Cooper v R [1961] HCA 16; (1961) 105 CLR 177 (13 April 1961)

HIGH COURT OF AUSTRALIA

COOPER v. THE QUEEN [1961] HCA 16; (1961) 105 CLR 177

New Guinea - Criminal Law

High Court of Australia
Dixon C.J.(1), Fullagar(1), Kitto(1), Menzies(1) and Windeyer(1) JJ.

CATCHWORDS

New Guinea - Adoption of Queensland Criminal Code - Substitution of New Guinea for Queensland in sedition provisions - New Guinea Act 1920 (Cth), s. 14 - Laws Repeal and Adopting Ordinance (New Guinea), s. 17 - The Criminal Code (Q.), ss. 44, 46, 52.

Criminal Law - Publishing seditious words - Intention to excite disaffection against government of New Guinea - "Advisedly" publish - Evidence - Admissibility - Similar facts - Relevant facts - Evidence of accused's political beliefs inadmissible - New trial - Trial before judge without jury - Wrongful admission of evidence prejudicial to accused - Question determined without reliance on inadmissible evidence - The Criminal Code (Q.), ss. 44, 46, 52.

HEARING

Melbourne, 1961, March 9, 10;
Sydney, 1961, April 13. 13:4:1961
APPLICATION for leave to appeal from the Supreme Court of the Territory of Papua and New Guinea.

DECISION

April 13.
The COURT delivered the following written judgment: -
This is an application by Brian Leonard Cooper for leave to appeal against on a charge that on or about 15th September 1960 in the Territory of New Guinea he "advisedly spoke and published seditious words". The charge was laid under s. 52 of The Criminal Code of Queensland. The Code was adopted as law in the Territory of New Guinea by the Laws Repeal and Adopting Ordinance 1921 made by the Governor-General under s. 14 of the New Guinea Act 1920 (Cth). This Ordinance was still in force when the Commonwealth Parliament enacted the Papua and New Guinea Act 1949, which provided for an administrative union of the Territory of Papua and the Territory of New Guinea. That Act repealed the New Guinea Act 1920, but, by s. 32, provided in effect that, notwithstanding that repeal, all other laws in force at the commencement of the Act in the Territory of Papua or the Territory of New Guinea or both should continue in force in the Territory of Papua, or the Territory of New Guinea, or both, as the case might be. (at p179)

2. What is logically the first ground of the present application may be dealt with very shortly. It was founded on the absence of any reference to the Territory of New Guinea in the Queensland Code. Section 52 of the Code provides, so far as material, that any person who advisedly publishes seditious words is guilty of a misdemeanour and is liable to imprisonment with hard labour for three years, and, for a second offence, to imprisonment with hard labour for seven years. The expression "seditious words" is defined by s. 46 as meaning "words expressive of a seditious intention". Section 44 provides that an intention to effect any of a number of specified purposes is a seditious intention. The only relevant purpose in the list is "to excite disaffection against the government of Queensland as by law established". The words which formed the subject matter of the indictment had no relation whatever to the government of Queensland. They did, as will be seen, have a relation to the government of New Guinea, but it was said that there was nothing to justify a reading of s. 44 as including a reference to an intention to excite disaffection against the government of New Guinea. But it is impossible to maintain such an argument in face of the clear words of s. 17 of the Laws Repeal and Adopting Ordinance. Section 17 provides: "All or any references to authorities, persons, places, subjects, matters or things in any act, statute, law, regulation or rule hereby adopted shall be taken as referring to corresponding or analogous authorities, persons, places, subjects, matters or things in the Territory". The Queensland Code is one of the "laws hereby adopted", and s. 17 plainly requires, for the purposes of the application of s. 44 of that Code in relation to the Territory for which it is adopted, the substitution of New Guinea for Queensland. (at p180)

3. The remaining grounds of the present application are that the evidence of certain witnesses was wrongly admitted, that the conviction was unreasonable and could not be supported having regard to the evidence, and that on the whole of the evidence a reasonable doubt arose as to the guilt of the applicant. These grounds make it necessary to examine the proceedings and the evidence. (at p180)

