N277(L)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL NO. 272 OF 1980

BETWEEN:

BARUNKE KAMAN
APPELLANT

AND:

L. DABIRI
RESPONDENT

Kundiawa: Pratt J
12 November 1980

REASONS FOR DECISION

PRATT J: The appellant was convicted in the District Court, Kundiawa on 1st October 1980, with the offence of using insulting words to one Constable Yani on 31st March 1980, contrary to s.7(b) of the Summary Offences Act. The words as laid in the information were:

"What are you doing with the Provincial Member? Look baster, he is a member of the Provincial Government. You are trying to fool the Chimbu people."

The word "baster" is spelt throughout the magistrate’s handwritten depositions as "basta". In his reasons the magistrate does not say what interpretation he put on this word but I cannot be satisfied it is anything other than the slang Australianism "buster" which undoubtedly has a slightly pejorative flavour but is nevertheless a mild form of expression, compared with others. Counsel for the appellant proceeded with his submissions on this basis. The State did not make any submissions in reply.

It was accepted by both parties to this appeal and by the magistrate that the words of the section "whereby a breach of the peace is likely to take place" governed paragraphs (a), (b) and (c) of s.7 and by clear implication such interpretation follows on the recent decision of Miles J. in Siwi Kurondo v. Lindsay Dabiri. I think this is so, but in any case I am not prepared to find otherwise for the purpose of this appeal. The format of the section in Andrew’s textbook is quite misleading.

The main ground of appeal has been presented in two separate segments - (a) the words were not insulting and (b) no breach of the peace was likely to occur. Both areas have been examined closely by Miles J. in the abovenamed decision and I do not propose to traverse the same ground. Provided one bears in mind that what might be reasonable or only discourteous in Canberra may well give rise to a first class brawl in Kundiawa with no holds or axes barred, then I adopt what His Honour says in that case. This proviso, I think, relates to both elements with equal force.

However, I am puzzled as to what could be said to constitute insulting words in this case. Unfortunately I can find nothing in the magistrate’s reasons to assist my search for clarification. There is only the bald statement - "the Court finds that the element of the use of insulting words is proved beyond reasonable doubt". I do not know what words were insulting, to whom they were insulting, or in what way they could be said to be insulting. If the magistrate has placed a special connotation on the word "baster", it is unfortunate he did not say so. If some other words, or if all the words put together, constitute something insulting rather than impolite or discourteous within the context and circumstances of Kundiawa town at the time, I would have appreciated the magistrate’s guidance and instruction. "Buster" is not a pidgin word. The whole conversation between the appellant and the police constable was in English. I have no doubt that the appellant was endeavouring to impress the policeman with his own sense of self-importance and the authority of his position. But there is a distinct gap between what might have amounted to arrogance or rudeness and what constitutes insulting words, even to a policeman in the fairly tense situation of Kundiawa. Perhaps the appellant’s demeanour, tone of voice, choice of language and manner of approach may have amounted to "behaving in an insulting manner", but that is not the charge here. I appreciate that because all the above factors rely on subjective reaction, recast in formal terms, for purpose of objective proof in a criminal charge, the end result is a charge which is not easy to prove.

As Miles J. says at p.4 of Siwi Kurondo’s case (supra), "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". I do not take these words to mean that because a person’s over-inflated sense of his own importance or a belief in his own infallibility within the community has been called into question, that he can call in aid the provisions of the criminal law. Whilst there is no excuse for members of the community exhibiting disrespect to the police, there is also no place for thin-skinned police officers, even taking into account the special difficulties which the police face in certain areas of the Highlands.

It is the duty of the courts to safeguard the fine balance between freedom of speech and a genuine breach of s.7 of the Summary Offences Act.

This, of course, is the very type of case where an Appeal Court is reluctant to substitute its own view for that of the magistrate. He is the man on the spot, he has the feeling of the place, he is aware of the tensions within the community and the everyday events of the town which lend colour to many apparently innocent expressions. It is not proper for an appeal judge merely to substitute his own view and to disregard the valuable assistance which a person experienced in a particular location can contribute in the application of the law to a given set of circumstances. But there must be something in the evidence to substantiate the finding and there should be something in the reasoning to justify the conclusion at which the court has arrived. I am just unable to see how the words constituting the charge here can be said to be "insulting" in a proper legal sense. The constable himself described the appellant as "impolite".

Although it is not necessary for me to consider the second element of the charge, I would add that the evidence as to a "breach of the peace being likely" was somewhat sketchy. There was certainly some noise, and someone (whether police or civilian is not clear) did suggest to the constable that they all retire to the police station. It is a great pity the appellant did not make his enquiries there in the first place instead of "big-noting" himself in the main street on the pretext that he had to find out there and then what the police were doing with a Provincial Member in custody. Had he done so, he would have discovered that the whole exercise had been undertaken for the benefit of the member, who interestingly enough, was not called by either side. Perhaps he was ashamed that as a result of the police doing him a good turn, they ended up in the middle of a scene. I hope so. The evidence however as to a breach of the peace is very thin on the ground. At no stage did the police constable say that he considered a breach of the peace was likely or why and on what grounds be so thought.

In closing I might add that there are good reasons for the prohibition on police carting prisoners around the countryside without proper authority. The only place where legally a prisoner may be taken is the Court House once he is arrested and when finished there, such place as the Court directs. I appreciate that the police were being most co-operative and showing an admirable concern for the personal problems of the prisoner, thereby arranging for him to be escorted over and back to the Provincial Office in order to straighten out his pay. Nevertheless, this case indicates that where the law is not strictly observed, even with the best of motives, troubles can arise. As for the appellant, he has only himself to thank if the police in Kundiawa adopt a more technical approach in the future. I doubt if his fellow citizens of Simbu will appreciate the results of his meddling.
As I do not consider this an appropriate case to send back for re-hearing, the ORDER of the Court is - appeal upheld, conviction quashed, appellant discharged forthwith from custody and bail monies refunded.

Solicitor for the Appellant: D. McDermott, Acting Public Solicitor
Counsel: C. Bruce
Solicitor for the Respondent: L. Gavara-Nanu, Acting Public Prosecutor
Counsel: V. Noka