29. Paper by Mr Justice R. T. Gore on ‘Punishment for crime’

Paul Quinlivan’s Snapshots

I forget when I made this precis of Judge Gore’s classic paper (referred to in No. 28 above) but it was circulated several times. I also re-issued the full text on a number of occasions – it can be found in Papua Annual Reports for 1928-1929 at pp. 20-22.
The paramount object of punishment in any community is the prevention of crime. The difficulty (in the Territory) is to carry out the paramount object while at the same time to guard against a result which would be detrimental to the preservation and advancement of the people. The punishment .. (must take) into consideration all the matters essential to the preservation and civilisation of the native races of which the Court can properly take note. …

… the punishment may not entirely effect the paramount object, … but it is considered that such a contingency is to be borne rather than that the native races should perish through a failure to take into account those matters which appear to be essential to their preservation and development. …

The Native becomes criminal only because of the law which somebody, of whom he has never heard, has imposed upon him. In justice the Court cannot award any punishment at all. The mere conviction without penalty is not without beneficial results for it has a certain civilising value from the enforced visit of the distant tribesman to a government centre. What he has seen and what he has experienced is carried back with him and remains with him, at least, even if he does not influence others of his tribe by his impressions. …

The Native can scarcely be expected to refrain from resorting to his own primitive method of redressing wrong merely because somewhere to his knowledge there is a Government existing. If his tribal district is hemmed in by other hostile tribes through which he would have to pass in order to lay his complaint, or if the innate fear of the world beyond prevents his seeking the aid of the Government at a distance, and the visits of a government official to his district can be but rare, his tribe cannot be considered within the ambit of effective government control which postulates a strict adherence to the law. It is impossible to preserve constant contact with many tribes owing to the physical features of the country … but until such time as the inability to seek the aid of the law can be negatived, the courts cannot award punishment for crime. Crime is never countenanced and arrest and trial follow as a necessary sequence but the delinquent cannot receive punishment for following his natural bent when nothing has been effectively provided to supplant it.’