Cervetto and Ibara, ex parte Madaha, Regina v [1965-66] PNGLR 110 (30 April 1965)

Papua New Guinea Law Reports - 1965-66

[1965-66] PNGLR 110 - Regina v Cervetto and Ibara, ex parte Madaha-Rabura

[1965-66] PNGLR 110

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

CERVETTO

AND

IBARA, EX PARTE MADAHA-RABURA

Port Moresby

Minogue J

2 April 1965

5-6 April 1965

30 April 1965

PREROGATIVE WRITS -Writ of certiorari - Plea of guilty said to be induced by fraudulent or improper police conduct - Burden of proof.

CRIMINAL LAW - Practice where plea of guilty by person unrepresented by counsel.

The applicant, Madaha-Rabura, a female Papuan, pleaded guilty in the court of petty sessions to a charge of stealing £10. The resident magistrate accepted her plea, convicted her and sentenced her to one month’s imprisonment with light labour. The applicant appealed against the sentence and obtained an order nisi for the issue of a writ of certiorari. The appeal and the return of the order nisi were heard together. At the hearing the applicant gave evidence by affidavit (upon which she was cross-examined) that she was not guilty of the offence but had been induced to plead guilty when a police constable had told her that the court would be hard on her if she denied the offence but would not be hard if she admitted the offence. Other evidence tending to show the applicant’s innocence was also adduced. The applicant sought to have the writ issued on the ground that since a false confession and plea of guilty had been wrongfully induced by the police constable’s statement, material statements were put before the court which were not true and the statements therefore constituted a fraud on the court.

Held:

(1)      Before a writ of certiorari may issue on the ground of fraud the onus is on the applicant to show the fraud to be manifest and clear.

(2)      The evidence adduced by the applicant was not of such a nature that it induced a comfortable satisfaction that the applicant’s allegations as to misconduct by the police were true and, accordingly, it was not manifest and clear that fraud led to the applicant’s conviction.

(3)      As a rule of prudence, upon the hearing of a case where a person is unrepresented by counsel and has been charged by the police, the magistrate should, before accepting a plea of guilty, point out that the severity of penalty does not depend upon whether the accused pleads guilty or not guilty. The magistrate should enquire of the accused whether any person has suggested he should plead guilty; if the accused does not promptly disclaim the receipt of any such advice the magistrate should suggest that the accused plead not guilty, emphasizing the impropriety of advice to the contrary, or should ensure that the accused has had the invitation and opportunity to put on record everything he wishes to say and his acknowledgement of that invitation and opportunity.

(4)      The magistrate’s failure to observe such a rule of procedure did not constitute a ground for issuing a writ of certiorari, there being no general ground for issuing the writ in the interests of justice and public policy.

(5)      After consideration of evidence which was not available to the magistrate in the first instance, the interests of justice would be served by substituting for the period of imprisonment imposed by the magistrate a sentence of imprisonment to expire on the date on which the appellant was released on bail to prosecute the appeal.

Writ of Certiorari.

The facts are sufficiently stated in the judgment.

Counsel:

Macphee, for the applicant.

Shaw (with him Chaney) for the respondent.

Cur. adv. vult.

30 April 1965

MINOGUE J:  On Friday, the 11th December, 1964, Madaha-Rabura was employed as a shop assistant by the Port Moresby Freezing Company Limited at its food hall in Musgrave Street, Port Moresby. She was and is a single girl aged 18 years although it is her intention to marry a young Australian whose child she is now bearing and which she expects to be born in July next. On the 11th December she finished her work at approximately 5 o’clock in the afternoon, went to Kila Kila, where she had her evening meal, and then in company with a number of Kila Kila people went to Porabada for an annual Christmas gathering of young people. Singing and talking went on all night and early on Saturday morning Madaha came into Port Moresby with a party to collect some food which had been previously ordered for this Christmas gathering. At some time after her arrival at Porabada she was told that she had been nominated to run in some sports which were to be held on the Saturday afternoon and on that account, according to her story, she did not report for duty at 7.15 on Saturday morning as she should have. My own view is that in the excitement of the weekend celebrations the idea of their interruption for the sake of work made no appeal to her and with little compunction or thought she discarded the idea.

