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National Court of Papua New Guinea |
N314(M)
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
JOSEPH MARBEN
V.
FRANCIS GESA
Gokora & Minj: Quinlivan AJ
9 February 1981; 8 September 1981
QUINLIVAN AJ: The Appellant, a person then serving a sentence of imprisonment with hard labour at BIHUTE Corrective Institution near Goroka was, on 29th of February 1980, convicted of an institution offence under Section 27(1) of the Corrective Institutions Act and sentenced to imprisonment for five months and one week cumulative on the sentence or sentences he was serving at that time. He appealed against that conviction, pursuant to Section 30 of the Corrective Institutions Act (the "new" section which was introduced by Act No. 10 of 1979) and the then Magistrate Grade IV from Lae heard the appeal, dismissing it. The Appellant then appealed again, this time to this Court.
A number of questions arise and, because of the circumstances which unfortunately apply when legal argument arises when the Court is away from the Capital, Counsel were able to do little more than to point to general principles in regard to the preliminary point of whether or not appeal lies to this Court. Since there was a feeling that the Supreme Court had previously expressed the view that appeals in respect of Corrective Institution offences ought not to come to this court and since I myself knew of certain expressions of opinion overseas which might give credence to this belief, I felt that I should, as the saying is, "advise myself". Accordingly, I adjourned the case so that judgement could be written and delivered in the Capital. Due to circumstances for which nobody is to blame, however, the tape on which the judgment was prepared for typing became misplaced and the fact that it had not yet been "handed down" became, in the ensuing round of circuits, overlooked. For this I can do nothing except express my sincere regrets. I will, however, return to the point later.
The first question to be determined is whether the Appellant has totally expended his right of appeal because of the appeal which he unsuccessfully lodged under section 30 of the Corrective Institutions Act. Until that statute was amended by Act No. 10 of 1979 the law was clear and no person convicted before the court of the Visiting Justice for an institution offence had any right of appeal at all to the courts of the National Justice System. A Magistrate - or even a Judge - could, of course (if the authorities decided to do so), be appointed to conduct an "inquiry" and make recommendations in regard to any such conviction but that is a different matter. There was no right to appeal as such and, because of this it was submitted that, when the Legislature changed that situation and granted a right of appeal to the Senior Magistrate of the region, it could not have intended setting up a chain of appeal courts above that appellate court. And, as I have said, there was the feeling that the Supreme Court had spoken on the matter and I knew of certain observations by judges of great eminence who had spoken, overseas, on the matter and I knew that what they had said seemed to support the view that prisoners are in a special class.
Since writing this decision I have, in a very incidental way, dealt with that latter point. In State v. GEREK KUA[1] I pointed out that it is perfectly true that prisoners are in a special class. That, however, was a case dealing with quite a different aspect, the meaning of the phrase "prerogative of mercy". The aspect which concerns us here - the submission that one must adopt a restrictive attitude when considering whether people convicted of prison offences should have a right of appeal - appears, at first sight, to gain support from the statement of the former Chief Justice of Australia in Stratton v. Parn[2]. that he felt "much sympathy" for a certain submission made in that case, the submission that the relevant
"Prisons Act constituted a code for the control and discipline of prisons and...the maintenance of discipline and peaceful order in prisons required prompt response to prison offences, a promptitude which was unlikely to be attained through the appellate procedures of the judicial system".
The fact is, however, that the learned Chief Justice of Australia qualified what he said. His words are:
"With that view I have much sympathy and would expect it to commend itself to the legislature, even in these times. But, though such a consideration might be powerful in the resolution of statutory ambiguity, it can scarcely prevail in the face of unambiguous language of a statute."
It must also fail to prevail in the face of the precedents which have been established over so many years in this country.
Here, once again, we are in one of those fields of the administration of Justice where we have, in this country, our own precedents and special attitudes and they are most valuable. We must not allow ourselves to be misled by the fact that it was not until 1979 that convicted prisoners were permitted the right to appeal to a court of the normal judicial system against a conviction made against them by the Court of the Visiting Justice. Other ways of "appealing" worked exceedingly well. As Roskill L.J. said in Fraser v. Mudge and others[3]
"I wish to make it plain that I do not subscribe to the view that in every type of case, irrespective of the nature or jurisdiction of the body in question, justice can neither be done nor be seen to be done ..." (without the normal standards and procedure of a court being followed)
and, as Goddard L.J. (as he then was) said in Arbon v. Anderson[4] in regard to precisely this point (the rights of prisoners convicted of prison offences):
"The safeguards against abuse are appeals to the Governor (of the prison), to the visiting committee, and finally to the Secretary for State, and these, in my opinion, are the only remedies."
