Quinlivan, Paul

Sent to TPNG as a Crown Prosecutor in January 1952 to clean up a heavy backlog of criminal cases. Remained until 1983, becoming Chief Crown Prosecutor in 1957 and in 1960 following a significant role in getting the training of Papua New Guineans started, became Assistant Secretary for Law (Executive). In 1965 became Senior Magistrate for PNG stationed in Rabaul and for the last few years of his career, Coordinator of Magisterial Studies, University of Papua New Guinea.

Snapshots published Una Voce March 1999, page 33
   Introduction
1. Sell-out in Manus, 1946-48
2. ‘Slipshod and You're in Trouble'
3. Rehabilitation, Reichstag Fire Trial and "TDSM" - Traditional Disputes-Settling Machinery
4. Revolutionary Rule to Protect the Right to Silence

Snapshots published Una Voce June 1999, page 21

These articles were given limited publication more than 45 years ago, so they give to the present generation a true ‘snapshot' of the wonderful contribution made by their parents and grandparents. In the case of kiaps, their ‘Stud Book' date is given because of the allegation that only the inexperienced defended cases. Two or more years should be added if the date is 1946 or ‘47 because these men joined because they had fallen in love with PNG while serving in the Army.

5. Stiffly Starched White Coats. And Other Differences
6. Bill Burford and Weekends at Brown River
7. Wonderful Detective Work - by Various People

Snapshots published Una Voce September 1999, page 35

In Brisbane's Courier Mail of 29-7-1999 there was a farewell to a Queensland judge and, curiously enough, it began as follows: "Whether it's grass huts in Papua New Guinea or Cunnamulla courthouses, retiring Chief Judge Pat Shanahan has made it a priority to bring justice to the people. ‘The New Guinea system of taking justice to the people ... inspired me to devote myself to the concept of bringing justice to the people', said Judge Shanahan, who retires as District Court president on August 9." It was most unusual - and very gratifying - to see such a comment and our ‘snapshots' today give part of the background to that system.

8. Speech of Chief Justice Phillips on Tuesday 12 February 1952 at Rabaul
9. "It Is Not For Anyone to Invent ..."
10. Persons in Authority must be Particularly Careful

Snapshots published Una Voce December 1999, page 11
11. Planters, Traders (and Monte) and their Former Employees
12. What "Trusteeship" Means, Part One
13. What "Trusteeship" Means, Part Two
14. What "Trusteeship" Means, Part Three

Snapshots published Una Voce March 2000, page 31
15. The Comparison with Quislings and Collaborators Elsewhere
16. Difference in the Commonwealth Grant
17. Four Unusual Items of Expenditure Covered by that £5½ million
18. Comparison between Australia and TPNG
19. Comparison Between Australia and the Former Territory of Papua
20. My First Hearing of the Term: ‘The New Guinea Side
21. Doug Parrish and the Difference between Kiap and Defending Officer

Snapshot published Una Voce September 2000, page 32
22. Rescuing a Judge in Samarai

Snapshot published Una Voce December 2000, page 32
23. George Greathead’s Report on ‘Crime in Mount Hagen’

Snapshots published Una Voce March 2001, page 30
24. ‘Boots an’ All’
25. Kiaps and their Former Role as Defending Officer
26. An Aspect of Defending which Tends to be Forgotten Nowadays
27. ‘Better Late Than Never’. Defending the Rights of a Convicted Man

Snapshots published Una Voce June 2001, page 22
28. R. v. IKUAR (Madang, 18th and 24th March 1952)
29. Paper by Mr Justice R. T. Gore on ‘Punishment for Crime’

Snapshots published Una Voce September 2001, page 41
30. Reality and Imagination
31. Return to Reality... The Reform, in the 50s, of the PIR (Pacific Islands Regiment)
32. A Short Description of the Telefomin Attacks
33. A Medical Orderly who showed that he had been well trained
34. Two Policemen who showed that they had been well trained

