N320(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL NO. 7 OF 1981

BETWEEN:

MICHAEL DAI KAUPA
APPELLANT

AND

POLICE AT HUTJENA
RESPONDENT

Waigani: Quinlivan AJ
16 January 1981; 20 January 1981

APPEAL - basic rules governing appeals; - need for appellants to show a valid ground of appeal and to explain it so that it can be seen and dealt with. - need for Magistrates to supply the Appeal Court with full data as to what actually happened when the case was dealt with;

SEPARATION OF FUNCTIONS - principle of - need for Courts to be protected from certain cases; Need for the Court appealed from to be protected in this cases; Domestic dispute put forward in the guise of a criminal case; "Evidence" which is not evidence.

QUINLIVAN AJ: The Public Solicitor has applied for leave to appeal "out of time" against the decision of the District Court at Hutjena, in the North Solomons Province, whereby Appellant was convicted of stealing K200.00 from his employer and sentenced to imprisonment with hard labour for six months.

Normally this sort of application, and this sort of appeal, would be heard when this Court is sitting "on circuit" at the town nearest to the place in which the conviction was made but there are, of course, exceptions to such a rule. The circumstances of this case clearly make it one of those exceptions. Accordingly, when the application for leave came on before me on Friday last I ordered that Counsel for both side be ready to argue the appeal itself today, subject to certain matters being first resolved in Chambers. Because of what I heard in Chambers today I ordered that the appeal be heard at this time and, for this reason the whole matter was moved into Open Court. The argument on the appeal has been concluded and it now falls to me to announce my decision and to give my reasons for that decision.

Before I do that, however, I would like to mention two other things. The first is something which might be called an internal - almost an "administrative" - matter on a somewhat sombre note. The second is a much happier one which derives, not from the appeal itself, but from the fact that the Public Gallery today is crowded with Trainee Teachers.

I feel sad that, in this my first appeal, I much breach a rule which I have, for many years, been sure is an absolute necessity before any appeal is entertained. I refer to the need - the absolute need - for every appeal court to give the person whose decision is appealed from, a full and real opportunity to put forward, for its consideration, his or her side of the story. In this case, as in so many other appeals in the past ten years, that opportunity has not been given to the magistrate. Since it is a matter of record that I have, during the first five of those past 10 years, lead three separate delegation of magistrates to have the situation improved, I would like it clearly understood that this, my first appeal, is an exceptional one so I am dealing with it in an exceptional way. For all future appeals I will expect the magistrate’s side of the story to be on the file supplied to me by the Registrar before the appeal is set down for hearing.

I want it clearly understood that I will demand, in all the appeal cases that come before me where the magistrate’s side of the story is not included in the papers which the Registrar places before me an explanation of why the magistrate’s side of the story is not there. And if the failure does not lie with the magistrate then, unless there are - as there were in this case - exceptional circumstances, I will refuse to hear the appeal until the magistrate’s side of the story is before me.

The second preliminary matter which I would like to mention is the fact that, as I have side, a large group of Trainee Teachers have come into Court to see what is happening. I would like to say how happy I am to see you all here, especially since it will be your duty, in all the days that are to come, to explain to others how the various mechanisms of Society operate. This, in fact, gives me the theme for this judgment but I want to say that that is not all there is to it. In days gone by - in the days when I used to appear before the Judges of this Court - the Public Gallery was always filled with people who were anxious to know, at first hand, what was going on and to see, even if they did not understand the arguments put forward, how things were done. In contradistinction to what I had worried about in Australia, the Judges and Magistrates in this country always regarded themselves as having a special "training" role to play and although I confess that I did, at the time, get somewhat bored when I had to sit through the hundredth and two hundredth repeat of the same lecture - lectures which I have, in recent years found myself repeating - I was thrilled to see that this was the say the people of these Islands had taught the Judges and Magistrates that the courts had to be conducted here. Having just left a position of University teacher I have been disheartened to hear that court-rooms now are, as often as not, left empty except for the Judge and a few lawyers unless the particular case is publicised beforehand as being of some special importance. I say "disheartened" because the fact is that all cases, in all courts, are of very great importance and if the courtrooms are left empty it is a very unhealthy sign. I hope that your presence here today, for my first appeal, will be a good omen for the future.

