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Anide v Denehy [1973] PNGLR 215 (8 August 1972)

[1973] PNGLR 215

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

ANIDE

V

DENEHY

Port Moresby
Kelly J

1 August 1972
8 August 1972

APPEAL - Wrongly admitted inadmissible evidence - Whether reasonably probable that inadmissible evidence influenced decision - Bias of magistrate - Natural justice - Justice appearing to be done - Spreading false reports - Police Offences (Papua) Ordinance, 1912-1966, s. 8 (b)[ccxxviii]1.

A was convicted in the District Court of spreading false reports tending to give rise to ill feeling amongst the people contrary to s. 8 (b) of the Police Offences (Papua) Ordinance, 1912-1966. He appealed against his conviction inter alia on the grounds of wrongly admitted inadmissible evidence, insufficient evidence and bias arising from the relative positions of the informant and the magistrate. The informant was at the relevant time the acting District Commissioner for the Northern District and the immediate superior of the magistrate, who was the Deputy District Commissioner for that District.

Held

(1) &#16 ; It noes not follow from the fact that a magistrate wrongly admitted inadmissible eve tha theiconvnction will will be set aside for this reason alone, as, for example, if there is sufficient other evidence to support a conviction and the court does not consider that it is reasonably probable that the evidence wrongly admitted influenced the decision, the conviction may be allowed to stand.

Armat v. Little; Ex parte Little, [1909] St.R.Qd. 83 at p. 88, applied.

(2) Whilst there was some possibility that the inadmissible evidence in theent cad sofluence on the mahe magistrgistrate tate this did not appear likely in view of the reasons which he gave so that irrespective of whether the admissible evidence supported the conviction it was not reasonably probable that the evidence wrongly admitted did influence the decision; the ground of appeal was not therefore made out.

(3) That whilst no actual bias or impropriety was alleged, a suspicion might reasonably have beennderet in ihe monds of thof those who came before the tribunal or in the minds of the public that the magistrate might not bring to the resolution of the questions arising before him a fair and unprejudiced mind, thus creating a situation in which justice did not appear to be done; the ground of appeal was therefore made out.

Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon & Ors.[1968] EWCA Civ 5; , [1969] 1 Q.B. 577, referred to.

(4) There bei g on the one hand a conviction unsupported by the evidence and on the othernfrintement of ehe requirementsments of natural justice, there was clearly a substantial miscarriage of justice and the appeal should be allowed.

Appeal

The appellant appealed against a conviction by the District Court on a charge of spreading false reports tending to give rise to ill feeling amongst the people. The grounds of appeal, and the facts, are set out in the judgment.

Counsel

Baulch, for the appellant.
C. F. Wall, for the respondent.
Cur. adv. vult.

8 August 1972

KELLY J: The appellant was convicted in the District Court at Popondetta on 29th February, 1972, of spreading false reports tending to give rise to ill feeling amongst the people, contrary to s. 8 (b) of the Police Offences (Papua) Ordinance 1912-1966, and sentenced to imprisonment with hard labour for six months. He appealed against his conviction on the ground that it was wrong in law in that:

(a) &##16;& the magis rate wrongly admitted inadmissible evidence;

(c) &; there waorno or insufficient evidence to support a conviction;

(d);¦n the magistrgistrate erred in law in holding that an unfulfilled promise is a false report within the meaning of s. 8 (b) of the Police Offences Ordinance;

(e) &##16;& the magis rate was biased in that the informantthe Dct Commissioner for the Northern hern DistrDistrict and his immediate superior.

He also appeals against the sentence on the ground that it is manifestly excessive.

As to ground (e) of the appeal against conviction it was agreed before me that the informant was at the relevant time Acting District Commissioner for the Northern District and that the magistrate was the Deputy District Commissioner for that District.

