Regina v Alder [1962] PGSC 7 (15 April 1962)

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

REGINA v. OTTO KENNETH ALDER.

MANN C.J.
KAINANTU,

15/4/62.

The accused is charged on two counts of malicious damage to property, in setting fire to two dwelling houses belonging to village natives at Sebanumu and Iabwiara hamlets in the restricted area of Kainantu Sub-District.

The houses are both described as dwelling houses, and they were in fact used by the men of the community as sleeping houses. They did, however, serve for other purposes as well, and are distinct in character from the Women's, or "Married" houses, which are different in appearance and used for purely domestic purposes.

The houses in question are identified sufficiently for the present purposes, for there were only four men's houses in all, and accused admits that he burned or caused the burning of all of them.

The Indictment described each of the two houses in respect of which the accused is charged, as the property of certain natives. For some reason I cannot understand, the first count was amended to allege that the house was occupied by certain natives, but the second count was not. The need for amendment suggested itself when it became apparent that so little is known of the natives in question that it would be impossible for me to determine actual ownership on the available evidence. I do find, however, that one house burned was occupied by TEBONA and others and that another was temporarily empty, but in the occupation of KADAIMBA and others, and that according to the custom of the place, KADAIMBA and others had a recognised right to continue in occupation.

The incident which gave rise to the present case arose in the course of a Patrol on Friday and Saturday, the 26th and 27th of May, 1961.

The accused was a Patrol Officer in the Department of Native Affairs stationed at Wonenara. He had many duties to perform, and in one capacity, as an Officer of the Police Force, it became his duty to go out and investigate the murder of a native whose identity was not known. He sent word to the Native Police Sergeant in charge of a road construction camp nearby to go out in the meantime, to inspect the body; when he arrived at the Road Camp with additional Native Police, the accused received a report that the Sergeant had seen the body, which had been dismembered and cut about with axes and subsequently eaten by pigs to such an extent as to be unrecognisable.

Accused then sent a Native Police Constable and Interpreter to Arebunkara to ascertain the identity of the murdered man. He then ascended a very steep mountain ridge to the small hamlet of Sebanumu, situated about 1,000 feet above the Road Camp. Sebanumu was built in two sections, and at the lower section he found all the houses empty. After carefully checking each building to avoid surprise attacks, he passed on with his party of police into a space between the two sections of the hamlet and immediately was attacked by natives who fired arrows from a position near a men's house in the upper section.

The accused and his party stood their ground, and the accused ran forward, trying to establish contact with the men and persuade them to stop shooting. When he perceived that his own party of Police and Interpreters were showing signs of fear and anxiety for the safety of the Patrol, the accused and two Policemen fired rifles over the heads of the natives but one bullet hit a leading native, TEBONA, in the ankle. The natives immediately fled into the jungle, and although pursued for a short distance by Native Police, could not be caught.

The arrows were fired from a higher position at a range of about 120 yards. These arrows, with very hard palmwood heads, are known to be extremely dangerous, and when fired from bows of the kind in use, have a penetrating power, at close range, superior under some conditions, to that of a .303 rifle bullet. During the attack accused and his party had to watch the flight of arrows from above and dodge them as they came down. If accused or any member of his party had been killed or wounded, the natives would have been most likely to charge on the Patrol, who, if they faltered, would almost certainly be wiped out. The accused acted throughout with coolness and confidence and most commendable courage.

When the village natives ran into the bush, accused was left without contact with them, and he then tried to establish contact in order to pursue his Police investigations. At about this time he received word that there were two people murdered, one, the Luluai, or local official of the village of Owenia, and the other a man from Tainoraba. Accused had put in much time and work in bringing both of these villages under some sort of control, and this information enabled the accused to come to a firm conclusion that the Arowini people and the Iabwiara people were responsible for the ambush in which the two victims were killed. He had noted that two Arowini villages on the ridges on the other side of the valley were deserted, and his local knowledge enabled him to conclude that the Arowini people had combined with the Iabwiaras in a defensive alliance against the Arebunkaras, who were now allied with the Owenia people in the Lamari Valley to the north. The accused concluded therefore that the latest killings, following on many other reports of tribal killings, made it very important to take action to forestall reciprocal killings in reprisal by the Arebuhkaras, Owenias and Tainoraba, amongst whom the accused had already made considerable progress towards pacification. If he did not arrest and punish the offenders quickly, the benefit of all this progress would clearly be lost, and all of these tribes would revert to warfare.

