58. The Mataungan case – The case itself

Paul Quinlivan’s Snapshots

In late August 1969 and early September my wife’s parents were staying with us because our third child had just been born and because there was a possibility that we would soon be leaving Rabaul and this was their last chance to be there. I say ‘possibility’ because Canberra was considering the appointment of a new Secretary for Law and I had not only held that position a number of times before (I conducted the Ceremonial Welcome to Chief Justice Mann in that capacity and, again in that capacity – but years apart – I did the same for Justices Minogue and Frost who each became Chief Justice) but there was the added fact that several Canberra friends had rung to say that the contest was between me and their Mr Ballard, and the betting was strongly on me. And, to be honest, there was the fact that I had conducted more than 700 trials in the Supreme Court, for both prosecution and defence, and I had built up the various ‘branches’ (Registrar General, Land Titles, Public Curator, Public Solicitor, etc.) enormously in my five years as Assistant Secretary for Law (Executive). In other words, it was a very happy time and, on 2 September 1969, it was made even happier by the arrival of the Soochow with friends of my in-laws on board. These were the Attorney-General of New South Wales and his wife and we invited them to dinner. I should mention that my wife’s father was at that time Attorney-General for Victoria. We were having pre-dinner drinks on the lawn when a vehicle screamed up the drive and John Kaputin jumped out and ran towards us calling out, ‘The cops have arrested Melchior Tomot for stealing the keys of the Council House and they won’t let the PubSol see him!’ (We had a resident Public Solicitor in Rabaul.) I said, ‘But the cops here would never do that!’ I should also point out that, although I had not seen John Kaputin for some years, he had helped me greatly in the early days of magistrate training and when I was setting up the Law Society of PNG, so we spoke on a colloquial basis.
He said – and the two Attorneys-General were fascinated by this – ‘They have locked Melchior in a cell and they now say they can’t find the keys to the building so nobody can talk to him, not even through the door. I’m racing around the Gazelle because if he can’t see a solicitor there’ll be bloodshed and I want to stop it’. I said I’d do what I could and I rang the home of the Rabaul Public Solicitor who confirmed what Kaputin had said. I then rang the OiC Police who apologised and said that he had no option but to obey the clear and specific order from Canberra. I said, ‘Canberra? How the bloody hell can Canberra come into this?’ and he simply repeated what he had said. I then rang Wally Watkins, the Secretary for Law in Port Moresby. He said he had nothing to do with it because someone in Canberra was orchestrating everything but he knew that the police were not to blame for pretending they had lost the key to the Police Station. They had been instructed to say that! I said, ‘But even Canberra must know that any cop pulling that sort of stunt will be sacked next day! Heads will roll if we can’t get the solicitor in tonight and I can’t allow that because they’re all good men!’ And I then asked, ‘What is this all about, anyway?’ He said that there were SitRep Reports every day about the Mataungan Association. I said, ‘What’s that?’ He said, ‘It’s a dangerous Communist organisation. They object to Jack Chipper and the Multi-racial Council taking over the Tolai Cocoa Project’. He ended by saying, ‘So they have closed the Council down and you will have to decide their claim-of-right. You’ll love that!’

He emphasised the ‘you’ and I did not know how to take his remark so I said, ‘I think you had better ring whoever it is in Canberra and tell him that I have four house guests, the Attorneys-General of Victoria and New South Wales, and their wives, and they are very curious to know what is preventing us from going in to dinner. You can also tell him that, as soon as I put this phone down, I am going to ring the OiC Police, here in Rabaul, to say that I will be making a ‘surprise inspection’ within the hour, as Visiting Justice, of the cells of the Rabaul Police Station and I will be taking the Attorney-General for New South Wales and the Attorney-General for Victoria with me as honoured guests so that they can make press statements, when they get back to Australia, about the way things are handled here’. Wally said, ‘I see!’ and less than half an hour later the police rang and thanked me for getting them new instructions. They also said that they had rung the Public Solicitor and told him that he had unlimited access to Melchior, and that he had said he was on his way down to see his client. At 9.15 that night the Court sat and Tomot was released to attend trial eight days later.

