[1973] PNGLR 64

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

BALU MAU’U

V

PARE

Rabaul & Port Moresby
Frost SPJ

11 May 1972
1 June 1972

CRIMINAL LAW - Sorcery - Elements of charge - Particulars of offence - Exception relating to innocent sorcery - Burden of proof - Burden of proving sorcery innocent on accused - Plea of guilty - Equivocal adoption of elements of charge - Rules of procedure not strictly followed - Substantial miscarriage of justice - Sorcery Ordinance 1971, ss. 10 (1), 10 (3).[lvi]1

EVIDENCE - Sorcery - Elements of charge - Exception relating to innocent sorcery - Burden of proof - Burden of proving sorcery innocent on accused - Sorcery Ordinance 1971, s. 10 (3).[lvii]2 

APPEAL - Local Court - Plea of guilty - Equivocal adoption of elements of charge - Plea of guilty wrongly entered - Rules of procedure not strictly followed - Substantial miscarriage of justice.

The appellant took some fruit from a Kapiak tree which was not his. The owner T.B. noticed this and ring-barked the tree. The appellant became angry when he found the tree ring-barked and he became even more angry when the village people refused to tell him who had done it. He then took some twigs from a Bal Bal tree and told the people that he was going to burn them at the base of the Kapiak to make sorcery on the person who had ring-barked the tree.

On hearing this T.B. feared for his life and reported the matter to the police. The appellant was arrested and charged with pretending to be a sorcerer. The magistrate entered a plea of guilty, convicted the appellant and sentenced him to four months imprisonment. The appellant appealed to the Supreme Court.

Held

(1)      In framing a charge under s. 10 (1) of the Sorcery Ordinance which provides that no person shall directly or indirectly pretend to be, hold himself out to be or profess to be a sorcerer, it is not necessary to allege whether the accused directly or indirectly pretended to be a sorcerer or what part of the definition of sorcery was alleged to apply to him. These matters go to the particulars only of the offence. 

(2)      The provisions of s. 10 (3) of the Sorcery Ordinance which creates an exception in relation to innocent sorcery impliedly shifts to the accused the evidential burden of proving that the sorcery involved was innocent sorcery as defined in s. 4 of the Ordinance. It is thus unnecessary for an information based on s. 10 (1) to include an allegation based on s. 10 (3), or for a plea of guilty to be entered, for the defendant to make an admission as to that specific matter.

(3)      In considering whether a plea of guilty has been wrongly entered the words spoken by the defendant are the words to be looked at and cannot be taken to amount to a plea of guilty unless those words unequivocably point to an adoption of each of the elements of the charge.

Principles in Laeka Ivarabou v. Nanau, [1967-68] P. & N.G.L.R. 12 applied.

(4)      On the facts of the present case the words of the defendant did not amount to an unequivocal admission of guilt and the plea of guilty was wrongly admitted.

(5)      As the appellant was deprived of a trial in which the rules of procedure were strictly followed, it cannot be said that there was no miscarriage of justice.

Dictum of Fullagar J. in Mraz v. The Queen (1954-56), 93 C.L.R. 493 at p. 514 applied.

Appeal from Local Court

Balu Mau’u appealed against his conviction for an offence under s. 10 (1) of the Sorcery Ordinance, 1971 on the grounds that the plea of guilty should not have been entered, that there was insufficient evidence to support the conviction and that the sentence was excessive.

The facts and arguments of counsel are sufficiently set out in the reasons for judgment.

Counsel

G. R. Keenan, for the appellant.
A. B. S. Pierce, for the respondent.
Cur. adv. vult.

1 June 1972

FROST SPJ: This is an appeal brought by the appellant against the decision of the East New Britain Local Court held at Pomio on 16th February, 1972, whereby the appellant was convicted of an offence against the provisions of s. 10 (1) of the Sorcery Ordinance, 1971, viz. that on or about 22nd December, 1971, at Koihau Village he did pretend to be a sorcerer, and was sentenced to four months imprisonment.

The grounds of appeal are that a plea of guilty should not have been entered, there was insufficient evidence to support the conviction and the sentence was excessive.

From the notes of proceedings it appears that the statement of facts on which the charge was based was handed to the magistrate, the charge was read and explained whereupon the defendant said:

“Yes this is true, I did it to trick him”.

