IN THE SUPREME COURT
OF TERRITORY OF
PAPUA AND NEW GUINEA

Appeal No. 23 of 1964 (P)

ASIGAU DAURE

v.

TERENCE MITCHELL

PORT MORESBY

1/3/65
FROST, J.

JUDGMENT

This is an appeal under the Native Regulations Ordinance (1908-1963) of the Territory of Papua.

The facts are that the appellant was convicted and sentenced to six weeks imprisonment with light labour by the Court of Native Affairs held at Tatana Village in Port Moresby Sub-District on the 5th October, 1964, having been found guilty by the Court on the charge that on or about 2nd October, 1964, the appellant did spread lying reports tending to give rise to ill feeling amongst the people as a whole contrary to Regulation 71(b) of the Native Regulations (1908-1963).

Mr. Andrews appeared for the appellant and Mr. Chancy for the respondent, the Magistrate for Native Matters, who presided at the hearing.

At the outset Mr. Chaney took a preliminary objection that this Court had no jurisdiction to entertain the appeal. He argued, and it was not contended otherwise by Mr. Andrews, that the only jurisdiction of the Court is the Native Regulations Ordinance (1908-1963). He further argued that under that Ordinance the Court was not invested with any appellate jurisdiction.

Under the Ordinance it is provided that it shall be lawful for the Lieutenant-Governor in Council to establish Courts for Native Matters, the composition, jurisdiction, procedure and practice of which should, subject to the Ordinance, be defined by Regulation (Section 3). In fact such Courts have been established. The section of the Ordinance relevant to the appeal is follows:-

"4. It shall be lawful for the Lieutenant-Governor in Council to constitute the Central Court a court of appeal from the courts for native matters. The cases in which an appeal may be brought the grounds upon which an appeal will lie the practice and procedure in appeals and all other matters relating thereto shall be as defined and prescribed by rules of the Central Court.

The Central Court shall have full power to order any amendment to be made at any stage of the proceedings and no appeal shall be allowed unless it appears to the court that some substantial injustice and hardship will otherwise be caused to the appellant."

Now the Central Court was constituted a "Court of Appeal from Courts for Native Matters" by order in Council dated 14th duly, 1924, and published in the Papua Government Gazette of 6th August, 1924.

The Supreme Court of the Territory of Papua and New Guinea is, of course, invested with the jurisdiction which previously belonged to the Central Court. Papua and New Guinea Act 1949-1963, Section 62; Supreme Court Ordinance 1949, Section 6; The Papua and New Guinea Provisional Administration Act 1945, Section 16; Papua Act, Section 8; Courts and Laws Adopting Ordinance 1888, Section 7.

No Rules of Court have ever been made pursuant to Section4 of the Native Regulations Ordinance. Mr. Chaney thus argued that in the absence of any Rules of Court defining or prescribing the cases in which an appeal may be brought or the grounds upon which an appeal will lie, this Court had no jurisdiction. He submitted that the law applicable was correctly laid down in Browne v. Commissioner for Railways, 36 S.R. (N.S.W.) 21, as follows: - "So far as Courts are concerned, it has been Held that if jurisdiction is conferred upon a Court, it may and should exercise that jurisdiction; and if no procedural machinery has been provided, it is for the Court to provide such machinery as best it can." (ibid) per Jordan C.J. at p.29 cited with approval King v. Commonwealth Court of Conciliation and Arbitration, Ex parte Grant, 81 C.L.R. 1 per Fullager J. pp.58-59. Copland v. Bourke (1963) P. & N.G.L.R. (Ollerenshaw J.)

The final step in his argument is that this was a case different from the mere absence of rules of procedure; the absence of rules in this case went to jurisdiction.

No argument was addressed to me as to whether having regard to the wide power of delegation conferred on the Court to limit cases in which appeals could be brought, etc.., the Ordinance is properly a law for the peace, order and good government of Papua.