It does great credit to accused that in so short a time, with inadequate resources and very little help, he was able to acquire such a thorough understanding of all these local conflicts and alliances amongst hostile and practically unapproachable primitive people.

It is not certain just when he received the information as to the identity of the victims, but it is clear that he had part of the picture in mind at the start and that whilst he was on the ridge with his Patrol, the whole picture became clear to him. At about this time, he took several steps designed primarily to assert his authority, obtain information to identify the murderers and persuade or force the people to come back and converse with him.

On the Friday two houses were burned at Sebanumu, and two others on Saturday at the neighbouring hamlet of Iabwiara. On the Friday accused had a conversation with the people from the hamlets who had gathered on the opposite ridge, and tried to persuade them to come back and talk and assured them that he was only concerned with the murderers. The conversation was carried out with great difficulty through inadequate interpretation into their peculiar language, but the village people's answers made it clear that they would not come, and proposed to continue their tribal fighting until old scores were settled. This process, of course, would go on forever, for the rule in Clayton's case does not apply, and nobody keeps an accurate account, nor under the constant struggle for survival will admit that the account is closed. All of this would have confirmed the impression in the mind of the accused that action was urgent.

The accused also directed that garden fences be broken to let the pigs in to the gardens as a means of forcing the village people to return to save their gardens. There was also evidence that some destruction of growing plants was carried out on the orders of the accused and that he either shot or allowed to be shot, some pigs, and directed that supplies of sweet potato be taken out of the gardens for food.

At least the greater part of this damage was caused after it became apparent that the natives were unwilling to respond to the efforts of the accused to get them to come down for discussions. The last-mentioned matters are not directly relevant to the present charge, but afford cogent evidence of the intentions and motives of the accused and call for close consideration.

Another factor which has an important but indirect bearing on the case as a whole, is the fact that on Saturday afternoon and Sunday, after the accused had returned to his base at Wonenara, the rest of the

houses in the village, including women's houses, were all burned out, and no doubt the gardens were laid waste.

The accused denies that he had any knowledge of this until he flew over the area about a fortnight or three weeks later, and the Court is not concerned with these matters now.

I mention these last incidents, for I think they indicate the state of mind of the accused at a later stage when he made certain reports.

I think that accused regarded himself as engaged on a special Police errand, to arrest persons for the murders and obtain evidence as a matter of urgency, and that he pressed his inquiries with the utmost vigour. He clearly had no understanding of his special powers and duties in the event of a major breach of the peace. This had led him into a situation in which he was hopelessly compromised on the vital issue of his honesty of purpose, by both his later actions and statements, and his whole defence was seriously embarrassed by this, and suffered from apparent inconsistencies. On a proper analysis of all these factors, however, he emerges with great credit, for reasons which I do not think he appreciated at the time. I think the case, properly understood, reveals weaknesses in the system under which he worked, rather than fault in his own actions.

Accused in evidence denied that he had received any instructions as to his conduct in handling primitive people in restricted areas, except for practical experience under the guidance of a senior officer with whom he went on patrol for short periods, and who burned two native houses after the patrols had been attacked. He said that these burnings had been entirely successful in preventing further trouble, and admitted in cross examination that on the second occasion the patrol had not been attacked at all, but that the natives had refused to talk and showed hostility, so the officer "tried to bluff and it didn't work so he carried it out." Again as to his own orders to damage gardens accused said, "I had in my conversation the previous afternoon tried to bluff them that if they did not come in I would make holes in the fences and let the pigs in and I was carrying out that bluff. There was no thought of the breaking of gardens easing the danger - it was merely carrying through the bluff". Counsel for Defence elicited from a Crown Police witness that another officer had likewise burned houses.

In spite of this accused in his reports on the patrol appears not to have mentioned his burning of houses until he was accused some months later of this and other conduct.

I cannot get a full picture of his reports because only two letters of the 4th July and 18th October were put in evidence, and the remainder of the correspondence, including the questions answered in the later letter were not put in. However, it does appear that the letter of 4th July, 1961, not only omits any reference to the burning of houses, by the Patrol, but expressly states that all the houses in Arowini and Iabwiara villages were burned by the village people themselves, on the Friday night "to show how little they cared." The only explanation the accused gave was that when he flew over the villages and saw what had happened, he thought he would be charged with "administrative excess".