Next day the police brought two other Tolais, Damien Tokereku and Daniel Rumet, before me, charged with ‘obstructing the Council’. In addition, Tokereku was charged with stealing the keys to the Council House while the stealing charge on which Tomot had been arrested was replaced by one of being ‘found in possession of a key ring containing 27 keys reasonably suspected of having been stolen or unlawfully obtained’. They pleaded Not Guilty on all charges and were released to attend, with Tomot, on the 10th. In those few days, however, the media was filled with talk about the defendants being part of a despicable organisation and that X, Y and Z also belonged to it – by ‘despicable’ I mean that Watkins had described it as ‘Communist’, others alleged that it was anti-European, others that it was an unruly mob of young thugs and, as mentioned at page 36 of the roneoed judgements, that it was a ‘criminal association devoted to extorting money’. Among the persons named was John Kaputin so, when the cases came on for hearing, I announced to Counsel (Norris Pratt, Deputy Crown Solicitor, for the Prosecution and Dr Ikenna Nwokolo for the Defence) that John Kaputin had approached me at my home on the night that the defendant Tomot had been arrested and that, as all the lawyers in Port Moresby would know, he had rendered me great assistance when I was setting up the Law Society of Papua New Guinea. For this reason, I said, I would understand it if Counsel wanted me to stand down. But they said they wanted me to hear the cases and they wanted them heard together. I told them that Melchior Tomot had been a student of mine when I was setting up magistrate training so they might like me to stand down for that reason and they said No. I then announced that though I was not on record as being involved, I had had a ‘watching brief’ in a rather famous case 15 or so years earlier which arose out of antagonism to the Council. And I repeated my offer to stand down but they said they wanted me to hear the cases. (I should mention that the 15-year-old case did crop up during the trial when – as mentioned at page 56 of the roneoed series – a non-Mataungan was cross-examined on the basis that he ‘with two others, beat up Mr McCarthy who . . . was District Commissioner here when the Raluana Incident occurred’).

That is the background to the case, apart from the fact that when Judge Minogue visited, I had to complain that the publicity about ‘unruly thugs’, etc., was making the climate of the trial ‘unpropitious’. A further background fact is that, as I mentioned earlier, certain professionally binding rules applied. These are best indicated by referring to the classic case (described in Snapshot 37) where Scottish Nationalists burglarised Westminster Abbey, hacked the Stone of Scone out of the Coronation Chair, and took it away. It was hard to imagine anything worse: burglarising Westminster Abbey was a sacrilege, hacking into the Coronation Chair was an offence against heritage laws and taking something from the chair was … well, something for which the culprits should be punished. Despite all this however, the authorities refused to prosecute! Their reason (as I explained in No. 38) was that the evidence which the court would be compelled to listen to – with the world’s media listening in and reporting on a daily basis – would have little or nothing to do with the ancient abbey or last week’s wilful damage to a priceless historic Chair. It would all be about a ‘claim of right’ based on events which took place hundreds of years ago but which, the Scottish Nationalists claimed, entitled them to Self Government! And the authorities wanted to prevent that claim of right being aired! To come to our own case, and to put it simply, everyone involved knew that the case was governed by section 22 of The Criminal Code which says ‘. . . a person is not criminally responsible, as for an offence relating to property, for an act done . . . in the exercise of an honest claim of right and without intention to defraud’ (my emphasis).

As I said in Snapshot No. 37 – and in my Handbook for Crown Prosecutors which was circulated in 1954 and 1958 – this meant that ‘the facts’ were only part of the equation; . . . ‘the real issue was . . . (the claim of right)’ because the ‘stealing’ charge on which both Melchior Tomot and Damien Tokereku had been arrested, and the new charge of being found in ‘possession of a key ring reasonably suspected of being stolen or unlawfully obtained’, both required the Court to hear evidence which would not normally be admissible on an ‘obstructing’ charge. That evidence came from prosecution witnesses and, by the end of the very first day of a very lengthy trial, it was clear that the motivating factor was that the defendants felt that the conversion of the Tolai Council into a Multi-racial one had been done without the full implications being properly discussed – specifically, that Europeans and other non-Tolais would become the bosses of the Tolai Cocoa Project which (as I said at page 55 of the roneoed series) was created with solely Tolai money and which had ‘more than $1 million worth of assets and which controlled at least 50% of the industry processing and exporting $9,000,000 worth of cocoa per year’.

Additional facts, as set out in District Commissioner Harry West’s evidence (quoted at page 33 of the roneoed series) were that the Defendants:

“had closed the Council (on 2 September) . . . because they wanted to arrange a meeting as soon as possible, preferably 3rd September, between the (members – number not given – of the) Gazelle Council, 22 members of the Mataungan Association and the 4 local Members of the House of Assembly . . . the Council offices and chambers (to) remain closed except for essential services such as the Market, Schools, Aid-posts and that type of thing” (my words in brackets).