On the hearing of the appeal it was common ground that in the case of certain of the witnesses a deal of hearsay evidence had been admitted and that such evidence should not have been admitted. The admissible evidence showed that the appellant had formed an organization called the Totoima Society to which either personally or through agents, referred to as committee members, he sought contributions of money. Persons from whom such contributions were sought were told that they would receive large amounts of money as a return for their contributions; in some cases they were told that this would be received on 8th February, 1972, whilst in other cases they were told that this would occur at some indefinite time in the future. The appellant claimed that the project had the approval of the District Commissioner and of Bishop George Ambo, and that those persons were members of the organization. On 8th February, 1972, some 3,000 to 5,000 people assembled and waited for the appellant to present himself and the promised cheques, but neither the appellant nor the cheques appeared. There was evidence from Bishop Ambo that he was not a member of the organization and that he had never given it his blessing.

In an interview with Sergeant Matirogi the appellant claimed that the District Commissioner and Bishop Ambo had said to him: “Mathias, this is very good work, you go and do it and tell the people”. In evidence he claimed that he had been approached by two Europeans named Maxwell and Crisus Tom, and that he had told Crisus Tom that they must see “big men” like the District Commissioner and Bishop Ambo for their permission and approval before starting to collect money from the people, and Crisus Tom had told the appellant that he had done so. The appellant said that he did not know whether what he had been told was true or not but he had told people what he had heard from those men.

In his decision the magistrate referred to evidence of the appellant having claimed that Bishop Ambo had approved of the activities and to the Bishop’s evidence that he had nothing to do with the Society, and after stating that he could not believe the appellant’s evidence he said he had no hesitation in reaching a verdict of guilty to the charge. The magistrate then made some observations about the appellant’s conduct and concluded by saying: “Unfulfilled promises do cause trouble.”

The first ground of appeal, namely that the magistrate wrongly admitted inadmissible evidence, is clearly made out but it does not follow that the conviction will be set aside for this reason alone as, for example, if there is sufficient other evidence to support a conviction and the court does not consider that it is reasonably probable that the evidence wrongly admitted influenced the decision the conviction may be allowed to stand (Armat v. Little; Ex parte Little[ccxxix]2). Whilst there is the possibility that the inadmissible evidence, all of which was hearsay, had some influence on the magistrate this does not really appear likely in view of the reasons which he gave, so that irrespective of whether the admissible evidence supports the conviction I would not consider it reasonably probable that the evidence wrongly admitted did influence the decision. This ground of appeal is therefore not made out.

Before dealing with the ground of appeal which raises s. 24 of the Criminal Code (Queensland, adopted) it will be convenient to deal first with the grounds that there was no or insufficient evidence to support a conviction and that the magistrate erred in law in holding that an unfulfilled promise is a false report, within the meaning of s. 8 (b) of the Police Offences (Papua) Ordinance, both of which grounds because of their interrelation were argued together. Consideration of these grounds involves the questions, (a) what were the reports to which the complaint relates; (b) is there evidence that such reports were false; (c) is there evidence that the appellant spread such reports; and (d) is there evidence that such reports tended to give rise to ill-feeling amongst the people. In the latter case I would consider that the requisite evidence might either be evidence directly establishing that this was so or that the facts be such that the court could properly infer the tendency referred to.

The basic question is what are the “reports” for this purpose. As I read his decision it appears that the magistrate was taking this term as referring to the claim that the District Commissioner and Bishop Ambo approved of the appellant’s activities. Counsel for the appellant submits that in this context it should be taken as referring only to the statement that contributors would receive an increased return. Counsel for the respondent on the other hand submits that the term embraces both the statement that the District Commissioner and Bishop Ambo approved of the activities and that the contributors would receive enhanced returns. The word “report” has various meanings depending on the context in which it is used and of the meanings given in the Shorter Oxford English Dictionary I would think that of “a statement made by a person” is most appropriate to this particular context. Giving that meaning to the term “report” I would consider that the “report” for the present purpose does embrace both aspects of the appellant’s statement, that is, that the District Commissioner and Bishop Ambo approved of his activities and that contributors would receive enhanced returns at either a specified or an unspecified time.