The accused is a young man, and before this case, was of very limited experience. In Court as a witness, with the support of competent legal advice, he gave an impression of the same self-assurance as he does in his report of 4th July. In October, 1961, however, he was prepared to lie to get out of that trouble, and the most serious question is whether he has moulded his evidence as far as possible to get out of this.

Patrol Officers should insist on complete frankness in disclosing all the facts, so that they may enjoy the proper protection of the law, which it is their duty to observe themselves and extend to the natives. Complete honesty is essential in the performance of their duty and in the subsequent accounting for their actions. The lack of frankness of accused in his reports would suggest a very fair inference that the whole of the damage done at the village was done by the accused and maliciously. These reports alone called for the closest independent investigation of the conduct of accused.

I think that the explanation of this subsequent conduct of accused is this, that as a very young officer, having received inadequate training and being provided with inadequate resources to carry out his duties in a way that would satisfy his eagerness to do his job really well, and having been posted to take charge of a new and hostile area and create a new Patrol Post and airstrip, he felt very much on his own, to improvise and make-shift as best he could. I think that he probably regarded himself solely as an officer of the Department of Native Affairs, carrying for administrative purposes supplementary powers as Magistrate and Police Officer, rather than as a citizen carrying at the same time three separate sets of legal and other duties. His career, as I think he saw it, rested with the Department, and if he continued to succeed he would earn rapid promotion and fully engage his talents, but if he fell from grace his career and reputation would be ruined. I think he knew very well that any mention in his report of burning houses would be a source of embarrassment in his relations with the Department, and that when news of the occurrence leaked out, and he heard of the investigations, and was wrongly told that his conduct was illegal, he found himself in a serious position from which he could not extricate himself, and his letter of 18th October and his evidence in Court, did less than justice to him, on some points, in consequence.

The instructions of the Department on this subject, which were not available to accused at Wonenara, and were not shown to have come to his knowledge, could not be proved, but it appears probable from the evidence of the Director of the Department, that those instructions were based on incorrect legal advice, and were influenced by policy, which so far as it is inconsistent with the law, cannot have any effect.

To clarify the position I will state the law as I understand it. The substantive law as to insurrection is not dealt with in the Criminal Code, and therefore the Common Law is fully applicable.

Whatever the position may have been in Crown Colonies where hostile savages had no rights of citizenship, and had to be brought to order by the Executive, the Papuans are Australian citizens and New Guineans are entitled to the protection of the United Nations Trusteeship Agreement. It is the duty and responsibility of the Administration to establish a state of law and order throughout the Territory, so all the primitive people, as soon as practicable, will enjoy the full protection of the law, and have the law administered to them by independent Courts according to the Constitution. It was for this express purpose that the Wonenara Patrol Post was established.

This duty of the Administration is not the concern of the Courts, and does not affect the accused in his actions, except to the extent of requiring him to support the Administration in its task, and obey lawful orders and directions towards achieving that end.

In so far as law and order is not fully established and maintained, it is the duty of the accused, imposed on him by law, to take action as a citizen, as a Police Officer, and as a Magistrate for Native Affairs, to do his best to restore law and order wherever he may be. His powers and duties vary with each capacity. Generally speaking, as a citizen he must not act without reasonable cause, but as a Police Officer or Magistrate he must act on an honest belief and may be guilty of neglect of duty if he fails to call all available forces to aid him, and vigorously apply himself to the task. (For offences arising out of neglect to perform duties of this kind see Criminal Code Sections 201-203).

These duties arise at Common Law and are not affected by the Criminal Code which preserves defences, in relation to various offences, appropriate for persons who act in response to these Common Law duties.

It is wrong to regard the accused on this occasion as being simply a Police Officer with a duty to arrest specific people. This was in fact the lawful purpose on which he was engaged when he entered the first hamlet, but a new situation arose when he was attacked and the lives of his men and himself were placed in jeopardy. His original mission then became only one aspect of his wider duties to restore law and order. He was not merely being obstructed in the execution of his duty. The villagers were attempting to murder him and his Patrol, and told him that they proposed to continue to fight to settle old scores, which means of course, that they would murder any of their neighbours who strayed within reach. This situation clearly amounted to an entire rejection of Her Majesty's peace, a rejection of all Governmental authority, and a refusal to act according to law. The immediate actions of the natives clearly constituted a riot, and probably an insurrection, for it was directed against the whole Government and the law, as they knew them.

