Kurondo v Dabiri [1980] PGNC 32; N258 (26 September 1980)

Unreported National Court Decisions

N258

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
BETWEEN
SIWI KURONDO
APPELLANT
AND: LINDSAY DABIRI
RESPONDENT

Kundiawa

Miles J
24 September 1980
26 September 1980

MILES J: The appellant was on 1ecemDecember 1979 convicted in the Kundiawa District Court of an offence under Section 7 (b) of the Summary Offences Act 1977, which provides as follows:

The charge against the appellant was that he used insulting words with intent to provoke a breach of the peace.

There was a variance between the information and the evidence duly called as to the words used by the accused. Those words were uttered in Pisin but it seems that the magistrate proceeded on an English translation which came from the witnesses who heard the words in their original form.

For reasons upon which I will later elaborate it is preferable to relate the whole of the facts, rather than to spell out the words themselves in isolation.

For the purpose of this appeal the magistrate found and was entitled to find the following facts. On Friday 12th October at about 10.00 p.m. the appellant with one or two other people arrived at the Kundiawa Police Station and proceeded to a duty counter. There were three policemen nearby. A son of the appellant was then in the cells at the station, having been remanded that day by a court in Kundiawa. He had been granted cash bail in the sum of K20.00 and the appellant was there to bail him out. In addition to what one imagines to be the normal concern a father feels about a son locked up in police cells, the appellant was particularly concerned about this son who had apparently an injured hand.

Constable Noboya Gogowa who was attending to the appellant told him that the son had been granted bail by the Court and that it was not possible for him to be bailed out through the police channels. What the appellant had to do, so he was told, was to wait until the Monday, go to the local office of the Bureau of Management Services, pay the bail money there, bring the receipt back to the police station and then and then only the son would be released. This account of the required procedure as related by the Constable was quite accurate, as the magistrate’s judgment indicates.

However it was news to the appellant. He apparently did not understand why, if the son was locked up in a police station he could not pay the bail money at the police station and so effect his immediate release. After some sort of comment by the appellant to the effect of “What sort of men are you?”, Constable Noboya had to repeat himself. The atmosphere grew heated and the appellant threatened that if his son was not released then he would go to the local corrective institutions and release all the prisoners. Upon the appellant’s request to know where he came from, Constable Noboya disclosed that he was from Morobe. This was too much for the appellant. He bagan to bang his fist on the counter and he delivered himself of the following:

“You and your Prime Minister! You think you are doing a good job. If I go tomorrow and tell all the prisoners to come out you police and warders will all cry straight. If I want, all you coastal people will finish staying in Simbu. I will put a mark on the Kassam Pass and no coastal people will come up to Simbu. You have a coastal government and we have a Highland government. You and your Prime Minister know nothing, only to follow the white man, living off the white man’s crusts.”

There were two other policemen, Highlanders as it happened, who heard all this. There were other people in the vicinity but there is no evidence that they heard the words complained of. The appellant left the police station. There was no arrest. The present proceedings were commenced by summons. It is of some significance, though not much, that at the time the appellant was the Premier of the Simbu Province. There was obviously some political significance in his outburst, which I think would reduce rather than increase any tendency to be insulting.

The first point taken on the appeal is that the words were not insulting within the meaning of section 7 (b) of the Summary Offences Act 1977. The second was that there was insufficient evidence that the appellant intended to provoke a breach of the peace. There was a third submission, which was really something common to the other two submissions, namely that the magistrate had paid insufficient attention to custom, or what was called Melanesianism.

I deal firstly with this last submission. It was said, if I understand the submission correctly, that the people of Papua New Guinea customarily communicate with each other in ways which might sound harsh and aggressive to foreigners, but that in truth all they are doing is bringing their differences out into the open and that the citizens of the nation who happen to overhear such discussions are not affected - by this I take it that it is suggested that they are not alarmed or offended.

