IN THE COURT OF APPEAL
OF THE ISLAND OF NAURU

No. of 1964.

IN THE MATTER of an Application for Special 
Leave to Appeal by DAGAUWE HEDMON against
the judgment of the Central Court of the
Island of Nauru convicting the Applicant
on a charge o. breaking into building and
committing a crime therein, contrary to
Section 421 of the Criminal Code of Queens-
land (Adopted).

Mann, C.J.

Mann, C.J.
24/2/65

REASONS FOR JUDGMENT

I am sorry that the delivery of the Court's judgment in this case has been delayed for some months in consequence of my absence from the Territory from towards the end of June, 1964, until December. The application came on for hearing before me on the 3rd of June, 1964, and after its conclusion I reserved judgment to give the matter more consideration, and left Port Moresby to go on circuit in the Western and Southern Highlands. Whilst entering a landrover in rough country, I struck my dead on the doorway of the vehicle and sustained an injury which gave no immediate symptoms and was disregarded, but which a week later developed symptoms which required an urgent trip to Australia for specialist diagnosis and an operation. In the event, the operation was not a serious one and I quickly recovered, but my general condition was by this time very poor and a total absence of five months was needed to enable me to be restored to complete good health. During this period of convalescence I had intended to completely this and other outstanding judgments and other court business, but it occurred to me that since I was in fact on sick leave and had suffered a head injury although, as it turned out, a minor one, it would be wrong in principle in the public interest for me to undertake judicial work of this character involving, as it does, serious questions of the liberty of the subject. I know that the appellant had been released on bail pending the outcome of his appeal, and in all the circumstances I thought the proper course was for me not to deliver my decision until I had returned to active duty, fully restored to health and with no suggestion of residual illness.

This is an Application for Special leave to Appeal to the Court of Appeal against a decision of the Central Court of the Island of Nauru given on the Thirtieth day of August, 1963, whereby the Court found that the Applicant did break, enter and commit a crime within the B.P.C. Provision Store on the Twenty-second day of July, 1963, and convicted the Applicant under Section 421 of the Criminal Code of Queensland (Adopted) and sentenced him to nine months imprisonment with hard labour.

After the Appeal had been instituted, the Applicant was admitted to bail. The Public Solicitor for the Territory of Papua and New Guinea has examined the papers and prepared a Notice of Motion setting out the grounds of the Application for Special leave to Appeal and an Affidavit in support.

On the Application, which came before me at Port Moresby on the Third day of June, 1964, Mr. McPhee of Counsel appeared for the Applicant and Mr. J. G. Smith of Counsel and Mr. Dabb of Counsel appeared to oppose the Application.

The matters in issue in the proceedings heard before the Central Court were essentially questions of fact, and it clearly appears from the record that there was substantial evidence to support the findings of that Court. The Applicant, in both his Application for a stay of proceedings during the trial in the Central Court and in his original Application for Special Leave to Appeal, raises the question of miscarriage of justice.

This ground was amplified and carefully specified in the Notice of Motion for Special Leave. The Notice of Motion assumes that it was the real intention of the Applicant during the hearing in the Central Court to ask that Court to state a case for the opinion of the Court of Appeal, and in the meantime not to proceed further with the hearing. I am not at all sure that this is really what the Applicant's representative at the trial was seeking. He is not a qualified practitioner, and was apparently selected as a representative by the Applicant because of his standing in the community and his ability to speak. He is a Local Government Councillor named EOAEO.

In his written Application dated the Twenty-eighth day of August, 1963, and being Document "A" annexed to the Court records, the representative indicates the intention of appealing to the Court of Appeal on the ground that the Court adjourned its proceedings improperly whilst there was still a number of witnesses to be examined, rendering it impossible for the representative Counsel for the Appellant to prevent the fabrication of evidence. He relied as a separate ground upon the court's adjourning the proceedings without seeking the consent of representative Counsel.

Some confusions as to the precise intention of the Appellant's representative arose because he purported to make his Application under Section 43(3) of the Judiciary Ordinance, which is a provision enabling the Central Court, to grant a stay of execution or admit the Appellant to bail when an Appeal to the court of Appeal is instituted. The Central Court, being under the impression that the Applicant was really asking it to state a case for the opinion of the Court of Appeal, asked the representative whether this was what he intended, and he answered in the negative, repeating that his Application was made under Section 43(3). Possibly the Central Court may have thought that this was an Application to state a case because it was made during the trial, and it seemed premature to be seeking to appeal to the Court of Appeal against a decision which had not yet been arrived at. 