This brings me to the appeal itself. It also brings me to the fact that, although I used to say that it was one of the most noticeable features of life in this country that people knew how The Law operated - and how to "operate" the law, in a proper way, on their own behalf - things became greatly complicated in the 1960s. For this reason I feel that it might serve a useful purpose if I were to explain what is happening here in this appeal.

It is, in fact, a perfect case for that purpose. Appellant was, as I have said, charged with stealing K200.00 from his employer, a storekeeper at Hutjena. He denied the charge so, naturally, the case went to trial. That is, the Magistrate (being the impartial and independent tribunal which section 37 (3) of the Constitution says every Judge and Magistrate must always be, and knowing that section 37(4) (a) says that the defendant must be presumed to be innocent until proved guilty according to law) said to the Police: "All right. You have said he stole the money. He denies it, so you must prove it". And the Police, knowing that it is their duty to be able to do that before they lay any charge at all, did so. Only one witness was called, which is rather unusual, but her evidence was such that the magistrate convicted appellant and sentenced him to imprisonment. But, as you have heard Counsel for both sides agree, the so-called evidence of that witness was not "evidence" at all and so; set in motion by the Visiting Justice of Kieta Gaol, the Public Solicitor has brought this appeal. Or, to be more precise, he brought this application for leave to appeal "out of time".

Unless you have yourself been in gaol - and the presumption, of course, is that you have not - you will probably not know what I mean when I speak about "The Visiting Justice". The fact is however, that the law requires that a Visiting Justice go to every gaol in every Province once each month and all the Prisoners in that gaol are paraded before the Visiting Justice in a Grand Parade. The roles are called and anyone missing from the parade must be accounted for. Then three things happen. It is announced that if anyone wants to make a complaint he must "fall out" and the Visiting Justice is bound to see each one of them. To make sure that nobody is hidden away so that he cannot lodge his complaint, the Visiting Justice makes an inspection of the whole of the prison premises while the prisoners who answered to their names when the rolls were called are held aside. And everyone who did not answer to his name in the presence of the Visiting Justice at the Grand Parade is searched for and brought before him/her - if the missing person is ill the Visiting Justice goes to him - and each is asked if he has a complaint to make.

Someone may object to the fact that I have used the forbidden words "gaol" and "prisoner" instead of the more pleasant sounding term Corrective Institution. The fact is, however, that in other countries - as those of you who have read Morris West’s "Proteus" will appreciate - people have been deprived of their liberty and hidden away in places with pleasant sounding names. In this country, on the other hand we have, for generations, had a very proud tradition of making sure that a person who is deprived of his liberty is NOT forgotten. For this reason then, as far as a Visiting Justice is concerned, the place is a gaol and every person in it is either a warder or a prisoner. Anyone who is not a warder has an absolute right to make a complaint in the full expectation that that complaint will be acted upon immediately. It is therefore important that the people in the public gallery note that this appeal is being brought as a result of a report sent in by a Visiting Justice.

I should also say something about the fact that Counsel for both sides have agreed that the appeal must be upheld. It is always very satisfying for a Court to find that Counsel for both sides have agreed and in a civil case "cat first instance"- that is, in a dispute between two ordinary people - that would be the end of the matter. Since the matter is a private one, the agreement of the lawyers "settles" it. This, however, is not a civil case. It is an appeal. Moreover, it is an appeal in regard to a criminal case - that is, a case where the "proper authorities", in the exercise of their proper function, decided that what is called "the full majesty of the law" ought to be brought to bear against a citizen because what he did was (apart altogether from the harm which it did to a particular citizen) a danger to Society as a whole. In such matters the fact that Counsel for both sides have agreed is, in one sense, beside the point.

Let me not be misunderstood. Courts rely on Counsel doing their work. They not only welcome it but the whole of our system of the administration of justice depends upon it. For this reason it is the duty of Counsel to give every assistance he or she can to the Courts. But the duty of deciding an appeal does not reside in them. Their efforts are always of the greatest assistance but, unless they are appearing in the capacity which is called amicus curiae ("friend of the Court") the point of view from which each approaches the case is different from that which the court must adopt. Even if this were not so the fact is, as I have said, that they do not have the duty of deciding the appeal. Any appeal must be decided "according to law", not according to agreement.

