplify the procedure to be applied in all cases of Habeas Corpus even those falling outside the terms of the Acts itself. It appears, therefore, that the result is that the exclusion from the Act of cases involving committal for trial for treason or felony does nothing to exclude the applicant's remedy in the present case and, in fact, the new procedure established by the Act would be followed in the present application by analogy.

It was argued for the applicant that the Court should readily look to the evidence called before the Justice of the Peace on the committal proceedings and reach the conclusion that there was no evidence sufficient to justify a committal. It was contended in opposition that the warrant, duly signed by the Justice of the Peace, is conclusive of the lawfulness of the applicant's present custody, and that the applicant's only remedy is to appear at his trial because the Justice of the Peace was not concerned, and could not be concerned to make any decision as to his guilt or innocence, and that such a question can only be determined on the trial before the Supreme Court. The applicant relied very strongly on cases decided under the English Fugitive Offenders Legislation. Some of these cases are of the highest authority and express the view that the functions of the Magistrates falling to be considered in those cases were the same as if they were dealing, on committal proceedings, with charges for indictable offences. See – Reg. v. Governor of Brixton Prison, Exparte Moural Mehmet, 1962 2 W.L.R. 686; Reg. v. Governor of Brixton Prison, Exparte Schtraks, 1962 2 W.L.R. 976; and 1962 3 W.L.R. 1013.

I think that these cases are applicable to the proceedings at present before me, and cover the questions raised here. The Courts will review the evidence heard by the Magistrate, for the purpose of ascertaining whether his findings of facts were supported by proper evidence, and whether he had jurisdiction to do what he did. They do not go further and review the evidence so as to substitute their own opinion on a question of fact for that of the Magistrate. They do not take the Magistrate's conclusion as to jurisdiction as conclusive on the face of it without further enquiry. The inquiry is not as to a question of fact, but one of law, viz: On the evidence before the Magistrate was it open to him to conclude that he had jurisdiction to act as he did.

The reason for this appears to me to be derived from the nature of the right which is claimed by the applicant. A citizen is entitled to liberty but, in a legally organised and responsible community, this can only mean that he is entitled to his liberty according to law. The Writ of Habeas Corpus relies on the sovereign power to see that such a right is protected but, of necessity, as soon as it appears that the applicant is in fact being detained according to law, he must fail in his claim. A determination of a superior Court of unlimited jurisdiction may afford conclusive evidence, so long as it stands, of the lawfulness of the restraint placed upon the applicant, but, in the case of inferior Courts and Courts of local or special jurisdiction, the same presumption does not apply. In all such cases, it must be established as a fact that a determination was made within the jurisdiction of the Court. It should appear on the face of all the proceedings that any decision which is involved was made within the jurisdiction. If the subject matter of the question which arises is admissible in evidence, a statement on the face of it, as to jurisdiction, may be sufficient, but in other cases, it may be necessary to prove the fact of jurisdiction by affirmative evidence.

This distinction between superior Courts and Courts of inferior or special jurisdiction goes backs into ancient times and, not only applies to Courts strictly so-called, and proceedings of a judicial nature, but to all proceedings transacted before Magistrates and like officials. In Mayor etc.of London v. Cox L.R. 2 H.L. 239, it was held that prohibition did not lie where an inferior Court proceeds within its jurisdiction, but would lie immediately a question arose raising a matter of jurisdiction. At page 262, a statement of Holyroyd J. in Rex v. All Saints. Southampton 7 B. & C. 785, a case decided in 1825 was quoted. The quotation was:-

"the rule, that in inferior Courts and proceedings by magistrates the maxim omnia praesumuntur rite esse acta does not apply to give jurisdiction, never has been questioned:"

The case from which this quotation is taken was itself a case in which the Justices were not acting judicially. They had taken evidence and recorded it by virtue of special powers under the Mutiny Act. When the depositions were tendered as evidence in later Court proceedings, it was held that they should not be admitted for they did not show on the face of them, nor was it proved, that the justices had acted within their jurisdiction. There, jurisdiction having been conferred for limited or special purposes, the presumption of regularity did not apply. Since they only had jurisdiction to take evidence at the place where they were appointed, it had to be shown affirmatively that the deponent resided within the jurisdiction of the Justices and, in the circumstances of that case, this evidence could not be made available.