I think there is much to be said for the view which was developed in argument that the Appellant's representative at this stage of the hearing made up his mind that he had already lost the case and that his intention was to abandon the whole thing, stay any further proceedings, and go to the Court of Appeal for the questions of substance to be determined in that Court. The alternative view would be that the Appellant was seeking only raise the specific question of whether it was proper for the Central Court to adjourn a case during the hearing in circumstances which would enable witnesses for the Crown to meet and fabricate their evidence.

If the Applicant's representative had in mind such a course as is last suggested, I think that there is no doubt there is no substance in his Application. The conduct of the proceedings are under the control of the Court, and it is inevitable that opportunities should exist for dishonest witnesses to fabricate evidence during the normal and necessary adjournments of the Court. The Court record does not show any discussion on the matter, apart from a very slight reference to it in cross-examination of the witness IUPELI (for example, on Page 37 of the transcript) in which it appears that that witness had met SANGATIA, a witness yet to be called, after leaving the Court on the previous day. The significance of this was not followed up or established, and so far as appears, the Court was not asked to take any special precautions or issue any direction which might have served any practical purpose. The Court had adjourned on the previous day at 16.45 hours, after an all-day sitting, and the management of the Sessions of the Court appeared to me to be entirely proper and without exception.

If, instead of raising some such specific point in his Application during the trial, the Applicant should be taken to have sought to place the entire case before the Court of Appeal, having abandoned any hope in the Central Court, then, of course, the Application was misconceived, and the Court properly refused it. I shall refer again to this Application made during the trial on the question of whether there was a miscarriage of justice by reason of the Court interfering or over-bearing the defence.

Other grounds of objection argued on the hearing may be classified as minor errors in the course of the hearing which were not made the subject of specific objection at the time, and were not argued. It does seem to me that Counsel for the Applicant has made a valid criticism of the admission of evidence, which on the face of it was inadmissible, in many examples of hearsay evidence which were of varying importance. Perhaps the most important occurs on Page 19 of the transcript, when the witness ROBERT KAIERUA, said that he had been told by Constable Jone that the Applicant had run away. Jone was not called as a witness, and clearly this kind of evidence would tend to prejudice the accused by importing an admission of guilt to be inferred from the assertion that he had run away. It is difficult to say what damage such a small piece of evidence might do in the minds of a tribunal of fact. When fully examined, such an admission amongst Pacific Islanders should not be allowed to have anything like the weight which it commonly bears amongst Europeans of different social habits.

I agree with Counsel for the Applicant that in circumstances existing, both in this Territory and in Nauru, there is a duty on the Magistrates, as well as on judges, when holding the balance or fair play between the parties, to be watchful of the interests of the accused, especially if he is not adequately represented and is likely to have an inadequate appreciation of the damage that might be done by a little scrap of inadmissible evidence getting in.

The other questions relating to objectionable evidence are of a more trivial nature. It is, of course, true that a witness should not be asked his opinion as to whether the roller door was high enough for a person to get through, and that no opinion should be expressed unless supported by evidence sufficient to qualify the witness as an expert in the particular subject matter. This kind of opinion evidence was given on quite a number of occasions, and at first I thought it might be a serious matter; because is difficult to see from the record exactly what the witnesses were trying to say about the outside roller door. There is confusion at time between the inner gates and the outer roller door, and much talk about a gap or gaps variously described as ranging from about two inches to three or four feet. Therefore, if the possibility of going through any such gap were directly in issue, as it frequently appears to be, it would be wrong to ask an inexpert witness to give evidence of his opinion as to what the Applicant could have done. He should be confined to what he actually saw.