Whole libraries have been written about what is covered by those apparently simple words: "decide ... according to law" and this brings me to the first part of this appeal.

THE NATURE OF AN APPEAL COURT

I have already said that section 37(3) of the Constitution guarantees to everyone in this country that if he or she is charged with a criminal offence he/she will, "within a reasonable time", be given a "fair hearing" before an "independent and impartial" tribunal. This is a right which people in many other countries are still fighting for and it must always be treasured and guarded. But the Constitution does not end there. It goes a long way further. Its framers took full account of the fact (as had the Common Law Judges before them) that when "the full majesty of the law" has been brought against an ordinary person he/she feels disadvantaged. He or she feels in an inferior position as regards what are called "the proper authorities". Accordingly, the Constitution says (in section 37(4) (a)) that the tribunal before which he/she has to be taken, whether those who charged him like it or not, shall presume (that is, it shall act, at all times, on the basis that) the person so charged is

"INNOCENT UNTIL PROVED GUILTY ACCORDING TO LAW".

There are other sections of the Constitution which strengthen this but what I have said is a sufficient introduction. And note that, once again, we have those very important words "according to law". The main place where you find them, of course, is in the oath (or declaration, as it is now called) which every Magistrate and every Judge must take before he or she can sit in court.

That is the situation up until the time that the person charged is declared (or "found") by the impartial and independent court, to be GUILTY ACCORDING TO LAW. Once that happens the situation, very naturally changes. Once sections 37(2), 37(3), 37(4), 42(2) and so on have been honourably carried out and abided by, the person charged ceases to be a defendant. He becomes "the convict" or "the prisoner", depending on whether he has been released or not.

Thus the fact is that, although section 37(15) of the Constitution says:

"Every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law",

this does not mean that he can automatically appeal. Once again we have those all important words, this time: "reviewed ... according to law" and, as I have said, a lot of learning is covered by them. In fact, the presumption not only changes, it becomes reversed and what is called "The OMNIA PRAESUMUNTUR RULE" takes over.

This rule theoretically applies in so many countries of the world that we keep the ancient Latin tag to describe it. It is best expressed in two separate passages in Volume One of Sir Edward Coke’s Institutes of Law (published in 1628 and known as Coke Upon Littleton). The passage page 232 of the work reads:

"OMNIA PRAESUMUNTUR RITE ET SOLEMNITER ESSE ACTA DONEC PROBETUR IN CONTRARIUM"

(that is: "All things are presumed to have been rightly and duly performed until it is proved to the contrary".)

but the other passage - the earlier one at page 6 - leaves out the qualifying words "until it is proved to the contrary". There are some countries which operate as if the earlier passage was the law. We, however, fully and freely accept that "proof to the contrary" can be given so the difference does not matter. The point is that "proof to the contrary "MUST be given if the appellant wants to get any where.

It is just not good enough for the appellant to claim, in a cloud and imperious voice, that he did not receive justice. He must produce evidence to support his claim. And it is not proper for any appeal court to assume that he did not get justice. The operative words are:-"PRESUMED... until it is PROVED to the contrary" and there must be something, beyond the mere claim that the court appealed from was wrong, on which the appeal court can act. And, of course, once you think about it, it is a: perfectly obvious rule.

We have our own (and much more modern) statements on this - in particular, that of Phillips C.J. in Appeal of Robertson. For our present purposes, however, the best statement available is that made, three years ago, by the Court of Criminal Appeal in Queensland in R. v. Cummings: I adopt it here.

"Notwithstanding the frequent warning which have been given by Courts of the highest authority that a bare perusal of the record can never reproduce the "atmosphere" of the trial, some Appeal courts appear to be ever-ready to substitute their own judgment for that of the trial Judge. Such an approach is inconsistent with principles; Cf Stepney Borough Council v Joffee (1949) 1 K.B. 599 per Goddard C.J. at pp. 602-3 and Sagnata Ltd v. Norwich Corporation (1971) 1 Q.B. 614, per Edmund Davies L.J. at 637".