Snapshots published Una Voce December 2002, page 32
35. The Telefomin Trials. Two Points Raised by Newspaper Reports
36. The Kiap's Wife says: ‘It Happens Everywhere!’
37. The Queen v. Francis Terence Murphy (Rabaul 3 & 4 March, 1952) : Part One - The Power to Prosecute
38. R. v. Francis T. Murphy : Part Two - The Facts of the Case
39. Defence by Gerry Szarka of TIMIO SIONI (Manus, 8 May 1951)

Snapshots published Una Voce June 2002, page 29
40. A Nobel Prize endangered by our strict rule about Highland prisoners
41. The reason for the Highlands Rule
42. The Rule and my reaction at Wewak on 8 April 1954
43. My task as assistant to John Grainger, OiC Police, Wewak
44. The early results of our investigations
45. Wonderful action of Police Lance Corporal SAUWENI
46. Suni, a fine example of belief in The Rule of Law

Snapshots published Una Voce December 2002, page 30
47. Taking a sample –– and a need for praise
48. The unusual position of interpreters
49. Suni as the trainer of Telefomin interpreters
50. What Suni taught his wife’s parents
51. The incredible problems faced by Syd Smith and Mert Brightwell
52. The people of Wewak and their treatment of the Telefomins

SNAPSHOTS (53 - 56) FROM THE EARLY ’50s
Paul J Quinlivan - Published Una Voce March 2003, page 38.

53 - First Congress of the Public Service Association (PSA), 1955 - Part One.
54 - BUKUMBANGI, a Policeman with initiative.
55 - Re-statement of why I am writing these ‘Snapshots’
56 - Religious harmony and its debt to the Japanese.


SNAPSHOTS (57 - 58) FROM THE EARLY ’50s
Paul J Quinlivan - Published Una Voce September 2003, page 33.

57 - The Mataungan Case - A Preliminary Comment.
58 - The Mataungan Case - The Case Itself.


 

Introduction

In late 1954, soon after Professor Elkin, the editor of Sydney University's anthropology journal Oceania told me he wanted to publish my article "AFEK of Telefomin" but was experiencing difficulty getting Canberra's permission - it finally came out in the joint Sept-Dec 1954 issue, p. 11 - Chief Justice Sir Beaumont Phillips invited me to dinner at his home to meet another professor, Professor Ringrose from the University of Queensland. Ringrose told me that he had written to TPNG students doing Law externally with his university, seeking suggestions as to a likely person to be made "tutor", and they had named me. I said that I was very flattered but I was only a "C" Pass student and, in any case, I did not see how anyone could tutor people scattered throughout the Territory. He explained that it would only be a stopgap measure for two or three years and that "letting my name go forward" was the important part. And, since he also said that, if I agreed, students would obtain various benefits which they would not otherwise get, I said OK. He then said, "If you could produce ‘local materials' for the students that would help". That was a horse of a different colour and, because of what was happening to my AFEK article and other unpleasantries, I was jack of laboriously typing things that got nowhere, so I prevaricated saying that the law in TPNG was, with few exceptions, the same as where I came from (WA). Sir Beaumont then intervened. For brevity I will refer to him as "Monte" from now on, but I would point out that, as is clear from my article on him at page 214 of vol 11. of Australian Dictionary of Biography, he was a great man and such usage does not betoken disrespect. Monte chipped in saying, "True, Quinlivan, but our administration of the law is much closer to the people, so you have a wide field there. For instance, how many times, in WA, would you have the Accused wandering out of the dock because he wanted to help the Court? And how often would a lawyer in WA have to face the problem you had at Samarai?" He also said that he would handle the typing and distribution himself - which he did; all I had to do was hand in the drafts to the court - and he arranged with all the judges for me to have access to their private notebooks. So, since I had quite a collection of items already available, the project began immediately.