On a re-reading of the transcript, however, I have come to the conclusion that the difficulty in understanding precisely what was being said about the door and the gates is only a matter of words, arising from familiar difficulties and ambiguities in translation and in expression. I think that the essence of the case was not, whether the Applicant could have got through a gap of two inches or so, but whether the outer door was raised to a height at which the Applicant would clearly find it physically possible to enter. Thus the question, "Could he have got through?" - though objectionable in form and better to be avoided, assumes the character merely of a convenient way of putting to a native witness; the alternative possibilities that the gap was something like two inches at that particular stage through which nobody could hope to pass, or something more: in the nature of two to four feet through which a person could easily pass. In other words, it is a more easily translated way of inquiring in which of two indicated positions the door stood at the particular time inquired after. I do not think that a slip such as this would prejudice the defence, and it being a matter on which objection was not taken, should not be allowed now to assume the proportions of a matter justifying special leave to appeal.

The most substantial ground of appeal in this case and the point most strongly argued on behalf of the Appellant was that there was a miscarriage of justice during the re-hearing of the case in the Central Court. The ground was included in the original notice of application for special leave to appeal but the argument was developed into a wider ground than that specified by the Appellant. No objection was taken to this at the hearing.

The substance of the argument put for the Appellant was that it may be seen from the transcript that on a number of occasions the advocate who appeared for the Appellant in the Central Court, retreated from situation in which he had been trying to press some argument or question of evidence in the Appellant's favour. I am invited to infer from some indications to be gleaned from the transcript that the Appellant's advocate was somewhat overborne during the conduct of the case, and that he was prevented from conducting the case to the fullest extent of his capacity. It was argued that the advocate shared with the Appellant himself membership of an inferior social order particularly sensitive to a situation in which there is dome emphasis placed on that inferiority.

Experience in the Territory of Papua and New Guinea shows that similar circumstances apply to native people here, particularly when they come into contact with Europeans carrying official powers and discharging formal official functions not fully understood by and not really familiar to the native population. There are many situations in which even a careful explanation of the rights and privileges of citizenship will not give a native enough confidence to enable him to take up any kind of a stand for the protection of his own conceded right, and not infrequently he will say and do things contrary to his own legitimate interests. 

In the present situation it was pointed out that the fact that the advocate was not a qualified lawyer would add to difficulties and possible disadvantages arising from the necessity to use interpreters whose standard of training might well leave much to be desired. Circumstances such as these impose a clear duty upon the Court to be sympathetically watchful of the interests of an accused person and to relieve him, as far as possible; of the burden of the risk of error induced by the unusual situation in which he finds himself placed. For this reason I have given the closest attention to the argument which was put and stressed before me, not because of any willingness to assume that the Central Court would be unmindful of this duty, but simply because these factors do tend to operate without attracting the conscious attention of people who are themselves concentrating on their work. 

The argument included reference to circumstances which would not of themselves support the proposed ground of appeal, but they may add to the general picture significantly; for example, the admission of minor pieces of evidence which were strictly inadmissible in the form in which they were given, might not afford grounds for appeal it themselves, but if an objection is disallowed abruptly and other points taken by the Appellant's advocate are rejected out of hand, these incidents could well have an undesirable effect on the confidence of the advocate and of the Appellant. I will tabulate some of the points stressed in the argument before me in the appeal. The pages given are the pages as typed on the sealed copy of the transcript appearing on the official court file.

On page 16 there is an objection by the prosecution to the effect that a question just asked by the Appellant's advocate related to a matter already given in evidence. The Appellant's advocate appears to have dropped the point immediately and to have gone on to a different subject. As far as I can see from the transcript this objection was not well founded and if the appellant's advocate wanted to make anything of the point he should have pressed his right to cross-examine.

On page 18 some hearsay evidence was given in the course of the long answer by the witness. The conversation between the witness, KIERUA, and unidentified Ellis Islander ought not to have been given. No objection was taken at the time to this evidence.

On pages 19 and 20, opinion evidence was given as to the mode of entry and some leading questions were asked in examination in chief.

On page 21 an objection was taken by the prosecution during cross-examination, but the objection was over-ruled in favour of the Appellant. The precise nature of the objection does not appear.

On page 22 there is another objection by the prosecution which may have had the effect of wrongly restricting the right of cross-examination, though from the transcript the point is not clear. There is some indication too that both advocates were observing a very strict rule precluding any question, which was answered by the witness previously, and on page 24 is another objection by the prosecution which was upheld.