Apparently there are cases in this Court in which Judges have heard appeals, including a. decision of the late Chief Justice, Sir Beaumont Phillips, who considered he had jurisdiction. More recently both Smithers J. and Minogue J. have treated appeals brought under the Ordinance as applications for writs of certiorari being inclined to the view (without giving it final consideration) that until Rules of Court have been made, the Court has no jurisdiction to entertain appeals from Courts for Native Matters.

By reason of the proclamation, the Court has been constituted a Court of Appeal for Native Matters. The provision in the second paragraph of Section 4 to the effect that no appeal shall be allowed unless it appear to the Court that some substantial injustice and hardship will otherwise be caused to the appellant, appear; to provide a framework of practical power for the Court to dispose of such appeals brought by any Person aggrieved by a decision of the Court for Native Matters, who gives notice of the grounds of his appeal. (Indeed in New Guinea Rules of Court have been passed on that wide basis under the Native Administration Ordinance, Section6, which is in the same terms). It would then be for the Court to provide the procedural machinery as best it can. I thus consider that, if a right of appeal is conferred, the section contains sufficiently certain provision by the legislature for the manner of its exercise.

Under the Rule making power, the Court is given power to define the kind of case in which all appeal may be brought or the grounds upon which an appeal will lie.

The simple question is whether, until such Rule making power is exercised, and the kinds of cases and the grounds of appeal defined, any right of appeal is conferred, that is whether, independently of the exercise of such Rule making power, the section confers a right of appeal.

I have reached the conclusion that upon the constitution of the Court as a Court of Appeal, some right of appeal is, by necessary implication, recognized, (cf. Regina v.Justices of the Central Bailiwick, ex parte MacEvoy, 7 V.L.R. (Law) 90 at p. 94, per Stephen J.) otherwise the section would be justified. 

The wording of the section is that "no appeal" shall be allowed, etc.; and not "no such appeal," i.e., under the Rules when made.

It is unlikely that the legislature intended that once a Court of Appeal had been constituted, no right of appeal should exist until the Rules have been issued, so that it would rest with the Judges to say when, if ever, that right should be enjoyed, (cf. Inland Revenue Commissioners v. Joicey, (1913) 1 K.B. 445, at p. 454-1955. )

This cannot be right; the words of a Statute should be construed so as to give a sensible meaning to them, viz. ut rep magis valeat quam pereat; Curtis v. Stovin, 22 Q.B.D. 513, per Bowen L.J. at 517. "In reaching a conclusion as to the meaning to be placed upon an Act of Parliament it must always be remembered, as Lord Dunedin stated in Murry v. Inland Revenue Commissioners: 'It is our duty to make what we can of statutes, and not inept, and nothing short of impossibility should in my judgement allow a judge to declare a statute unworkable.' A similar view was expressed by Lord Simon L.C. in Nokes v. Doncaster Amalgamated  Collieries Ltd. in the words: 'If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.'" Pye v. Minister for Lands for New South Wales, (P/C) (1954) 1 W.L.R.pp. 1410 at p.1423. In my opinion these principles are applicable to this case.

I consider that the effect of the section, by necessary implication, once this Court is constituted as a Court of Appeal, is to confer a right of appeal upon all persons aggrieved, the Court having power to allow any such appeal if it is shown that some substantial injustice and hardship will be otherwise caused to the appellant, with full power to order any amendment and that such wide right of appeal is to remain until the Judges of the Court further define or prescribe the cases in which an appeal will lie, and the grounds thereof.

I thus consider that this case falls within the principle of Brown v. Commissioner for Railways (supra) and that accordingly this Court has jurisdiction despite the absence of' any rules of practice or procedure.

The jurisdiction of the Court is to be exercised by a single judge, Begini v. Drummond and Anor. 71 W.N. (N.S.W.) 242.

I thus propose to address myself to the merits of this appeal, the test being has the appellant shown on the balance of probabilities, that the decision involves some substantial injustice and hardship to the appellant.