This is an old and well-established rule of practice as is the rule that the decision of an inferior Court or Court of special jurisdiction is never final even as between the parties as to any question regarding jurisdiction. It is not enough to show that a decision was made, but it must be shown that it was made with jurisdiction. 9 Halsbury, 3rd Edn. Paras. 820, 821.

Applying that to the present case, an answer which could be made to the applicant's demand for liberty would be to the effect that he was being detained by the ministerial decision and warrant of a Justice of the Peace from which there is no appeal. Such an answer is incomplete, and must go further and show that the ministerial decision and the warrant issued in consequence of it have been made and given in accordance with law. There being no presumption that the Justice of the Peace acted within his proper jurisdiction, it is necessary for it to be established as a fact that the proceedings were within his jurisdiction.

The consequence of this may not be precisely the same in all cases, depending on the function which is actually entrusted to the Court, Magistrate or Justice of the Peace, as the case may be. The documents should show on the face of them that any condition to the exercise of jurisdiction has been fulfilled and, where the documents are admissible in evidence, this may well constitute sufficient proof.

The provisions of sections 95 to 97 of the Justices Ordinance are mandatory and the Justice has no jurisdiction or power to act unless the conditions prescribed in those sections are fulfilled. Accordingly, I will set out the steps which in my opinion, the Justice, should have taken in the present case. 

Having called and recorded the evidence of the witnesses for the prosecution, the justice should not have called upon the defendant to say whether or not he wished to answer the charge, and should not have administered the statutory warning. Instead, he should first have considered the position arising under section 97. There was only one Justice present. He should have considered whether the evidence which he had heard was such as to raise a strong or probable presumption of guilt. He should then have recorded on the record of the proceedings what was his opinion on this question. In my view, the only opinion which he could reasonably have formed on this question was that the evidence did not raise a strong or probable presumption of guilt. Having reached such an opinion, the Justice should then have considered whether the evidence was such as to warrant the dismissal of the charge. His decision on this point should also have been recorded. I think it a fair assumption, in view of the fact that the Justice did commit the defendant for trial, that if he applied his mind to the question at all, his decision was or would be that the evidence did not warrant the dismissal of the charge. Having formed and recorded such an opinion, the Justice should than have remanded the defendant until such time as the evidence could be heard before two or more Justices. Section 97 is intended to avoid a situation in which a person might be committed for trial on slender evidence, unless two or more Justices are present and participate in the committal.

Turning to section 95, it is clear that in the present case, the Justice sitting alone would not be called upon to form the opinion set out in the section. If he were of the opinion that the evidence was not sufficient to put the defendant upon his trial, he would already have formed and recorded that opinion when dealing with section 97, and thereupon the mandatory direction set out in section 95 that the defendant be discharged from custody would automatically apply without any further decision on the part of the Justice.

Passing on to section 96, it is only if the conditions of this section are satisfied that the defendant can be committed for trial. Upon the facts of this present case, I would not expect that, in any event, the Justice sitting alone would reach the, point of forming the opinion set out in the section unless he was also of the opinion that there was a strong and probable presumption of guilty, such as to satisfy section 97. In this event his opinion to that effect should already be recorded and then the opinion that the evidence was sufficient to put the defendant upon his trial as required by section 96 would arise as a matter of course, and would lead to the committal of the defendant for trial.

It comes down to this that, although there is no opinion expressed, the Justice sitting alone could only have acted as he did if he formed an opinion under section 97 which, as a matter of law, the evidence was not capable of supporting. He therefore had no jurisdiction to commit the defendant for trial, and the defendant must accordingly be released. 

If I had come to the conclusion that on any reasonable view of the evidence it could be said that there was a strong or probable presumption of guilt raised by that evidence, it would not be for me to consider whether I would agree with that view. Nor would it be for me to consider the likelihood or otherwise of the defendant ultimately being convicted upon that evidence, except for the purpose of considering whether or not to release the defendant on bail pending his trial. In a variety of ways, further evidence may come to light and may be available to the prosecution upon the trial, so that it is not possible to form any final view of the probability of guilt without undertaking a trial of the case which is, of course, the function of the Criminal Court.

