Queen v Cooper [1961] PGSC 14 (1 January 1961)

IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA.

THE QUEEN

v.

BRIAN LECHARD COOPER

REASONS FOR JUDGMENT

I wi1I deal first with the question of law raised by counsel for the defence. It was contended that Sec.44 of the Criminal Code which contains the essential definition of "seditious intention" can have no application to the territory and that therefore there is no offence of sedition so far as the Territory is concerned.

I do not agree with this content on. The offence o f sedition is established by Sec.52 of the Code. The offence so far as this case is concerned consists of advisedly publishing seditious words or writings. If this Section stood alone it could take effect by importing the common 1aw concept of seditious words. For the purposes of the Code Sec.46 declares that seditious words are words expressive of a seditious intention and Sec.44 set out a statutory definition of seditious intention. Section 17 of the Laws Repeal and Adopting Ordinance of New Guinea is in my opinion widely enough expressed to authorize the court if necessary to revise the wording of a statutory definition such as this so that the substance of the definition would be expressed in terms appropriate to the Territory. I think that Sec.17 would authorize the Court to substitute for the words "Government of Queensland" the words "Administration of the Territory". By "Government" Sec. 44(b) evidently means the Executive branch of the Government, and the corresponding powers in the Territory are vested in the Administrator and are exercised by him with the aid of the various Government departments and the public Service. The expression "Administration" in tree Territory is an appropriate direct substitute for the expression "Government" in Queensland.

If there is any need to fit this substitution within the expression "Authorities persons places, subjects matters or things" set out in Sec.17, I Would think that the Administration would come within the scope of the words "authorities" and "persons" in this context and I would also think that the Statutory definition set out in Sec.44 of the Code would appropriately come within the scope of the words "subjects" and "matters". Since the special authority conferred on the Court by Sec.17 extends only to the construction of the statutory provision for the purpose of making the sane applicable to the matter before the Court, I hold that the effect of the provisions of the Code so far as this case is concerned, is to establish that a Seditious intention exists when a person has the intention to incite disaffection against the Administration of the Territory.

The indictment charges the accused with uttering a great many words ranging from words which are clearly expressive of a seditious intention to words which are merely expressive of political opinions which the accused purports to have held. Indeed some of the statements attributed to the accused according to the evidence represent opinions or comments which would raise little or no dissent from the most conservative of thinking people. Early in the trial it became apparent that a line must be drawn somewhere, and I ruled that evidence of statements made by the accused were not admissible in support of the Crown case unless at some point in the conversation it appeared that the accused was advocating what might be described as political violence directed towards the overthrow of established government. This had the effect of excluding a substantial body of evidence designed to show broadly that the accused was a man of strong political opinions favouring what might loosely be described as communism, and that he had marked hostility towards the present Prime Minister of the Commonwealth of Australia and towards the present Administrator of the Territory as individuals, and to their policies. I was to be invited to draw from this evidence the inference that such a person was more likely than mother individual of different views and temperament to advocate the violent overthrow of the institutions of Government, and I was given the analogy of a murder case where evidence of motive is admissible to establish the likelihood that the accused person would commit the crime.

Apart from the stricter question of admissibility of evidence, I would have had to decide if I had admitted evidence of this kind as evidence in chief in support of the Crown case, just what weight I would attach to it. On both questions, as to admissibility and as to the weight of evidence, it seems to me that I would have no reason to assume that a person of radical politica1 views would be more likely than anybody else to resort to illegal violence to obtain his political ends. Of course the officers of the Security Services would be expected as a matter of prudence to have regard to the political views of people whose activities come into question, but their political views alone, consider apart from any tendency which they may reveal to become involved in acts of violence, would not in any view warrant any interference with their liberty, nor would they justify the Court in drawing adverse inferences on a charge such as this.