To explain why I had a collection of items available I should mention that my arrival in TPNG was the result of Canberra panicking because, having failed to listen to repeated pleas from Port Moresby for more Crown Prosecutors, the backlog of cases was threatening to affect political stability in Australia. In most "colonial" countries members of the dominant race normally escaped being hauled before the criminal courts but in TPNG, in November 1951, while Warren Balfour was being tried by the Supreme Court at Finschhafen, Peter Jameson was awaiting trial before the Supreme Court at Kavieng, the Reverend Johannes de Roo was awaiting trial at Manus, Francis Terence Murphy was awaiting trial at Rabaul and Michael Gregory was awaiting trial at Lae - to mention only those on my own first circuit. It was scandalous by any standard and Canberra's reaction (and the fact that they flew me from Perth to Moresby without any attempt to tell me anything about the place) gave me a false idea of what the administration of justice in TPNG was like. It also meant that, being specially imported to be the saviour, I was treated royally when I arrived - met at the airport by the Deputy Crown Law Officer, welcomed by the Chief Justice at morning tea, had tea and scones next day at Government House, dinner with Judge Gore, was taken on a tour of Samarai and Rabaul - but this, unfortunately, could not be sustained because, having solved their immediate problem, everyone forgot to tell Rabaul that they had abandoned the plan to fly in a senior barrister from Sydney and were sending me instead. So, while I was seeing the sights, Jack Crockett, the Chief Clerk, was giving my room at the Cosmo Hotel to the senior barrister who had come anyway! I did not discover the mix-up until the District Commissioner had disappeared home, thinking I was someone Monte had met on the plane and was treating to a free view of Rabaul, and I had to beg a meal from the Admin. Mess (after it had closed), and a bed in the Travelling Officers Bungalow. I also fell, totally sober, into a stormwater drain and got covered with buai-impregnated mud when I tried to find my way back to the TOB in the dark. It was the worst, the loneliest night I have ever spent. I could not sleep because I was seething with resentment and the more I told myself that I needed sleep if I was to survive my first day in Court in TPNG, the more sleep eluded me. Then I sat down and wrote the events of the day and found that 99 point 9 percent had been interesting and good and, since the blackness lifted, I resolved that, each night, I would write down the events of the day.

In late 1954 it seemed providential that I kept to that resolve. Now that things have changed so much, it is even more so because what I wrote provides, in snapshot form, a startling picture of what the administration of justice was really like - and what it should still be had things been allowed to progress the way Monte and Judge Gore planned. These snapshots will, I hope, bring back proud memories to those who served in TPNG at the time and explain to their descendants just what it was that made TPNG so different from other dependent territories. (The first ‘snapshot' was in the Dec 1998 issue, p.23)

No 1 - SELL-OUT IN MANUS, 1946-48

(Paul Quinlivan was prompted to send us the following after reading Brian Jink’s ‘Help Wanted’ notice regarding” an episode in Manus in 1948 when police under Commissioner Grimshaw were sent to arrest some Chinese labourers for assaulting a villager”. In his covering letter Paul said that, with this and other articles, he wanted to let people know the marvellous work the Kiaps of old did)

The case Brian Jinks referred to in (Una Voce No 2, 1998 (p23) was R. v. Chow Hung Ching and Si Pao Kung about which I published three reports when 1 was asked, in 1954, to produce ‘local materials’ for TPNG students studying Law with the University of Queensland. Brian only asks about Colonel Grimshaw, whose role was very minor, but the case has its proper place with two other events which are recalled by the recent pilgrimage to Kokoda.

The first was Blamey’s sell-out (and public ‘shaming’) of those Australian troops who had broken the Japanese advance on the Kokoda Track because he thought MacArthur was displeased with them, whereas a phone call would have shown that MacArthur merely wanted to urge them on - see A Strange Encounter at Ower‘s Corner by Robert Darby and Elena Taylor in the April 1998 issue of the official magazine of the Australian War Memorial WARTIME (p.42).