The second of these two references should actually read: (1971) 2 Q.B. 614, (not 1. Q.B.). In it Edmund Davies L.J. said:

"Stepney Borough Council v. Joffee establishes what I regard as the right approach"

That case was an appeal from the decision of a magistrate who had been vested with the authority to hear certain appeals. It was his conduct of an appeal from a "lesser" body that was put in question. Lord Goddard said:

"It seems to me that s. 25(1) gives an unrestricted right of appeal ... That does not mean to say that the court of appeal, in this case the metropolitan magistrate, ought not to pay great attention to the fact that the duly constituted ... authority have come to an opinion on the matter, and it ought not lightly, of course, to reverse their opinion. It is constantly said (although I am not sure that it is always sufficiently remembered) that the function of a court of appeal is to exercise its powers when it is satisfied that the judgment below is wrong, not merely because it is not satisfied that the judgment was right" (my underlining).

THE NATURE OF APPEALS

So much for the limits and rules which bind me in every appeal. But what is "an appeal"? The first thing to note is that appeals are not all of the same type. They range from, at one end of the scale, cases where the criminal Justice system was abused in some way or another, to cases where everything has functioned perfectly but, to quote the words of Mackinnon, J. in a case quoted by Megarry in his Miscellany at Law at pages 82 and 83, someone was able, by the exercise of a vast amount ingenuity (or worse), able to waste the appeal Court’s time for "nearly a whole day in regard to a claim that is essentially absurd and ridiculous" (or worse).

These two extremes are, happily, rather rare. The vast majority of appeals fall somewhere in between them. This case, however, is most unusual because counsel for both sides - and the magistrate who, as a Visiting Justice at the Kieta gaol, drew attention to this case and caused the appeal to be ledged - all agree that it is of the rare variety of the first kind. & I agree with their assessment.

In other words, Trainee Teachers in the public gallery have two interesting things to note. The new one is that "the law" admits that it sometimes misfires or malfunctions. The other is that, as I have already mentioned, there are such persons, here, as Visiting Justices and they do produce results. Both of these are aspects of The Law, as it is administered in this country, of which we, who are connected with the administration of The Law, are justly proud.

It is essential, however, that I mention that, in the rare species of cases where the criminal justice system was, by objective test, misused, there is an even rarer sub-species of cases where the misuse was nobody’s fault. Or, to be more precise, it was the result of an accumulation of errors against which everybody must be eternally vigilant but which (unfortunately) sometimes builds up without anyone inside the criminal justice system being really worthy of blame.

This is such a case. The magistrate is not to blame. It is not within the power of any magistrate (or Judge) to investigate cases which are brought before him. His/her duty is to "hear and determine" the cases brought before the court and to do it with as little delay as possible. Moreover, the fact is that he or she must do the hearing and determining in public, and announce his/her decision in public. The fact that is must occur "in public" is one of the many fail-safe mechanisms (the "checks and balances") that we have in our system to ensure that the processes of criminal justice are not abused. Another of those "checks and balances" is the Visiting Justice system which I mentioned a moment ago. The most basic of them, however, is what is called "the principle of Separation of Functions".

I said a moment ago that it is not possible for any magistrate or Judge to investigate the cases which are brought before him/her. The truth actually goes far beyond that. In olden times the magistrate was the Inquisitor who was charged with the whole of the administration of justice. It was he who decided what was best for Society. It was he who ferreted out those who were doing things which, in his opinion, were against the interests of Society and it was also he who decided what should be done with those people that he had ferreted out. We have long since left those days. The function of deciding what shall be forbidden, because it is against the interests of Society, is handed over to Parliament and to it alone. The function of deciding who has broken the law is (with the exception of coroners, whose jurisdiction is very limited) given to the police or to the health inspectors or to the customs officers or the other people charged, by statute, with looking after that particular field of the law. The function of the court is to provide an impartial and independent tribunal to which those entrusted with the administration of the criminal law must take the people that they consider are guilty so that a decision can be made, on behalf of Society, as to whether the charge has been "proved according to law".

The point which we must notice here is that, because of this basic Principle of Separation of Functions the court knows that no person can, in law, be brought before it unless the authority to whom the jurisdiction in regard to that field of law is given, by statute, has done two things:

(i) 	it has warranted, to the court, that it honestly, and in the exercise of a professional opinion, believes that it has a sufficiency of admissible evidence to justify a conviction at the hands of a reasonable Tribunal of Fact

	AND

(ii) 	that, on top of that sufficiency of admissible evidence, the prosecution has exercised its "discretion" to prosecute.