The Courts have said many times before and I think it is important to say it again, that the offence of sedition was not created for the purpose of limiting peoples' political thinking, or their participation in lawful activities designed to improve every aspect of Government. One of our most cherished and most valuable civil liberties is freedom of political opinion, and expression of political ideals and ideas. The offence of sedition is concerned with subversive activities against properly constituted authority and with utterances designed to destroy the protection which the community is entitled to enjoy in consequence of the establishment of lawful authority.

At a late stage in the trial when the Crown had established a plain prima facie case against the accused, and the accused elected to give evidence on oath, I think that the whole question of the political opinions of the accused, and of his temperament and disposition, fell into the correct perspective as matters going to his credit. I do not mean this in the narrow sense as importing the notion that his story was to be believed or not according to the effect of this investigation, but I think that the examination and cross-examination of the accused himself in the box, has revealed his general character in a most striking way, and has led me to form the view that both his evidence and his demeanour in the witness box afford a key to the real understanding of the actions and intentions of the accused in September 1960 and of the reasons why he finds himself in the position in which he is today.

I have formed the impression that the present position of the accused is not of his own conscious seeking. He is a young man, 24 years of age, of good University education and of intelligence which I would think well above average. His major subject for his Arts Degree was Geography with the emphasis on South-East Asia. He also studied the Indonesian language and has recently travelled through the East. It is natural that he should have developed a special interest in the political problems of the South East Asian peoples and that he should have a marked feeling of sympathy towards the peoples of this area. Thus equipped the accused possessed a potential which might have been of great value to the Commonwealth in helping to resolve some of the difficult problems which arise in this area. However radical and advanced his thinking might have been he might have made and might yet make valuable contributions in this field. His chief difficulty, if my impressions are correct, is that he lacked confidence in himself to a marked degree, and was by no means certain of his place in society. Having joined the Administration where he had the benefit of security and protection, he ought to have realized at once, as he undoubtedly did realize at a late stage, that no prudent Administration of any political outlook could allow one of its officers to use his official position and influence for the purpose of disseminating political views, which to say the least of them, were highly offensive and occasionally at least, subversive in character. The accused appears to have been driven against his own interests by his own fanatical zeal. I think that he did not have the patience to behave in a way which would be expected of a responsible officer of the Administration.

The result was that the accused realized before he went away on leave that he could not expect to last long in the Administration, but he was apparently unable to try to accommodate himself to the requirements of the service, and his political views have shown a marked tendency to veer further and further to the left, and towards Atheism, which appears to be the fashionable corollary to Communistic thought. I could not resist the impression that although the accused might have found a place for himself under the banner of Radical Socialism, he has no confidence in himself as the kind of man who could find a position of any real importance under the banner of Communism.

My impressions generally therefore are that the accused has been driven somewhat against his will, and mainly by the internal pressures of his own temperament, into en attitude of defiance and determination which is an attitude which he is not at all well-equipped to sustain.

The evidence of Mr. Donovan indicates the extent of the change in the political outlook of the accused. Mr. Donovan is an able and experienced officer of the Australian Security Intelligence Organization. In 1958 Mr. Donovan interviewed the accused in consequence of a report concerning statements made by the accused, presumably to the witness Wright. The purpose of the interview as to enable Mr. Donovan to ascertain whether the accused had any reason for the political views he appeared to be expressing. The accused gave an explanation which on the face of it was reasonable and indicated at least that he was talking about matters of which he had considerable knowledge and in which he was interested. The only caution which M. Donovan gave, and the only one which appeared to have been called for, was to remind the accused of the danger of being misunderstood if expressed his political views to the natives.

Whether or not the explanation given to Mr. Donovan was entirely genuine, I think that the evidence of the interview demonstrates that in 1958 the accused was capable of optional and responsible political thought and expression, at least then the occasion required it. His subsequent interview with Dr. Davis in Sydney was in consequence of a much more serious assertion being placed before the accused and he does not appear to me to have dealt with the occasion nearly so well.