Mr. Andrews relied upon the grounds of the Notice of Appeal as follows:-

There was a breach of natural justice in that:-

(1) the Magistrate failed to comply with Regulation 22 of the Native Regulations Ordinance 1908-1963;

(2) that fresh evidence was available; 

(3) that the sentence was excessive.

As to (1) Mr. Andrews contends that the only notice of the hearing was that the appellant was told on the Friday that the case was to be heard on the Monday, and that no particulars of the lying report were given to her.

Regulation 22 is in the following terms:-

"22. The following shall be the manner in which Magistrates shall proceed in all matters when a person complains to a Magistrate of another person:-

The first thing that the Magistrate shall do shall be to make himself thoroughly acquainted with all the particulars connected with the complaint. Next he shall consider whether the matter complained of is one that he has any power to deal with. If he thinks that he has power to deal with the matter he shall then fix a time and place at which he will try the matter. Then he shall inform the person complaining of such time and place and tell such person to come with his witnesses to such place at the time fixed. The Magistrate in fixing a time shall select such a time will enable him to acquaint the person complained of of the complaint and as will enable such person to come with his witnesses to the place of trial at the time fixed. The next thing that the Magistrate shall do shall be to inform the person complained of of the nature of the complaint and of the time and place at which the complaint will be tried. He may do this himself, or he may do it through a messenger."

I can only act on the evidence before me and there is absolutely no evidence that the appellant was not informed of the precise charge, or that she was prejudiced in any way by the hearing going on on the Monday. Indeed, the Minute of Complaint, which gives a summary of the evidence at the hearing, and which was annexed to an affidavit filed on behalf of the appellant, states that the appellant was advised to answer the case, if possible, but contrary to that advice declined to give evidence. Further in Mitchell's report it is stated that the appellant was summoned in accordance with Regulation 22.

This submission plainly fails.

As to the reliance on fresh evidence, the material before me does not even approach the standards required. See Green v. Rex, 61 C.L.R. 167, at pp. 174-175.

Let me now turn to Mr. Andrews' argument that the sentence was excessive. What must the appellant show on this ground to be entitled to relief? Mr. Andrews did not argue that in the phrase "some substantial injustice and hardship" "and" means "or". Indeed I do not consider that such an argument would succeed. See R v. Oakes (1959) 2 Q.B. 350, Green v. Wood, 7 Q.B. 178 (both cases of penal statutes).

Mr. Chancy's argument was that I should approach this problem as an appellate Court reviewing a sentence, and thus there could be no injustice unless I came to conclusion that the discretion was improperly exercised, for example, because regard was had to extraneous circumstances. See Harris v. The Queen, 90 C.L.R. 652.  It is not sufficient for the appellant to show that the sentence was substantially greater than the Supreme Court would impose. An improper exercise of discretion would, of course, constitute an "injustice" but I do not consider that the wide words of Section 4 should be so limited. Theoretically a sentence could be so excessive as to be unjust in itself.

The Section reads as follows :-

"71. Any native who –

(a) unlawfully lays hold of or strikes another person; or

(b) spreads lying reports tending to give rise to trouble or ill feeling amongst the people as a whole, or between .individuals; or

(c) uses threatening language in any village or place within the hearing of any person;

shall be liable on conviction to a fine not exceeding Three pounds or in default of payment to imprisonment for any period not exceeding Six months, or to imprisonment in the first instance for any period not exceeding Six months."

The charge was that the appellant spread lying reports tending to give rise to ill feeling amongst the people as a whole.

Mr. Andrews submitted that the words underlined meant "native people as a whole", basing his submission on the provision that only a native can be a complainant or defendant and the fact that the Regulation are concerned with the conduct of natives. (Regulations 3 and 4). However, the Regulations refer to "Europeans", see especially Regulation 93, where certain conduct by natives in relation to Europeans, such as threatening, abusive, etc. conduct and language to Europeans is made an offence. Accordingly I do not consider that the wide meaning of "people as a whole" can be so limited. I consider that it means the people as a whole within the Territory of Papua, both native and European. 