The statement of facts is as follows:

“Balu Mau’u of Koihau (the appellant) had taken some Kapiak fruit of a Kapiak tree owned by Tokae Binga. Tokae was upset at this and decided to get rid of the tree so he ring-barked it. When Balu Mau’u found that the tree had been ring-barked he tried to find out who had done it. The village people would not tell him nor would Tokae Binga. Balu Mau’u became angry at this and went and got some Bal Bal twigs and told the people he was going to burn them at the base of the Kapiak. Tokae Binga then fearing for his life reported the matter to the police on patrol.”

After the plea of guilty was entered the magistrate also had the appellant’s statement which had presumably been made to the police. The statement which is substantially to the same effect, but with significant additions, is as follows:

“I took the Kapiak fruit of the Kapiak tree and ate it. After that I went to the Kapiak tree again and I saw that someone had taken the bark of the tree and the tree was dying. I did not know who had done it and no one would tell me. It was not my Kapiak the man Tokae Binga looked after the Kapiak tree. I was cross because they would not tell me who had cut the bark. I then went to the Bal Bal tree and took some small twigs from it. I told the people that I was going to burn these twigs at the base of the Kapiak tree to make poison on the person who had cut the bark. I did not do it. I said I was going to do it to trick the person who had cut the bark. That is all.”

The magistrate’s reasons for decision are as follows:

“The defendant pleaded guilty to the charge. The defendant’s statement confirms the facts. In the culture of the Kol people (the defendant is a Kol) the burning of Bal Bal twigs at the base of the Kapiak tree is designed to kill the person who was responsible for the cutting of the bark.”

In later reasons for judgment supplied by the magistrate it was stated:

“the defendant pleaded guilty to the charge and the court had no reason not to enter the defendant’s plea of guilty. The defendant’s unsworn statement to the court left no doubt in my mind that he had in fact pretended to be a sorcerer. While the defendant had no prior conviction, the court appreciates the views of the community from which the defendant came. This community, like all indigenous communities, regards sorcery as serious and real. The sentence under the circumstances is not felt to be excessive.”

The relevant portions of s. 10, under which the information was laid, are as follows:

“(1)    No person shall, directly or indirectly, pretend to be, hold himself out to be or profess to be a sorcerer.

(2)      ...
(3)      The preceding provisions in this section do not apply in cases where the sorcery is innocent sorcery only.”

Under s. 4 “sorcerer” is defined to mean, unless the contrary intention appears, “a person who claims to have powers of sorcery, or who directly or indirectly pretends to have, holds himself out to have or professes to have, powers of sorcery”. The definition of “innocent sorcery” is defined to mean sorcery of a kind referred to in the First Schedule to the Ordinance.

Mr. Keenan’s first submission was related to the form of the charge. Under the Local Courts Ordinance there is no statutory provision upon this matter. Accordingly, the common law principle applies that in all criminal proceedings the precise charge must be specified. Johnson v. Miller[lviii]3. Mr. Keenan submitted that it was necessary for the informant to specify whether, pursuant to s. 10 (1), it was alleged that the appellant had made the pretence, directly or indirectly, and also which part of the definition of “sorcerer” was alleged to apply to the appellant. These matters he submitted were essential elements of an offence under s. 10 (1). It would follow from this submission, if proved, that as these matters could not have been put to the appellant, no full or proper admission of guilt could have been made by him. However, the conclusion I have reached is that each of these matters goes to the particulars only of the offence, so that it was not necessary for them to be specified in the information or put to the appellant when the plea was taken.

Mr. Keenan then submitted that the proceedings were defective in that the information did not contain any allegation that the sorcery involved was innocent sorcery only, and it followed that the appellant’s plea was not taken as to this issue.

In answer to these submissions Mr. Pierce submitted that the effect of s. 10 was expressly to cast upon the defendant the evidential burden of proving that the sorcery involved was innocent sorcery only, so that in the absence of express provision in the Local Courts Ordinance this matter need not be specified in an information. He relied upon the following statement of the principle by Glanville Williams in the author’s discussion of the circumstances in which the words of a statute are taken to reverse the persuasive burden:

“A statute may impliedly shift the evidential burden by its arrangement. A section creating an offence is frequently divided into an ‘enacting part’ and a ‘proviso’, and the rule then is that the burden of bringing himself within the proviso is on the accused. So, also, where an exception is contained in some later part of the statute, or (it seems) in a subsequent statute. It might have been thought that such a mere point of draftsmanship or parliamentary history was too slight an indication of legislative intention on the question of evidence, but the rule is now settled. It is submitted, however, that the rule relates only to the evidential burden, not to the persuasive one”.[lix]4.