Taking a broad view of the Crown case, I think that it is plain on the evidence adduced by the Crown and also from the evidence of the accused himself, that the accused did in fact address to the natives in question, words corresponding in substance and meaning to those set out in the indictment. That he said what he said advisedly I have no doubt whatsoever, for he is a man of considerable expertness and knew what he was talking about. Further, his attitude of antagonism towards the Administration was already by this time firmly established. Perhaps he was conscious of living on borrowed time, for he had every reason to suppose that the authorities would eventually catch up with him, for they already had information as to previous statements made by him in which he indicated a desire for the violent overthrow of existing authority.

I do not altogether agree with the learned Prosecutor's submission that the accused in the witness box told the only story which had any hope of being believed, since he could not afford to run counter to the weight of evidence adduced by the Crown. Nor do I think that he was unscrupulous in his evidence. I think that his manner in the witness box showed that he is still driven by a desire to justify himself and his views, which is steadily leading him towards a persecution complex. There are many small points in the evidence which indicate to me that the natural character of the accused is that of a person who desires to be frank. Nor is he by any means naturally irresponsible, in my view. He is I think faced with a violent conflict, which if he cannot resolve his difficulties, will inevitably lead to the suppression both of his frankness and of his sense of responsibility.

One of the most telling details which came out in the evidence of the native witnesses was that the accused told the natives that if they resorted to violence and captured the Europeans in the Territory, they were not to harm them but were to send them home. There was some variation in the accounts given by the individual witnesses on this point, particularly as to whether they were to hit the police officer on the head or not, but this evidence have me a strong impression that the accused went out of his way to make it clear to the natives that the uprising against the Europeans should not be the occasion for bloodshed. This little detail also strengthened the impression which the words of the accused made on the minds of the natives.

I do not believe for a moment that the accused himself supposed that he was in a position to summon military aid from Russia or China, for any native insurrection which might have taken place last September. It may well be that the native witnesses gained the wrong impression on this point, and that the accused told them in response to their questions as to how they would get on when they threw the Europeans out of the Territory, that they could count on Communist countries such as Russia and China to lend them general support, and particularly support of an economic nature. On the other hand the reference to Russia and China might well have been made quite falsely to give the natives the impression that they would not be alone in their struggle, so that they could proceed with confidence and not be deterred by any fear of losing the support of the Administration on which the natives are as they fully realize, dependent for any hope of social advancement. I cannot believe that the accused really expected to see an immediate armed up-rising of natives in the Madang area nor do I think that the accused supposed for a moment that such an uprising would serve any useful purpose for the natives or do anything but occasion on great deal of distress and conflict. Whether he did what he did merely to justify himself against the Administration or to establish for himself a reputation as a political disorganizer and troublemaker, which he might be able to exploit after leaving the Territory, which he obviously had already decided to do last September, I do not know. I think that with his experience of natives in the Sepik and Madang Districts and the wellknown propensity of these and other primitive natives in the Pacific area to express their confusion and frustrations in the form of cults of various kinds, his intention was to start a movement which would be likely to extend along the Northern coast of New Guinea, and which would cause the utmost embarrassment to the Administration at a time when international attention was critically focussed on the situation of primitive people in this and other areas. He does not appear to have overlooked the strategic importance of the spheres of influence of the various missions in the area, against some of which at least, he was bitterly antagonistic. It is significant that he had some assurance that an uprising might be organized readily in the Finschhafen area.

Although his immediate influence was limited to a few native clerks and officials associated with the co-operative societies in the Madang area, it is clear that political meetings attended by large numbers of uneducated natives, discussing even the officially sanctioned topic of self-government, would be likely to cause a great deal of confusion and conflict between the natives who at this stage of their development are ill-equipped to understand the responsibilities of Government.

When one of the means of achieving power which the accused intended these meetings to discuss was the violent overthrow of law and order, destruction and looting of property, and the expulsion of Europeans from the Territory, the subversive nature of the whole campaign becomes obvious.