And, moreover, if I may say so, they are probably more effective remedies, where there is certainty that complaints will be forwarded on, or properly dealt with, than a normal working of the court system normally makes possible.
Lord Denning M.R. touched on this in the Lord Fletcher lecture to the Law Society in London in December, 1979 but the only point which I wish to make is that, for many decades, these rights of appeal were fully and freely exercised - and very beneficially and effectively exercised - by prisoners and by their relatives, their leaders and employers (and, on their behalf, by missionaries and others) throughout this country because everyone involved in the wider field of the administration of justice knew that it was more than his job or reputation was worth if he failed to refer on, or deal properly with, any legitimate complaint by a prisoner. In 1934, when Judge Murray was both old and ill, someone felt that he needed to be protected from the incessant stream of such complaints but this was so much a breach of the tradition which had been carried on since Governor Mac Gregor and Justice Winter established it in the 1890s that there was an immediate outcry and the following "Instruction", (using Judge Murray’s official title of Lieutenant Governor) was quickly issued:-
"Any person in the Territory, whether European or Native, has an absolute right to appeal to the Lieutenant Governor if he thinks that he has been treated unjustly or that he has any other ground of complaint.
An attempt to hinder any person in the exercise of this right will be regarded as a very serious offence. An excuse, such as that the intention was merely to save the Lieutenant Governor trouble, will not be accepted."[5].
And the spirit of that instruction continued on until well into the late 1960s.
Then, for reasons which are by no means clear (and which, in any event, do not concern us here) these tried and true means for the control of abuse suddenly ceased to be effective in a number of areas -although, as the first appeal I heard amply shows[6]; they continued to do their work in others. The point, however, is that just as the attempted break with tradition in 1934 produced its beneficial (and historically unique) result, so also the choking off of the early 1970s produced its effects. And the result produced in the early 1970s is one which is covered by section 257(1) of the Constitution (and by Schedule 1.3.(1) to the Constitution) as well as being part of the tradition covered by the pledge in the preamble, to which I have referred so often. That result is that the Constitutional Planning Committee reported, at paragraphs 84 and 85 on page 8/9 of its Final Report of 13th August, 1974, that
"... we have become aware that the present system of Visiting Justices... is not functioning effectively. Delays are occuring in the Executive taking action on reports of Visiting Justices, and in some instances no action is taken."
85. We have therefore recommended that National Court Judges should have a significant supervisory role in regard to the work of Visiting Justices, and that the Chief Magistrate should have direct responsibility for it."
In short, and no matter what may or may not be the situation elsewhere, the precedents of this country require a court, in a case where there is the ambiguity referred to by the Australian Chief Justice, to find effective avenues by which a prisoner can obtain relief.
But appellant in this case has already had his appeal so it is not merely a question of possible ambiguity. The position can be summed up as follows. From the 1890s to the late 1960s (as the latter-day cases of "abuse" which I mentioned in State v. John Sale[7] clearly show) there was an effective control through the avenues mentioned by Lord Goddard. In the early 1970s these avenues were blocked but, providentially, the Constitutional Planning Committee quickly set itself the task of creating a new remedy which, in the vast majority of cases, would undoubtedly be fully effective. A problem now arises in regard to that very small proportion of cases where the prisoner is still, after the use of that remedy, aggrieved in a legitimate way. It is, of course, a problem which existed in the days of "executive" review but it is highlighted now. Curiously enough - and although I am now dealing with it in the context of judicial review of what the legislature, by passing the new section 30 of the Corrective Institutions Act, made a judicial review "at first instance" - the problem is best indicated by these words of John Griffith’s article: "Judicial Review of Executive Power" [1978] MelbULawRw 2; (1978) 11 Melbourne University Law Review 316 at page 341:
"... judicial review is confined to a residual OR restraining role not only by the shortcomings of judicial process such as difficulties of access, delays, limited remedies, and haphazard treatment of cases as they are brought before the court; but by the doctrine of jurisdiction which provides the constitutional justification for judicial review..."
The question before me is the simple, but double, one of whether the recommendations of the Constitutional Planning Committee were carried into effect and, if they were, whether the reported objection of the Supreme Court to a hierarchy of appeals is correct. It is at this stage of this judgement that I find myself, personally, in a rather curious position. A misunderstanding appears to have arisen about what I said in case No. 281, ex parte GEORGE NELSON PERERA, the headnote to which, in part, reads:
"Prohibition - publication by newspapers sixteen days before Coroner due to announce his findings, of what was alleged to be part of those findings - frustration of whole purpose of Coroner’s inquest - order nisi of prohibition made absolute" (my underlining)
Clearly, the part of the headnote which I have underlined means, quite simply, that I was issuing an "absolute prohibition" - a command - to a certain coroner that he must not go any further in the case he was conducting. Despite this, however, it has been suggested that I somehow denied that this court has a supervisory role to play.