4. The trial of the applicant took place before Mann C.J., sitting without a jury. It commenced on 23rd January 1961, and occupied several days. The nature of the indictment has already been stated. After it had been read to the accused, the words which the accused was alleged by the Crown to have spoken to a number of natives gathered together were read in Pidgin - the usual means of communication between the white man in New Guinea and the native who cannot speak English - and were translated into English by an interpreter appointed by the Court. It is an invocation of considerable length, which begins with the words: "You must have a new government of your own". Its nature will be sufficiently indicated by the following extracts: "Now I don't want a long delay . . . I want you people to get it within six months . . . Set a meeting and tell all the men so that they'll hear . . . First a group can go and take hold of the Police Officer and tie him to a post with a rope so that he'll remain there. Some groups can go and break into the stores, into the place where the rifles are and get them all; some groups can go to the big stores and break into them and take things such as beer, rum and food, and they can all eat and drink. Expel all the white people and tell them they have to go back to their own place. . . . They must remain in their houses, board a ship and then they can go back. Now at the airstrip a group can go and cut some trees and throw them on to the airstrip, burn some aircraft and put them on the airstrip so that the Australian and American soldiers can't come down. Your own army can get rid of all the Europeans so that they go back to their own place, Australia. . . . I can get a message to the Russians and they will come and help you". The accused pleaded "not guilty". He was represented by counsel. (at p181)

5. The trial opened in an extraordinary way, with counsel for the accused objecting strongly to certain evidence which the prosecutor for the Crown proposed to call, and the prosecutor submitting that it was admissible. The learned Chief Judge appears to have declined to give a definite ruling at that stage, and the prosecutor proceeded to call as his first three witnesses persons whose evidence was of the class which was challenged. Mr. H. S. Thomas, an inspector of police at Port Moresby, deposed that on 3rd January 1961 he had occasion to march a number of natives, who were in custody, past an enclosure in which the accused was standing, and that the accused gesticulated with his arms, and shouted "Boo Boo", and "Leave them alone". Mr. P. J. Wright, a patrol officer, deposed that he had at the beginning of 1958 shared a room in a hotel at Port Moresby with the accused. The accused, he said, was addicted to listening to Radio Peking, and "quite often expressed communist views to me". He also "often said that he would be glad to see the natives rise up and throw the whites out of the country". (at p181)

6. The next witness was Mr. K. A. Donovan, an officer of the Australian Security Intelligence Organization, who in July 1958 had sought and had an interview with the accused with regard to his political beliefs and leanings. It was a long interview, but nothing worthy of note appears to have emerged from it unless it be that the accused had on two occasions listened to "communist speakers" on the Yarra Bank, and had applauded what he heard. Mr. Donovan was followed by a native witness named Kere Kere, who said that in March 1960 he had been on patrol with the accused, and that the accused had on one occasion told him that he (the accused) was "one of the communists", and that it would be a good thing if the Territory had a communistic form of government. Then another native witness, Solum Stahl, gave evidence that at some unspecified time in 1960 the accused had said to him and others: "All the missionaries are lying. . . . There is no God. They are lying to you to gather money to put up churches". At another time, Stahl said, the accused had said to him and others: "Russia is a very strong country. It will not be long before all ground is under communist government". (at p182)

7. The witness Stahl was the first witness to give evidence of the utterance by the accused of the words which were the subject of the indictment. In addition to the evidence mentioned above, he deposed that the accused, addressing a number of natives, had on or about 15th September 1960 used language equivalent in substance to what was set forth in the particulars of the indictment. He was followed by four other native witnesses - Segob Samu, Tamen Kamod, Bobodi Daloi and Mak Mak - who deposed to the uttering by the accused of similar language on the same occasion. Four other native witnesses - Samonak Sarowa, Kari Boner, Salong Mileng and Barsek Fukok - were also called in the apparent expectation of their giving evidence to the same effect, but they proved unable to remember anything material. The only other evidence for the prosecution that need be mentioned is that of two officers of the Commonwealth police, who questioned the accused before he was charged. Of this it is sufficient to say that the accused did not give to them the same account of what he had said as he gave later at the trial. He gave evidence on oath at the trial, and called one other witness. The accused's evidence may for present purposes be very briefly summarized. He admitted having referred to the possibility of a violent seizure of power by the natives in terms substantially similar to those set out in the charge, but he placed them in a context of such a nature that it was open to the tribunal to find that the words were not expressive of a seditious intention within the meaning of the Code. He said that, after telling his audience something about various countries which he had recently visited while on leave, he broached the subject of self-government, and said that there were three possible methods of proceeding with that end in view. The first was purely negative - they could sit down and do nothing and hope that the right of self-goverment would ultimately be conferred upon them. The second method was to use violence. As to this, he admitted that he went into considerable detail, describing the steps mentioned in the charge, but he said that he advised against this course both because it was illegal and because it would lead to confusion and disorganization. The third method, which he said he advised them to adopt, was to organize into groups strong enough to put pressure on the Government and induce it to give them what they wanted. He was cross-examined at considerable length on various matters, which included his political and religious views. He was convicted by Mann C.J., who gave written reasons for his decision, and was sentenced to two months' imprisonment with hard labour. (at p183)