In Dowling v. Bowie[lx]5 Dixon C.J. referred to the common law doctrine that:

“where a statute having defined the grounds of some liability it imposes proceeds to introduce by some distinct provision a matter of exception or excuse, it lies upon the party seeking to avail himself of the exception or excuse to prove the facts which bring his case within it. The common law rule distinguishes between such a statutory provision and one where the definition of the grounds of liability contains within itself the statement of the exception or qualification, and in the latter case the law places upon the party asserting that the liability has been incurred the burden of negativing the existence of facts bringing the case within the exception or qualification.”

Applying these statements of principle, the conclusion that I have come to is that the provisions of s. 10 (3) do constitute an exception which does impliedly shift to the defendant the evidential burden that the sorcery involved is innocent sorcery only within the meaning of the law so laid down. It was thus unnecessary for the information to include an allegation to such effect or, for a plea of guilty to be entered, for the appellant to make an admission as to that specific matter. It is unnecessary for the purposes of this case for me to decide whether the rule relates only to the evidential burden or whether it extends to the persuasive burden in relation to that subsection, and I expressly refrain from deciding it.

Accordingly, in my judgment, assuming that the matters put to the appellant were only those matters which appear in the information, the arraignment, as it may be called, was a proper one.

The remaining question, however, is whether the appellant made an unequivocal admission of guilt. The principle applicable will be found set out in Laeka Ivarabou v. Nanau[lxi]6. Mr. Keenan submitted that the addition of the words “I did it to trick him”, after the appellant’s statement “Yes, this is true”, rendered the initial admission equivocal. It will be noted that similar words appear in the defendant’s statement to the police. What was alleged in the statement of facts against the appellant, which it can be inferred was put to the appellant, is that the appellant went and got some Bal Bal twigs and told the people he was going to burn them at the base of the Kapiak tree; it was not alleged against him that he had burned the twigs at the base of the Kapiak tree, which the Kol people regard as designed to kill the person responsible for the cutting of the bark. The gathering of the twigs can be regarded as an action preparatory to doing an act of sorcery and as evidence constituting a claim that the appellant had powers of sorcery. It could thus be taken that when the appellant said, “Yes this is true”, he was admitting that he had gathered some Bal Bal twigs and also the inference to be drawn therefrom, but the addition of the words, “I did it to trick him”, in my opinion, renders it doubtful whether the appellant was claiming to have powers of sorcery. These words are quite general and do not necessarily mean that the appellant was claiming to have powers of sorcery. Even if the words are taken to refer to sorcery they may equally indicate, for example, that the act was done to make Tokae believe that some other person was doing an act of sorcery directed at Tokae. The reference to tricking the person who cut the bark, which is to be found in the defendant’s statement, also, in my opinion, makes it equivocal whether the appellant was claiming to have powers of sorcery. The words spoken by the defendant are the words to be looked at and cannot be taken to amount to a plea of guilty unless those words unequivocally point to an adoption of each of the elements of the charge, and, in my judgment, those words do not amount to such an unequivocal admission of guilt.

As the appellant was deprived of a trial in which the rules of procedure were strictly followed, it cannot be said that there was no substantial miscarriage of justice: Mraz v. The Queen[lxii]7.

Thus this is a case in which the magistrate ought not to have accepted the words spoken as a plea of guilty. This is not the first occasion upon which this Court has found it necessary to point out that magistrates should be very slow to accept any plea containing words of apparent qualification as a plea of guilty, particularly where the charge is a serious one, as in this case, where the penalty upon conviction on summary proceedings was imprisonment for one year.

The appellant was in custody for approximately six weeks, but in view of the seriousness of the charge I have decided to remit the information to the District Court for further hearing. It will be for the informant to decide whether in view of the period of imprisonment actually served the matter should then be proceeded with.

Appeal allowed and conviction quashed. Case remitted to the District Court for hearing.

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

[lvi] Section 10 of the Sorcery Ordinance provides:—

Sorcery generally.

(1) No person shall, directly or indirectly, pretend to be, hold himself out to be or profess to be a sorcerer.

Penalty upon conviction on indictment: Imprisonment for two years.

Penalty upon conviction on summary proceedings: Imprisonment for one year.
...
The preceding provisions of this section do not apply in cases where the sorcery involved is innocent sorcery only.

[lvii]Infra p. 67.
[lviii](1937-38) 59 CLR. 467, per Evatt J., at pp. 497-498.
[lix][(“The Criminal Law—The General Part”, at p. 905)].
[lx](1952-53) 86 CLR. 136, at p. 139-140.
[lxi] [1967-68] PNGLR. 12, at pp. 15-17.
[lxii](1954-56) 93 CLR. 493, per Fullagar J., at p. 514.