In these circumstances it became the duty of the accused to do what he could to restore peace and law and order, and to use all necessary force to do so. If he honestly believed his forces were inadequate, he would be excused for withdrawing and seeking reinforcements, but he believed, and subsequently proved, that he was competent to handle the situations. Peace was in fact restored at a much later time, not necessarily by the action of the accused, but by a combination of circumstances, including the destruction of the whole village and other destructive action not attributable to the accused, which resulted in these villagers establishing a new home on the other side of the Asiana Valley, nearer to Wonenara; and subsequent patrolling, which persuaded the natives to allow one of their number to be appointed Luluai, to perform official duties for the Administration.

The action taken by the accused was, in my opinion, fully justified and was in every way commendable. The subsequent damage and destruction obscures the effectiveness of his actions, and his later accounts spoil what would otherwise be more clearly a fine example of courage in the execution of lawful duty.

To understand fully what the accused did requires close consideration of the circumstances. The natives in question are part of the main race of Kukukuku people, whose country extends from near Kainantu, through Menyamya, right down to the coastal fringes near Kerema. The Kukukukus generally are small but very powerful and vigorous people of Negrito stock, probably proto-Malayan in origin and extremely primitive in their social development. They, and peoples related to them, in many places, have survived in spite of pressures from more advanced peoples with better resources, and have earned the fear of their neighbours and even of quite distant peoples, through their savagery. They are most skilful in the use of bows and arrows, probably the most effective in the Territory. They are great bushmen, can hide almost anywhere, and have developed to a high degree the art of warfare in grassland and bush. One favourite device is the ambush, often used against people in much smaller numbers, apparently for the sheer joy of killing. They have a reputation second to none for treachery, butchering of victim's carcasses and cannibalism, deadly accuracy with arrows, and courage. They instantly take advantage over any enemy, and at close quarters use clubs and similar weapons without mercy or hesitation.

The particular people in question are part of a small group of Kukukukus cut off from the main body of their race by high mountain ranges and apparently leading a less nomadic life than those of the main body, who roam over large areas of country. The Aziana people are more or less settled in the Aziana Valley, but the Arowini and Iabwiaras, and a few other groups speak the Barua language which is one of the half dozen or so distinct languages spoken by Kukukukus in this area, indicating a marked departure from the single language of the main body of the race.

The very rugged and infertile looking country on the ridge where these people must live for defence reasons, no doubt adds to the severity of their struggle for survival and has led to the breaking up of the race into very small groups constantly fighting each other and driving each other to safer distances. Their methods of land utilization and hunting have caused denudation of large forest areas, adding to their burdens in the struggle for existence. The main feature of their social order is a firm adherence to their forefathers' traditions of bloodshed and constant warfare against their neighbours.

It is an extremely difficult task to establish any friendly contact with these people, and extremely difficult to solve problems of interpretation. The prime purpose of establishing a Patrol Post at Wonenara was to establish law and order in this area. The accused had a task which warranted the posting of several much senior officers to undertake it, but having built the necessary airstrip the accused tackled the task with energy and by all accounts achieved great success. There is no doubt that he soon knew more, by personal experience, than any other officer, of the peculiar problems he had to face.

When the events of the 26th May, 1961, occurred, it was the duty of the accused to exercise his honest judgment in dealing with the situation confronting him. He was short of food for his Police and labourers, money was not available for essential air-charters to keep up his supplies, his Police Force was inadequate, and included unreliable men and raw recruits. He knew the consequences of delay and the risk of retreating. He honestly believed that he could handle the situation by applying force, and I think that it then became his duty to do so. He would have been fully justified in retreating to obtain advice and reinforcements if he thought this necessary to preserve life or to ensure success, but he was bound to exercise an honest judgment on the point, which I think he did.

As to the action taken, it is quite clear that specific instructions were given not to molest women or damage any property other than men's houses and, at a later stage, gardens and food, including pigs and sweet potatoes. He personally entered each men's house to make sure it was safe for the Police to enter, he personally gave comfort and assurances to an elderly couple, unable to flee, he intervened to release a young woman captured by an interpreter, but had the practical sense to ask her to convey messages to her people; he intervened when he thought that the Police had set fire to a women's house, and in many ways showed that he meant to inflict specific damage only, and not damage in general. In his choice of action he was most humane and concerned to protect the innocent.