A Mr. Rayner, the manager of this section of the Port Moresby Freezing Company, on counting the Friday takings on the Saturday morning as was his wont, discovered a deficiency of £11 9s. in the cash on hand. He reported the matter to the Port Moresby police station and not unnaturally further reported the absence of Madaha and his suspicion that she was responsible for the missing money. Madaha reported for duty at 7.15 a.m. on Monday, the 14th December, but she was told by Mr. Rayner that she was not to begin work, that she had stolen a sum of money and that he would talk to her shortly. Mr. Rayner was busy organizing the morning programme for both the food hall and the adjacent butchery and on turning his attention to Madaha something over an hour later found that she had gone. She, in the meantime, had walked around to the premises of Steamships Trading Company, where she was later apprehended by two constables, Ibara and Bau. She was brought by them the short distance to the police station and was told by them the purpose of her apprehension, whereupon she denied any knowledge of the missing money.

At the police station in a room where there were a large number of native constables she was questioned again both by Ibara and by Constable Mauga, who is now an officer cadet at the Police Training College at Bomana. She again denied taking any money from her employer. She appeared to be, and I have no doubt was, frightened and Constable Mauga asked if she would care to accompany him to a smaller room where the matter could be more privately discussed. She accepted this invitation and in this room admitted to the taking of £10. She was then taken back to the large room where Mauga made out a criminal card index containing personal particulars as to her age, height, district of origin and the like. It was about this time that she, upon being asked how she obtained the amount of £10 which she had admitted taking, replied that she had taken a £10 note from a customer in payment for a bottle of soft drink and instead of putting the money into the cash tray she pocketed it. Mauga then made out a brief sheet for use by the prosecuting officer in the Court of Petty Sessions on which was endorsed a statement of facts which reads as follows:

“The deft. in this case employed by the Port Moresby Freezing Company Limited, at Port Moresby.

“At about 7.30 a.m. the deft. was present to work until about 3 p.m. to 3.30 p.m. on Friday the 11th of December, 1964, an unknown native approached the deft, and gave her £10 note to buy bottle of lolly water and pie. The deft. served the man and instead of putting the sum of £10 in the cash till she put the money in her pocket and after work about 5.05 p.m. on that same day, the deft. knocked off and went home.

“Next morning, the deft. did not turn up to work, but went to Porebada for sporting with group of girls and boys. The deft. spent the night there with her friends and returned to Port Moresby on Sunday 13/12/64, at mid-day. The Manager of the P.M.F. checked the money and observed that some money had been found to be missing.

“The matter was then reported to police and the deft. located on 14th December, 1964. When questioned relating to the offence, the deft. admitted and stated that at the time when she stole the sum she had no money in her pocket and that her friends had been told her to go to Porebada on Saturday. The deft. was then arrested and charged with the present offence and placed in the cells. The deft. stated that she had spent all that money on her food and some other things.

“Antecedents:

Married to European Mr. Charles LEGRADY, employed by the Dept. of Education and resides at Manus. The deft. lives at Kila Kila Village with her parents. She has no child and had married about 2 years.”

She was then taken to the cells and after lunch she was brought before the resident magistrate, Mr. Cervetto, and charged with stealing £10 the property of the Port Moresby Freezing Company Limited. He took from her a plea of guilty, convicted her and sentenced her to one month’s imprisonment with light labour.

It is that conviction that Madaha seeks to have quashed by means of a writ of certiorari issued out of this court. The grounds upon which she applies are as follows:

(a)      that the purported proceedings before the stipendiary magistrate and the purported conviction entered against the defendant constituted a denial of natural justice;

(b)      that the purported conviction of the defendant was obtained by the fraud, duress and improper inducements of a constable of the Royal Papua and New Guinea Constabulary;

(c)      that the purported conviction was obtained by the unfair conduct of a constable of the Royal Papua and New Guinea Constabulary;

(d)      that in the interests of justice and public policy the purported proceedings and conviction should be quashed.