Nothing could be further from the truth The question in that case was whether this court could order a Coroner to hear a particular witness (or to hear any designated witness on a particular point) and I held that, in view of the peculiar nature of the Coroner’s inquest, neither this court nor any other authority - except, perhaps (because of the Coroner’s Act) the Chief Magistrate - could do that, any more than this Court could order that a defendant who has stood his trial and been acquitted, or the parties whose civil action has been heard and determined, must go back and have the matter reopened at the behest of some outside party. I am here recapitulating what I said at page 16 of my judgement. What I said was merely an acknowledgement that, no matter how much one may personally think that something ought to be done and no matter how powerful one may in fact be, there are things which cannot be done - a point which, curiously enough, was the burthen of the only other judgment of mine that has been typed: N. 282. Appeal of Reuben Iniviko and in regard to which (with grateful acknowledgement to my brother Pratt, J. who has drawn my attention to the case with which I will commence) I would like to make a slight diversion.
In De Falco v. Crawley Borough Council[8] Lord Denning M.R. went to a certain amount of trouble to refer to the famous episode when King Canute had his throne set up on the seashore so that he, in the full power of his majesty and surrounded by his whole Court, could conduct a certain experiment. Lord Denning M.R. commences his judgment with the words[9]:
"Every day we see signs of the advancing tide"
and he ended that judgment by saying[10].
"King Canute ... bade the rising tide at Southampton to come no further. It took no notice. He got his feet wet."
Cairns L.J., however, took up the challenge and said (P. 927)
"King Canute ... was not at all surprised when he did not hold back the waves; his obsequious courtiers had flattered him by saying that he could hold back the tide, and he carried out the exercise to show them how wrong they were."
To this Lord Denning added the rejoinder:
"The books differ on that story"
but, with respect, I would like to say that, if the modern text books differ on this point it is a very great pity in the sense that they lose the point which used to be made and which should continually be made. As Kathleen Freeman points out in her Preface to her study of Law in ancient Greece. ("The Paths of Justice", 1954, London, pages 1 and 2):
"... whenever a dictator or a small clique...seizes power ... the first thing that he or they do is to abolish any impartial system of law and in its place establish courts of justice which will obey their new rulers. If you study history, again you will find that tyranny and law cannot live together... The legal system of a country like ours, where the independence of the law courts, judges and magistrates is carefully guarded and their powers clearly defined, has not grown up by chance. Like all machinery, it is the result of painstaking experiment, research, and even sacrifice. It has come to us as a legacy... and, like the steam-engine or the motor-car, it can break down unless it is constantly looked after. It is also delicate, and could still be smashed beyond repair by enemy attack from without or within. It is precious beyond reckoning, so precious that it is the duty of every citizen to defend it from all dangers. It is precious because without it we cannot live as a democratic community - that is, one in which the individual is given as much freedom as is consistent with the well-being of others."
And, as I have pointed out so often, Papua New Guinea is unusual in that her Founding Fathers saw fit to enshrine these lessons of history in her Constitution, both in the NATIONAL GOALS AND DIRECTIVE PRINCIPLES and in (for instance) section 32(2) which reads:
"Every person has the right to freedom based on law, and accordingly has a legal right to do anything that
(a) does not injure or interfere with the rights and freedoms of others and
(b) ...".
Unfortunately it is one thing to cite basic principles but it is quite another to find examples which show, in some meaningful way, just what they mean. This is where the seashore episode of King Canute is so important. He was a dictator who seized power and he was as bad as any who come to mind. But he was different from other dictators in that, as he grew older, he came to understand the realities of life. He became, in later life, a thoroughly great ruler and, nearly a thousand years ago, he sent his messenger throughout the country with this message:
"... be it known to you all that I have dedicated my life to God, to govern my kingdoms with justice, and to observe "the right" in all things. If, in the time that is past ... I have violated justice, it is my intention, by the help of God, to make full compensation. Therefore I beg and command those unto whom I have entrusted the government, as they wish to preserve my good will ... to do no injustice either to rich or poor. Let those who are noble, and those who are not, equally obtain their rights, according to the laws - from which no deviation shall be allowed either from fear of me or through favour to the powerful." (my underlining)
(cited from "The Historians’ History of the World" 1908, London volume 18 page 122). It was for this reason that he showed his people that, no matter how powerful anyone may be (and there could be no doubt about the fact that nobody was more powerful than he), there are things which are beyond his power. It is a lesson which must be constantly be taught in every country, and in every age.
