Tomalom, The State v [1976] PGNC 56; [1976] PNGLR 512 (19 November 1976)

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CRIMINAL LAW - Particular offences - False assumption of authority - Assuming powers of magistrate - Official of Warkurai Ni Gunan - Document in form of District Court summons - Action not authorized by s. 17 (2)[dlix]¹ of the Gazelle Peninsula Affairs (Temporary Provisions) Act 1973 - Belief that acts authorized mistake of law not of fact - Criminal Code s. 96[dlx]².

The accused was charged under two counts with falsely assuming the powers of a magistrate under s. 96 (a) and (b) of the Criminal Code, the charge arising out of the issuing and signing by the accused over the word “Magistrate” of a document purporting to be a summons to a “District Court”, which appeared to be a court set up by the Warkunai Ni Gunan, a branch organization of the Mataungan Association, and an incorporated recognized group under the Gazelle Peninsula Affairs (Temporary Provisions) Act, which as such had powers under s. 17 (2) of that Act to “(a) do all things which in its opinion are desirable for the welfare of its members and their families; and (b) provide goods and services for its members and other persons, with or without charge.”

N1>(1) The document could not be construed as anything but an assumption and a pretended exercise of magisterial form, following as closely as it did the form and content of a District Court complaint and summons.

N1>(2) Section 17 (2) (a) and (b) of the Gazelle Peninsula Affairs (Temporary Provisions) Act could not be construed as authorizing a recognized group to exercise functions of a court in regard to its members; assuming such a group’s powers extended to arbitral functions by consent among its own members, the section could not be construed as intending to give powers outside its own membership (as was the case).

N1>(3) If, as was alleged, the accused held an honest and reasonable, though mistaken belief that the activities of the Warkurai Ni Gunan’s courts had been recognized and legalised, such a belief would be a mistake of law and not of fact, and s. 24 of the Criminal Code would not be available as a defence.

The accused was charged under two counts with assuming the powers of a magistrate contrary to s. 96 (a) and (b) of the Criminal Code. The facts giving rise to the charges appear in the reasons for judgment hereunder.

PRENTICE DCJ: The accused is charged under two counts with assuming the powers of a magistrate. The first count is under s. 96 (a) of the Criminal Code:

(a) not being a Magistrate or justice assumes to act as a Magistrate or justice, as the case may be;

(b) without authority assumes to act as a person having authority by law to administer an oath or take a solemn declaration or affirmation or affidavit, or to do any other act of a public nature which can only be done by persons authorized by law to do so;

The charges arise from the issuing and signing of a document purporting to be a summons to attend what I understand to be a “court” set up by the Warkurai Ni Gunan a branch organization of the Mataungan Association.

Then follows the Mataungan Association crest in coloured printing. Underneath, appears in bold type,

“WARKURAI NI GUNAN SECURITY PATROL ASSOCIATION: DISTRICT COURTS ORDINANCE — 1976-1977-1978:”

Where as a complaint has this day been made before the undersigned of a District Court for that you (here state shortly the matter of the complaint).

We want you to return the shell money which was used to purchase the complainant’s daugher with. (translation)

These are therefore to Command you to appear before the District Court in the said Territory

at 9 o’clock in the fornoon to answer the said Complaint dealt with according to Law

The Complaint’s address for service is at which all notice or document may be served

This document which apparently does, and was proved to, hold the signature of the accused, and to have been issued by him, was served upon one Oscar To Value who is not a member of the Mataungan Association. The recipient being concerned at the use of the term “magistrate” by the accused, took the document to a Local Court Magistrate who referred him to the Superintendent of Police in Rabaul and a prosecution was launched.

Affidavit evidence was tendered to establish that the accused was not prior to Independence, and since has not been appointed, a Magistrate.

