Kebe v Yagima [1967] PGSC 21; [1967-68] PNGLR 420 (6 September 1968)

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CRIMINAL LAW - Statutory Offence - Absence of reasonable excuse as element of offence - Plea of guilty by unrepresented defendant - Duties of Local Court magistrates - Procedure in Local Courts - Local Government Ordinance 1963-1967, s. 88 - Local Government Council Rules.

Where a defendant has little or no knowledge of the language of the court and is not legally represented a magistrate should take special care before entering a plea of guilty and should defer final acceptance of such a plea until he has had a chance to learn a little more about the case and to see whether there is some undisclosed factor which may render an unequivocal plea of guilty a misleading one.

The magistrate should have in mind the potential defences open to the defendant as well as all the ingredients of the offence.

Where an offence consists of failure to do something without reasonable excuse, the burden of proof of which lies on the defendant, a charge which does not allege the absence of reasonable excuse is defective. Although the onus of proving such excuse lies on the defendant he is not called upon to answer for his failure unless it is alleged that he so failed without reasonable excuse.

Duties and functions of Local Court magistrates and procedure in Local Courts discussed. Necessity for publication of Local Government Council Rules adverted to.

Nawe Kebe was charged in the Local Court at Kagua with an offence against s. 88 of the Local Government Ordinance 1963- 1967 in that he failed to comply with a Roads Maintenance Rule made by the Kagua Local Government Council. A plea of guilty was recorded and he was convicted and sentenced to two months� imprisonment with hard labour. He appealed to the Supreme Court under s. 43 of the Local Courts Ordinance 1963-1966. The relevant facts and statutory provisions appear in the reasons hereafter.

MINOGUE J:� This was an appeal brought by the appellant under the Local Courts Ordinance 1963 against an order of the Local Court at Kagua on 23rd January, 1968, whereby the appellant was convicted of an offence stated as a failure at Mapuanda on 22nd January, 1968, to comply with s. 4 of Kagua Local Government Council Rule No. 5 of 1966, Roads Maintenance Rule, contra s. 88 of the Local Government Ordinance 1963 as amended to date, and sentenced to two months� imprisonment with hard labour.

I heard and allowed the appeal on 30th July and quashed the conviction recorded against the appellant. At the same time I announced that I would publish my reasons subsequently which I now do.

This case well illustrates the difficulties which beset Local Court magistrates in this Territory due both to their own lack of legal training and of legal assistance. It is symptomatic of many appeals which come before this Court and I formulate my reasons in some detail for the guidance of those unfortunate magistrates who find themselves in remote areas called upon to deal with situations for which no form of training at present available in the Territory fits them.

At the outset I should shortly state that I allowed the appeal because I was satisfied that the charge as conveyed to the appellant was defective and that a plea of guilty was wrongly taken. The charge arose in this way. The Local Government Council made a rule (Rule No. 5 of 1966) entitled Roads Maintenance Rule. By s. 47(1) of the Local Government Ordinance 1963-1967 such a rule is to be published in the Local Government Gazette and subject to this section takes effect from the date of its publication or where another date is specified therein from the date so specified. Section 95 provides that all courts and persons acting judicially shall take judicial notice of all rules made or caused to be made by a council when so published. It does not appear from the record or proceedings of the Local Court at Kagua forwarded to this Court in accordance with r. 7 of the Appeal (Local Courts) Rules 1967 that the magistrate satisfied himself that the Rule in question took effect in accordance with the statutory provisions and so was one under which a charge could properly be laid. No point was made of this at the hearing before me nor did my decision proceed upon any failure of this regard. I record the absence of any reference in the court proceedings to point out the necessity of carefully taking all steps in proof of a charge so that proceedings will not be invalidated by what could well be only formal defects, and also on the other hand that magistrates should take care to see that an actual law exists to support a charge made before them.