The fact is that in law, as in life, there are things which cannot be done. It is also a fact of law, as of life, that there are usually a number of different roads by which a person can get to a desired destination if he only knows how. In this country the whole thrust of the law has, since the 1890s been to reduce the diversity of those roads and to make remedies both known and "certain". The road chosen in this case is that is of review by this court and, to refer back to the last line of the passage cited from Griffith’s study, the question is whether or not a sufficient "constitutional justification" for that approach exists.
The answer to that question would appear to be simple. Section 155(3)(a) of the Constitution of the Nation says that this court:
"has an inherent power to review any exercise of judicial authority"
and since, as I have said, the decision appealed from was, beyond any possibility of argument, an "exercise of judicial authority" that would appear to be the end of the matter. The section does, however, need to be dealt with in detail.
Sub-section (3) of section 155 reads:
"The National Court -
(a) has an inherent power to review any exercise of judicial authority; and
(b) has such other jurisdiction and powers as are conferred on it by this Constitution or any law,
except where -
(c) jurisdiction is conferred upon the Supreme Court to the exclusion of the National Court; or
(d) the Supreme Court assumes jurisdiction under sub-section (4); or
(e) the power of review is removed or restricted by a Constitutional Law or an Act of Parliament".
Exceptions (c) and (e) clearly do not apply. In regard to exception (d) the Constitution states, in sub-section (4) of Section 155:
"Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case"
and sub-section (5) of Section 155 reads -
"in a case referred to in subsection (3)(e), the National Court has nevertheless an inherent power of review where, in it’s opinion, there are overiding considerations of public policy in the special circumstances of a particular case"
Unless the Supreme Court has actually - that is, unless it has "authoritatively" - said that this court has no power of review in cases such as this then, quite clearly, it does have that power. This brings us back to the "feeling" which, as I have said, had been expressed during argument in this case that the Supreme Court had spoken on this matter. No identification could be made of the judgment referred to but later research shows it to be SC 130 of 1978, a judgment delivered in a "special reference" on the 25th of October 1978.
In that case the Supreme Court said that it was, for a variety of reasons, wrong that appeals from convictions in the court of the Visiting Justice should come to this court. The Supreme Court was, however, talking about appeals at first instance. The Legislature, by Act No. 10 of 1979, took note of the Supreme Court’s suggestion that, "at first instance," such appeals should go to the most senior magistrate of the region. That is what happened at this case. For this reason the comments which the Supreme Court made in case SC 138 have no relevance whatsoever to the question before me, which deals with the normal supervis function of this Court.
That supervisory function covers, as is clear from the wording of section 155(3)(a) of the Constitution, every "exercise of Judicial authority" and the holding of an appeal by a Senior Magistrate under the provisions of section 30 of the Corrective Institutions Act is clearly that. The question of whether there should or should not be a hierarchy of courts is really not to the point. Once it is clear that "Judicial authority" has been exercised then, equally clearly, this court has a review function to perform.
This brings me to the appeal itself and I fear that I must, once again, start with a preliminary point. The decision of the learned Senior Magistrate who conducted the appeal and his reasons for that decision, are contained in a document which is undated but which is headed: "Reasons for Decision" and it reads, in its entirety:
"My reason for confirming the decision of the learned Visiting Justice was that on the totality of the evidence before me, I was not satisfied that he had erred in either convicting or sentencing the defendant.
In these circumstances I was not prepared to interfere with his verdict."
(The underlining is that of the learned Senior Magistrate).
With respect, I feel that this is not enough. As Phillips C.J. pointed out in Appeal of Robertson[11] and as I myself have pointed out in Appeal of Michael Dai Kaupa[12] and Appeal of Niva Limbiye[13], it is of the very essence of our law that no appeal court should interfere with any exercise of judicial authority (or, for that matter, with any other exercise of a lawful power or function) unless there is lawful cause. Consequently, these "reasons" do not go beyond a bare statement of the basic premises on which an appeal Court operates. They are not "reasons" at all because they provide this court with nothing on which it can exercise the jurisdiction conferred upon it, and entrusted to it, by the Constitution. In Lee v. Lee[14] Kelly J. said that it was the duty of all courts to provide sufficient notes for an appeal court to exercise its function properly but, since the learned Judge was misled in a major particular in that case, there may be some dispute as to whether his statement of the law is binding. I have, elsewhere, said that there can be no doubt that it is binding but I also feel that a useful purpose would be served if I were to quote, and adopt, a statement from a judgment in which his Honour concurred after he had been translated to another jurisdiction. I refer to this passage in the judgment of the Full Court of the Supreme Court of Queensland in Perez v. Transfield (Old) Pty. Ltd.[15]:
"The learned judge gave no reasons for his decision. The duty of magistrates to give reasons has been stressed in many cases. The duty applies to all courts from which an appeal lies. In Carlson v. King (1947) 64 (N.S.W.) 65, at p. 66, Jordan C.J. said:
"It has long been established that it is the duty of a Court of first instance, from which an appeal lies to a higher Court, to make, or cause to be made, a note of every thing necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision. The duty is incumbent, not only upon magistrates ... and District Courts but also upon this Court, from which an appeal lies to the High Court and the Privy Council..."