The Appellant's advocate was apparently experiencing difficulty with his cross-examination and does not appear to have been able to exercise much control over the witness and then on page 24 when the Appellant's advocate asks the witness a question and than askes whether he is making himself clear, the Court retorts, "You are mixing yourself up." The transcript did not disclose the precise nature of the objection nor the grounds upon it was upheld. There are some circumstances here indicating the possibility that the Appellant's advocate might have felt that he was dealing with a hostile court.

A further objection by the Prosecution and a ruling by the Court that a question was irrelevant may have added to the discomfort of the Appellant's advocate.

After some conflicting passages or misunderstanding, it appears on pages 33 and 36 that there were some further objections, whereupon the court told the Appellant's advocate that he was confusing the witness, and the advocate abandoned his question.

It was argued that by the time the proceedings came to the point reached at page 38 in the transcript, the advocate for the Appellant was evidently quite confused and upset. He then made an application in writing for a stay of proceedings pending an appeal to the Court of Appeal. The grounds for the application were not clearly stated. When the Appellant's advocate said that he was relying on Section 43(3) of the Judiciary Ordinance, the Court asked whether he was sure that he did not mean Section 44(1). The Central Court appears to have dismissed this application out of hand, but when the matter is examined it seems that there is no substance in the application whichever view is taken as to what it was intended to achieve. However, immediately after the refusal of the application, the Appellant's advocate does appear to have lost all confidence in the case and he immediately asked the court to excuse him from defending it.

There is no need for me to go into detail as to what followed, but the court did give the appellant the opportunity to find another representative and, in fact, allowed an interpreter to continue the conduct of the case.

The new advocate conducted his case with vigour and sometimes with ingenuity, but his presentation of it again showed that apart from eloquence he had little qualification for the job. He lost the case on the facts and the Central Court directed the conviction and sentence to stand.

The argument before me pressed very strongly indeed and illustrates the need for very great care in dealing with cases of this kind. The social and economic differences between the members of the court and the Appellant would be very great. A person in the position of the Appellant might well think that he was suffering substantial injustice without even revealing his feelings in the matter. As I have previously explained, this consideration has led me to an especially careful consideration of this aspect of the case. I have also borne in mind that this is the final Court of Appeal for the inhabitants of the Island of Nauru.

The Appellant has no appeal to this Court as of right, because his sentence does not exceed twelve months.

The Judiciary Ordinance gives a clear right to appeal in some cases but in other cases allows a person aggrieved only the right to apply for special leave. It is not necessary for me to decide in the present appeal whether I should follow the practice of the Privy Council in granting special leave to appeal, because if I thought that the arguments placed before were substantially supported by the transcript, I would readily grant leave to appeal to enable the matter to be fully investigated. If I could find in the transcript any substantial reason for  thinking that the advocates appearing for the Appellant were overborne by some conscious or unconscious attitude of the Court to the prejudice of the defence, this would constitute a clear case of a substantial miscarriage of justice.

In the case of re Dillet (1887) 12 App. Cas. 459, the rule established in the Privy Council was referred to by Lord Watson in the following words - "Such appeals are of rare occurrences; because the rule has been repeatedly laid down, and has been invariably followed, that Her Majesty will not review or interfere with the course of criminal proceedings, unless it is shown that, by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done." After a very close scrutiny of the facts of that case, the Judicial Council did, in fact, grant special to appeal on a very narrow ground to unable the Appellant, the general merit of whose case was open to serious question, to have an opportunity to establish that his conviction in the first instance was improper.

The question for me to answer in this case is whether, looking at the case as a whole, there is any real indication of impropriety on the part of the members of the Central Court or even of inadvertence which might have resulted in the advocates for the Appellant being overborne to the extent of being unwilling or unable to present the Appellant's defence adequately.

The questions before the Central Court were essentially questions of fact depending on the direct observation of eye-witnesses who were called to give evidence. The disputed facts were extensively canvassed in cross-examination and the addresses, although they contained a good deal of extraneous matter, showed that the advocate for the Appellant was free to put such arguments as he chose and fully availed himself of this right. Certainly, there were minor errors in the handling of the evidence, but when one looks at the final addresses, I think that the fair inference is that these were due to lack of training and experience on the part of the advocates rather than the result of anything coming from the Bench. The reasons given by the Court were very short but the main issue of fact was simply a question of "yes" or "no", depending directly on credibility of witnesses. It seems to me on a review of the transcript as a whole, that the Bench was not by any means acting impatiently; rather on the contrary, my impression is that a good deal of patience and forebearance was shown as, of course, one would expect of experienced magistrates in a social setting of the kind in question. The statement made by the Appellant after conviction (p. 53) does not suggest that the Appellant was at any disadvantage.