The assertion of the accused that he put this proposal as only one of three alternatives and that the only course which he advocated was immediate organization towards achieving a position in which the natives could lawfully demand self-government, is in my view only playing with words. The first alternative was obviously put rhetorically - that the natives could just sit down and do nothing and that-in about 20 or 30 years the Australian Government would give them independence with no trouble to themselves. The second alternative, of resorting to violence, as described in the indictment, was according to all the evidence including that of the accused, put to the natives in close detail. He gave them a complete scheme; whereas if he really wanted to tell them that they must not under any circumstances resort to illegal violence, this view could have been put very shortly, and very clearly, either in Pidgin or any other language. The accused himself said, "I took by far the greatest part in the discussion, because it is all very difficult for the natives to understand but I still felt we could talk about these things." It is clear from the evidence of the accused that he not only took the major part in the discussion, but that he himself introduced and covered in detail the whole question of resorting to violence in order to obtain immediate control of the Government.

Although I agree with a good deal of Mr. Staunton's comment about some of the witnesses, and although the Court must make very substantial allowances against the possibility of serious error both in recollection and understanding by native witnesses, who have little or no education, and a very poor comprehension of or even interest in, the matters under discussion, I think that the Court has been given by the Accused himself, as well as by the other witnesses, a very clear picture of the accused deliberately trying to stir up trouble against the established Government of the Territory. An essential ingredient in his campaign was the rapid dissemination amongst native people over a large area, of the notion that they might successfully overthrow the Administration, throw out the Europeans (with the exception perhaps of himself) and rely on foreign aid to straighten out the resulting chaos. This I think was intended to produce a situation in which the Administration would suddenly find itself confronted by an actual or imminent uprising by natives over a wide area of difficult country.

I find that the accused had a seditious intention within the meaning of Sec.44 of the Criminal Code and that the words uttered by him on the occasions in question were expressive of that intention.

During his address Mr. Staunton drew attention to the fact that under the laws of the Territory the accused is not entitled to trial by jury, and his comments suggested that the accused was thereby at a disadvantage, because this circumstance tended to restrict the kind of comment which Counsel for the accused might otherwise usefully make in dealing with a case of this kind. In case Mr. Staunton's comments should be misunderstood by persons inexperienced in the administration of the law, I think that I should say something about this question.

It is not right that trial by jury should become some kind of mere slogan. We must bear in mind the reasons why British communities have by tradition shown an insistence on trial by jury in many cases involving the life and liberty of the subject. It is not because trial by Jury is supposed to be a more efficient mode of trial. In fact the opposite is the case; it is a slow, expensive and cumbersome means of resolving questions of fact, and is quite unsuitable for and is not used for, the purpose of resolving questions of law. Nor is it an advantage of trial by jury that persons inexperienced in the administration of the law might be more impressed by Counsel's comments, or more easily swayed by professional advocated, than would judges. The profession can and does adjust itself to the proper and efficient discharge of its duties whatever the form of trial may be, and the object of the trial is to get as nearly as possible, and as often as possible the right answer.

The great justification for trial by jury is that it is believed to afford the greatest safeguards yet devised against miscarriages of justice, and against the unduly narrow view which judges may tend to take if they lose or perhaps fail to develop, an adequate understanding of human beings. The jury brings to the determination of facts in dispute "The sober notions of the British people" including their love of liberty and fair play and affords a standard which automatically adjusts itself to social changes. It is upon this basis that the sometimes generous view taken by juries is to be justified.

In applying these considerations to the Territory however, it must be recognized that the people of British or indeed European, extraction, form only a very small, proportion of the population and comprise one of many minority groups. The community as a whole has nothing like the community sense which is the essential foundation of the British jury system. I very much doubt that the accused would be prepared to elect to be tried by jury in the Territory, if he had that right, at least without considering most carefully from what groups of people the jury was to be selected.

The first requirement of a fair trial is that the tribunal should be completely independent, and be in no way committed, inclined or interested towards taking any particular view of the facts. Until the development of the whole community in the Territory is such that there can be adequate assurance that a jury will fulfil these requirements, I do not agree with Mr. Staunton's view that either his client or the interests of justice would be better served by trial by jury.

For the reasons which I have previously indicated I return-a verdict of Guilty of the offence charged in the Indictment.