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

THE QUEEN v. THE RESIDENT MAGISTRATE AT PORT
MORESBY and GEORGE BARRY ALLAN
ex parte ARUAI PAPARI

REASONS FOR JUDGMENT.

Port Moresby
Mann C.J.
4th Mar. 1963.

This was an application for the issue of a Writ of Certiorari upon the prosecution of ARUAI PAPARI who was on the 30th November, 1962, convicted of being drunk in a public place and ordered to pay a fine of £2.

All the parties concerned in the case were represented by Counsel and the facts have been thoroughly investigated and the law fully argued. In the process, the issues have become clear, and it is now unnecessary for me to give an exhaustive analysis of the law on the subject since the principles involved have been clearly established for a long period of time. It is sufficient for me now to say that any party coming before a court of law is entitled to justice according to Law; and, if he is not accorded this right, the proceedings which resulted in any adverse determination will be set aside by the superior courts and, if necessary, begun again so that he can attain his right.

As a corollary, or perhaps an extension of this cardinal rule, based on the experience of courts in their dealings with questions affecting the public interest, there is the additional rule that justice must not only be done, but must manifestly appear to be done. This second rule must never be regarded as replacing the first in any degree. Some writers have suggested that it is more important for justice to appear to be done than for it in fact to be done, for the number of people who are in a position to form an objective and accurate assessment of the motion of justice according to law, are few, and so long as the administration of the law is accorded the support and respect of the public, that is the most important thing.

I need hardly point out that this is false reasoning, and could lead to gross deception of the public. There can be no pretence in the conduct of legal proceedings, and they must always be in fact honest and designed to achieve justice according to law, whatever people with a partisan view might think about the desirability of such an objective. It is only in support of this cardinal rule that the second and subordinate rule exists, so that even critics who might desire, for reasons of personal advantage or any other reason of expediency, a less objective administration of law in the courts, can be afforded every opportunity of seeing and understanding what the courts are doing, and what are the objectives sought to be achieved by the Courts in the public interest.

The first rule tends to be absolute in its nature. A party is entitled to justice and if he does not get it the order will be set aside. The second principle is a question of degree and it becomes a matter of judgment when the superior courts, in exercising their supervision over other courts in the legal system, have to decide whether it should have been manifest to all, including people with partisan interests, that the proceedings were conducted: and disposed of according to the established principles of justice. There are reported cases where undisclosed communications have taken place between Magistrates, Clerks of Courts, members of the profession and others, and some observer of the proceedings might well have gained the impression that something untoward was going on, and that the Magistrate's decision might have been wrongly influenced, or that the Magistrate might have acted upon information improperly obtained or admitted, contrary to the proper interests of a party.

In most of these cases, the true facts have proved to be harmless enough when they were properly investigated, and it may be said that in most cases it is found that substantial justice was in fact done. Nevertheless, an observer of the proceedings and especially a person in such a sensitive role as a person accused, might well have got the impression that an adverse judgment or s severe sentence was, in reality, the result of some observed irregularity in the conduct of the proceedings. In such cases, the Court will set the proceedings aside even though, on a thorough investigation of the facts and careful consideration of what was really done, it might be clear that the decision was arrived at on proper grounds and that in fact it accorded with the established principles of justice according to law.

Where the second rule is evolved, it is particularly important that all the facts should be as fully investigated as possible for, as I have said, it is a matter of degree. It is a matter of observing proper standards as established by tradition and experience, and it is a matter calling for the exercise of judgment and discretion.

In the present case, the Prosecutor (I will call him the "Applicant" to avoid confusion with the prosecutor in the proceedings before the Magistrate) was one of a large number of persons arrested and brought before the Resident Magistrate on the 30th November, 1962, upon a charge of being drunk in a public place. He and a few others pleaded not guilty to the charge. Most of the defendants pleaded guilty and were dealt with very briefly, and standard fines of £2 each were imposed on them. A considerable number of Defendants were in a state of some confusion and either stood mute or at least did not say anything that could be properly taken as a plea of guilty. They were therefore treated as having pleased Not Guilty, and they and the others who had pleased Not Guilty were told to wait, and their cases were stood down until all the cases in which pleas of Guilty had been entered, were disposed of. At the request of the Resident Magistrate, the Police Officers conducting the prosecutions spoke to these remaining Defendants outside the Court, during a short adjournment and, subsequently, during a resumption of the proceedings, most of them pleaded Guilty and were fined the same amount as the others. The Applicant and two other Defendants maintained their pleas of Not Guilty throughout. When the Applicant's case came on for hearing in the afternoon, it was treated as a defended matter upon a plea of Not Guilty but, after a rather brief hearing, the Applicant was convicted and fined the same amount as the other Defendants. 