Because of the first of these we have the rule which is known as "onus" (or burden) of proof. This, simply, is that if an accused person wishes, he has the absolute right to say: "You prove it", and the prosecution must then prove its case. The second of these two warranties is not as well known as it should be but it follows necessarily from the first.

It would be thoroughly unjust - it would, in fact, be an intolerable situation - if the prosecution had no right to decide to refrain from prosecuting a case if the defendant always had the right to say "You prove it. And, as I have said, every defendant has that right and the prosecution always knows that he has it. The true situation was dealt with in 1951 (in Britain) in the famous Stone of Scone episode in a statement which has been used many times, in this country, as the best statement of the law of this country. This statement is

"It was seriously suggested that the operation of the (Criminal) law should be virtually automatic where any breach of it was known or suspected to have occurred. The truth is, or course, that the exercise of a discretion in a quasi-judicial way as to whether or when (the prosecuting authorities) must take steps to enforce the criminal law is ... one of the duties of (those who are charged with the administration of the criminal law).

It has never been the rule in this country -I hope it never will be - that suspected criminal offences must automatically be the subject of prosecution ... Lord Simon, who was ... a most distinguished Attorney-General, put the position very clearly when he said ...: "there is greater nonsense talked about the (prosecution’s) duty than the suggestion that in all cases (it) ought to decide to prosecute merely because ... there is what the lawyers call "a case" ..." (my underlining)

There can be many reasons why this is so. The main one is, as I have said, the simple but logical truth that it would be wrong to insist that the prosecution must be always ready to prove their case if they have no choice as to whether they will bring that case or not. Another reason - and the one which was the main factor in the Stone of Scone case -is that, apart altogether from any bad effect which a prosecution might have on certain people other than the alleged wrongdoer (a point which becomes too complicated to deal with here), the fact is that those words we have seen so often today, "according to law", mean that things other than the mere offence itself must be fully considered before a prosecution is launched.

This, also, becomes very complicated and that is why we insist on having trained people to deal with these matters whenever it is possible. Put it can best be explained by the Stone of Scone case because, as we shall see, it was quite clearly a case of what is called "an offence relating to property". The point is that every offence relating to property places the court in a very dangerous ("captive") position because the court is forced to listen to any claim of right which the defendant may honestly seek to raise. And the test is, simply, whether the claim is "honestly" held. Unless the prosecution wants the court to be turned into a political forum, this can be very dangerous at times because the question of whether the claim is "reasonable" - whether people other than the defendant regard his claim as wrong-headed, unreasonable or even outrageous - is irrelevant.

The Stone of Scone case illustrates this perfectly. The Stone of Scone is, in fact, a stone - a piece of rock - but it was the seat on which the ancient Scottish Kings were crowned at a place called Scone. Then when the English and Scottish Kingdoms were united, it was taken to England. For several hundred years it has been kept in the Coronation Chair in Westminster Abbey, a church in London which is the British Nation’s foremost national shrine. Its theft from the Abbey by Scottish nationalists was about the most outrageous and sacrilegious crime that was possible. But although the police knew full well who had done it - and although everybody knew that they could prove the charge to the hilt - they did not take the case to court because they knew that a "claim of right" would be raised and they knew that the courts had to be protected from being misused.

And that, in fact, is the important factor in this case also. This, also, was a stealing charge and the court needed to be protected although for a different reason. I will return to the reason for this need for protection in a moment. First, I should continue with the quotation from the Stone of Scone Debate. It was the Attorney General of the day (Lord Shawcross, who had been principal prosecutor at the Nuremberg Trials) who was speaking and he was quoting Lord Simon’s famous "No Greater Nonsense" speech. He continued:

"There is no greater nonsense talked about the (prosecution’s) duty than the suggestion that in all cases (it) ought to decide to prosecute merely because ... there is what the lawyers call "a case"..."

"... one has to review the evidence to consider whether the evidence goes beyond mere suspicion and is sufficient to justify a man being put on trial for a specific criminal offence.