In Pettitt v. Dunkley (1977) 1 N.S.W.L.R. 376, at p. 387, Moffitt J.A. said:
"there is as much a duty or judicial obligation or an obligation imposed by law to give reasons in an appropriate case as there is otherwise a duty to act judicially, such as to hear arguments of counsel and hear evidence and admit relevant evidence of a witness. The reason why the judicial obligation to give reasons in an appropriate case exists, is that, where an appeal is provided, the trial at first instance does not exhaust the rights which parties may have ...
The right to appeal is, as I have already said, provided by the Constitution for every exercise of judicial authority without exception and, further to what I said in State v. GEREK Kua[16], I would like to adopt these words here. In this case, however, the fact that there are no real "reasons" given does not affect the matter because it is clear that the learned Senior Magistrate was misled by certain words contained in section 30D of the Corrective Institutions Act which is headed: HEARING OF AN APPEAL.
Since it appears from other cases which have come before me at Kieta recently -& in Kainantu in February - that certain Magistrates are being misled in the same way, I feel that I should mention that where a statute lays down certain procedures or confers certain powers in regard to the conduct of a case (or the hearing of an appeal) these must never be read as if they exist "of and by themselves" and in isolation. They must always be read against the proper background. In this case the statute says that the Magistrate may "determine the procedure to be followed" and that he/she "may hear fresh evidence". Relying on these apparently simple statements the magistrate made his own rules and he also heard fresh evidence. And that is where he went completely wrong.
As I pointed out in Appeal of Lupitiria Eze and others[17] one must always hold constantly in the forefront of the mind the basics purpose to be served when looking at any apparent simplification of legal procedures. In this case the simplification was so that appellant’s appeal could be dealt with according to law. It was, therefore, essential that the learned Senior Magistrate bear constantly in mind the true nature of the appeal before him. In the peculiar circumstances of the appellant’s case it was wrong for the learned Senior Magistrate to make any rules at all, or to hear any fresh evidence at all, unless and except it could be said that these rules or that evidence would help him to deal with the main point which the appellant raised, which was that the Visiting Justice who convicted him should have disqualified himself and that the whole matter before the Court of the Visiting Justice was, for this simple reason, a nullity and void.
If the appellant’s main ground of appeal was valid then the question of whether or not he was in fact guilty had nothing to do with the appeal court. It was, in law, wrong for such a court to go into that matter at all because, by doing so it in effect deprived the appellant of his basic right of appeal. If the appellant was entitled, in law, to succeed it was the clear duty of the appeal court to uphold the appeal and, if necessary, send the case back to another Visiting Justice to deal with. The right to hear fresh evidence can never be used to deny the appellant of his right to have a case "remitted back" because it could quite well be, for a wide variety of reasons of which the appeal court is properly ignorant, that the proper authorities will decide not to go ahead with the case a second time.
The original appeal listed 4 main ground of appeal of which the fourth is broken up into ten main groups. Substantially, however, the appellant claimed that the Visiting Justice who heard the case was, in law, in such a position that he should have disqualified himself. I will explain in a moment why I have underlined the words "in law". The main point I wish to make at this stage is that the appellant claimed:
"4A. I ... made an application to transfer my case to another Magistrate, but without informing me in court, the magistrate went ahead and proceeded with the case.
These allegations are of a very serious nature although I hasten to add that they do not imply that the Visiting Justice is an unjust man in the ordinary sense of that word. It is for this reason that, in the summary which I made at the beginning of the last paragraph, I underlined the words "in Law" when I said that it was appellant’s position that the Visiting Justice was, in law, in such a position that he should have disqualified himself.
It appears to me that a species of misunderstanding has grown up as to what is meant by this. Far too often we find that Society is put to needless expense by magistrates saying: "I cannot sit because I know the defendant". In the English Court of Appeal case of Cottle v. Cottle[18] (and while speaking of
"... the mere fact that some sort of acquaintance exists between a justice and parties, or even the fact they they have discussed business matters entirely unconnected with the case,")
Merriman P. said that[19]
"it would be a preposterous thing if a suggestion were to be made that there was bias, or a possibility of bias. If we were to put any such exacting test upon the right of justices to sit it might very well be that the whole structure of summary jurisdiction would be upset. The whole essence to the local administration of justice and the great value of the functions of justices are that they do administer justice amongst people with whom they are acquainted, and of whose lives and family history they know something. I must not be taken for a moment to be suggesting that anything of that kind could possibly be regarded as a disqualification. In this case, however, the suggestion is that the acquaintance was much closer than that, ...