There was evidence that the appellant had “spread” such reports as he had taken steps for the report to be circulated amongst other people and had himself passed it on to more than one person. But could it be said that such reports were false? To my mind in this context it is necessary to look at the falsity of the report at the time that it is being spread and not to have regard to subsequent events by reason whereof it may then be shown to be false. However, I do not find it necessary to develop this line of reasoning as taking the “reports” in this case as embracing the matters which I have indicated there is clear evidence that they were false in one material regard, in that Bishop Ambo had not approved of the appellant’s activities. The appellant was asserting that two persons, namely the District Commissioner and the Bishop, whose approval was obviously likely to be thought by some people to be of significance, had approved and the evidence showed that one of them had not done so. The reports which the appellant thus spread were therefore false at the time of their being spread.

On the view which I have taken it is thus not really necessary that I should deal with the question of whether an unfulfilled promise is a false report within the meaning of s. 8 (b). The magistrate may have impliedly taken that view because of his comment, “unfulfilled promises do cause trouble”, though it is not clear that what he was intending to say was that an unfulfilled promise is a false report which from its nature tends to cause ill-feeling amongst the people. I would merely say that on the evidence in the present case I would not think that the subsequent non-fulfilment of the promise could be regarded as probative of the fact that the report of which the promise formed part was false at the time at which it was spread.

The question which does however arise is whether on the basis to which I have referred there was evidence on which the magistrate could have found that the false reports spread by the appellant tended to give rise to ill-feeling amongst the people. I would say at the outset that I am unable to agree with the submission that the ill-feeling referred to in s. 8 (b) could not, for instance, be between the person who spread the false report on the one hand and people affected by that report on the other. There is nothing in the wording of the section which requires that it be given such a limited construction. There is no direct evidence that the spreading of the report tended to give rise to ill-feeling amongst the people so that if this element of the offence is to be established it could only be by way of inference. No doubt there are circumstances in which the nature of the report is such that a court may properly consider that it could hardly fail to have that tendency but I do not consider this to be such a case. It would seem that it is the subject matter of the report itself rather than its falsity to which regard must be had in looking to the question of whether the spreading tended to give rise to ill-feeling, but whether that be the correct view of the section or not the fact remains that there is no evidence that either by reason of the report itself or of its falsity the spreading of that report tended to give rise to ill-feeling amongst the people, and there is no basis on which such tendency could properly be inferred. It follows that there was insufficient evidence to support the conviction and consequently that ground of appeal is made out.

Turning now to the ground that the magistrate failed to consider the defence of honest and reasonable belief under s. 24 of the Criminal Code (Queensland, adopted). That section reads as follows:

“24. A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.”

In this case there is no basis on which the operation of the rule would be excluded. The existence of the state of things to which the holding of an honest and reasonable belief relates is that the report was true. Where the defence of mistake is raised by the evidence it is the duty of the Court to consider whether s. 24 applies (Waterside Workers’ Federation of Australia v. Birt & Co. Ltd.; Ex parte Birt & Co. Ltd.[ccxxx]3) and where there is some evidence of operative mistake the onus is on the prosecution to satisfy the court of its non-existence (Loveday v. Ayre & Ayre; Ex parte Ayre & Ayre[ccxxxi]4; Brimblecombe v. Duncan; Ex parte Duncan[ccxxxii]5).

From the decision of the magistrate it does not appear that he specifically considered this defence. However, the only evidence of the existence of mistake came from the appellant himself whom the magistrate disbelieved, so that the magistrate had he considered the matter must inevitably on that view have concluded that the appellant did not have an honest belief in the truth of at least one material part of the report, namely that Bishop Ambo approved of the appellant’s activities, and so on that view the prosecution would have discharged its onus. Consequently, notwithstanding the absence of any reference in the magistrate’s decision which would indicate that he did actually consider and reject this defence I do not consider that this ground of appeal is made out.