As the trial progressed, from day to day, it became a truly surreal experience. There was never any suggestion of violence or threats of violence by the Mataungans and yet the media, in both Australia and in Port Moresby, was filled with anti-Mataungan publicity which, as I have said, caused me to complain to Judge Minogue! The courtroom was packed each day with Tolais and the occasional Australian or two, all paying the closest attention to what was being said. Justice Leckie, of Australia, called on me one evening and said that, having arrived two days early, he had sat in court that day and he was so impressed that he offered to hold his Supreme Court Sittings in another building. But the media did not even know we existed! Things became so difficult that when, on 3rd October – and long after all the evidence I have just related was on the record – the prosecutor ‘sought leave to withdraw’ the stealing and ‘goods in possession’ charges, I said, ‘I will give a written decision on what is happening!’ Before roneoing my decision on reserved question of charges of stealing and possession of Council keys, I sent a copy of it to the Secretary for Law with a note saying:

“I think a very dangerous situation is being created by powers outside the court and I draw your attention to paragraphs 15-17 of a decision which I am about to deliver, as soon as I can get it roneoed. There is a grave danger that this case has, from its very beginning, been nothing but a callous, cruel charade. And since this can do untold damage, I think that you, as Secretary for Law, have a duty to either apply for a Prerogative Writ to prevent me going on, or to tell the person you said was orchestrating all this from Canberra, to abide by the Rule of Law.”

The paragraphs 15-17 to which I referred read:

“15 . . . the first act of the authorities was to charge one of the Defendants with an offence which, beyond the slightest shadow of doubt, made admissible any bona fide claim of right which that Defendant might have had.
16. It is also clear that, from the very beginning, the two other Defendants were asserting some sort of a bona fide claim of right.
17. And, at the very beginning of the trial, the learned Prosecutor moved that all charges be heard jointly, thus making admissible in the general trial the defence which the authorities had clearly made available to the Defendant Tokereku.”

I also sent a copy of that to Judge Minogue, drawing attention to paras 15-17 in case he felt he should ring the Secretary for Law to stop the charade – as Judge Bignold had done in Snapshot No. 14 and as Monte Phillips had also done in several cases. I did this because I had already spoken to him when he visited and also because Chief Justice Mann was still away, in hospital, and his deputy was on leave but I expected them both to return soon and I knew that each of them would fight valiantly for the Rule of Law.

But, of course, no Order of Prohibition came. Instead, things became much worse and the radio started giving reports on matters which were in evidence, but the reports were the exact opposite of what the evidence was! The explanation was that Canberra had got the House of Assembly to appoint an Australian QC to conduct an enquiry whose terms of reference overlapped the ‘claim of right’ which I was forced to hear and adjudicate on! I phoned the QC and we had an amicable meeting and, as recorded in my tribute to him at page 35 of the roneoed series, these reports ceased.

On 10 October I delivered the decision containing paras 15-17 quoted above and copies went to Canberra and to a host of other people so that there could be no surprise at what would happen if the authorities did not apply for a Prohibition Order. Since no application had been made to date, the trial continued, and on 4 November 1969 I dealt with the claim of right and dismissed the charges. On 11 December 1969, the new Secretary for Law, Mr Curtis, called on me in Rabaul and said that he was there to transfer me to Madang where my duties would be to hear all cases at all Stations in the Highlands and the Sepik for three weeks each and every month, and to report to him from each Station as soon as I arrived. I said, ‘That is grossly improper! It would also make an interesting headline, especially since I have three very young children! Perhaps you might like to repeat it to the lawyers who are outside, waiting for the Court to open?’ Then, since I seemed to have the advantage, I asked him if Wally’s statement to me was true and he said ‘yes’, it was he who had been in charge of the whole anti-Mataungan operation from the very beginning.

I then made some remarks about the people who, living in conditions of great privation, had worked so hard to create the Rule of Law in TPNG and how he had done so much to destroy it. We then discussed a number of issues and before he left he said that he had reconsidered what he had said at the beginning and I would not be transferred.

When the next judge arrived – again it was Minogue J. – I told him, in detail, what Mr Curtis had said and he astonished me by saying that he (Curtis) had been lobbying ‘all the judges’ against me and that he, Minogue J., had been alone in insisting that what I had done was what the prosecution had forced me to do! Then on 16 January 1970 I issued a formal Statement From the Bench in defence of my Kiap colleague. At page 4 of that Statement I said:

“during all of the political troubles of . . . 1969 there was no sign of any lessening of the appreciation and respect accorded the Courts as they sat in (Rabaul and in) the 80 or so villages they visit six times each year . . . (but) this happy and necessary situation has changed in the past two months and the Gazelle Peninsular is in danger of degenerating . . . some of the reason must lie in the fact a recent ‘final adjudication’ had an effect which is far from final and this without benefit of an appeal being lodged” (my emphasis).