A number of affidavits were tendered in evidence before me and I allowed cross-examination on those affidavits. In particular Madaha, Mauga and Mr. Rayner were cross-examined at some length before me. I was satisfied as to the facts which I have set out above and it is urged upon me that I should be satisfied as to further facts material to the determination of this application. I should add that Madaha gave her evidence before me in English and struck me as a girl of reasonably good education. Evidence was led to support her story, firstly that she had no need to steal this money as the man whom she hopes to marry was sending her regular fortnightly amounts and she had received an amount of £4 from him a few days previous to the Friday in question. Further evidence was led to show that she was in possession of this money on the Friday and handed it to an uncle of hers to look after for her. In an attempt to show that she had not spent anything like the £10 to the stealing of which she had pleaded guilty further evidence showed that she had come into Port Moresby with a group of people on the Saturday morning, that she had not left the truck in which they had travelled nor had she spent any money. Her uncle deposed to her having obtained some part of the £4 from him for the purpose of making some small purchases at Porabada. However there was no evidence, nor could there have been, to show that she could not have spent other money nor handed money to some one or other of the fairly large number of people who were present at the social gatherings. She denied on oath before me that she had taken any money from her employer on the Friday and her explanation of her plea of guilty was that on her arrival at the police station she was frightened by the constables present, that there was a great deal of criticism of her “being married to a European”, that it was said to her that she should still be at school, that she would incur shame in having a child by this European and that she was, in effect, distraught. She stated both in her affidavit and to me that Mauga was the only one who spoke kindly to her, one of the other policemen having already accused her of telling lies and of stealing the money. She stated that Mauga, whom she referred to as “the Daru policeman”, not knowing his name, asked her in Motu whether she would like to talk with him in the small office secretly.

By the time she arrived in this office she was very upset, partly because of the talk which she had heard and partly because of her knowledge that she was pregnant and of the fact that her fiancé’s parents would not consent to her marriage. She deposed that she could not remember the exact words used by the Daru policeman but what he said was roughly as follows:— “If you say that you took the money your court will be alright and won’t be hard for you if you say you did not take it your court will be hard.” She went on to say that Mauga had spoken softly to her and she thought that he was being nice to her and that if it was true that the court would be hard if she said she did not take the money she should say that she stole it. She further stated that she would not have said that she stole the money if these words had not been used to her. This version she repeated to me under cross-examination, again stating that she could not remember the exact words used but that what she had sworn to in the affidavit was the substance of them. Mauga both in his affidavit and in his oral evidence before me denied having used any such words. He admitted that from the information which he had in his possession at the time of Madaha’s arrival at the police station he believed her to be guilty of the offence. He stated that he thought she was frightened, that there were a number of constables in the large room and he asked her if she would like to come into the other and smaller room, to which she agreed. According to him he said, “I am not going to force you to tell what you have done, it is all up to you. If you want to say something to me you can but if you don’t want to I cannot force you.” He denied having brought any pressure to bear on her or having said that he could not force her to tell him what she had done but that it would be better for her to tell the truth and say that she did it. According to him she was still somewhat frightened when she was in the small room with him.

I should add that Madaha testified before me that she had in fact been handed a £10 note by a customer on the Friday, that she handed it to Mr. Rayner, who was counting money in the food hall, that he put it amongst some other money which was in front of him and gave her the change due to the customer, which she in turn gave to that customer. Mr. Rayner categorically denied any such incident having taken place. Madaha also denied having made any statement to Mauga to the effect that she had spent the money on her food and some other things.

