State v Kiliki [1990] PGLawRp 676; [1990] PNGLR 216 (6 June 1990)

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CRIMINAL LAW - Particular offences - Attempt to “pervert” the course of justice - Requires evidence of attempt to turn aside course of justice - Acts having requisite tendency - Lay preacher writing to magistrate in course of proceedings - Criminal Code (Ch No 262), s 136.

The Criminal Code (Ch No 262), s 136, creates the offence of “attempting to pervert the course of justice”.

N1>(1) Applying the ordinary English usage of the verb “pervert” in the context of s 136, an attempt to pervert the course of justice should be evidenced by an attempt to turn aside the course of justice from its proper direction or to influence a court or tribunal to stray from its duty under the law by conduct having that tendency.

N1>(2) A letter written by a Lutheran lay preacher to a magistrate suggesting that the decision in a matter before the magistrate would cause “a breach of the peace” and requesting the matter be terminated temporarily and referred to officers of the Lutheran Church, evidenced an attempt to pervert the course of justice.

BRUNTON J.: The accused pleaded not guilty to an indictment alleging that he attempted to pervert the course of justice contrary to s 136 of the Criminal Code (Ch No 262) which provides:

A person who attempts, in any way not specially defined in this Code, to obstruct, prevent, pervert or defeat the course of justice is guilty of a misdemeanour.”

“Geyamme Kiliki of Labu Butu village Norobe Province is charged that he on or about the 17th day of August, 1989 at Lae in Papua New Guinea attempted by making away with writing a letter to the Lae Grade 5 Court Magistrate Teresa Anne Doherty to pervert the course of justice upon the prosecution of one Ango Tia and 6 others on a charge of unlawful carnal knowledge of an imbecile.”

In essence it was alleged that by writing a letter to the learned magistrate (as she then was) the accused had attempted to pervert the course of justice.

The State tendered in evidence an affidavit from her Honour, Acting Justice Doherty to which the letter of 17 August 1989 was annexed. Defence counsel did not seek to challenge the form, or the tendering of this evidence in any way.

I, Geyamme kiliki, am a Leader, Laymen and an Optimist of Labu Butu Congregation of the Evangelical Lutheran Church of Papua New Guinea.

In connection with a Criminal Case before you involving a group of seven young men and a young girl, namely: Pamalana Bingmalo, You Honour, it is my submission (on behalf of Leaders and Elders of Labu Butu Congregation) that:

1. The word Longlong has to be defined in this Court of Law. As far as we are concern, a person who is known to be Longlong is of unsound mind. In Pamalan’s case, she is not Longlong. Therefore I would like to declare publicly in this Court of Law that Ms Pamalan Bingmalo is not longlong.

2. There are two elements in this case, Criminal and Social. The first element (Criminal) which is being promptly responded to has a short term effect and will not solve this problem in the long run. However, the second element (Social) likely to be ignored at this stage has a long term effect and will definitely solve this problem today and in the years to come.

3. I have seen that already, families, relatives and friends have taken sides in this case and Labu Butu Congregation is splitted into two. Factually, any Court rulings that proceeds on the 18th August 1989 will provoke a breach of peace in the Congregation and will also destroy christian faith, justice and harmony with God’s people in Labu Butu Congregation.

4. The Melanesian Society’s Way of solving problems shall be considered very seriously by this Court of Law. I believe the Only solution to this problem, through Melanesian Way, is to get a young man from this group to marry this young girl, Pamalana Bingmalo, and be the Father and Head of this young Family of God.

In relation to this submission, Your Honour, I recommend that this case be re-directed, with the findings of this Court of Law, to the Social Concerns Office of the Evangelical Lutheran Church of Papua New Guinea for a more Peaceful, Harmonious And Beneficial conclusion.

I as an Uncle, Brother and Relative of the Complainants and the Defendants, with the help of God, acting with and in accordance with the recommendations of Leaders and Elders of Labu Butu Congregation, would kindly like to ask this Court of Laws [sic] of the Independent State of Papua New Guinea to terminate this Criminal Court Case temporarily and refer to it to the Social Concerns Office of the Evangelical Lutheran Church of Papua New Guinea.

The letter was under the letter-head of the Evangelical Lutheran Church of Papua New Guinea: Rt Rev, Gatake S Gam, Bishop — although it was clear from other evidence that the Bishop knew nothing of the letter.

The real issue in the case was whether by writing the letter the accused had “attempted to pervert” the course of justice. This involved the resolution of two sub-issues. What was the meaning of the word “pervert”? And, did the letter amount to an attempt to pervert the course of justice.

There was no dispute on the evidence that a trial was under way which involved villagers from Labu Butu on a charge of unlawful carnal knowledge of an imbecile, or that the letter came to the attention of the learned magistrate before she had determined the case.

The ordinary English usage of the verb “pervert” is to turn aside a thing from its proper use; to lead astray a person, or a person’s mind from a right opinion, or conduct: Concise Oxford Dictionary (5th ed), at 908 — pervert.

Although there were no authorities cited on this issue, it is proper that words be given their natural meaning, and I was unable to find any case law to suggest that the word pervert had any special legal meaning, or was a term of art.

In the context of s 136 an attempt to pervert the course of justice should be evidenced by an attempt to turn aside the course of justice from its proper direction; or to influence a tribunal or court so as to lead it astray from its proper conduct, its duty under the law.