The facts as to the lying report were that one HUAU RAHONAMO gave evidence that the appellant, whilst sitting under a tree with HUAU and another woman, KASI, started to talk about Mr. Johnson, saying to HUAU, "Your mother takes one girl for Mr. Johnson in the house. MADAHA (his driver) has gone to report Mr. Johnson and he is going to get sacked. DORI GAIGO said this to me." Under cross-examination HUAU said no name was mentioned, nor did the appellant make her think of any girl in particular. When KASI came to give evidence that the appellant said, "This European, Mr. Johnson, MADAHA will get him the sack because he spoke to a girl at NAIME's house, she added DORI told her."

NAIME swore that that statement was untrue. Mr. Johnson came only to her house for tea. DORI denied spreading any such reports. NAIME was apparently the appellant's cousin.

I consider that it was open to the Magistrate to find that the report would tend to give rise to ill feeling amongst the people as a whole in that it involved, indirectly, a false imputation against Mr. Johnson, a European officer, in relation to a native girl. The more direct imputation was against NAIME. There was no evidence that any such general ill feeling had in fact been caused or that there was any general spreading of the appellant's remarks, or that they had got back to MADAHA. 

The Magistrate has conveniently set out the matters he considered in passing sentence:-

"(2) Sentence

In mitigation of punishment, I considered: 

(1) The defendant is a female.

(2) The defendant has no known prior convictions. 

(3) A suggestion, though not substantiated, that the defendant may not have originated the rumours.

In aggravation of punishment, I considered:

(1) The relationship existing between the defendant and NAIME, the person imputed by the defendant to be a procuress.

(2) The fact that there appears no evidence to indicate that the defendant had grounds to herself believe the imputation.

(3) The nature of the probable consequences of the defendant's act - 

(a) As Mr. Johnson was assisting to compile genealogies to ensure registration of the claims to Tatana land, a consequence is to render impotent the work of the Titles Commission by creating ill feeling towards one of its officers;

(b) to bring disrepute upon a perfectly respectable and commendable woman, who sought only to do kindness to a person assisting her people;

(c) to cause friction between MADAHA, an employee of the District Administration Department, and one of its Cadet Officers. 

(4) The large numbers of recent complaints for loose and indecent language from this village to this Court.

I considered the maximum punishment under Regulation 7l (b) (six months ' imprisonment) and accepted this as an indication of the gravity of the offence, as intended by the legislature.

I have not dealt with a more serious breach of this regulation in ten years at this bench, and considered in the circumstances a fine as quite inadequate."

Mr. Andrews contended that the matters set out in paragraphs (1), (3) (a), (b) and (c) and (4) were extraneous matters. The attack on paragraphs (1) and (4) cannot stand. 

But as the complainant did not allege that the lying reports tended to give rise to ill feeling amongst individuals, the matters contained in paragraphs (3) (c) are extraneous. She was not charged with that.

I thus consider having regard to the form of complainant, the matter contained in paragraph (3) (c) are extraneous considerations in fixing a penalty. I appreciate that this is a limited and perhaps technical ground. Although I am unable to say what weight the Magistrate gave these consideration, the Magistrate himself states that it was a matter of aggravation. I thus consider that unless the appeal is allowed as to sentence "some substantial injustices" will otherwise be caused to the appellant. 

Has the appellant shown a case of hardship? I consider that a six weeks' sentence is severe punishment, and the appellant has shown a case of hardship. Cases could arise of lying reports tending to inter-tribal trouble, or deliberately anti-racial, or the like which would certainly merit imprisonment, but generally imprisonment would seem more appropriate for the other offences such as striking and threatening behaviour. Regulation 71.

I could send the case back to the Magistrate for further consideration, and of course he could, having regard to relevant consideration, fix precisely the same penalty. But as the appellant was in gaol until 22nd October and then released on bail, having regard to the lapse of time, this does not seem an appropriate course. I think that the appellant has been sufficiently punished.

I thus allow the appeal as to sentence and substitute for the sentence of six weeks a sentence of imprisonment until 22nd October, 1964.