To sum up the situation, my impression is that the Appellant had every opportunity and every proper assistance his defence in the Central Court, that minor errors which may well have occurred but which were not objected to at the time give no indication of any miscarriage of justice, and that if in some ways the conduct of the case seemed to lack polish, this was due to the absence of a highly developed legal profession on the island and not to any objectionable attitude or behaviour of the Court.

When the proceedings were first brought before me, I read the transcript and noticed that although the Appellant had had two full trials he had never had his case investigated or presented in court by a professional advocate. I also observed from the addresses that the advocate did not appear to have a very clear picture of the issues. I thought it desirable, in the interests of justice, that the Appellant should be afforded the best possible legal assistance at this stage to enable him to have the benefit of full investigation and argument of his complaints. I requested the Minister for Territories to make available to both parties the legal services provided in similar cases by the Administration of this Territory which, of course, serves a very much larger population. The Minister readily acceded to this request and the Appellant was represented by qualified counsel, briefed by the Public Solicitor after the Public Solicitor had personally made a thorough investigation of the case.

Another difficulty was that counsel were not able to obtain direct instructions from the client. If these proceedings had involved the hearing of an appeal, the Appellant would have been entitled to be present throughout the hearing, but the application at this stage is for special leave only. Owing to the remoteness of Island of Nauru, the lack of air services and the very infrequent visits of ships carrying passengers, the question arose whether this application should itself be heard in Nauru regardless of expense, or whether a preliminary application of this character would be better heard here both counsel and the Court were readily available. I thought that the better course was to wait until counsel were ready to argue the case but no submissions were made to me to support the view that the application should be made either in the presence of the Appellant or on the Island of Nauru. Accordingly, I completed the hearing of the application in Port Moresby.

After the hearing and whilst considering my judgment, it occurred to me that possibly Section 12(2) might be applicable to a sittings of the Court of Appeal for the purpose of entertaining an application for leave to appeal. If so, this would by implication require a direction from the Administrator of the Island of Nauru to authorise such a sittings to be held. No objection on the hearing of the appeal was taken on this point, but as a precaution I requested the Department of Territories to ascertain what the view of the Administrator would be, and whether he was prepared to give such a direction. Without determining whether such a direction was either necessary or effective, the Administrator indicated that he would be prepared to give it, and he has done so.

I propose, before delivering my judgment in the case, to inform counsel of this fact and allow them to state whether they desire to make any submission on the question. In my opinion the Appellant has not made out the grounds upon which he applies for special leave to appeal and, accordingly, the application is refused. In conformity with Section 47 of the judiciary Ordinance, I am arranging to have the judgment of the Court transmitted to the Registrar of the Court of Appeal.

On the 29th of January, 1965 this case was called on for further consideration and I invited Counsel for both parties to consider whether, having regard to Section 12 (2) of the Judiciary Ordinance, either counsel desired to submit that a direction from the Administrator was a pre-requisite to the exercise of the Court's jurisdiction to hear and determine and application for special leave to appeal. 

Counsel, having considered the question, the case was again placed in the list for further consideration on the 24th February, 1965, whereupon both counsel intimated that in their view it would be more appropriate for this application to be heard and determined in Port Moresby. They intimated that in view of the fact that the Administrator of the Island of Nauru had, on the 18th August, 1964, given a direction that this pending application might be heard and determined at Port Moresby, the only point outstanding was whether there might be some formal defect in relation to the earlier hearing of the application. Since the application is still current and there now remains no impediment to its proceeding, both counsel intimated that they renewed as from this date and relied upon the same submissions as had previously been made to the Court, and submitted to the Court's determination of the application. Accordingly I now determine the application for special leave to appeal and publish my reasons for so doing.

I will convey the Court's decision to the Registrar through the Department of Territories, and will send to the Registrar copies of my reasons by the first available mail.