(Then) ... wider consideration than that are involved. It is not always in the public interest to go through the whole process of the criminal law if at the end of the day perhaps because of mitigating circumstances, perhaps because of what the defendant has already suffered, only a nominal penalty is likely to be imposed. And almost every day in particular cases, and where guilt has been admitted, I decide that the interests of public justice will be sufficiently served not by prosecuting, but perhaps by causing a warning to be administered instead.

Sometimes, of course, the considerations may be wider still. Prosecution may involve a question of public policy or national, or sometimes international, concern..."

In Stone of Scone-type cases (and we have had some in this country) this basic duty of the prosecution is of obvious importance. Since every court is bound by what is laid down for it "according to law" it must be protected. But the need for protection - and the "discretion to prosecute" - exists in other cases as well. It exists in all cases and it existed in a special way in this case. And that way was one which is much more commonly experienced than politics - laden cases but it falls within the same group where the prosecution has to be specially considered because it

"may involve a question of public policy or national ... concern."

This arises out of the basic difference, which I dealt with earlier, between what we call "civil" disputes and "criminal" offences.

The word "civil" does not refer to the order: "Keep a civil tongue in your head". In fact, most civil disputes are far from being civil in this sense. It is because they often degenerate into uncivilized behaviour that Society, everywhere, sets up courts for them to be authoritatively dealt with. It is far better, from the point of view of Society, that they be settled by the courts than that the citizens involved should take their axes to each other and commit a criminal offence. But until a criminal offence is actually committed the dispute is still one between citizens - a word which we get from the Latin "CIVIS" and which gives us those other words, CIVILIZATION, CIVIL, CITIZEN and so on. The dispute, therefore, is a civil dispute and it must never be confused with a criminal matter which is one where an offence has in fact been committed and where the "proper authorities" have a sufficiently of admissible evidence to prove that it has been committed. In this case the proper authorities confused the two and, in doing so, they misled (unintentionally, no doubt) the court.

There was no way in which the Magistrate could know that the two warranties which I have mentioned had not been given. He was, in fact, in special need of being protected and he naturally assumed that "the evidence" which he was hearing was, in fact, evidence. It is only today, now that Mr. Salika, the learned State Prosecutor who has appeared as amicus curiae, has given us the background to the case, that it is clear that what appeared to be evidence was not evidence at all. The clue to the truth - a truth which was not available to the Magistrate - is contained in these two statements of Mr. Salika.

(i) 	There is no evidence that any money had ever been stolen

(ii) 	The main witness had been living with appellant as man and wife and he had got rid of her.

In other words, it was what (for want of a better word) we call a "domestic dispute". A young lady had lived with appellant for over a month as wife and man and then she had been cast off. She then reported to the police that appellant had given her a bag containing K200.00 in ten kina notes which (she said) he stole from the store where he was employed. That is all there was to it. As to the reasons why she reported him it is at least possible that there might be a future case so it would be improper for me to say any-thing more than that that is what she said. But it is only by hind - sight that we can see what happened.

What she said appeared to be strong evidence when it came before the magistrate, who was not aware of the fact that this young lady had been living with the defendant, and that she had now been cast-off. All that the magistrate had was her evidence that he, the defendant, told her he had stolen the money.

Since subsequent investigations have shown that no money at all was stolen it is clear that the whole of the criminal justice process had misfired. Instead of being used for the protection of Society it was, in this case, being used by a cast-off mistress for her own purposes - whatever those purposes might have been.

And the material on which the magistrate was acting was not "evidence". It was inadmissible for a variety of reasons. Therefore, there was nothing before the court on which a conviction could be based.

There was, also, nothing before the Police justifying the laying of the charge, but that is not something which is before me at this stage.

It is my duty to say that the conviction cannot be sustained. It must be quashed. And the Appellant must be ordered to be released and the money which was exhibited in the case must be returned to him.

Appeal upheld. Conviction quashed. ORDERED that the Appellant be immediately released and the exhibit returned to him.

Solicitor for the Appellant: Public Solicitor A. Amet
Counsel: Mr. Marlowe (with him Mr. Teiwaki)
Solicitor for the Respondent: Public Prosecutor
Counsel: Mr. Salika Amicus Curiae.