Mr. Macphee, for Madaha, did not direct any argument towards the first ground upon which he sought the writ and I cannot see that this ground can be supported. It is true that this is one of the recognized grounds upon which certiorari may be awarded, but “natural justice” in my understanding of the law must be given a restricted and technical meaning which requires the tribunal to give a fair hearing. Nothing has been shown to me to indicate that Madaha did not have a fair hearing before the magistrate and, subject to one matter to which I will return later, I can see no ground for complaint as to what happened in the court of petty sessions. The argument really centred upon grounds (b) and (c) which in effect were treated as one ground or rather ground (c) was treated as a particular example of the matters raised in ground (b). It has long been recognized that certiorari may be issued to quash the order of an inferior tribunal which has been obtained by fraud. See R. v. Gillyard[xcii]¹ and Colonial Bank of Australasia v. Willan[xciii]² and more recently in England in R. v. Recorder of Leicester[xciv]³, where the appellant to quarter sessions in affiliation proceedings whose appeal was allowed was subsequently convicted of perjury in respect of the evidence given by him on his appeal. The divisional court allowed certiorari and quashed the order of the appeals committee on the ground that the order of that committee had been obtained by fraud.

Mr. Macphee submitted that if I were satisfied that a conversation took place between Madaha and Mauga which could reasonably, having in view her state of mind, lead her to believe that an inducement was held out this would result in material statements being put before the court which were not true and the statements so taken would amount to a fraud on the court. His submission was that the statement of Madaha’s admitting guilt resulted from conduct on the part of the police which I should consider as reckless or improper. He went on to submit that it was open to me to find that Mauga might well have said more than he cares to remember or more than he does remember. I think it clear that the onus is on the applicant in proceedings such as these to satisfy me as to her case. To what degree I should be satisfied has been debated before me and a number of recent Queensland cases have been cited to me. In Hallahan v. Campbell; ex p. Campbell[xcv]⁴, R. v. Kinsman and others[xcvi]⁵ and R. v. The Stipendiary Magistrate at Cloncurry and Corbett; ex p. Page[xcvii]⁶, the judges of the Full Court of Queensland have expressed the view that fraud has to be proved affirmatively by the applicant beyond all reasonable doubt. In the latter case, Mack J., with whom both Mansfield C.J. and Matthews J. agreed, said (at p. 80), “It is a very heavy onus and where there is a conflict of evidence, the cases when the court will act by certiorari after a plea of guilty in open court, must be indeed rare.” Mr. Macphee submitted that authority did not justify such a high standard but in the report of their Lordships of the Judicial Committee in Colonial Bank of Australasia v. Willan[xcviii]⁷ it was stated that the fraud upon the court must be shown to be “clear and manifest”, and the Court of Appeal in R. v. Ashford (Kent) Justices; ex p. Richley[xcix]⁸, held that the court would not quash by certiorari an order of an inferior court unless the fraud was clear and manifest. In that case Jenkins L.J. at p. 177 expressed the view that “... the court should not, in exercising this jurisdiction, weigh one set of alleged facts against another. If such a weighing of facts is necessary, I think that demonstrates that the case is not a proper one for the exercise of the jurisdiction”. And he went on to say, “I would not attempt to state exhaustively the requirements that should be insisted on as regards the state of the facts underlying an application of this sort, but, without attempting to lay down any general rule, I venture to say that I think an order of certiorari to quash proceedings on the ground that they were procured by fraud or perjury should seldom if ever be made unless the facts regarding the alleged fraud or perjury have either been the subject of a conviction in regular criminal proceedings against the person to whom the fraud or perjury is imputed, or else have been admitted by something amounting to a confession by such a person.”

In this case there is a clear dispute of fact, i.e., as to whether Mauga uttered the words attributed to him or some such words or not. Giving the best consideration I can to the evidence before me, and I must say both Madaha and Mauga gave their evidence convincingly and well, I cannot feel any sense of comfortable satisfaction that Madaha’s story is to be preferred. Mauga’s story, aided as it was by his demeanour when telling it to me, carried some conviction to my mind. It may be that in the distraught state in which she was Madaha misunderstood what was said to her or thought that the odds of her denial being accepted by a court were so much against her in the circumstances that it would be better for her to get the whole matter over quickly. Whatever be the true situation I do not feel convinced that Mauga spoke to her as she alleges, much less satisfied beyond reasonable doubt, and I cannot say that any fraud on the part of Mauga is manifest and clear to me. I must not be taken as expressing any view on Madaha’s guilt or innocence. That is not really in issue before me although during the course of the hearing it was to some extent canvassed. On the evidence before me, I would not be prepared to find her guilty but I think it improper in proceedings such as these to enter upon an enquiry into that matter.