I have already indicated the conclusions which I have formed as to the sufficiency of evidence. Perhaps I should add a few observations. In argument the case of Reg. v. Plomp 1962 50 Q.L.R. 161 was closely canvassed as to the admissibility of evidence of motive and expressions of hostility. The question largely discussed in Plomp's case was as to the use of evidence of this kind in a case where felonious killing could not be proved by direct evidence, and the Crown had to rely entirely on circumstantial evidence to establish that the killing was unlawful. For the purposes of the present case I assume consistently with the decision of the Court of Criminal Appeal of Queensland in Plomp's case that the whole of the evidence included in the depositions in he present case was properly admitted and properly before the Justice. In this, I will include the statement of the defendant himself, although, as I have previously said, I think that he should not have been invited to make any statement.

There was no direct evidence that the two women whose bodies were burnt in the fire met their deaths by any unlawful act or circumstance; the cause of death is not established in either case, nor whether they were dead or alive when the building in which they wore found was burning. According to the evidence of TERENGAU, who may be taken as the leading witness, the defendant was seen and identified at sunset on the day that the house was burnt. At this time, the two women were believed to be in their house, some distance away, but just how far does not appear. The accused when seen was walking past TERENGAU's house in the direction of the house occupied by the two women which was then on fire. After the house had collapsed the bodies of the two women were seen in their normal sleeping position. Two of the pigs which normally slept in the same house were also burnt by the fire, and their bodies were found in the house. Other pigs had escaped with some injuries from burns. To connect the defendant with the death of the two women evidence was given by other witnesses to show that the defendant knew the women and had had some intimate relations with one of them and had got into trouble and had been sent to gaol. During his term in gaol, and subsequently, he made a variety of remarks which might be taken as an indication of on intention to retaliate against at least one of the women for the trouble he had experienced. For the present purposes, it many be sufficient to say that, on this evidence, the Justice would have been at liberty to form an opinion that the evidence would support a finding that the defendant was antagonistic towards the women and that on at least one occasion, he expressed an intention of killing them and, on another occasion said that he would burn somebody in their house.

The only other evidence against the defendant which might help to associate him with the deaths of the women is to be gleaned rather indirectly from the statement of the defendant on the committal proceedings. Here he said that he did not burn the house and only heard about it the next day. It would be possible if the evidence were a little clearer to treat this statement as containing a false denial on the part of the defendant which could therefore amount, in the circumstances, to evidence of guilt. Before reaching such a conclusion, it would have to appear from TERENGAU's evidence that the defendant remained in the vicinity of the house until the fire, and that he must of necessity have been aware of the fire during the evening when it occurred. As the evidence now stands, and in view of the fact that there was a "singsing" going on at some unspecified place in the neighbourhood, it seems to me that the crown case could not gain any support from the statement of the accused. It comes down to this therefore; The women might have died from felony or accident or from some unknown or unsuspected cause. Even if the defendant, at some previous stage, had expressed an intention which may be taken as an intention to burn those women in their house, there is really nothing beyond the fact that he was seen in the neighbourhood before the fire to connect the accused with it. It might or might not have boon possible for the accused to light the fire. It is possible that at the trial further evidence might be available to strengthen the circumstantial case relied upon by the Crown. It might well be that two or more Justices, hearing the evidence already given, could form an opinion that there was a prima facie case to answer, and in such a case the committal for trial would stand. That question is not before me and I think that I should not purport to decide it. All that I am to decide is whether, in a case where the Justice of the Peace is sitting alone and can only commit for trial if there is a strong and probable inference of guilt, the evidence would support such a conclusion so as to give jurisdiction to the Justice to act as he did. In my opinion, the evidence clearly does not come up to that standard.

I will grant the remedy sought, but should make it clear that this in no way precludes further investigation or proceedings against the defendant. It merely means that according to the strictly laid down procedure in the Justices Ordinance, which is intended to protect persons from premature or speculative committals for trial an indictable offences, the police evidence has not yet reached a standard at which a person should be committed for trial on the responsibility of a single Justice, if further evidence becomes available it is appropriate that a person in the position of the defendant should be committed for trial at a stage when the evidence reaches the required standard and the depositions can be recorded at that standard, if the police investigation terminates at a point at which it is not possible to get a clear account, the appropriate course is for the responsibility for deciding whether or not to commit on such a borderline case to be shared by two or more Justices who will be in a much better position to discuss every aspect of the case and form a balanced view of the sufficiency of the evidence before committing the defendant for trial.

Order absolute for issue of Writ of Habeas Corpus in the first instance, and direction under Order 82 Rule 8, applicant be discharged from present custody.

Port Moresby Mann C . J.
8/2/63