When the present application came before the Court, it was supported by affidavits lodged by three journalists, Donald MacDonald Hogg, David Bruce Stockand and Boa Arua Kapana. According to these affidavits, and especially that of Mr. Hogg, the facts alleged would clearly support the setting aside of the proceedings before the Resident Magistrate on the grounds that they involved a denial of justice. Further support for such a claim on the part of the Applicant was derived from the affidavit of David Anderson, the Manager of the Company employing the Applicant. 

My first impression on reading these affidavits was that some of them made the most serious allegations against the Resident Magistrate, which called for the closest scrutiny. Mr. Boe Kapena gives the clearest account of what he observed, and he remained in Court throughout the hearing of the proceedings. A curious feature of the evidence of Messrs. Anderson and Hogg
is that they could hardly have been aware of the significance of what they say was going on in the Court, because they both left the Court before the Appellant's case came on for hearing, and one would have expected both of those gentlemen to make a special point of remaining in Court until the finish, if they realized that the proceedings being conducted in their presence bore the significance suggested by their affidavits.

Nevertheless, the matters raised in these affidavits represented the impression gained by independent observers actually present during part of the proceedings, and they called for the fullest and closest enquiry. Very properly, the Crown had the matter fully investigated at this stage and obtained evidence from every person who was present during any part of the proceedings and who was available to give evidence. The Crown was represented upon the hearing by the Acting Chief Prosecutor. He supported the Applicant's case for a re-hearing of the original proceedings upon the ground that it did not sufficiently appear that justice had been done, but he opposed the granting of any order upon the ground that there was any actual injustice to the Applicant.

Upon the hearing before me, Counsel for the Applicant made it clear that having studied all the evidence now before the Court, he was satisfied to confine his argument to the ground that justice did not manifestly appear to be done. He relied upon the other ground that justice was not in fact done, only if I should come to the conclusion that the cardinal rule was itself invoked where the evidence disclosed that justice did not manifestly appear to be done.

I do not take this view of the application of these principles, and, as I have previously indicated, I think that the secondary rule is an extension of and addition to the cardinal rule, designed as a result of experience to ensure the observance of the cardinal rule itself clearly and beyond question. 

The Resident Magistrate himself appeared by Counsel and tendered an affidavit frankly disclosing all the facts and circumstances as he saw them, and offering an explanation which had escaped the notice of the deponents to the first affidavits. It is not usually necessary or desirable for the Magistrate to make an affidavit unless he is called upon by the superior Court to state his version of the facts. In appeal proceedings, this can best be achieved in the form of a report setting out reasons for the decision, but, in cases of prerogative writs, it may be necessary for the superior Court to call upon the Magistrate to give evidence in some appropriate form. The general principle to be observed is that the Magistrate should so far as possible not appear in any proceedings in a partisan role, and it is undesirable for him, in the public interest, to be subject to cross-examination by interested parties. In the public interest, it is usually better for a Magistrate only to come forward when asked to do so, and the superior Courts, generally speaking, take the view that when a Magistrate's version of the facts and circumstances is received, it is to be taken as the last word on the subject. Should there be any allegation of falsehood in any respect, it is more appropriate for any accuser to have to support his allegation in another jurisdiction, so that we do not have a regular practice of presiding magistrates being challenged or attacked by people with partisan interests who are not prepared to support their accusations, and we do not have the unjust result that the rights of a party seeking redress should have to depend on whether or not he can successfully sheet home some accusation against the presiding Magistrate.
A moment's reflection is enough to perceive that if the present Applicant could only succeed in these proceedings by establishing some charge of improper conduct against the Magistrate or the Police, his rights would be very much more limited than they are as the law now stands, and that the determination of his rights would be governed by the determination of a false issue between other parties so far as his claims were concerned.

During the hearing, I acceded to the request of Counsel appearing for the Resident Magistrate, that his client's affidavit should be admitted. It appears from this affidavit that a considerable number of Defendants were unable to understand the nature of the charge brought against them, that is that they were drunk in a public place. They were natives who were accustomed to the former law that natives must not drink, and they knew that under the former Native Regulations they were liable to imprisonment if they did so. The difficulty involved in interpretation, where some lingua franca such as Police Motu or Pidgin is employed, is familiar to all who sit to determine cases judicially. The fact, that a native has a smattering of these languages is of little assistance when it is found necessary to convey to him a real understanding of some concept quite unfamiliar to hire. Accordingly, it appeared to a number of the Defendants that they were really being charged under the old law with the offence of drinking, and that as a matter of course they would be sent to gaol. They knew very well that this law had been repealed and they could not understand why they were being charged, or why they were (as they thought) being, sent to gaol.