The final ground of appeal against conviction is that of bias arising from the relative positions of the magistrate and the informant. I should make it clear that no actual bias or any impropriety is alleged against the magistrate but it was submitted that as in the circumstances the magistrate could not appear to be impartial a situation was created in which justice did not appear to be done. As was said by the High Court in Ex parte The Angliss Group[ccxxxiii]6: “The common law principles of natural justice are well understood though they have been variously expressed.” After referring to several well-known authorities on the subject and to a recent exposition in the judgment of Lord Denning M.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon & Ors.[ccxxxiv]7 the went oent on to say:—

“Those requirements of natural justice are not ined by a mera mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.”

Applying that statement of principle to the present instance I am forced to the conclusion that a suspicion might reasonably have been engendered in the minds of those who came before the tribunal or in the minds of the public that the magistrate might not bring to the resolution of the questions arising before him a fair and unprejudiced mind. The magistrate was the Deputy District Commissioner and the informant, who in addition to laying the information also gave evidence, albeit much of it was hearsay and inadmissible, was the Acting District Commissioner. One portion of the evidence which he gave is material for the present purpose, namely that prior to going on leave in December Mr. Marsh the District Commissioner, had told him that he was very cross with a man called Mathias who had been telling lies to the people and collecting money from them, and had also instructed him that if this came to his notice he was to stop it immediately. Whilst this evidence should not have been admitted by the magistrate it was allowed to remain in evidence on the appeal as original evidence for the purpose of this ground of appeal. The fact is that this evidence was given and it had the effect of conveying to the magistrate what were said to be the views of the District Commissioner on the appellant’s activities. Whilst I consider it unlikely that the evidence would have influenced his decision it might in the circumstances have assisted in engendering the suspicion to which I have referred. It is true as counsel for the respondent submitted that the District Court record shows its proceedings were conducted in a perfectly proper manner, but of course no complaint is made on that score and the appellant’s case on this ground rests simply on the basis which I have already indicated. In my view this ground of appeal is made out.

It now becomes necessary to consider whether by reason of the appellant having made out those grounds of appeal which I have indicated there has been a substantial miscarriage of justice, with the consequence that having regard to s. 236 (2) of the District Courts Ordinance the appeal should be allowed. In my view where there is on the one hand a conviction which is unsupported by the evidence and on the other an infringement of the requirements of natural justice there has clearly been a substantial miscarriage of justice. Consequently the appeal against conviction should be allowed and it becomes unnecessary to consider the appeal against sentence, the bulk of which I was informed has now been served.

Finally, I must say that it would appear that the provisions of the Police Offences (Papua) Ordinance are not altogether appropriate to deal with a mischief of the type indicated by the evidence in this case.

This is not a case which should be sent back for rehearing. The order will therefore be that the appeal is allowed and the conviction quashed.

Appeal allowed. Conviction quashed.

Solicitor for the appellant: W. A. Lalor, Public Solicitor.
Solicitor for the respondent: P. J. Clay, Crown Solicitor.

[ccxxviii]Section 8 (b) of the Police Offences (Papua) Ordinance 1912-1966 provides:—

“A person who—

(b) spreads false reports tending to give rise to trouble or ill feeling amongst the people or between

is guilty of an offence.

Penalty: 100 dollars or imprisonment for 6 months or both.”

[ccxxix] [1909] St.R.Qd. 83, at p. 88.
[ccxxx] [1918] St.R.Qd. 10.
[ccxxxi] [1955] St.R.Qd. 264.
[ccxxxii][1958] Qd.R. S.
[ccxxxiii](1969) 43 ALJR. 150, at p.152.
[ccxxxiv][1968] EWCA Civ 5; [1969] 1 QB. 577.