Sell-out No - 2 is mentioned at pages 34-40 of that same journal. It was the policy, detailed by Gavin Long at page 40 of The Final Campaigns (1963), of playing down the part which Australians played in the defeat of the Japanese, in all areas, so that America could be given credit.

Chow Hung Ching refers to Sell-out No. 3 because it reminds us of the de facto surrender of sovereignty over Manus, in 1946-48, to Nationalist China, and the way that sell-out was broken. In the normal course of events I would not have reported Chow Hung Ching because, for Law students, I was only interested in (a) notable defences or short-cuts, (b) exceptional difficulties or (c) “local pruning’s of the law”. I had, at Uni., read the High Court case at 77 (1949) CLR 449 but it contained nothing of interest. Instead, it was a purely academic exercise where, to quote p. 451: “The appellants were members of a military force of a friendly foreign Power, which force was in the Territory with the consent of the Commonwealth Government and, by reason thereof, the appellants were not subject to the jurisdiction of the Supreme Court.” It was only when the trial judge (Chief Justice Sir Beaumont Phillips - “Monte” to everyone) gave me his private notebooks that I saw that this misrepresented the facts and that, in truth, there were wonderful examples here of both (a) and (b).

I had always been intrigued by the fact that, in planning hi circuits, Monte always ended at Wabag where he and Dick White would sit around a blazing fire, silently comfortable in each other’s company. Not that Monte was not comfortable in everyone’s company, but the fact was that he (and all the judges) were, in those days, treated like Royalty wherever they went so we never really saw him “without his mask”. With Dick White it was different and I think that part of the reason was that Chow Hung Ching epitomised the thing most dear to his heart, his hope (expressed in his speech of 12 February 1952, for instance) that he would someday see Papua New Guineans trained to be Kiaps.

The point of the case was: Who would defend the indigenous inhabitants of Manus now that sovereignty had been given to a regime which played Cowboys and Indians with them, as if they had no rights? It was a variant on a theme which Monte harped on - for instance in his Reichstag Fire speech where, by rigging the evidence, the Nazis destroyed the German Courts, thus making their victory a foregone conclusion because ordinary people no longer had access to someone to whom they could take their grievances. Chow Hung Ching showed that, although Canberra seemed to believe that hiding its head in the sand was the best way to deal with the problem of hundreds of Chinese exercising sovereignty in Manus, the training of ordinary Kiaps preserved, for the ordinary person who felt aggrieved, a fruitful avenue for complaint. The “defence” in this case was the defence of the Rule of Law against Monumental Sell-out No 3 which resulted when nobody had the fortitude to tell the Americans that Manus was a Mandated Territory for which Australia was responsible.

It is obvious when you look at the case. By written agreement which starts: ‘WHEREAS the cessation of active military operations in the war with Japan has rendered surplus to the needs of the United States quantities of its property now situated in the Western Pacific Area …”, the United States Government sold that surplus property to the Republic of China. The places listed are all, with the exception of Manus, Los Negros and Finschhafen (all of which were in TP&NG), territories in which America could lawfully do what she liked because, in the case of Wake Island, it had been hers since 1899, and because, in the case of all the others, they were “captured enemy territory” because they had all been Japanese territory before Japan bombed Pearl Harbour. Moreover, Manus was not in the Western Pacific Area, a technical term, but in the South West Pacific Area, a totally different zone, with HQ in Brisbane! The date of the agreement, 30 August 1946, is also significant because, around about that time, I was made Secretary of the Student Body of “University Hostel, within the University of Western Australia” which consisted of just over 100 fully-furnished rooms with comfortable dining rooms, lounges, kitchens etc, which had been built by the United States of America for their personnel and I have special knowledge of the fact that, months earlier, the Americans wanted to dismantle it and Vice Chancellor Currie called on the American Consul-General and said, “You can’t do that because the University owns the land and all that is on it”. And, when the American said that his government would take the ‘movables” Currie said, “We will buy them at valuation” and that was the end of the matter. I know all this personally because Currie brought me into it by getting the Senate to give me a ‘special bursary” so that we could pay for the movables!