The crucial question on this ground of appeal is, has the applicant shown it to me to be manifest and clear that fraud, duress and improper inducements or indeed the unfair conduct of Constable Mauga, led to her conviction? To that question I must give a negative answer. In Hallahan v. Campbell; ex p. Campbell[c]⁹ the allegation was that Constable Hallahan threatened Campbell, who appeared on a charge of vagrancy, with a false charge carrying a much higher maximum sentence than vagrancy, and said that if Campbell pleaded guilty to vagrancy he (Hallahan) would not make any serious statement against him before the magistrate. Hallahan denied these allegations and both he and Campbell were cross-examined before the Full Court. A statement of facts had been submitted to the magistrate at the vagrancy hearing, and from Hallahan’s own evidence before the Full Court it was apparent that he had no proof of a number of allegations made in the prepared statement and some of the allegations were recklessly if not deliberately made to deceive the court. The Full Court held that Campbell had not proved beyond reasonable doubt that he had been induced to plead guilty, but that the prepared statement submitted to the magistrate amounted to a fraud on the court and accordingly a writ of certiorari was issued to quash the conviction. It was urged upon me by Mr. Macphee that a somewhat similar situation existed in this case as, so he said, the allegations in the statement of facts read to the learned resident magistrate that Madaha admitted and stated at the time when she stole the money she had no money in her pocket and that she had spent all the money on her food and some other things, were demonstrably false. False they may have been, but I am not satisfied that Madaha did not make these statements and consequently that Mauga imposed upon the court by including them in the statement of facts. And there is nothing in the statement of facts to which exception can be taken.

As to ground (d) of the notice of motion, Mr. Macphee does not seek to support the application by any authority for the issue of a writ of certiorari on such a ground. Nor have I been able to discover any such authority. Public policy is nowadays a fairly ruly horse and is ridden along comparatively well-defined paths. To develop a broad highway such as is suggested is beyond my competence, bound as I am to apply the common law of England in the Territory of Papua. However, there is one matter which has really troubled me in this case. The applicant is a young native girl, albeit to some extent educated, who from first to last in the events leading to her conviction had no one other than the police present to whom she could turn for advice or comfort. In a more sophisticated community it is fairly generally known that any person accused of a criminal offence must have the case proved against him or her beyond a reasonable doubt. The existence of a skilled legal profession, one of whose tasks it is to defend citizens accused of offences, is universally known. The reverse is the case in this Territory. Indeed, the legal profession available for the assistance of persons such as this applicant is small and overtaxed.