As Lord Hewart, L.C.J., said, by no means for the first time, in R. v. Sussex JJ, Ex Parte McCarthy (1942) 1 K.B. 256:
"... a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done"
In this country we have a direction from that famous Chief Justice, Sir Hubert Murray, which predated Lord Hewart’s 1924 statement by many years. It is not possible for me to say exactly when Circular Instruction 88 was first issued but since the numbering of the "instruction"is on a chronological basis and since Instruction 103 is dated 1909 and No. 106 is dated 1913, one may be sure that it was before the first World War. That "instruction" is not, in the normal sense, binding but it does show what all magistrates knew and followed under pain of dismissal. It reads:
"Justices ... taking part in any matter in which they are personally interested.
Every Justice ... is competent to exercise the authority committed to justices ... generally, but that power is accompanied by this further qualification, that no Magistrate, however duly authorised in all other respects, can act judicially in a case "wherein he himself is a party" (R. Gibbon [1880] UKLawRpKQB 115; (1880) 6 Q.B.D. 168; R. v. Milledge [1879] UKLawRpKQB 39; (1879) 4 Q.B.D. 332).
The plain principle of justice "that no man can be a judge in his own cause" pervades every branch of the law and is as ancient as the law itself (Coke upon Littleton, 141A: 8 Coke Reports, 118; Dalton cap. 173). This is so fundamental a maxim as not to be overruled by any prescription (Coke upon Littleton as above,: Hobart p. 87). Lord Coke and Lord Holt both go as far as to question whether even as Act of Parliament has power to ordain that the same person shall be both party and Judge. It is, however, certain that every proceeding which bears this objection upon the face of it is absolutely void.
Justices ... should, therefore, refrain from taking part in any matters in which they individually have a personal interest, for, although they may act most fairly, still their conduct is open to suspicion. They should abstain from interferring in cases where they are directly or indirectly interested." (my underlining).[20]
That instruction has been repeated, and the last two words explained, time after time down through the years during which Judges have been touring around this country. And it has been explained so well that, as far as I know, there has never been any need for a definitive statement of what is meant by the words "indirectly interested". The operative words, quite clearly, are that:
"although they may act most fairly, still their conduct is open to suspicion"
and these, equally clearly, contain the true test. That test is this: "Would, in the circumstances which apply in this country, there be a possibility of suspicion if a Magistrate or Judge insisted in sitting in judgment in a hotly contested case brought by his brother-in-law?" The question has only to be asked for the answer to be obvious:
"Of course there would".
The only exception would be where the Magistrate disclosed his/her relationship and asked whether there was any objection to him/her sitting and both parties agreed to him/her sitting - as Philips C.J. did in R.v. Tuvi.[21]
The Visiting Justice referred to appellant’s allegations in four separate places in the report which he supplied to the learned Senior Magistrate from whose decision this appeal was brought. The first is where he says:-
"(a) ... no person (is) entitled to ... choose the magistrate to hear his case"
and this, of course, is perfectly true. But it is a truism which is subject to the observation that when the Constitution said, in section 37(2), that every court that can convict a man, or woman, will be "independent and impartial", it meant what it said to the fullest extent possible in human nature. It is true that we seldom find absolute lack of prejudice in life. People all have their own ideas on so many things. Put we must always be careful to avoid any situation where the possibility of someone saying: "He was prejudiced" is clear beforehand. The words of Sir Hubert Murray are sufficient on this point but I would like to add, as Merriman P. did at page 540 of the report I have just mentioned, this test which was laid down by Swift J. in R.v. Essex Justices, ex parte Perkins[22] and especially approved by the Court of Appeal (and, of course, by Lord Merriman) The test is this:
"Might a reasonable man suppose that there had been ... an interference with the course of justice" I agree that he might and therefore I think that this rule nisi should be made absolute for a certiorari to remove the order of the justices into this court with a view to its being quashed."
After approving the test Merriman continued[23]:
"As I have said already, I am not imputing, nor thinking of imputing, ... any bias in fact but, applying the principles of these cases, it seems to me that (appellant) might reasonably have formed the impression that (the Justice) could not have given the case an unbiassed hearing. That is enough for our decision. In these circumstances ... it is inevitable that this case should be remitted to the ... justices ..." (my underlining)
The second reference to this ground of appeal appears in the same paragraph of the Visiting Justice’s report. He says:
"It is considered that appellant’s application was simply delaying tactics".