In my first report I recorded that informants in private enterprise on Manus had told me that they sent objections to Canberra as soon as the Chinese arrived, hut they got no reply. Cyril McCubbery, the prosecutor in the case, also told me that the Administration had done the same. It was the great Heads in the Sand case! Then the Chinese Army began using dynamite to destroy non-movable things such as refrigerated rooms which they could not move. Complaints to Canberra increased but to no avail so, when Pondranei came to him on 26 January 1948, all battered and bruised, and told him why, ADO Dick White (who joined the Field Staff on 12.5.1939) decided to break the impasse. Pondranei could not say how he had been taken to the Chinese compound because he had fainted after the first two blows - his maltreatment had, according to the High Court (p.468) “continued over a considerable period”, but he was able to say that a group of four Chinese had, the previous day, come to Lugos (three miles outside the Chinese compound) hit him with a length of timber and kidnapped him, taking him to a Quonset hut in their own compound where they strung him tip with electric wire, so that he was hanging with only his toes touching the floor, and flogged him. White took him to Dr Ken Smythe who gave evidence that he had two black eyes, a bruise on the chest from which blood had flowed, another bruise on the left buttock from which blood had escaped, and abrasions on both wrists. It was later explained that one of the Chinese was missing two cartons of cigarettes so he and his compatriots went searching for a Melanesian culprit. Pondranei, unfortunately, had gone to Lugos, where there was a public market, and sold two pineapples for a carton each, so he was the one they seized upon.

Because all ordinary overtures had failed in the past, Dick White decided on a show or force so, taking John Grimshaw, Charlie Carr and two other Australian Police, and as many PNG police as they could muster, and Pondranei, he presented himself before General Wu, the OiC Chinese Forces, and said that they were there to investigate a criminal complaint. General Wu said he would cooperate but, when the Chinese were paraded in three lines some days later, the 300 labourers and an unknown number of soldiers kept “breaking ranks” and taking up new positions and Pondranei and his witnesses were not able to identify anyone. White persisted and, a month later, General Wu relented and investigations began anew. As a result the appellants were arrested and, on 5 April 1948 they were committed for trial by Bill Bloxham who applied to the Supreme Court for the case to be “certified for defence by Counsel”. The Chief Justice so ordered and the trial took place before him at Imrin on 26, 28 and 29 June 1948 and at Rabaul on 28 and 29 July 1948. On 5 August the Chief Justice delivered a lengthy judgment in which he FOUND each of the Accused guilty as charged and imposed, on each, sentences of three months imprisonment with hard labour on the assault charge and six months on the deprivation of liberty charge.

This is the end of Paul’s description of Kiap Dick White’s efforts on behalf of the Manus man; however, for those interested in the legal outcome, Paul has provided an account of subsequent events:

My second report dealt with the difficulties experienced by Counsel who was Adrian Jones of the Melbourne Bar who was working as a clerk in the Crown Law Office, Port Moresby. He wrote to Canberra for information to assist his clients but, since it was a private brief, I do not know to whom he wrote or how often. >From the court records it is clear that he received no reply because the trial started as an ordinary “trial of facts”. On 28 June 1948, however, Jones informed the Court that “During the weekend facts came to my knowledge that … lead me to (believe that) Accused .... are members of an armed force of a friendly foreign power admitted to the Territory with the consent of the territorial Government .... unfortunately, owing to my late instructions … an adjournment is asked for …” and Cyril McCubbery informed me that he consented to this application because Jones informed him that he had received a document, from Canberra, permitting Chinese agencies to take materials from Finschhafen, from which Jones inferred that a similar document must exist in regard to Manus. On 28 July 1948 (page 35 of the transcript) Jones informed the Court, “it was hoped by the Defence to get evidence from Guam in support of the plea to the jurisdiction. Despite repeated efforts, this has not been obtained; nor has any evidence of an agreement between China and Australia about the presence and status of Chinese personnel at Manus been obtained: permission from the Australian Government for the presence of Chinese to remove war materials from Finschhafen was obtained, but it does not appear that similar permission was obtained for the entry of similar personnel into Manus”.

