39. Defence by Gerry Szarka of Timio Sioni (Manus, 8 May 1951)

Paul Quinlivan’s Snapshots

In the unnumbered Snapshot at the beginning of page 33 of the March 1999 Una Voce, I mentioned that Monte got all the judges to select a ‘notable defence’ for me to circulate to the law students. He himself provided this one because, as he said, it showed how a clever Defending Officer can defend his client at a number of different stages. To my mind it shows much more. It tells us a great deal about Gerald Leo Szarka, who was one of the men killed at Telefomin. Before we look at it, however, I should mention that, according to ‘The Stud Book’ (the official list of Permanent Officers published in the Government Gazette of 11 August 1953) Szarka was only a Cadet Patrol Officer when he was killed and, since he joined the Service on 19 June 1950, he had been in PNG for only a year when he defended this case. Since only senior, experienced men could perform this task the question is: how could that be? The answer is that it depended on how good the District Commissioner thought his men were. And when we return to the Studbook we see that Szarka was six or seven years older than the other cadets. I was told (but I must admit I did not check this) that Szarka trained for some years to become a Jesuit priest. This would have given him a heightened sense of self-discipline and could explain why Allan Timperley, the District Commissioner under whom he served in Manus, asked for him to be transferred to the Sepik when he, Timperley, was given the District Commissioner-ship. It makes the incongruity of the defence even more obvious but, as I mentioned in No. 21, the duty of a Defending Officer was to listen to his client and then to argue whatever defence his client wanted to raise. He could, of course, warn his client that what he wanted to say might be counter-productive, but he could not prevent him raising it. 
Timio Sioni was a full-blood Papua New Guinean from Onei Village, Wuvulu (Maty Island) who, somehow, got himself to the British Solomon Islands Protectorate where, because of the colour of his skin (the earliest Spanish and Portuguese navigators called the Maty Islanders ‘Blancos’), he was treated as a mixed race person and employed as a clerk in the Government Office. During the war he joined the Australian forces and infiltrated back to his home island while the Japanese forces were still in occupation. He rallied his people to support the Allied forces when they arrived – a fact which Szarka raised to telling effect when, despite his efforts, it came to the question of punishment. Although admittedly of ‘ordinary rank’, he started exercising a sort of droit de seigneur, sending his wife out to bring in pre-puberty girls for his sexual pleasure. He was charged with unlawfully and indecently dealing with two girls under the statutory age and, after the close of the prosecution case in the Lower Court, he admitted his guilt.

He was committed for sentence but the Crown Law Officer added two more charges, those of carnal knowledge of each girl who, to his knowledge, was ‘under age’. Szarka’s first objection was to the fact that, whereas he and his client had come to court to answer two charges, they were now faced with four. Monte upheld the objection and dismissed these two charges saying that, although the statute allowed for the laying of whatever charge or charges the Crown Law Officer thought fit, that applied only to committals for trial and not to committals for sentence, as in this case.

Then Szarka attacked the committal for sentence because the Criminal Code Amendment Ordinance makes ‘puberty’ a defence (and makes ‘age’ irrelevant) but the Magistrate had recorded no evidence regarding puberty. Monte listened carefully to the argument and then, as was his custom, he delivered lengthy reasons why he could not agree, but to make them understandable I should interpolate and say that, whereas – as we saw in Snapshot No. 5 – European witnesses had to endure the humiliation and danger of putting on the filthy ‘Court Coats’ before they could enter the Courtroom, Native witnesses appeared as they would in the market-place or the village. In other words, girls and women were naked from the waist up. The Magistrate, Monte said, had had the girl before him so under the Evidence Ordinance he would have been able to make his own decision as to whether she had reached puberty. Secondly, the defence applied to the final trial, and not the committal proceedings. The point was, however, a valid one and he (Monte) should exercise his discretion to call the girl and the medical officer (Dr Alexander Sirko) who had examined her on this point. This he did and he concluded that this defence had never been available. But although this led to a conviction being entered, Szarka used the opportunity of the two being in the witness box to cross examine them as to native custom! This was brilliant because, from the very beginning, Szarka had to face the fact that his client had ‘pleaded guilty’ in the Lower Court. This meant that, if he failed in his various technical attacks on that committal, his whole strategy was aimed at producing favourable material during the final stage, the allocatus, when the Court is listening to everything either side wants to raise as being relevant to the question of sentence. His client made the claim that, by native custom among the Maty Islanders, he had the right to have sex with any unmarried girl, and in his final address Szarka argued forcefully that, since the Government had not stamped out the custom, it was the Government which should be blamed and not his client. Monte delivered judgment saying that:

The position regarding Native Custom is clearly stated in Section 10 of the Laws Repeal and Adopting Ordinance which prescribes that native custom is to be recognised unless it is contrary to the Ordinances of the Territory … and to principles of humanity. Obviously what Accused did is contrary to our laws and, in my opinion, it is also contrary to principles of humanity that girls of 12 and 13 should submit to sexual intercourse with grown men as was made clear in India – see the Official Reports in Katherine Mayo’s book, Mother India. This court will certainly not recognise such a custom.