Tara v Gugu [1982] PGNC 14; N374(M) (19 March 1982)

N374(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL NO. 329 OF 1981

BETWEEN:

BALUS TARA
APPELLANT

AND:

RACHEL GUGU
RESPONDENT

Rabaul & Waigani: Bredmeyer J
12 February 1982; 19 March 1982

APPEAL - principles of natural justice - whether - Magistrate biased - when a Magistrate should bar himself from hearing a civil or criminal case.

COURTS - District Court - has jurisdiction to hear claims arising out of custom.

Henry Aisi v. Malaita Hoala unreported N316(M) (1981) and Camilus Billy v. Jubilee N360(M) 1981 followed.

REASONS FOR DECISION

BREDMEYER J: This is an appeal against a decision of the Magistrate at Kokopo, Mr Danks Mila, given on 15th July 1981 awarding K150 cash and 30 frams of tambu against the appellant as compensation for adultery committed by her.

The papers show confusion as to which court heard the case. Mr. Mila is both a magistrate of the District and Local Courts. The complaint was lodged in the District Court and the summons issued in the District Court. The magistrate’s reasons for decision are headed "In the District Court held at Kokopo". On the other hand, Mr. Mila’s record of proceedings is written on a Local Court form. The case commenced in the District Court. A District Court magistrate can transfer a case for hearing in the National Court under s.32 of the District Courts Act but has no power to transfer a case to the Local Court. He made no order purporting to do so. I therefore conclude that the case which was commenced in the District Court was also heard in the District Court.

The claim arose out of customary law. I adhere to my previously expressed view that the District Court has jurisdiction to hear claims arising out of customary law: see Henry Aisi v Malaita Hoala^[1] which was followed by Kearney Dep CJ in Camilus Billy v Jubilee^[2]. The District Court then had jurisdiction to hear the case.

The complaint was that Balus Tara had been having sexual intercourse with the complainant’s husband, clearly knowing that he was a married man. There was no dispute before me that the man referred to was Boas Gugu. It was argued before me that the claim should have been dismissed because the magistrate was bound by a decision of Andrew J. that Boas Gugu was not married to Rachel the complainant. I was referred to the decision of my brother in the bigamy trial The State v. Boas Gugu^[3]. Clearly that argument is unfounded for two reasons. Andrew J. did not make a positive finding that Boas was not married to Rachel, but rather the negative finding that he was not satisfied beyond reasonable doubt that Boas was married to Rachel, which is a different question. It would be open for a magistrate or a judge in a civil case to be satisfied on the lower civil standard, namely the balance of probabilities, that they wire married by custom. Secondly, the magistrate did not have to inquire into the validity or otherwise of the marriage between Rachel and Boas as the defendant admitted the complaint, one element of which was that they were married.

Finally it was argued before me that the magistrate should have declined to hear the case as there was a real likelihood of bias. The complainant worked for the magistrate as clerk of court.

All the courts in the judicial system of Papua New Guinea have a duty by s.60 of the Constitution to develop a system of principles of natural justice which, by s.59, includes the "duty to act fairly and, in principle, to be seen to act fairly." One of the principles of natural justice as developed by the courts in this country and elsewhere is that the judge of magistrate must be free of bias. The test is whether in all the circumstances a party or the public might reasonably suspect that the magistrate might not decide the questions before him with a fair and unprejudiced mind. I have taken that test from the Australian case of The Queen v. Watson, Ex parte Armstrong^[4]. Applying that test to the instant case I comment that the magistrate had very little to decide as the defendant admitted the claim. I do not think it can be said in those circumstances that the appellant or a member of the public could reasonably suspect that the magistrate would not decide the case with a fair and unprejudiced mind. Had the defendant not admitted the claim, then the magistrate should have stood down from the case. As he said in his reasons he was going to do this if the defendant denied the claim. If the complainant had brought a criminal charge against Balus Tara under Regulation 84 of the Native Administration Regulations, then I consider the magistrate should have barred himself whether or not the defendant pleaded guilty. For if the defendant pleaded guilty the magistrate would have had to decide the important question of punishment, and, if she pleaded not guilty, he would have to hear and assess the witnesses and decide important questions of fact.
In either case he should step down on the ground of bias. For an example of a magistrate’s conviction and sentence on a plea of guilty being set aside on the ground of bias, see Holmes v. Nielson^[5]

For these reasons I dismiss the appeal.

APPEAL DISMISSED.

Solicitor for Appellant: A. Amet, Public Solicitor
Counsel: J. Mika
No appearance for Respondent

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^[1] Unreported National Court Judgment N316(M) dated 2/7/81
^[2] Unreported National Court Judgment N360(M) dated 20/11/81
^[3] Unreported National Court Judgment N285 dated 18/2/81
^[4] [1976] HCA 39; (1976) 136 C.L.R. 248 at 262
^[5] [1979] TASRp 7; (1979) Tas.R 89 noted in Australian Digest 1980 Supplement, p.108