The Roads Maintenance Rule by cl. 1 thereof imposes a duty on the adult male residents of each village within the council area to maintain all prescribed roads and tracks that serve that village. Clause 2 directs that the maintenance of these roads and tracks shall be carried out as an annual service at such times and at such place as shall be specified by the Local Government Council or by an Executive Committee Member of the Council; and cl. 3 requires the Local Government Councillor for each village or a Member of the Executive Committee to allot the task to be performed by each male resident of that village in such a way as to spread the portion of the work equitably between them having regard to the age and build of each man. By cl. 4 any person who fails to do his allotted share of maintenance of presented (sic) (obviously this should read �prescribed�) roads and tracks serving his village without reasonable excuse (the onus of proof whereof shall be upon him) shall be guilty of an offence. The Rules find their support in s. 44 of the Local Government Ordinance which empowers the council to make rules for the purpose of the exercise and performance of its powers, functions and duties and the second schedule to the Ordinance authorizes the undertaking, provision, construction, maintenance, management, control and regulation of (inter alia) roads by councils. By s. 88 of the Local Government Ordinance a person shall not without reasonable excuse (the burden of proof of which lies upon him) contravene or fail to comply with a rule made under the Ordinance which is applicable to him and a penalty of $200 or imprisonment for six months or both is the sanction imposed for breach of this section.

The appellant was charged along with six other persons. Section 22 of the Local Courts Ordinance requires that all matters in a Local Court be commenced by a complaint which may be made either orally or in writing but if made orally it is to be reduced into writing by or on behalf of the complainant before the hearing commences. From the court record it is difficult to say what precise document is the complaint in this case. The document headed �Court Record�Criminal Matter� shows that the seven named defendants were charged that on 22nd January, 1968, they �did fail to comply with section 4 of the Kagua Local Government Council Rule No. 5 of 1966, Roads Maintenance Rule, contra section 88 of the Local Government Ordinance 1963 as amended to date.� On this same document where provision is made to enter the plea of the defendant appear the words �see depositions� and the following document which I take to be regarded as the depositions shows Councillor Yagima as the complainant and the charge as �failing to comply with the Kagua L.G.C. Rule No. 5 of 1966 Roads Maintenance Rule Contra Section 88 of the Local Government Ordinance 1963 as amended to date.� This document which before the entry of details upon it was a roneoed pro-forma then shows that an interpreter, by name Tebenogia, was affirmed and next follows the printed words �Charge read over and explained to defendant�. Then it appears that the defendants were asked if they wished to elect to be heard before the District Court or the Local Court and each elected for the Local Court. Next was a further pro-forma statement �Charge read over and explained to the defendant who admitted/denied his guilt�, against which words appear the typewritten words �see below�, and also a statement that all the defendants were individually asked if they wished to be tried individually or collectively and all agreed to be tried collectively. Then follows a statement of facts which reads:

�The defendants are part of the Kagua-Iaro Road Complex and who are obliged by virtue of the Road Maintenance Rule of the Kagua L.G.C. and are to work under the direction of the councillor for that electorate. Monday, 22nd, is prescribed as the day designated by the councillor as the weekly work day for this road as prescribed under this rule. The defendants are all aware of the fact and despite an order issued by the councillor did not appear for work on Monday.�

I assume that the magistrate acquired these facts from the complainant councillor Yagima and recorded them. And then follows a list of the defendants and the plea taken from each man. The appellant was the third, his plea is noted on the record as �Guilty� and after the recording of this plea appears the notation �Was asked if he had anything to say in answer to the charge. He elected to say nothing.� On the back of the page which I have been discussing finally appears the magistrate�s decision which reads �Guilty as charged with the exception of Kandi who was dismissed. Sentenced to Two (2) Months in Hard Labour at the Kagua C.I.�

Section 38 of the Local Courts Ordinance requires that at the commencement of the trial the nature and particulars of the complaint shall be explained to the defendant in a language which in the opinion of the Court he understands and if the defendant does not plead guilty the Court is directed to hear the evidence of the prosecutor followed by his witnesses and may then proceed to hear the evidence of the defendant and of any witnesses whom he desires to call. No specific provision exists for taking his plea although it is easy to infer that a plea is at some stage to be taken. It is understandable that the proceedings should be of a fairly informal nature but it is nonetheless essential that certain basic requirements be met. One of these of course is that the nature and particulars of the complaint be explained and understood and another equally important is that the Court should be quite clear before entering a plea of guilty that the defendant understands that he is pleading guilty and intends so to do.

