N334(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

HERMAN BADEGDEG (NO. 1.)

Waigani: Quinlivan AJ
6 March 1981; 9 March 1981; 13 March 1981; 16 March 1981; 30 March 1981

CRIMINAL LAW - "fault principle" - mens rea - Appeal of Timbu Kolian - Motive - section 23 of Criminal Code - - State v. Lastin Inom State v. Kegiyo Baiso

CRIMINAL PROCEDURE - "no case" submissions - Separation of functions - "bringing the law into contempt".

SEPARATION OF FUNCTIONS - every "single" Judge, and every Magistrate exercises, at different times during a criminal matter, a variety of different functions, some purely personal, some "mixed some purely (with one exception) "Tribunal of Law" and others purely "Tribunal of Fact". - the one exception to the Tribunal of Law duties is expressed in State v. Kige Kose.

N.B. It should be explained that no account is taken here of what other judges have said in: N. 309 of 16 May, 1981, 298 of 12 June or 300 of 18 June. The reason is that, although published earlier in the series each was delivered after 334 to 338.

QUINLIVAN AJ: Mr O’Brien, learned counsel for the defence submits that his client has no case to answer now that the State has closed its case. The case against accused should have proved that:

"on an occasion on which he is permitted or required by law to make a (statutory declaration the accused made) a ... declaration ... which in a material particular is, to his knowledge, false."

The statutory declaration is one which says two quite different things: firstly, that "Esther Eileen Tombai ... was traditional and under common law married to me on the 15th November 1975" and secondly, that "Susan Erapo Herman, our daughter, was born on the third September, 1976 at Bogia Hospital" and it is relevant to note here that the document itself was found by a visitor to accused’s house, one Magdalena Wagun, lying around where anyone who was in the house could read it. And Magdalena Wagun is the mother of the girl Susan Erapo Herman.

The grounds of Mr O’Brien’s submission are:

(i) 	There is no evidence to cover the element that the statutory declaration was, to accused’s knowledge, false in a material particular;

(ii) 	that what may, at first glance appear to be "evidence" is only a hypothesis to be gathered if one adopts a particular view as to motive ... BUT MOTIVE IS IRRELEVANT and, in any event, courts cannot adopt that form of approach in deciding questions such as this;

(iii) 	this is one of those rare cases under the Code (that is, rare under our Code, as distinct from the code in other places where it has been adopted) where a person cannot be convict on the uncorroborated evidence coming from only one source no matter what that evidence is;

(iv) 	that, if I find against him and declare that there is SOME evidence on which a Tribunal of Fact could properly exercise its mind, it is, as the headnote to State v. Paul Kundi Rape has it,

"so insufficient that the accused ought not to be called upon to answer it"

and I should declare that there is NO CASE TO ANSWER on what are called "discretionary grounds".

Mr. Byrne, learned counsel for the State, on the other hand, submits that there is more than enough evidence to justify a conviction; that I should take account of motive and that there is corroboration. This being so, he submits that he does not have to deal with the submission regarding "discretion".

The evidence is that the statutory declaration on which this prosecution is based was obtained by Miss Wagun from the accused house when she visited it in order to get some of her belongings. It contains, as I have said, two statements, one about accused’s marital status (and the name of his wife at a stated date) and the other about his daughter, Susan.
Mr. Byrne submits that those two statements must be read in a particular way and Mr. O’Brien submits that they must be read in a totally different way. I will return to this particular conflict in a moment.

In regard to the conflicting submissions on "motive" I would mention that section 23 of the Criminal Code says that motive, in a case such as this, is "immaterial so far as regards criminal responsibility". That, of course, does not mean that it is irrelevant for all purposes and at all times and in all situations - on the trial, on the voir dire (and we have had two in this trial), at the hands of the Tribunal of Law, at the hands of the Tribunal of Fact or, for that matter, in the pre-trial phases over which, as I said on the "small" voir dire regarding the charge itself (and in In re Emmanuel Lavaki and Appeal of Michael Dai Kaupa and State v. Lastin Inom - the three types of matter that can come before this Court in the criminal field) this Court has no jurisdiction.
Mention of State v. Lastin Inom, and the fact that the text of what I said there is not yet available, causes me to quote (and adopt, with one extension) these words from Archbold:

"To make a man liable to imprisonment for an offence which he does not know that he is committing ... is repugnant to the ordinary man’s conception of justice and brings the law into contempt. See ... the observations of Lord Reid in Sweet v. Parsley  ...