In recent years in Queensland a rule of prudence has been formulated to which the Supreme Court of that State expects all magistrates to adhere. In Heffernan v. Ward[ci]¹⁰, the appellant alleged that the driver of a police patrol car who had arrested him advised him “... to plead guilty, say nothing and you will get off with a light fine”. Stanley J. said in that case, “It is not necessary in this case for me to determine whether such advice was given or not. Nevertheless, the allegation and the denials are of such common occurrence that I feel compelled to say that from long experience at the Bar and on the Bench I am perfectly satisfied on some occasions such advice is given, and to emphasize again that, however meritorious it may be, the motive prompting a policeman to give such advice should be disregarded and he should not give such advice. Indeed, as a rule of prudence, before accepting a plea of guilty in any case in which a policeman is the complainant and the accused is not represented by counsel or solicitor, the stipendiary magistrate would be well advised to point out to any such accused that the severity of penalties does not depend on whether he pleads guilty or not guilty, and to enquire of the accused whether anyone connected with the police force has suggested that he should plead guilty; and if the magistrate does not receive from the accused a prompt and convincing disclaimer of any such suggestion he should suggest to the accused to plead not guilty and emphasise the impropriety of any such advice.” In Hallahan v. Kryloff; ex f. Kryloff[cii]¹¹ he reiterated these views. And Wanstall J. added that it would also be prudent on the part of the magistrate to intimate positively to the person who was before him his right of putting everything he wishes before the magistrate provided it is relevant to the charge and then getting down on record the agreement of the accused person that he has said all that he wishes to say. Finally, in Hallahan v. Campbell; ex p. Campbell[ciii]¹², Stanley J. referred to the complete disregard by the magistrate of the rule of prudence adopted by the Full Court in Hallahan v. Kryloff[civ]¹³ and went on to say: “. . . that rule was designed to protect the interests of unrepresented persons charged by the police, as well as to protect the police against the kind of charge which is now being made in this case, and also to protect the courts against waste of time which might be avoided if the rule were adopted and put into practice by stipendiary magistrates”. Both Hart J and Lucas A.J. expressed strong agreement with the rule propounded by Stanley J. in Jensen v. McGrath[cv]¹⁴, decided by the learned Chief Justice of this court on 2nd April last, he expressed the view that this rule should be closely observed in the Territory. To that view I add my respectful and strong support. Had the learned magistrate in this case adopted the rule laid down in Queensland I think it highly unlikely this matter would now be before me.

But the question remains, does the failure to observe such a rule of prudence and one which so far as I know has not found expression before this month in this court assist the applicant somehow to invalidate her conviction? I cannot say that it does. Apart from the well recognized grounds upon which a writ of certiorari may be issued, I know of no general ground subsumed under “the interest of justice” which would permit me to order its issue. It may be that cases will occur where the court is satisfied that a defendant has pleaded guilty under a complete misapprehension as to the nature or effect of such a plea. Lord Goddard C.J. in R. v. West Kent Quarter Sessions; ex p. Files[cvi]¹⁵, envisaged that certiorari may be a remedy in such a case but he thought that it would take a very strong case to give rise to it. To some extent Madaha was mistaken as to the effect of her plea because she thought, as she said, that the magistrate would fine her and she did not think he would send her to gaol. But I do not feel satisfied that she did not know that she was admitting a charge of stealing £10. It was she who first mentioned this figure because the accusation made to her was that £11 9s. was missing from the cash. Whilst I am in doubt as to her motives in pleading as she did she has not satisfied me that she misapprehended the nature of her plea nor that in her mind the effect of such a plea would not be punishment of some kind.

For the reasons which I have set out the order nisi must be discharged.

There is also before me an appeal by Madaha against the severity of her sentence. I have the advantage of knowing a great deal more about her circumstances than did the learned magistrate. That she is pregnant is obvious. That no detailed police investigation was carried out is also obvious, although Madaha herself is largely to blame for this. She has already served some days of the sentence imposed upon her and in my opinion justice would be served by substituting for the period of imprisonment ordered by the magistrate a sentence of imprisonment to expire on the date on which the applicant was released on bail to prosecute her appeal.

Ordered accordingly.

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

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

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[xcii](1848) 12 Q.B. 527.

[xciii][1874] UKLawRpPC 8; (1874) L.R. 5 P.C. 417.

[xciv][1947] K.B. 726.

[xcv][1964] Qd.R. 337.

[xcvi][1962] Qd.R. 38.

[xcvii][1959] Qd.R. 75.

[xcviii](1874) L.R. 5 P.C. 417.

[xcix][1956] 1 Q.B. 167.

[c][1964] Qd.R. 337.

[ci][1959] Qd.R. 12.

[cii][1960] Q.W.N. 13.

[ciii][1964] Qd.R. 337.

[civ][1960] Q.W.N. 13.

[cv][1965-66] P. & N.G.L.R. 91.

[cvi][1951] 2 All E.R.