Warite v Barrett [1967] PGSC 44; [1967-68] PNGLR 376 (31 July 1968)

Papua New Guinea Law Reports - 1967-68

[1967-68] PNGLR 376 - James Sine Warite v Barrett

[1967-68] PNGLR 376

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

JAMES SINE WARITE

V.

BARRETT

Port Moresby

Frost J

3 July 1968

31 July 1968

LOCAL COURT - Admission at hearing of some but not all elements of charge - Admission not plea of guilty - Procedure for taking plea from indigenous defendant who is unrepresented - Survey Ordinance 1962-1966, ss. 5, 18, 29^*[cdlxxi]1.

Where a person before the Local Court on a charge under s. 29 of the Survey Ordinance 1962-1966 admits only that he wilfully removed survey pegs such an admission should not be treated as a plea of guilty to the offence.

Procedure for taking a plea in the Local Court from an indigenous defendant who is unrepresented discussed.

Pukari-Flabu v. Hambokon-Sma, [1965-66] P. & N.G.L.R. 348, and Laeka Ivarabou v. Nanau, [1967-68] P. & N.G.L.R. 12, referred to.

Appeal from Local Court.

The facts and relevant statutory provisions appear sufficiently from the judgment.

Counsel:

Williams, for the appellant.

Colclough, for the respondent.

Cur. adv. vult.

31 July 1968

FROST J:  This is an appeal against the decision of the Local Court at Port Moresby on 24th May, 1968, whereby the appellant was convicted on a complaint laid under s. 29 of the Survey Ordinance 1962-1966, that during April 1968 on Department of Lands Section D.A. 229, Papua, he did remove land marks, being the concrete survey pegs, which had been erected by a licensed surveyor acting on instructions from the Surveyor General of the said Territory, for which the appellant was sentenced to imprisonment for four months.

At the hearing, the charge was put to the appellant who then stated, "I pulled the pegs out because my father told me that this land was not bought". Although the court record does not disclose what plea was entered, it does record that the magistrate took this to be an admission of the charge, and proceeded to convict the appellant. Before sentence, according to the court record, the appellant made a further brief statement:

“First I went and saw the pegs with my father. I then asked my father whether this land was bought. He told me land further down was bought but not this. My father told me now pull the pegs out and leave a note for the surveyors to read.”

The grounds of appeal were:

N2>(a)      That a plea of guilty was wrongly entered in that the statement of the defendant implicitly denied an element of the offence namely that the survey pegs in question were erected on Department of Lands Section D.A. 229.

N2>(b)      That the Court had no jurisdiction to hear the matter in that the appellant raised a bona fide claim of title to the land in question whereby the jurisdiction of the Local Court was ousted.

N2>(c)      That the magistrate was wrong in law in not considering and giving effect to the appellant's bona fide claim of right to remove the pegs from the land.

N2>(d)      That the sentence was manifestly excessive.

In support of this claim of right, I gave Mr. Williams leave to read and file an affidavit sworn by the appellant's father Warite Koare, in which the latter deposed that the pegs in question were placed on land which had always belonged to him and his family and which had never been purchased and that it was on his instructions that the appellant had removed the survey pegs.

Section 29 of the Survey Ordinance 1962-1966 provides that a person shall not wilfully or negligently . . . remove . . . a land mark . . . which has been erected by or under the direction of an officer of the Department of Lands, etc., or by a licensed surveyor. Under s. 18(1), in making an authorized survey, or for a purpose relating thereto, a licensed surveyor may enter upon any land, and under s. 18(2), a licensed surveyor, or a person acting under his directions, may place and leave pegs in land for the purpose of a survey. "Authorized survey" is defined to mean a survey of land authorized or required (a) by or under or for the purposes of any law in force in the Territory; (b) by the Administration; or (c) by the owner etc., of the land (s. 5).

The elements of the charge were thus, not only that the defendant had wilfully or negligently removed the pegs but also the formal matters that the pegs had been placed on land by a licensed surveyor for the purpose of a survey, which in this case, was said to be authorized by the Surveyor General. In the absence of a plea of guilty in terms or an admission made by the defendant as to every element of the charge, it was necessary for the informant to establish each such element. The procedure is laid down in the Local Courts Ordinance, s. 38. This case illustrates the difficulty of a court in this Territory in taking a plea from a person indigenous to the Territory, who is unrepresented, as the defendant was. It is most unlikely that a plea in terms of guilty or not guilty would be understood or made. If the defendant then proceeds to make a statement which amounts to an admission of some elements only of the charge, particularly in cases involving, as this one did, technical matters of proof, the only course generally open to the magistrate will be to enter a plea of not guilty, and proceed to try the case.

The statement of the appellant was merely an admission that he had wilfully removed the pegs; it could not be construed as an admission of the other elements of the charge. Accordingly it was wrongly treated as a plea of guilty and the proceedings were a nullity: Pukari-Flabu v. Hambokon-Sma[cdlxxii]², Laeka Ivarabou v. Nanau[cdlxxiii]³, and the conviction must be set aside.

It is thus unnecessary for me to consider counsel's arguments upon the first three grounds of appeal. However I propose to say that the express powers given under the Ordinance to a licensed surveyor to enter on any land and to leave pegs in the land (s. 18 (supra)) and the provisions of Pt VII prohibiting removal of the pegs would have been relevant to these issues. It is also unnecessary for me to consider whether the sentence was excessive. However as the appellant was in custody until 5th June, 1968, viz., twelve days, before he was released on bail pending this appeal, I do not order that the matter be reheard.

Appeal allowed, conviction and sentence set aside, and appellant discharged.

Solicitor for the appellant: W. A. Lalor, Public Solicitor.

Solicitor for the respondent: S. H. Johnson, Crown Solicitor.

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[cdlxxi]* Section 29 of the Survey Ordinance 1962-1966 provides, inter alia, as follows:

“A person shall not wilfully . . . remove . . . a land mark . . . which has been erected by or under the direction of an officer of the Department of Land Surveys and Mines or by a licensed surveyor.”

[cdlxxii][1965-66] P. & N.G.L.R. 348.

[cdlxxiii][1967-68] P. & N.G.L.R. 12.