It was clear to me that whichever of the two variants I have set out above formed the actual charge it may well have been formally defective in that it did not on its face allege what was the real gravamen of the offence, that is the absence of reasonable excuse for failure to do the work allotted. It is not failure to do the work which is punishable but failure without reasonable excuse and although the onus of proving such excuse lies on the defendant he is not called upon to answer for his failure unless it is alleged that he so failed without reasonable excuse (see Brown v. Sargent[dxxvii]¹). I do not express a concluded view as I did not have the benefit of full argument on this point. In any event if the formal charge were defective it probably could have been amended by the magistrate under s. 27 of the Local Courts Ordinance or by this Court under s. 43 (5) (d), but even if in point of form the complaint was not defective what really had to be looked at is whether at the hearing the defendant was charged in proper form so that he understood what was being alleged against him. If this Court were satisfied that the nature and particulars of the complaint were properly explained albeit orally to the defendant, it may be that it would hold that there had been substantial compliance with the requirement of the Ordinance. From a perusal of the magistrate�s reasons for decision which accompanied the court record I formed the view that this had not been done. Although in such reasons he states that the charge was read and explained with the use of an interpreter he then goes on to state that:

�the plea was taken in the following form after I had been informed of the facts by the councillor to enable me to take the plea.

Q.�� Did you know that there is a council rule called the Roads Maintenance Rule and you are obliged to do your allotted share of the maintenance of the road?

Q.�� Do you know that Monday is the day that the councillor has allotted for the people of Mapuanda to maintain their section of the Kagua-Iaro River Road?

And the magistrate went on to say that relying on the defendant�s answers he entered a plea of guilty to the charge. It is apparent from these reasons that the magistrate did not appreciate that the charge was not one of failing to do the allotted share of work but of failing so to do without lawful excuse and there was nothing in the taking of the defendant�s plea to direct his mind to any exculpatory matter. The defendant, as is almost invariable in these cases, was unrepresented and once he had been pronounced guilty and was then asked if he had anything to say it is not surprising that he elected to say nothing. It was for these reasons that I came to the conclusion that the conviction could not stand.

There was further matter before me on the hearing of the appeal which confirmed me in the conclusion I had reached and which indeed raised further doubts on other grounds as to whether any offence could in fact have been committed at all. The appellant deposed that during the year 1967 he became a full-time employee of the Seventh Day Adventist Mission at Umbiri which I understand is in the relevant council area and that he worked as an interpreter, gardener and general assistant to the missionary and was so employed on Monday, 22nd January, 1968. He had worked on the roads prior to commencing work with the Mission but was aware that as he was a full-time missionary employee he was exempt from such work. Councillor Kiras Tombera, who is a councillor and member of the Executive Committee of the Kagua Local Government Council, deposed that it was the practice of the council to exempt full-time mission workers from duty on the roads and that if a person is not a full-time mission worker then he is required to do such work. The fact that the appellant was a mission worker was supported by an affidavit of one Raethel, President of the Western Highlands Mission of the Seventh Day Adventists. It seems to me that in accordance with the practice at this time the appellant would not have had an allotted share of work and therefore he could not fail to do such share and could not attract the provisions of cl. 4 of the Rule. Be that as it may the appellant went on to depose that at the Kagua Local Court on 23rd January, 1968, the magistrate spoke Pidgin English to an interpreter who spoke to him in his own (Kewa) language. What the interpreter said to him was, �Did you work on the road?� to which he replied, �No, I didn�t work on the roads, I worked for the Mission�. He was not informed, by which I understand him to mean that the interpreter did not convey to him, that there was an onus on him to give an excuse for not working on the roads but he maintained that he did give such an excuse to the Court by saying �I worked for the Mission�. If I can accept the truth of his affidavit it is clear that his real plea was not conveyed to the magistrate at all. I did not base my decision on these matters appearing in the affidavits because the respondent was not given an opportunity to cross-examine the appellant thereon nor was there any affidavit before me from the Kewa interpreter setting out his version of his interpretation (although I doubt whether he would have had any recollection of the precise words he used at the hearing). I am sure that the interpreter himself would have had no conception of the emphasis to be placed on the absence of excuse.