The first action was to burn or remove all weapons in reach and burn the men's houses, which are mainly' significant as arsenals, defensive positions and focal points for the old fighting tradition. They are, in my opinion, a very fair "military objective". Mr. McCarthy, Director of the Department of Native Affairs, from his great personal experience of primitive natives; and of Kukukukus in particular, gave an account of the functions of men's houses, in which he expressed agreement with the accused's appreciation of the danger. He also drew attention to the value of the men's houses as centres of spiritual culture as a factor in preserving the society as a unit. He doubted the value of the destruction of a men's house, since the temporary advantage gained might not compensate for the hatred which might ensue. He very fairly recognised the two sidedness of this problem, and pointed out that it is one matter for an officer sitting in the safety of a chair in Court, to say what he believes he would do, and another matter for the man faced with such a problem to make his decision and carry it out. I think it fair to add that vast experience and a preference for long term pacification on one side and youthful inexperience and a sense of urgency and inadequacy of resources on the other, might account for wide differences in honest opinions.

I think that the opinion of accused that the whole set of hostile groups should be kept in balance whilst being quickly brought under legal control, was a proper decision, and that the destruction of the men's houses was a step calculated to discourage the fighting cult, and a necessary step towards the establishment of a stable condition of peace, and law and order.

The other items of damage executed by or on the orders of the accused were directed:

(1) to forcing the natives to come down and stop fighting, or

(2) to provide necessary food for the supply of the men at the Road Camp, and indirectly for the Station personnel.

The first is a method of securing peace which the accused thought might succeed, and amounted to the use of bluff, which is not unusual by any means. I think that in any dealings with natives, it is a two-edged weapon, often inflicting loss of prestige on the user and doing no permanent good to the reputation of the Administration, but I cannot say that it was anything but a rational decision, or affords any evidence or impropriety with regard to the burning of the houses.

I prefer the sequence of events claimed by the accused, that no gardens were damaged on the Friday and I think it most likely that this damage was due to a decision to take further action when the natives did not appear on Saturday. Even if, as stated by several native witnesses, some gardens were destroyed on Friday, I think that this is no evidence of malice, but rather indicates that the accused had sufficient local knowledge and the good sense to plan his operation in advance, depending on what kind of reception he would receive at the top of the ridge.

As to the food, it would of course be most harmful if the owners were not properly compensated, but I do not know whether accused arranged for this or not, nor would it afford evidence to support the present charge. The operation on which the accused was engaged was in the nature of a military operation, and the necessity for feeding of his forces is justification for commandeering necessary supplies, outstanding rights of innocent persons being properly adjustable after peace is restored. This action therefore affords no evidence of malice in relation to the acts charged.

My conclusion being that the accused acted correctly in performance of a duty imposed by law, it follows that the burning was not unlawful but was justified and upon the decision made by accused, authorised and required, by law.

The defence relies on the specific provisions of Sections 458(3) and 22. I do not think either defence is applicable. I think Section 22 in its context applies only to interests in or in relation to property, which may constitute a right which may be claimed. The accused was acting in pursuance of a duty, not to sustain a right. The actions of accused are like wounding in self-defence - if exercised it affords a defence to criminal proceedings; if not, it does not constitute a right which may be claimed afterwards. I think that claims of right under Section 22 may extend beyond proprietary rights into the field of rights in personam in relation to property or rights to commandeer, manage, control, occupy or exclude occupation of property, but not to a power to destroy property for the public protection as distinct from any personal interest in or in relation to it.

The defence arising under Section 458(3) appears to me to exclude Section 22, for if the two Sections were read together, a mere subjective belief that danger was imminent would in every case be sufficient, for accused could honestly claim the right, regardless of the actual existence of reasonable grounds required by Section 458(3), by forming the subjective belief that his grounds were reasonable.

I think further that Section 458(3) does not assist because the accused was not dealing with a danger that was imminent. I think that this applies to a specific case where danger of the kind actually contemplated by the accused was an apparent and immediate or proximate threat of injury. He regarded himself as quite competent to handle the situation in which he found himself and was not aware of any danger of injury at the time the houses were burned. If asked at the time whether the natives were likely to attack anyone at that moment, or shortly, I think he would have scorned the idea. I do not say that there was no danger to anyone, indeed there might have been an ambush at any moment, but I do not think that any such thought had anything to do with the burning of the houses. Accused in his own evidence quoted earlier, affirms this. I think that the burning was referable to the duty to establish law and order, at a stage when actual rioting had ceased, and was for the purpose of bringing the people into a state of subjection to law and lawful authority.

Section 458(1) contains a definition of unlawfulness, sufficient, if any further express provision than is found in Section 459 is needed, to take the actions of accused out of the latter section.

VERDICT - Not Guilty.

Accused discharged from custody.