One of the difficulties about arguments about custom is that a court has to decide how far it can take custom into account as a matter of judicial knowledge or how far it should rely on evidence from witnesses as to what constitutes the custom relied upon. In the present case I was assured by Mr. Twine for the appellant that the custom was as he stated it. I was equally assured by Mr. Puaria for the respondent that it was not. I welcome assistance from the Bar table on matters of this nature. Both gentlemen in addition to being lawyers are Melanesians. But in the absence of evidence how can I decide who is correct?

The point about custom seems to have been lost on Constable Noboya because he says that he was insulted and ashamed, never having come across such behaviour before, and particularly because he was the only person from the coast among those present. It was not suggested to Constable Noboya that his sense of affront and shame was not justified in the light of the customs of the people of Morobe or Simbu or the people of Papua New Guinea as a whole. Moreover, there are places where custom may not be as important as say in a village. Melanesian magistrates do not allow litigants to work out their differences by shouting at each other in the court room. Customary ways of this nature may not be wholly applicable in a police station. I am not convinced that the argument about custom is of any significance in the case.

I turn now to the point as to whether the words were insulting. In his carefully reasoned judgment the magistrate insulting. In his carefully reasoned judgment the magistrate said that if the person to whom insulting words are directed upon hearing those words becomes insulted then this element of the offence is made out. The law is however to the contrary. The question is not whether the recipient was insulted but whether such person as he would tend to be insulted. In this respect one does not look at the actual reaction of the person to whom the words were directed but to the reaction which one might reasonably expect. There may be cases of course when words are addressed to a person one knows to be easily hurt or particularly susceptible. In the present case, the words were directed towards someone the speaker did not know in particular. The test is whether the speaker as a reasonable person should in all the circumstances expect that the recipient would be insulted, and not merely hurt as to his feelings but insulted to the extent that he was deeply offended or outraged.

The word “insulting” in s. 7 (b) has to be read in conjunction with the words immediately preceding, namely “threatening” and “abusive”. The judgment of Kerr J. as he then was in the Supreme Court of the Australian Capital Territory in Ball v. McIntyreN258.html#_edn300" title="">[ccc]¹ is particularly helpfven then though that case involved a charge of offensive behaviour rather than insulting words, and the events took place in another country:

“conduct which offends against the stds of good taste or good maod manners, which is a breach of the rules of courtesy or runs contrary to the commonly accepted social rules may well be ill-advised, hurtful, not proper conduct, but it may well not be offensive conduct within the meaning of that section ... different minds may well come to different conclusions as to the reaction of the reasonable man in situations involving attitudes and beliefs and values in the community, but for my part I believe that a so-called reasonable man is reasonably tolerant and understanding and reasonably contemporary in his reactions...”.

In this respect I think His Worship misdirected himself in law in considering that the test of whether the words were insulting was whether the person to whom they were directed was in fact insulted. I would not on that ground however have allowed the appeal because, apart from the aspect I discuss immediately below, I think it was open to the magistrate to find that the words used by the appellant would in themselves tend to insult any self-respecting Morobean policeman, in particular the words of the last sentence used by the appellant.

However the words must not be considered in isolation from the circumstances. Here I think that the magistrate made an error of law which materially affected his decision. He did not give adequate weight to the events leading up to the use of the words. The circumstances were that the appellant came to the police station expecting to bail his son out. That he was unable to do so clearly came as a shock to him. One can have some appreciation of the position of an older man being told by a younger policeman that although his son was present in the cells he could not be bailed out until the Monday because the matter having been before the court, the police were no longer authorised to accept bail - they could only act in the production of a receipt issued by the Bureau of Management Services. One may appreciate the appellant’s sense of frustration and bewilderment. It is surely not beyond the power of human ingenuity to have a system whereby cash bail can be lodged at the police station where the prisoner is in custody, at least during reasonable hours at night or at the weekend when the Bureau of Management Services is closed.