It is submitted with some confidence that in future the House of Lords will be slow to find that any indictable offence carrying a sentence of imprisonment does not require mens rea. As Lord Reid said:

"It is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that it is not necessary ... It has long been the practice to recognise absolute offences in (the) class of quasi-criminal acts ... But when one comes to acts of a truly criminal character, it appears to me that there are at least two other factors which any reasonable legislator would have in mind. In the first place ... And equally important is the fact that every manifestly unjust (decision of a court which is) made known to the public tends to injure the body politic by undermining public confidence in the justice of the law and of its administration."

With us in this country (as I mentioned in State v. Lastin Inom there is no need for any standard text-book to submit that in the future this principle will be totally accepted, no matter how confidentially the author can speak. In Appeal of Timbu Kolian Windeyer J. said, when the High Court’s decisions were absolutely binding here, that

"In general criminal responsibility is today attached to moral blame. According to deeply rooted beliefs blame-worthiness does not depend simply on what a man did or on the results his actions caused. ... The doctrines of mens rea in the common law and of dole in the law of Scotland express this element in guilt. I see no reason for thinking that (the Code) demands any departure from this basic concept or that it in any way attenuates it." 9

I will return in a moment to Lord Reid’s twice repeated statement that anything which:

"is repugnant to the ordinary man’s conception of justice ... brings the law into contempt"

and that:

"every manifestly unjust (decision by a Judge or Magistrate),.. tends to injure the body politic by injuring public confidence in the justice of the law and its administration"

because they become, when the device of the NO CASE submission is indulged in too much, highly relevant.

First, however, I have to deal with the question of motive. It is true that section 23 of the Criminal Code applies, in a general way, to exclude motive from this charge. At quite a different level however, we must note that an essential element of the charge is that the statutory declaration had to be made "on an occasion on which (accused was) permitted or required by law to make it". If this element is to have any meaning the State must prove, affirmatively, that the document was made for a stated purpose and it is because of this that Mr. Byrne submits that "motive" is relevant.

Mr. O’Brien submits that it is not but he also submits, most strenuously, that I (in some capacity which is by no means clear to me) know full well why it was that accused made this statutory declaration.

The point is, however, that I have the duty of performing quite a number of different functions as I sit here on this Bench. And so does every other Judge and Magistrate and Childrens Court Bench. In the earliest stages of a criminal matter I have to see that the defence is, without any officious prompting from me, given the full opportunity to raise any "plea in bar of prosecution" that might exist. And, in this case there was what, in State v. Wesley Molgime I described as a "small" voir dire on just such a matter. Then it is my duty to see that the charge is lawful - a duty which Smithers J., in Appeal of Sara Mandi, described in these words:

"Examination of these particulars ... would have disclosed the discrepancy between the particulars and (the "elements" of the offence) and would have alerted the magistrate to the possibility of error. ... It was to (the particulars) that the accused pleaded guilty. His plea was abortive ... The failure to adhere to the (statute) therefore led to a... miscarriage of justice, and one of a serious kind, ... The law must be administered as it is and not as persons may consider it ought to be. New laws are to be made only by the proper authorities."

(A point which I mentioned in In re Emmanuel Lavaki and in State v. Kegiyo Baiso and Appeal of the BOIO Family). That duty, like the first, is a matter of personal integrity but it clearly has "Tribunal of Law" elements in it. The next function is purely personal. It is to satisfy myself on a certain point. must, (to quote Lord Morris of Borth-y-Gest in "S" (an infant) v. Manchester City Recorder) ... satisfy myself as to whether the accused is, or is not:

"a person who, as the court thinks, with full appreciation of what he is doing and with adequate understanding of what is involved in and what are the ingredients of (the) charge (which has been) preferred against him, has fully and freely acknowledged and confessed to the court that he is guilty of the charge." (my underlining)

In this case there was no doubt on the point. The accused denied the charge and so, with one exception (that is, during a full voir dire, if we were to have one - and we did have one in this case, apart from the "small" one in regard to the legitimacy of the charge) the question of what I, personally, know or think became from that point on, irrelevant until, if the Tribunal of Fact convicts, the ALLOCUTUS. Once an accused person has "put himself on the country" (as the ancient expressive technical expression used to have it and as I think we should always remember as enshrining the principles which bind all courts), that is, once he has exercised his right to have the prosecution prove their case against him, there must be nothing personal in what a Bench does. Until the ALLOCUTUS the Bench is, firstly, Tribunal of Law and reception agent for the evidence which that Tribunal of Law declared to be admissible. There is nothing personal in that task except on the very rare occasions when a judicial discretion can lawfully come into play. And then, of course, it must be exercised according to principle:

"not ... more caprice or ... arbitrary mood"

as Phillips C.J. said in Appeal of Robertson And I am acting in that capacity at this stage. The only other function is that of Tribunal of Fact.