This raises serious questions about the information Counsel gave the High Court. It also explains why, having nothing on which to ground his “plea to the jurisdiction”. Jones had to resort to the rather wild statement, at page 42 of the transcript that, “it may be that America was still in possession of that part of Manus where the Accused and die body to which they belonged were, and that the Accused were in America rather than our Territory.” This possibility is echoed by Justice Starke at page 474 of the appeal case (77 CLR 449), where, speaking of the 300 plus Chinese, not just the two appellants, he says, “It is possible that the Executive Government of the Commonwealth had no knowledge of their presence on the island at any time material to this case, for it was an allied base of operations against Japan, established in the main by the United States and at the time being dismantled by it …” Unfortunately, for this hypothesis, however, the trial judge specifically HELD, at page 79 of the transcript, that the Chinese compound was “at Lorengau which is but a few miles from, and almost within view of, our Administration’s District Office at Imrim, (so) it is inconceivable that our Government was unaware of the presence of that personnel in this Territory.”

My third report, which was after the Smith Appeal (Una Voce, September and December, 1997) and long after the Law Students Project had ended, dealt with the strange disparity - discord, actually - between what the High Court was told and what the transcript of the actual trial disclosed, but it need not concern us here.

No 2 - ‘Slipshod and You're in Trouble'

Before I went to TPNG I had been Secretary of the Marist College Old Boys Association of WA and, since everyone knew I intended going to PNG for only the one term, they expected me to give a talk on my experiences on my return. I wrote this piece for inclusion in that talk because the thing which most impressed me was the meticulousness with which Police and Kiaps abided by the Rule of Law in even the smallest details, and this episode illustrated this. I gave it to the Law students because although my lecturers had told us that, in ancient times, judges were given something called "Commissions of Oyer, Terminer and Gaol Delivery" (Gaol Delivery being like the powers of a Visiting Justice under the Prisons Ordinance where the V.J. has to check the documentation covering each person held in the gaol) they did not tell us that modern judges get the same commissions. They also failed to tell us that, for a person arrested, the main documentation was the "Station Occurrence Book" in which everything had to be recorded as it happened. Knowledge of such a book could be useful to a defence lawyer. I also included this piece in a draft article on the High Court when, as mentioned in John Herbert's excellent article in Una Voce No 4 of 1997, that Court was led to believe that the Rabaul Police Station was a large building with solid walls and windows. The report reads: "It was just after 7 am, Tuesday 12 February 1952 and I was looking for the Rabaul Police Station. I had arrived in Rabaul late the previous afternoon and, due to someone wrongly advising the Rabaul authorities that a "senior Law lecturer from Sydney" would be the Crown Prosecutor, I had no idea what kind of building I was looking for. All I knew was that it was where the road I was on joined a main road. The air was very still and there was absolutely no traffic, so sound carried and as I approached the corner I heard voices from the sole building there, a small raised up bungalow which had no walls or windows, just push-out shutters fully raised. They were Australian voices and I was glad because I hoped to end my sudden run of bad luck. I was not deliberately listening as I walked past the side of the building, around the corner and up the steps but, since the voices kept repeating the one theme, I could not help hearing what was said: they were badgering someone called Vic because he had "forgotten to make a record and Monte would have his guts for garters when he did his V.J.". And, when I identified myself, the Police told me - by way of overcoming the hesitancy which naturally arises when the "senior Sydney barrister" they expected turns out to be very junior, and from Perth, and needs their help - that "Vic here arrested a Native and then got called out on a case without entering the arrest in the Station Occurrence Book so, when he got back, there were later entries already entered and the Chief Justice will see that he had failed in (and these words were almost chanted in unison) An Aspect Affecting the Liberty of the Subject". It was all new to me but I soon found that the phrase "An Aspect Affecting the Liberty of the Subject" - meaning the rights of Papua New Guineans - was a cardinal tenet with all the then judges and, although his colleagues were treating it in a joking manner, it was clear that the future of Victor Clayton Rowles was in great danger because of his oversight. To cut a long story short, the Australians left the building so that the Chief Justice could do his inspection, but the Native Sergeant stayed since he was an old friend and when Monte was turning the pages of the Station Occurrence Book a big brown finger suddenly thrust itself onto the page and the Sergeant said, "They're worried about that." Monte said, "True here?" and the Sergeant said, "True here. But it's something-nothing. Masta Vic is a good, honest man." And that was the end of it all! I don't think any higher praise has been given any white person in TPNG, or any problem solved so simply. As Chesterton says, far too many people fail to notice the silent witnesses, such as the Sergeant who was always present, and wise lawyers should always seek them out, just as they should always seek to find those pieces of "mute testimony" which cannot be tampered with."