The common law controlled this type of interference, until recently, through the law of contempt: Archbold’s Criminal Pleading, Evidence and Practice (38th ed, 1973), at 1346 says:

“Likewise it is a contempt to seek to influence the outcome of a pending cause by interfering with those concerned in it, as to seek to influence a judge by some bribe or private communication: Martin’s Case [1747] EngR 162; (1747) 2 Russ & My 674; 39 ER 551; Macquill’s Case (1748) 2 Fowler’s Exch Prac (2nd ed), p 404; R v Gurney (1867) 10 Cox CC 550; Ex p Jones [1806] EngR 374; 13 Ves 237; Re Ludlow Charities, Lechmere Charlton’s Case (1837) 2 My and Cr 316 at 339; [1837] EngR 524; 40 ER 661 at 669.”

See also the Papua New Guinea cases Public Prosecutor v Nahau Rooney (No 1) [1979] PNGLR 403 and Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448, for cases involving a letter written to the Chief Justice.

There are a number of passages in the accused’s letter which are capable of being construed as improper attempts to influence the course of the trial that was under way. It should be emphasised that the case before the learned magistrate was prosecuted and defended by counsel. The parties were properly represented. Counsel participating were nationals and the learned magistrate was experienced, aware of, and sensitised to the issue before her. This was clear to me from pars 3, 4, 9 and 10 of the affidavit of Acting Justice Doherty sworn on 4 June 1990.

“In Pamalana’s case, she is not Longlong. Therefore I would like to declare publicly in this Court of Law that Ms Pamalawa Bingmalo is not longlong.”

I go to one of the essential elements of the offence being tried by the learned magistrate — whether or not the prosecutrix was an imbecile.

“Factually, any Court rulings that proceeds on 18th August 1989 will provoke a breach of peace in the Congregation and will destroy christian faith, justice and harmony within God’s people in Labu Butu congregation”

are words that have a tendency to influence the court. Whether or not those words did influence the court is neither here nor there (in fact they did not influence the court). But the effect of telling a magistrate or a judge that tomorrow’s ruling will cause “a breach of the peace” has the tendency to throw the tribunal off-balance. It is rather like an attempted ankle-tap in the game of rugby league. Sometimes the player runs through the ankle-tap, but on the other occasions the player is brought drawn in full-flight. The tendency of the ankle-tap is to disrupt play. Sometimes it is successful; sometimes it is not.

“I ... would kindly like to ask this Court of Laws of the Independent State of Papua New Guinea to terminate this Criminal Court Case temporarily and refer it to the Social Concerns Officer of the Evangelical Lutheran Church of Papua New Guinea”

also amount to an attempt to turn aside the proper course of the court proceedings. The gracious language used in this passage, and the fact that it is phrased as a request do not detract from its intent, which was to turn aside the proper course of the proceedings. If the paragraph had been on its own, it may well have been ignored by the learned magistrate — but it did not stand alone. It was the conclusion to a series of points, two of which have been referred to, above. In particular, it may be linked to the suggestion that the ruling of the court will provoke a breach of the peace.

The Court was not addressed on the case law and has not been able to find any English case, on attempting to pervert the course of justice by writing a letter to a judge or a magistrate. In R v Rowell [1977] Crim LR 681, Rowell made a false statement to the police that he had been robbed by another at pistol-point. He later admitted that the allegation was a joke. The Court of Appeal (Criminal Division) ruled that these facts could support a conviction for attempting to pervert the course of justice: “What mattered was the nature and likely effect of the conduct charged, not the wording of the indictment.”

In R v Sultana [1978] Crim LR 300, the appellant had been responsible for putting those who wanted to bribe a witness in a case, in touch with that witness. He was convicted of conspiracy to pervert the course of justice. In R v Machin [1980] Crim LR 376, the appellant who had visited a police station with a friend to make a statement in which he admitted certain motoring offences, got his friend to punch him in the eye. The appellant’s wife lodged a complaint about police brutality at another police station. The Court of Appeal (Criminal Division) dismissed the appeal and held:

“Considering Vreones [1981] 1 QB 360; Andrews [1973] QB 422 and Rowell [1978] 1 WLR 132, the gist of the wide general offence variously referred to as perverting or obstructing the course of justice, obstructing or interfering with the administration of justice, and defeating the due course, or ends, of justice, was conduct which might lead to a miscarriage of justice, whether or not a miscarriage actually occurred. Use of the word ‘attempt’ in the present context was misleading but convenient when actual perversion of the course of justice could not be proved. ‘Attempt’ did nothing more than described a substantive offence which consisted of conduct which had the tendency and was intended to pervert the course of justice. To do an act with the intention of perverting the course of justice was not enough; the act must also have that tendency. The jury were not to be directed to assess the conduct in terms of proximity to an ultimate offence but were to be left to consider its tendency and the intention, as had been done. The acts alleged had a tendency to pervert the course of justice even though the appellant’s plan was not pursued to a final successful conclusion. The verdict was supported by the evidence.”

The essence then of the offence, whether its facts are rooted in time before a trial, that is, in the police investigation, or are part of the trial-process such as interfering with witnesses, or trying to persuade a judge or magistrate to do something, or not to do something, is that the conduct might lead to a miscarriage of justice, whether or not a miscarriage actually occurred. There must be an act which attempts to “turn aside” the course of justice, and the act must also have that tendency.

The letter written by the accused could have thrown the learned magistrate off-course; it had that tendency. A magistrate could have interrupted an on-going trial for the sake of “peace”. It matters not that the learned magistrate was not influenced in her decision. Others might well have been. Accordingly, I convict the accused of the charge laid in the indictment.

Sentence: Discharged under s 19(1)(f) of the <i>Criminal Code recognisance of K500, without surety, for a period of two years, conditional upon his keeping the peace and being of good behaviour.

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Papua New Guinea Law Reports

State v Kiliki [1990] PGLawRp 676; [1990] PNGLR 216 (6 June 1990)

Papua New Guinea Law Reports - 1990