Apart altogether from the fact that, with one very rare exception, the Tribunal of Fact does not commence to function until after the stage we are presently at in this case, it is a matter of basic principle that, when I am acting as a notional jury (as every judge nowadays is in this country and as every magistrate is in every criminal case in countries where they have juries) I must remember that, since I am a human being with all the faults that man is heir to I have personal prejudices which I know nothing about. Every thinking person does and this militates against each of being the "independent and impartial" tribunal which section 3 of the Constitution requires us to be - and as our oath of off requires us to be. For this reason I must remember that, as to Privy Council said in Kwaku Mensah v. The King:

"it may be said with a great deal of force that the prisoner’s own evidence was that he had not lost self-control ... But if the jury reject that defence it yet may be that in truth the shooting was due to a lack of self-control caused by provocation. ... The tests have to be applied to the ordinary West African villager

I must also, with a certain amount of pride, remember that Phillips C.J., Gore J, and Kelly J. all claimed that this was standard which always applied in this country long before the Privy Council made its revolutionary declaration just after the Second World War.
I must always carefully think: "Is that what I honestly think a collection of twelve ordinary men and women, none of the having any previous connexion with the case, would vote for if had a jury here?"

In short, if I do happen to have (as Mr. O’Brien submits I ought to have) a personal view as to the reason for the creation of this statutory declaration I most assuredly will, when (and by that I mean IF) the time comes for me to perform the function of the Tribunal of Fact, test that personal theory or belief, a the Privy Council says I must and as I always have, against what I think a reasonable jury would think if we had one here.

In fact, however, I happen to have three quite different "personal" views as to why the statutory declaration was created by the accused. That being so I could not possibly plump for one to the exclusion of the other two without attempting to weigh the evidence in favour of one against the evidence in favour of each of the other two. I am in duty bound to look at all possible hypotheses which, while being reasonable in the legal sense, are consistent with innocence and, if one makes the undeniable fact that the document was lying around and caused grave offence to Miss Wagun when she entered the house to get her things, one can see one possibility. When one looks at the other undeniable fact - that is, that of all the Justices of the Peace and/or Commissioners for Oaths that were available to him, the accused happened to take this statutory declaration to, and discussed its contents with, the one person who happened to be the Director of Personnel for the organisation which employs him. But instead of handing it to the Director in his capacity of Director, accused took it away again and it was in his house when Miss Wagun went there to collect her things. When one remembers that I have just said that "every thinking person" has his or her prejudices, one must bear in mind the possibility that the cause of action which accused was fostering was something to do with his beliefs as to what would impress Mr. Joku and actually had nothing to do with his obtaining married accommodation. And it is relevant here to note that he had had that type of accommodation for some time. Finally, there is the possibility that the statutory declaration was created for the purpose of obtaining married accommodation.

Whether or not these three possibilities will still exist at the time the notional Tribunal of Fact has to commence its function is something which lies behind the veil which obscures all future things. It could be that they will still remain, or that others will arise. In that event it will be my duty, as Tribunal of Law to draw attention to them (because of the passage which I have quoted from the Privy Council’s direction in Kwaku Mensah’s Appeal and because of what I myself said in State v. Waikaiko Taunitawe so that they can be fully and properly considered by the Tribunal of Fact. But I, at this stage, when I am only Tribunal of Law, cannot possibly weigh the evidence and legitimate possibilities in favour of one against the things which could be said to support or favour the others.

That function is, as Phillips C.J. said so often when I was appearing before him, exclusively reserved for the Tribunal of Fact and, as I mentioned in State v. Wesley Molgime the views which once were expressed against his attitudes have since been shown to be wrong and he was right. The only exception is where, as Kapi J. said in State v. Kige Kola

"it is obvious to a judge that the prosecution case is such that no matter what evidence may be called by the accused, the prosecution case will not be proved"

And his Honour then concluded with these very telling words:

"and not otherwise".