If I may add a modern postscript I would like to record that my sudden run of bad luck did change because, that very afternoon, Max Orken returned and discovered my plight. He rescued me by taking me into his own home, a typical act of kindness for which I will forever be profoundly grateful.

No 3. Rehabilitation, Reichstag Fire Trial and "TDSM" - Traditional Disputes-Settling Machinery

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.

No 4 - Revolutionary Rule to Protect the Right to Silence

The Queen against KABO, heard at Sohano on 29 February 1952, was my first nolle - that is, the first trial I aborted saying "this trial ceases here". The Defending Officer, Bob Macilwain (who joined the Field Staff on 4 April 1939), objected to the admission of a confessional statement, taken from his client, on the grounds that, being taken by a Coroner, it infringed his client's right to remain silent. Monte ordered an immediate voire dire (a "trial within a trial" by which a judge, in the absence of the jury, can hear evidence as to how a confession was obtained, so that he/she can make a "decision at law" as to whether it should be admitted or rejected). I am sure that judges in Australia would have held that the Coroner was right in taking the statement because, after all, that is what Coroners are there to do! Monte, however, said "No! This is a trust Territory and we are proud of our local traditions". And, to my surprise (since people who served in New Guinea before the war usually ignored - or knew nothing about - what happened in Papua) he then cited a Territory of Papua paper by Judge Gore, published at pages 20-22 of the 1928/1929 Papua Annual Report, as authority for what he was describing as "local traditions". Monte then said that, accepting that the primary function of a Coroner is to discover what went wrong in a special case so that society can protect itself against a repetition of what happened, the Investigator must decide whether the death or fire is of this special category or whether it is simply an ordinary case of homicide or arson. If it is an "ordinary criminal case" the procedures laid down for committal cases should be followed. He threw out the confession. Although the remaining evidence was substantial, it was doubtful whether I could obtain a conviction so I immediately entered a nolle prosequi, taking the case out of the judge's hands, so that it would be re-investigated and begun again.

I circulated a report of the case and, from that day on (until local procedures were abandoned) there was never any suggestion that Coroners Powers were used to deny an Accused his right to remain silent. Even in the Telefomin Inquiries and Trials (which were forced to proceed by way of Coroner's Inquest because, for reasons which have never been explained, the Public Hearings were called on months before anyone could expect the prosecution to be ready) there was never any attempt to put in, as evidence, anything the Accused had said to the investigators. In an early re-issue of the report I added, "It is interesting to note that at page 595 of 1955 Criminal Law Review there was a move, in England, to outlaw the use of Coroner's Court for committal purposes." I am nowadays unable to check this reference but, if it had succeeded, it would have brought English Law into line with TPNG!