This is a perfectly natural reaction but, in law, it does not mean anything. It is very much like the expression one so often hears: "It was only a technicality". There are, in a criminal trial, no technicalities in the sense that so many people use that word. If an objection is valid, that is the end of the matter no matter how inconvenient the result may be in regard to the particular course which the responsible authorities have chosen to follow. As I have already said, there are usually other avenues available but the basic principle is simple. the law must be obeyed, not by prisoners only, but by everybody. As King Canute said, "no deviation shall be allowed". The "rules which bind" are just as binding on those who are paid to see to the proper administration of justice as they are on those they brand as having broken the law. More so, in fact, because if they are paid to see to the proper administration of justice the sine qua non of their employment is that, apart from any legal fiction which might apply to others, they (or their responsible superiors) know what the law on the particular point is. If applicant happened to be correct in what he said about that particular point then that was the end of the matter.
The fourth occasion on which the Visiting Justice deals with the basic allegation (I am leaving the third occasion for a moment) is in paragraph (f) of his report which reads:
"If the O.I.C. is from the Sepik and a Magistrate is from West New Britain, how could they be brothers -inlaw?"
If this was intended to be an answer to the allegation then, quite clearly, it is not sufficient. An allegation such as this must be dealt with head-on and not obliquely. It must be answered by a clear admission or by a flat denial, not by inferential argument. And, in any event, the inference sought to be drawn from the argument is clearly invalid. Many people from West New Britain are married to people from the Sepik.
I, however, do not take the passage to be in answer to the allegation. It is, instead, an answer to another inferential argument which had been raised in paragraph (b) of the report. There, the Visiting Justice said:
"Under s. 27(1) of Corrective Institutions Act it (is) clearly specified that the decision to charge for an aggravated offence is made by the O.I.C. and no one else. Whoever appears, apart from the O.I.C., appears as a Prosecutor and is not prosecuting his own case but appears on behalf of the O.I.C."
In so far as this argument echoes what I dealt with in Appeal of Ninya Limbiye[24] (that is, that when a policeman prosecutes a case he must act as "a minister of justice") it is perfectly correct in the majority of instances. In this particular case, however, it is not a valid argument because the O.I.C. really had nothing to do with the matter apart from the purely technical one of (presumably) approving the laying of the charge. It was a Mr. Gesa who was the "Informant" and he was also the main witness against the Appellant. In fact, as we shall see in a moment, he was actually the ONLY witness against him and the whole case stood or fell on what he said. For this reason there was nothing "technical" about his involvement and it was his relationship with the particular Visiting Justice who constituted the Court that was objected to, not that of the O.I.C.
If there was any truth in that objection then, as I have said, there can be no doubt that, although the Visiting Justice believed (to quote Sir Hubert Murray’s words) that he could;
"act most fairly,"
the law on the subject is clear:
"He should abstain from interferring in cases where (he is) ... indirectly interested."[25]
because the test (as Lord Merriman repeated some thirty years later) lies in the answer to this simple question:
"Might a reasonable man suppose that there had here been an interference with the course of justice?"[26]
Appellant says, in the Report which he filed so that the procedures for getting his appeal before the learned Senior Magistrate could be begun, that he repeatedly told the Visiting Justice that he objected to him hearing the case. And he gave, as his grounds for that objection, the precise grounds which Sir Hubert Murray C.J., Lord Hewart L.C.J., Swift J. and Merriman P. all, one after the other (and it is important that we, in this country, note that they did it in that chronological order) gave for a supervisory or review court taking the case away from the Magistrate or Judge who is hearing it and declaring the whole proceeding to be a nullity and void.
I do not know whether (in fact as distinct from law) the objection was valid or not. Nor do I need to know. All I need to know is the fact that it was made - and made repeatedly - appears in the Report which set in motion the process which ended with the learned Senior Magistrate being flown to Goroka to hear the appeal. There was, for this reason, ample time for the objection to be answered if it was not true. As I have explained, it was not answered so it was the clear duty of the first appeal court - as it is mine, at this second level of appeal - to act on the basis that the objection, and the allegation on which it was based, could not be denied. That being so it was the duty of the first appeal court (as it is mine) to declare that the objections which the Appellant raised before the Court of the Visiting Justice were valid as far as the law is concerned - and irrespective of whether they were valid in fact - because Magistrates (and Judges) must -
"abstain from (sitting) in cases where they are directly or indirectly interested"[27]
(in the legal understanding of those terms) because
"although they may act most fairly, still their conduct is open to suspicion."[28]
I repeat that I do not know whether, in fact as distinct from law, the objections were valid. I do this because, as Lord Merriman said in regard to the English Magistrate, Mr. Browning, who was chairman of the court whose decision has appealed against in the case with which he was dealing:
"I am not imputing, or thingking of imputing, to Mr. Browning any bias in fact but, applying the principles of these cases, it seems to me impossible to resist the conclusion that this particular (appellant) might reasonably have formed the impression that Mr. Browning could not given this case an unbiased hearing..