The Resident Magistrate, through interpreters, tried to explain to them that they were not being sent to gaol for drinking, they were being charged with a different offence, that is, of being drunk in a public place. Pidgin expressions such as "long-long" are a poor approximation to the concept of drunkenness, and could be expected to do little to explain to the Defendants what was the nature of the charge. The significant part of the Resident Magistrate's affidavit is the inference which ought plainly to be drawn from his actions, that he was not prepared to treat the Defendants as having pleaded guilty unless he was personally satisfied that the Defendants understood the nature of the charge, and understood the nature of such a plea, and wished to plead guilty. The Resident Magistrate made some attempt to explain the matter to the Defendants but he appears to have been well aware of a difficulty frequently encountered by Judges in the Criminal Jurisdiction in comparable circumstances. If a charge involving several ingredients is simply put to a native defendant, and if he is in agreement with the last element of the charge, he is very likely to say "Yes", when experience shows that his mind is addressed wholly and solely to the last thing that was said. If, on the other hand, a person acting judicially breaks up the charge into separate ingredients for the purpose of obtaining a plea, and explains each ingredient separately, and seeks the assent of the Defendant as to each ingredient, the process can sometimes amounts depending on the nature of the charge, to something like an interrogation of the Defendant who, at this stage of the trial, ought not to be required to submit to any form of interrogation, or called upon to make a statement as to any separate question of fact which may be material to his case.

I think that the Resident Magistrate clearly understood that if he personally sought to explain matters any further he might produce unintentionally a situation which would in fact lead to the prejudice of the Defendants. It is a matter for the exercise of careful judgment, and I think that the Magistrate having made the attempt and received little response, was wise to desist.

This meant that somebody other than the Magistrate was needed, not for the purpose of persuading the Defendants to plead guilty as was suggested by the earlier deponents, but for the wholly desirable and necessary purpose of enabling the Defendants to understand that they were not being charged under the repealed law, but were being charged with being drunk in a public place, and that in the circumstances prevailing it was likely that the Magistrate would impose the same fine on them if they pleaded guilty as he had imposed uniformly on all the other Defendants that day, and that they need not fear that for some reason unknown to them they were to be dealt with under the old law and sent to gaol.

The institution of the Public Solicitor in the Territory has been of inestimable value in affording to uneducated natives and others, the means of understanding and upholding their legal rights and obligations. The Resident Magistrate has from time to time referred to the Public Solicitor cases of special difficulty where, in his view it was necessary and proper for legal representation to be provided. According to the present practice, however, it appears that the services of the Public Solicitor would not have been available to the Applicant or the other Defendants in the proceedings before the Resident Magistrate. In these circumstances, the Resident Magistrate who had every reason for having the utmost confidence in Inspector Feeney, the Prosecuting Police Officer, who was known to him to be a skilled and experienced speaker of Motu, asked Mr. Feeney if he would speak to the Defendants who were waiting outside the Court and explain to them the nature of the charge. As a practical way out of a real difficulty imposed on him by lack of better facilities, I have not the slightest doubt that the course taken by the Resident Magistrate was an intelligent choice, and that it appeared to him to be the safest course which he could take to ensure that the Defendants were justly treated. I have no doubt of the Resident Magistrate's bona fades in this matter, and it is perhaps unfortunate that the course which he took left him open to attack on the ground that he must have had some untoward motive in getting the police to talk to the Defendants outside the Court. This is the kind of risk which is always run when more appropriate facilities are not available, and a person acting judicially tries to observe the substantial requirements of justice by resorting to some make-shift procedure. The present case clearly demonstrates that the course taken was wrong, but I do not hesitate to say that the Resident Magistrate showed a proper appreciation of the requirements of justice throughout the proceedings and that, in fact, justice was done in the Applicant's case.