In this case, as I have said, it is clear that although the element of motive is technically excluded by operation of section 23 of the Criminal Code, it is essential that someone make a definitive decision, on behalf of Society, as to the reason which in the eyes of the law, accused had for making this statutory declaration. Reprehensible though such conduct would undoubtedly be, the fact is that, if the "reason" which the law attributes to him is that accused either wanted to hurt Miss Wagun or to "grease" Mr. Joku in ways other than those which would get him married accommodation, it could well be that he will escape punishment under the section of the Criminal Code which the Public Prosecutor has chosen. The indictment is, after all, expressly restricted to the charge of accused knowingly making a false declaration:

"on an occasion on which he is permitted or required by law to make (one)"

and the law most certainly does not require a person to make a statutory declaration for the purpose of either hurting somebody or "greasing" them. As regards "permitting" it is clear that this does not apply to "hurting" and, although the law might be said to assist people with a good purpose in mind, it cannot be invoked to assist people with a bad purpose in mind.

The question of accused’s motive is highly relevant in this regard. The question must be decided, but by whom? I used the words: "a definitive decision, on behalf of Society, as to the reason which, in the eyes of the law, accused had" and, because of this it is clear that, unless he changes his plea, the accused cannot decide the matter. The law, very properly, imputes, at times, motives which accused persons vehemently deny (I am, of course, speaking generally here and saying nothing about this case). And, since they are not here "on behalf of Society", the people in the Public Gallery cannot make that decision (even though they do represent Society in another sense) any more than the ice-cream vendor can. Nor can the Official Interpreter despite the fact that he does make many decisions on behalf of Society. It is only the Tribunal of Fact that can do that so the submission must be overruled.

Lest people upstairs in the Public Gallery air the impression that Mr. O’Brien was in some way astray in making the submission I should mention that I have heard that such submissions are made very frequently nowadays. I do not know why this is so but I presume that it is because people are taught, in Australia or elsewhere overseas, that it is a good technique for defence counsel to use. As, of course, it is. Moreover, it does appear to me that there may be a misunderstanding abroad as to just what it was that O’Leary A.J. was facing in State v. Paul Kundi Rape:

There, his Honour was dealing with the submission that he ought to uphold a NO CASE submission on the ground that, if he analysed the evidence, he would be left in some doubt as to accused’s guilt. But, as Kapi J. points out, this is not the test.

Where it is, to use Kapi J’s word, "obvious" that the prosecution will not succeed (even though there is, technically, some evidence to cover every element) then the submission is valuable. And, of course, if there is clearly a lack of evidence on an essential element, it is invaluable. But the value of invaluable things can be lost by over-use and the words which Kapi J. used are:

"OBVIOUS ... AND NOT OTHERWISE".

Just as we have a very proud tradition here in the field which was revolutionised by the Privy Council, for British colonies (and for the Australian States and elsewhere) in Kwaku Mensah’s Appeal, so also do we have a proud tradition in this field of "No Case Submissions". It is a very great pity that, despite the innumerable occasions on which I heard Sir Beau ont Phillips and Judge Gore say:

"if it involves the weighing of evidence I cannot do it until all the evidence which both sides wish to put before the court is in",

no report of what they said appears to have existed until today. But they did say that and I repeat it now because there is a second reason why it is very important.

The fact is that, although people in this country are perfectly prepared to say, when everything which both sides wish to put before the Court is in:

"well, we lost on the day, but we had a fair go",

(as the Constitution says they must have), they do not take kindly to it when they see an alleged victim being denied the right (which is only a restricted right because the accused can always remain silent, or make an unsworn statement, even when the Tribunal of Law says there is a case to answer) to make the accused "answer" the charge. I appreciate, of course, that the difference between civil and criminal matters is that the victim, to a large extent, has no rights but I think that this attitude can be overdone if it causes us to have unnecessarily poor public relations. The fact is that, unless it is obvious that there is, in fact, no case to answer - and the people in the Public Gallery can see this just as well as I can, sitting here on the Bench - it outrages people who have come to see justice being done (and the relatives and friends of the alleged victim) when they see a Court solemnly talking about there being "no case to answer" despite the fact that there is one. They regard it as manifestly unjust and, as Lord Reid said in the passage which I quoted from Archbell:

"equally important (with either matters of great importance) is the fact that every manifestly unjust (piece of conduct by a court which is) made known to the public tends to injure the body politic by undermining public confidence in the justice of the law and of its administration."

I rule that the defence does have a case to answer and order that the trial proceed.

Solicitor for the State: L. Gavara-Nanu Esq. The Public Prosecutor
Counsel: J. Byrne, Esq.
Solicitor for the Accused: A. Amet, Esq.
Counsel: P. O’brien Esq.