3. Rehabilitation, Reichstag Fire Trial and “TDSM” – Traditional Disputes-Settling Machinery
Paul Quinlivan’s Snapshots
This was also written for the Old Boys’ talk and, in March 1955, halfway through the Law Students Project, the jury trial of The Queen v. Harry Vincent Pierce made it particularly relevant so I issued it to them. It was also produced to the next Chief Justice, Sir Alan Mann, as explained below. To fully understand it, I should mention that many of the Raluana people understood English perfectly and they were carefully checking that (Interpreter) Hastings’ Pidgin was a correct translation of what was said in English and whether Tilong’s Kuanua was also a correct translation. When Hastings “turned” the part about the Reichstag Fire and the courts “losing their power”, Tilong turned to Monte and asked him what he meant and Monte gave a lengthy explanation which, shortly stated, was that the Nazis themselves set fire to the Parliament Building in Berlin and fabricated evidence against the four Accused. They then “leaked”, secretly and only to the Supreme Court, the fact that the evidence was fabricated, putting the court in the difficult position of having to decide, in a case where public emotions had been deliberately inflamed, whether to go with the popular wish or act according to their oaths. To their eternal credit the court acquitted three of the four Accused but the Nazis, using public outrage as their ally, ordered that, from that point on, five party officials would sit with every judge in every case. Years later, I discovered that Monte was quoting from the Closing Address by Justice Robert H Jackson, the US Prosecutor at the Nuremburg War Crimes Tribunal, who was his friend from the war days when both served in London. The speech is in Louis Blom-Cooper, The Law as Literature (1961) pages 34-74, especially at p. 39. My report reads: “The King against TOWATIA of Raluana was the first case I prosecuted in TPNG and took place at Rabaul on 12 February 1952 immediately after the Chief Justice’s lengthy speech welcoming back the graduates of the ASOPA Long Course and detailing his hopes for the future now that the first group of Native students had been sent to Australia for secondary schooling.
The courtroom was about half the size of a tennis court and had open sides. When the European dignitaries departed, the elders and people of Raluana Village, about 30 of them, quietly took their places and Towatia settled in the open dock. James Leslie Hastings, a Kiap, and Tilong of Raluana were sworn in as interpreters and then I outlined the full facts, in accordance with the TPNG “procedure for taking a plea” which the Chief Justice had outlined in his speech. And, while waiting for the interpreters to finish each segment, first into Pidgin and then into Kuanua, I noted how judicial the Raluanans were in following what I was saying and I suddenly realised that it was I, not the Accused, who was on trial and if I had not properly prepared myself for the case, this jury of 30-odd very knowledgeable people would unhesitatingly condemn the whole system. It was a very salutary lesson and in stark contrast to the normal one I was used to where an obviously bored functionary rattles out, from a piece of paper he has never seen before, a lot of words like ‘bailiwick’, ‘aforesaid’, ‘heretofore’ and ‘malice aforethought’ which make no sense. Luckily, Monte had spent some years in the villages, with not a single white person in sight, adjudicating land claims in the 1920s and ’30s and the Defending Officer, Barry Copley (who had just been welcomed back from the Long Course) handled the situation magnificently. When the case finished the Raluanans filed out decorously, but nodding approval at what had happened, and I breathed a sigh of relief. Then a second group of Natives filed in for the next case, The Queen against BILLI, which was identical although this one came from a village near Kulon Plantation. Copley’s handling of this case was the same as in Towatia’s and Monte’s speech was the same so I was able to compare my notes of the two and prepare a corrected draft that night.
I should mention that the two cases were committed for sentence so, unless there was something exceptional (such as a “bona fide claim of right” as in R. v. Johannes de Roo) the choices for the Defending Officer were limited. But Barry Copley did not deal with the case at all. He devoted himself to the “village” side of the case, the problems of what will happen after Towatia (and Billi) served their sentence, and this caused Monte to call one of the village elders to the witness box to answer some questions and, when he had satisfied himself, he addressed the people saying: “You were right to bring this case to the authorities. And it was right that I check to make sure that this young man really did what he has been accused of doing because bad people in other countries try to giaman (deceive) the courts and, if the courts are not careful, they can lose “power”. Adolf Hitler, who started the war, did that by feeding false evidence to the courts about the burning of a building called the Reichstag and the courts lost their “power”. That was a very bad thing for two reasons. Number One, there should always be courts because, if there are none, or none that people respect, the people will take the law into their own hands and everything collapses. Number Two, because when the courts in Germany were destroyed, the people had nobody to whom they could go with their complaints. And as soon as people have nobody to whom they can go with their complaints, they lose their rights. They become slaves like the people of Israel in their Time of Bondage. There is another thing I must talk about. What Towatia did was wrong – terribly wrong – and he is to be punished for doing it. But will he be a bad man when he comes out of gaol? And why did he do it? I do not know the answers to either of these questions but I can say some things about pilandi other young men who have done things like this and it may help you to know what I know.
I know that many young men do this bad thing, usually to European girls, and when they have been punished they usually return to their village and live ordinary lives, marrying and settling down well. There is no reason why this young man should not do the same and I ask you to give him a chance to live a good life when he returns.
From the time of your ancestors you have been keeping Law and Order in your village and you say that this is the first time you have had to deal with a situation like this. It will, I am sorry to say, probably not be the last. Does this mean that the days of your ancestors are over? By no means! Your duty, and that of the leaders of every village and “line”, remains; the duty to maintain Law and Order in your own area. It simply means that, as you showed in this case, there are two systems: the Government Courts which can punish and must be respected by all, and the tribunals of your ancestors which will always be respected by the Government if they do their job properly.” Then, turning to me, he said: “Mr Crown. If this had been a European girl there would probably have been no confession and the charge would have been laid under the Curtilage Cases provision which is badly worded. Since this is the first case in which the victim has been a Native it might add weight to the requests which the Court has, from time to time, made to have the definition amended and I would ask that you draw it to the attention of the Proper Authorities”.
Naturally, I sent off a letter to Crown Law Office containing the above report and, when I checked on my return to Port Moresby, I discovered that there was a substantial file of letters to the Proper Authorities (that is, to Canberra) conveying similar requests from judges, and requests for an alteration to the District Courts Ordinance in regard to Magistrates’ rights to make a report when an appeal is lodged, which we will look at when we get to: Appeal of Ronald Schmidt in a future Newsletter.
In 1959, Sir Alan Mann CJ became involved in a public dispute with David Fenbury about “White-men’s Courts” and what Fenbury called “People’s Courts” and he questioned the status of the Traditional Disputes-Settling Machinery saying that it could be argued that the TDSM were usurping the function of the Legislature. At one point I felt that the dispute might turn nasty so I produced this Note, and several others, to both participants. Sir Alan expressed his gratitude and suggested that I include the various Notes in the Territory Law Journal when I got it going again. Some months later he also produced a photocopy of a letter which Monte wrote to Dr Fry, Director of the New Guinea Research Unit, (and signed “Monte”) which he had come across in the Supreme Court files and which spoke of his (Monte’s) outrage at being traduced, in secret letters to Canberra, as being “anti Native Courts”.
The report is also instructive for those tempted to generalise from first impressions or from statistical samples. By the end of my first day in Rabaul 100 percent of all the criminal cases I had dealt with consisted of PNG men sexually abusing PNG children. I am happy to say that, out of the countless thousands of other criminal cases I dealt with in 30 years as Crown Prosecutor or as Counsel for the Defence, as Director of Public Prosecutions or as Founder of the Public Solicitor’s Office, as Magistrate or as Judge, I never saw another case of this nature.