The accused having apparently elected to give evidence on committal, was questioned in the District Court. The evidence he gave there was adopted in this trial by his counsel and supplemented by a statement on oath, for purposes of the submissions made. To police he had stated he “felt that it” (the summons) “was not a valid document and that the five Warkurai Ni Gunan ‘court’ officials do not get paid”. In his evidence he stated “the headmen of Warkurai Ni Gunan and 1000 people agree being given power to summons people who do wrong”. Asked what was his authority, he produced a Certificate of Incorporation of Recognised Groups in respect of the Warkurai Ni Gunan given under the Gazelle Peninsula Affairs (Temporary Provisions) Act 1973, and dated 4th June, 1976. This, he said, gives the Warkurai Ni Gunan “power to do all work for the people ... judging for trouble. It is true this summons is to fetch men who have got trouble. We help the Government, Europeans, Chinese and half caste know how to come to the Warkurai Ni Gunan. This registration gives power to summons all people to come to the Warkurai Ni Gunan”. He said he signed three or four such summons a week and got paid for his magisterial work in money and tambu according to customs.

The accused stated that because the Warkurai Ni Gunan had been in operation for eight years he believed the Gazelle Provincial Affairs (Temporary Provisions) Act recognized its activities.

It was firstly submitted on a no case to answer basis that the accused had neither “assumed to act as a magistrate” nor “assumed to act as a person having authority by law to do an act of a public nature”. He was not it was submitted, pretending to be a District Court Magistrate, but was merely using a form copied (by Hosea Biu as was evidenced by Mr. Biu) to express in Western terms, village customary machinery.

I was of the opinion that the document could not be construed as anything but an assumption and a pretended exercise of magisterial power. Having referred in its heading to a District Courts Ordinance of optimistic life, it proceeded as a “Summons to a person upon Complaint” and said by way of prefatory statement “Where as a Complaint has this day been made before the undersigned of a District Court for that ...” (emphasis mine). “These are therefore to Command you to appear before the District Court in the said Territory ... to answer the said Complaint dealt with according to Law ...

In my opinion these features were clearly intended to mislead recipients into believing the issuer had magisterial powers according to the laws of Papua New Guinea — powers that he did not possess.

It was next argued that the Gazelle Peninsula Affairs (Temporary Provisions) Act by its s. 17 (2) (a), (b) indeed gave the accused the power of a magistrate as the Warkurai Ni Gunan was an incorporated recognized group.

(a) do all things which in its opinion are desirable for the welfare of its members and their families; and

(b) provide goods and services for its members and other persons, with or without charge.”

I find it difficult to construe s. 17 (2) (a) and (b) as authorizing the Group to exercise functions of a court in regard to its members. But even assuming its powers extended to arbitral functions by consent among its own members, it is, I consider, impossible to read the section as intending to give it any powers at all outside its own membership, certainly not powers to summon, charge, adjudicate and enforce decisions against non-Mataungans. The defence that the accused’s activities were justifiable under that Act and the Warkurai Ni Gunan’s subsequent registration, is I think untenable.

Next it was asserted that the accused was entitled to be held not criminally responsible for any misrepresentation or assumption of authority (s. 24 Criminal Code), as having laboured under the mistake of fact as to the effect of recognition of the group, his belief an honest and a reasonable if mistaken one, being that the activities of the Warkurai Ni Gunan’s courts had been recognized and legalised thereby. Such a defence having been raised, it is for the prosecution to negative it to the necessary standard of proof. I am satisfied that the evidence negatives such an honest and reasonable belief that the accused was entitled to do what he did. But in any event, if he had entertained such a belief, it appears clear to me that any mistake which he might have made, would have been a mistake of law and not of fact. Section 22, the section which deals with ignorance (mistakes) as to law, does not provide an excuse in a case of this character. The accused is convicted on both counts.

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[dlix][dlx] Infra p. 513.

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National Court of Papua New Guinea

Tomalom, The State v [1976] PGNC 56; [1976] PNGLR 512 (19 November 1976)

Papua New Guinea Law Reports - 1976