Of course the appellant should not have vented his anger at the young policeman. The constable is not responsible for the system. There is no evidence that the constable acted other than courteously. The appellant was foolish in his throats to rouse the prisoners and to pack the coastal people out of the Highlands. As a responsible citizen he should have more sense than talk about dividing the country up between coastal governments and Highlands governments. Above all he should not attack a fellow citizen on the basis that he comes from a different part of the country. But the court is not here to enforce standards of conduct or morals which fall short of criminal behaviour. In all the circumstances of the evening in question, the words of the appellant although on the face of it insulting were not such as to so deeply offend and outrage a reasonable person that they constituted criminal conduct. As the magistrate did not give proper attention to the surrounding circumstances, the appeal should be allowed on this basis.

There is a further ground of appeal that the evidence did not disclose an intention to provoke a breach of the peace. This is a substantial ground. The offence is not merely one of using insulting words. The legislation is directed to public order, not as I say, to the public display of manners. It bears the title “Provoking a Breach of the Peace”. The use of insulting words, within the meaning of the section, must be accompanied by an intention to provoke a breach of the peace or alternatively a likelihood that there will be an actual occurrence of a breach of the peace. In this case the prosecution has elected to rely on intention and that intention must be strictly proved.

These are salutary provisions. They follow what has been the law in other places, notably England, for many years. They avoid or should avoid the controversy that arose from provisions such as those in the former Summary Offences Act 1970 in New South Wales where the courts had the power to punish breaches of good manners regardless of any intended or likely breach of the peace, (probably as a legacy of the convict origins of that State: see Smail & Others: Summary Offences in N.S.W., Butterworths, Sydney, 1980, Introduction, par. 9044-9055).

The magistrate correctly perceived the meaning of the term “breach of the peace”, quoting Carter’s Criminal Law of Queensland (5th edition) at p. 204: “... a breach of the peace arises where there is an actual assault, or where public alarm and excitement are caused by a wrongful act. Mere annoyance, and disturbance or insult to a person or abusive language or great heat and fury without personal violence, are not generally sufficient.”

The magistrate also correctly perceived that the use of the insulting words above was insufficient to show that the appellant had the intention to provoke a breach of the peace. There may be situations in which words alone would suffice - words indeed may now be regarded as sufficient provocation in the law of Papua New Guinea to justify violence - but that is not the point in issue here.

What was it then that the appellant did beyond using the words to show that he had the necessary intention to provoke the police to violence? The magistrate’s view was that “the banging of the fist on the police station counter coupled with the nature of the insulting words as used clearly shows he had the intention there to provoke a breach of the peace at that date and time and place in question”.

I am with respect unable to agree. Again it seems to me that the magistrate has not taken the whole of the surrounding circumstances into consideration. A policeman is not expected to be more thin skinned or less able to control his temper than other people. The appellant particularly as an older man can hardly be expected to have been inviting attack upon his own person by the constable. The wild talk about calling the prisoners out and blocking off the pass to coastal people was foolish and not to be taken seriously. Moreover, the appellant did not wait around the station continuing his abuse until stopped by action on the part of the police. He left quietly having got it all off his chest. The police did not chase him. They to their credit did not even arrest him. They waited and after sober reflection commenced the proceedings by summons. I am unable to see how the evidence shows any intention on the part of the appellant to provoke a breach of the peace.

For these reasons the conviction of the appellant entails a substantial miscarriage of justice. This is not to applaud the highhanded and unbecoming behaviour of the appellant - far from it. I hope he has the good sense to regret it. His conduct was however not criminal.

Orders will be: appeal upheld, conviction quashed, information dismissed, appellant discharged.

Solicitor for the Appellant: J.N.M. Teine.

Counsel: J.N.M. Teine.

Solicitor for the Respondent: L. Gavara-Nanu, A/Public Prosecutor.

Counsel: K. Puaria.

N258.html#_ednref300" title="">[ccc] ^{(1966) 9 F.L.R. 237 at p. 241.}