This case is but one of many (where native defendants are involved who have little or no knowledge of the language of the Court) highlighting the importance of magistrates taking special care before entering a plea of guilty. In England, Widgery J. speaking of cases where a defendant is not represented or where he is of tender age or where for any other reasons there must necessarily be doubt as to his ability finally to decide as to whether he is guilty or not, in R. v. Blandford Justices; Ex parte G. (An Infant)[dxxviii]², said,

�the magistrate ought in my judgment to accept the plea, as it were, provisionally, and not at that stage enter a conviction. He ought, in my judgment, in these cases to defer a final acceptance of the plea until he has had a chance to learn a little bit more about the case, and to see whether there is some undisclosed factor which may render the unequivocal plea of guilty a misleading one�.

I agree with my brother Frost�s opinion in Laeka Ivarabou v. Nanau[dxxix]³, that every word in this passage applies a fortiori in the Territory, particularly in cases where the defendant is a native and is unrepresented, and more particularly where �place talk� interpreters have to be used, in most cases speaking in a language of limited vocabulary and devoid of any legal concepts.

In the Local Courts of this Territory where most of the magistrates have not had the benefit of legal training and where in practically every case the defendant is unrepresented and in most cases is uneducated and illiterate, it is of the utmost importance that the magistrate should at the outset direct his mind to what has to be proved in charges brought before him�and indeed if he is to do justice he must have in mind the potential defences which may be open to an accused person. By way of example, in a charge of simple assault he must remember that one or more of the following defences may be open to the defendant: (a) he did not commit any assault; (b) he acted in self-defence using no more force than was reasonably necessary in the circumstances; (c) he was provoked to act as he did and may be within the protection of ss. 268 and 269 of The Criminal Code; (d) the acts comprising the alleged assault were accidental; (e) the acts were involuntary� in the latter two cases s. 23 of the Code being available to him. The simple charge by the magistrate �You are charged� or �it is said that you assaulted� or �hit� or �struck A� may well only bring the answering response �Yes, I did it�. And it could well be that with a primitive or inarticulate or over-awed defendant who could have open to him one of the defences that I have instanced above that defence is never hinted at let alone launched.

It is impossible to lay down a detailed procedure to be followed in every case, such is the infinite variety of factual situations which may be met, but I think it essential for the magistrate to be clear in his own mind, firstly, what are the elements or ingredients which the prosecution has to establish to make out a charge, and secondly, what defences may be open to a defendant. In the instant case it was necessary for the magistrate to satisfy himself that the rule under which the appellant defendant was charged was one which the council had power to make, that it was properly published, that the work had been lawfully allotted and that the defendant was subject to the Rule. These are all matters on which in a sophisticated society evidence would be led for the prosecution and which I would hope our police prosecutors are being trained to present to the Court. Next it was necessary if the magistrate had satisfied himself that the defendant was a member of the class affected to appreciate that the offence charged was that of failing to do work allotted without reasonable excuse. It clearly would have been desirable at the outset to have asked the defendant if he had any excuse.

There was undoubtedly a substantial miscarriage of justice in this case and as the appellant�s excuse had not been tested before me nor was he present on the hearing of the appeal the proper order would normally be to remit the matter to be reheard by the Local Court. I did not take this course because the appellant had already served the major part of his sentence and it seemed to me quite unreal to send the matter back to Kagua.

[dxxvii](1934) 29 Tas.L.R. 1.

[dxxviii] [1966] 2 W.L.R. 1232, at p. 1240.

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

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Supreme Court of Papua New Guinea

Kebe v Yagima [1967] PGSC 21; [1967-68] PNGLR 420 (6 September 1968)

Papua New Guinea Law Reports - 1967-68