8. The above is a very brief account of a trial which lasted for several days, in the course of which there was much inconclusive argument with regard to the admissibility of evidence. It is now necessary to consider what were the issues in a case which was essentially simple and straightforward enough. The word "advisedly" is used somewhat curiously in s. 52 of the Code, but it goes with the word "publishes", and it means, we think, no more than that the publication must be made deliberately in the sense that there is an intention to publish. The words set out in the charge are on their face expressive of a seditious intention within the meaning of the Code. What the Crown had to prove, and all that the Crown had to prove, was that those words, or words equivalent in substance to those words, had been spoken publicly by the accused. On that issue, which was the only issue in the case, the evidence which the prosecutor for the Crown placed in the forefront of his case was obviously irrelevant and inadmissible. Not only ought it never to have been entertained: it ought never to have been tendered. According to our notions there are few things more objectionable in a criminal case than the introduction of matter which has no probative value in relation to any issue, but is calculated to create prejudice in the mind of the tribunal. (at p183)

9. The objectionable evidence here really fell into two classes. In the first place, there was some slight evidence (which Mann C.J. appears to have regarded as admissible) that the accused had said in private that he thought it would be a good thing if the natives rose and expelled the whites from the Territory. Obviously that fact (if it were a fact) could not make it more probable that on the specific occasion in question he advised a gathering of natives to rise and expel the whites. Here we have just the kind of evidence which the law rigidly and rightly excludes. You cannot, in order to prove that A committed a larceny on a specific date, call evidence that he committed another larceny six months before that date. Where evidence of so-called "similar acts" is properly admitted, it is because (as in Martin v. Osborne [1936] HCA 23; (1936) 55 CLR 367 ) the fact of repetition tends to make it more probable that some necessary element of the offence charged was present on the occasion actually in question. The present case is remote from that class of case. (at p184)

10. But the bulk of the objectionable evidence was tendered to show that the accused was a communist or had communistic leanings and was an atheist and hostile to missionaries. To suggest that such evidence was in any way relevant is absurd, and no serious attempt was made before us to maintain that it was admissible. Evidence cannot be given which goes merely to show than an accused is the kind of man who is likely to have committed the offence charged. And, even if it could, the inference could not be drawn in the present case without some investigation of the habits and practices of communists and atheists and dislikers of missionaries. It was apparently hoped that the tribunal would judicially notice that people who dislike missionaries are likely to publish seditious words] (at p184)

11. So far the case appears to be perfectly clear. And, if, the trial had been had with a jury, and all the inadmissible evidence had been heard by them, the conviction must have been quashed. It must, we think, have been quashed, even if a direction had been given to them to disregard it, because its prejudicial effect must have been strong, and it would have been impossible to be sure that their minds had not been decisively affected by it. In fact, however, the trial of this case was had before a judge sitting without a jury, and his Honour's reasons for the conclusion which he reached have been stated and recorded. If it appears from these that his Honour determined the question which he had to decide, and determined it without any reliance on the considerable mass of inadmissible evidence which had been put before him, it may be that it would not be proper for a court of appeal to quash the conviction. This does not mean that a judge sitting without a jury may always properly hear a mass of inadmissible evidence and abstain from ruling upon it until it has all been given. On the contrary, the correct course in the present case was obviously, in our opinion, to reject the objectionable evidence the moment its nature became apparent and refuse to hear any more of it. But if his Honour decided what he had to decide, and the commission of the offence charged was clearly proved by admissible evidence, it may be right to allow the conviction to stand. (at p185)