This does not terminate the inquiry, although it satisfies the requirements of the cardinal rule referred to above. It is clear from the evidence of some observers that they did not understand all that was going on, and gained a most adverse impression of the proceedings. The rule does not say that justice should appear to be done only to those persons of legal training who have a real understanding of the circumstances involved. Justice must be manifest to the members of the public who resort to the courts for any purpose, and take a proper interest in the administration of the law. The circumstances which gave rise to adverse impressions were curiously confused and misunderstood. Evidence from some of the Defendants who appeared before the Resident Magistrate, purported to show that the Defendants were afraid of what might happen to then and, after being addressed by two police officers, gained the impression that they were being told to change their plea so that they would be fined only £2 and not be sent to gaol. These affidavits show a state of confusion, existing in the minds of some of the Defendants, and their inability to grasp the true position, but even if they were influenced into entering a plea of Guilty when their real wish was to defend the case, it is clear that this does not apply to the Applicant himself, who throughout the day maintained his plea of Not Guilty, and was not in fact influenced by anything he heard to change his plea.

It is not right that the Applicant's position should be determined by the failure or inability of some other Defendant to understand his position. It is clear that the Applicant understood well enough the general position in which he himself was placed.

There were allegations of undue haste in the hearing of the many cases which were dealt with during the morning of the 30th November. There is substance in this, for it is very important that a plea should be taken with the greatest calmness and deliberation but again, this does not appear to have affected in any way the present applicant, At most, the Applicant can establish that his impressions and the impressions of other people, perhaps even less equipped to understand legal administration, was that during the morning the cases were dealt with somewhat hastily, and that police officers carrying the responsibility of prosecuting then, had at the invitation of the Magistrate, addressed the Defendants in pidginized languages calculated to cause a good deal of confusion and ambiguity, and that the inference which these accused persons would reasonably draw from their experience during the morning was that it would not be in their interests to challenge the prosecution.

This background did not lead to the relinquishment by the Applicant of any of his rights, but it might well have left him in the afternoon when his case was dealt with, in a position of much reduced confidence as to the advantages to be gained by pressing his defence. The Applicant claims not to have had anything to drink at all, and to have been engaged solely upon an errand for his employer. On the police evidence, he has something to explain both in relation to lapse of time, and in relation to the place where he was arrested. When his case was heard, the Magistrate gave the applicant every opportunity to cross-examine the police officer who arrested him, but the defence collapsed and the Applicant showed little fight. The Magistrate addressed a few questions to the arresting police officer and obtained some further confirmation of the allegation that the Defendant was drunk. Nevertheless, having read the record of the proceedings I am left with the impression that the evidence upon which the appellant was convicted would not have sustained a conviction in any adequately contested case. The police officer did not prove his qualifications as an expert and he merely stated the baldest of opinions that the Applicant was drunk. Cross-examination might have been of considerable effect, one way or the other.

If the Resident Magistrate had undertaken on behalf of the Applicant, the task of cross-examination of the police officers, he might well have elicited evidence most damaging to the Applicant, and so there was some justification for his leaving the evidence in a somewhat unsatisfactory state, when the Applicant showed no further response to the invitation to ask questions. I think it is quite plain that the applicant did not have the ability to conduct anything like a proper defence.

The Magistrate cannot be blamed for the inability of the applicant to conduct his case better, and I think that the applicant was in fact given every opportunity to do so. Nevertheless, it is possible that the Applicant's inability to sustain his defence in the afternoon was due to the adverse impressions which he had formed during the morning as to the manner in which the other Defendants had been dealt with. He may have had something of the impression of some of the other Defendants, that it would be better for him in the long run not to antagonize the police or the Magistrate. From his own affidavit in these proceedings, it appears that the Applicant was by no means clear as to his rights, and misunderstood the significance of a good deal that was said during the hearing of his case.

In these circumstances, I think that it is proper that he should have the opportunity of presenting his defence on the merits to the charge upon which he was originally arrested. I think that it is clear in the circumstances, that to the Applicant as well as to other persons present during that day, it was not at all apparent that objective justice was being administered in the Court, and that amongst those least able to understand the significance of what was going on, there was a tendency to feel that the Defendants were at the mercy of the police and that the Magistrate might well be on their side. As I have previously indicated, this is not the fault of the Magistrate, or, for that matter, of the police, but is due for the most part to circumstances beyond the control of any of them in which, in the interests of ultimate justice, responsible people sometimes feel the need for improvisation, which can be so misunderstood by uneducated natives and sometimes by others, that an altogether false impression may be created of what is going on.

In these circumstances, I have no doubt that the order pronounced by the Resident Magistrate should be set aside and that the charge should be heard again, so that the Applicant may have the fullest opportunity to answer it and establish his defence if he can.

Order - Writ of Certiorari to issue to bring in the order and conviction referred to; that the conviction and sentence be squashed and set aside; and that the complaint be referred back to the Court of Petty Sessions at Port Moresby to be heard and determined according to law.