That is enough for our decision. In those circumstances ... it is inevitbale that this case should be remitted back ... in order that it shall be dealt with by another tribunal of which that particular justice is not a member." 29
Whether I should make the same order in this case depends on considerations which are rather unusual. When the matter first went on appeal an order such as that made by Lord Merriman would have undoubtedly been proper. That, however, was a long time ago and the Supreme Court has, on a number of occasions recently, spoken of the undesirability of such an order where there has been a substantial lapse of time which was not the fault of the appellant. And, as I said, at the beginning, the delay cannot be attributed to anybody, least of all to the appellant.
In addition, there are two reasons which are unique to this case and I find them compelling. The first is that although the charge is that Appellant "refused to obey a lawful order" (in that he "refused" to work on 27th December 1979 - a point to which I will return), the evidence is clear that he was charged as being a ringleader in a project to hold a demonstration which, if it had been held, would have formed part of what might be called the Goroka segment of what has become known as The Rooney Affair. I do not wish to say anything about this aspect except that it does seem to have had an extraordinary miasma about it so the line between "spokeman" and "ring-leader" may have become blurred. It is important, however, to note that nobody else seems to have been charged and to send the case back for hearing nearly two years after it had best been forgotten would be to put the administration of justice unnecessarily in a bad position.
The main reason why I feel that it would be better not to send the case back for hearing before another magistrate is that, on the evidence, I do not see that any useful purpose could possibly be served by doing so. The evidence of Mr. Gugu Owawa, the Chief A.C.O. at the prison where all the events took place - and he was the only witness apart from Gr. Gesa - is:
"I came down to the compound at about 8. a.m. and asked the Clerk to have roll calls for detainees. At the same time Joseph Marben came and said:
"Chief, we have a bit of worry."
"What kind of worry?" I asked.
The rest of the detainees sat down within the enclosure and he, Joseph Marben, read out (something). (I said) "I can’t answer you. (give me time and I’ll ring the O.I.C. and his deputy...."
...
The O.I.C. acted on the matter and told me that the detainees must not work otherwise, if we let them work, some of them may escape." (my emphasis)
Despite this, the charge is that, on that day, the appellant refused to carry out a lawful order, that is, to work.
In all the circumstances I think that it would be inappropriate for me to order that the case be begun again. My order, accordingly, is that the appeal is upheld; the order of the appeal court of first instance is reversed; the original conviction is quashed and the sentence of five months and one week cumulative imprisonment is vacted. And I order that the bail monies which I understand the appellant has paid, be paid back to him.
Solicitor for the Appellant: Public Solicitor A. Amet
Counsel: W. Neill
Solicitor for the Respondent: Public Prosecutor L. Gavara-Nanu
Counsel: F. Damem
[1] Kundiawa, 18 June, 1981
[2] [1978] HCA 5; (1978) 138 C.L.R. 182 at p. 189; [1978] HCA 5; 18 A.L.R. 422 on p. 427; 1978 A.L.J.R. 330 at p. 332.
[3] (1975) 3 All E.R. 78 at p. 80
[4] (1943) 1 K.B. 252 at p. 255
[5] Instruction of 19 October 1934 Government Printer Port Moresby.
[6] Appeal of Michael Dai Kaupa, Waigani, 20th January, 1981.
[7] Madang, 5th June, 1981.
[8] (1980) 1 All E.R. 913.
[9] (1980) 1 All E.R. 913 at 917.
[10] (1980) 1 All E.R. 913 at 922.
[11] Port Moresby 25 September 1956; Library Collection Vol. 2. No. 91
[12] Port Moresby 20th January 1981.
[13] Wabag 14th July 1981.
[14] [1973] PNGLR 89
[15] 1979 Od. R. 444 at p. 450.
[16] Kundiawa, 18th July 1981.
[17] Kainatu, 20th February, 1981.
[18] 1939 2 All E.R. 535 at p. 539.
[19] (1939) 2 All E.R. 535 at p. 539.
[20] Circular Instructions, 1st September 1931 (Government Printer, Port Moresby, Page 41.)
[21] Rabaul, 1953. Quinlivan Reports
[22] (1927) 2 K.B. 475.
[23] (1939) 2 All E.R. 535 pages 540 and 541.
[24] Wabag, 24th July, 1981.
[25] see note 20 above.
[26] see note 22 above.
[27] Murray, C.J., at note 20 above.
[28] Murray, C.J., at note 20 above.
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