12. In this connexion it is an important fact that, apart altogether from the objectionable evidence, the Crown launched a strong prima facie case. After the accused had given his evidence, that evidence had to be considered alongside the admissible Crown evidence. The accused's account of what he said might have been rejected as false, in which case the Crown evidence would have stood unaffected by it. Or it might have been accepted. In that case it would have been a question for the tribunal of fact - for the jury, if there had been a jury - whether the words which the accused said he had used were "expressive of a seditious intention" and were covered by the indictment. It would have been open to the tribunal of fact to say that it did not matter which version was accepted, because, either on the Crown's version or on the accused's version, a strong suggestion of the use of violence was conveyed, the form which that violence should take was expounded in detail, and any accompanying deprecatory words would not and could not be taken seriously. (at p185)

13. We think that what his Honour really did was to reject the accused's evidence, but to make it plain that, even if he had accepted it, his view would have been that the accused's words were nevertheless seditious in the sense just referred to. What he said was : - "The assertion of the accused that he put this proposal as only one of three alternatives and that the only course which he advocated was immediate organization towards achieving a position in which the natives could lawfully demand self-government, is in my view only playing with words. The first alternative was obviously put rhetorically - that the natives could just sit down and do nothing and that in about 20 or 30 years the Australian Government would give them independence with no trouble to themselves. The second alternative, of resorting to violence, as described in the indictment, was according to all the evidence, including that of the accused, put to the natives in close detail. He gave them a complete scheme; whereas, if he really wanted to tell them that they must not under any circumstances resort to illegal violence, this view could have been put very shortly, and very clearly, either in Pidgin or in any other language." We think that his Honour did address himself to, and did decide, what became, after the accused had given evidence, the only question in the case. (at p185)

14. We do not think that his Honour's decision of this question should be set aside because of the possibility of his having been influenced by the inadmissible evidence which he had heard. There are indeed passages in his reasons for judgment which undoubtedly lend colour to the suggestion that he attached importance to that evidence. He expressed his final view of that evidence by saying: "I ruled that evidence of statements made by the accused was not admissible in support of the Crown case unless at some point in the conversation it appeared that the accused was advocating what might be described as political violence directed towards the overthrow of established government. This had the effect of excluding a substantial body of evidence designed to show broadly that the accused was a man of strong political opinions favouring what might loosely be described as Communism". We think that even that ruling gave too much latitude, and his Honour seems a little later to depart even from that ruling, for he refers at some length to Mr. Donovan's evidence as if he thought it admissible, which it plainly was not. He does this after observing that the accused's political views "have shown a marked tendency to veer further and further to the left and towards atheism". Again, he says: "At a late stage in the trial when the Crown had established a plain prima facie case against the accused, and the accused elected to give evidence on oath, I think that the whole question of the political opinions of the accused, and of his temperament and disposition, fell into the correct perspective as matters going to his credit." He explains that he means this "in no narrow sense", but the passage seems to overlook both the principle that matters going only to a person's credit cannot be made the subject of evidence in chief, and the fact that a person's political views cannot go to his credit even by way of cross-examination. But other passages show, we think, that his Honour was not really using the objectionable evidence in relation to the question of the guilt or innocence of the accused. Indeed, from a perusal of his reasons for judgment as a whole, and from his observations when passing sentence, the curious fact seems to emerge that that evidence is really being used not against the accused, but in his favour in the sense that it explains his conduct as dictated by his political views, and justifies the imposition of a remarkably light penalty. Whether this was a proper use of the material in question is a matter which need not be considered. The important thing is that it sufficiently appears, as we think, that there was no misue of that material in relation to the fundamental question in the case. (at p186)

15. We have found the case one of considerable difficulty. It is indeed to be regretted that so much inadmissible and prejudicial evidence was tendered and allowed to be given. But we have reached the conclusion that it did not really affect the result adversely to the applicant, and we think that the application for leave to appeal should be refused. (at p187)

ORDER

Application for leave to appeal dismissed.