 

No 5 - Stiffly Starched White Coats. And Other Differences

The coats on all the men in the photo on the middle pages of the last Una Voce remind me of an essential difference between the early 50s and, say, the 60s. As did the sight, on TV recently, of an English judge asking for a red bonnet to wear because, he said, judicial robes were inappropriate for the trial he was conducting into Nazi War Crimes but he wanted people to know who he was. For my first six months in TPNG I did not realise just how entrenched the ‘white coats' mentality was because, apart from the first week (when people kindly lent me a coat to wear to Government House etc), I was constantly on circuit with Monte Phillips who always travelled in shorts and long sox because of his gammy knee. Since we always stayed in people's homes, there was no ‘dressing up' and, if luggage went astray, Monte would borrow a piece of red material and drape it over his shoulders to show that, whereas Kiaps were ‘judge' when on the Bench, he was ‘the judge who wore the red cloth'. It was not until June 1952 when Monte gave a luncheon party at his home for all the lawyers of the Territory, to discuss the formation of a Local Law Society, that I realised that slavery to white coats was total. By then, of course, I had had one made by a Rabaul tailor but Joe Lynch, who arrived the same day as I did, had to borrow one for the luncheon and he, together with lawyers who had flown in from Rabaul and Lae, were seated at a drop-side table. It was the finest meal I ever had in the Territory but it failed to overcome local jealousies because, during the very first course, Joe knocked the leg of the table and his side collapsed, covering him and Harold James (their white coats, to be precise) in vichyssoise soup. Since neither Joe nor Harold (from Rabaul) could get a replacement coat, Monte gave the order ‘Remove Coats' and the ironclad rule was broken. So was the spell which Monte had woven, at great personal expense, because although everyone paid due attention to his speech about ‘dangers ahead', they went away with something else to talk about. The rule about coats was, of course, not a great burden to carry but, some months later, I was asked to do the first Price Control prosecutions and I discovered that each Magistrates' court had a rack of discarded coats which Europeans who were suddenly called to give evidence had to put on to be ‘properly dressed'. Filthy and stiff with mildew, they added nothing to The Law and it was one of my earliest victories to have the compulsory straight-jacketing of witnesses abolished. On the credit side there were many attractions. The Territory was the safest place on earth for a white person (we shall see several illustrations of this), largely because we had protected land rights, interfered only where existing systems prevented people moving freely, and we never imposed corvée, the compulsory (semi-slave) labour traditional in other ‘colonial' countries. This non-interference meant that the cost, to Australia, of running the country had been minimal but it imposed special burdens on those working in the field, burdens which quickly sorted out the competent from the loud-mouth who owed his job to ‘friends back home'. It was not uncommon to find that the quiet unassuming man standing next to you was a hero who had done great deeds behind Japanese lines if you could only get him to talk. To illustrate this I would mention Ivan Champion who, on 9 April 1942, sailed Laurabada to Palmalmal, New Britain, and rescued 150 Australian troops from under the noses of the Japanese, bringing them safely back to Moresby. He told me, "Everyone with the right spirit can find this a very satisfying place."

To turn to the less attractive side: Monte's abortive luncheon was excellent, as I have said, but that was because he had flown in all the ingredients. The meat, fruit and vegetables normally available in the shops were very sub-standard. The soup which splattered over Joe's and Harold's coats is made from potatoes, a basic staple. But supplies only came from Australia and were so often rotten when they arrived that most people kept tinned potatoes in stock as a standby. This nearly led to a riot when - or so the story goes - an enterprising entrepreneur called "B the BB" bought up all the tins he could with the idea of making a killing when the next consignment of potatoes turned out to be rotten. Unfortunately, he was an Admin. Officer and, since commercial firms were in the habit of putting pressure on the Admin. (until the Anton Rucker Case put an end to it), he had to disgorge. Coming from a State where the policy was to send only the very best produce to Singapore, so that WA could capture the market, this palming off of rubbish was very hard to forgive.

The situation regarding beer was worse. We could never get Australian beer so we had to rely on imports from Germany, the Philippines and God-knows where. You could never get used to one taste unless you drank Becks, and the New Guinea Club had a showcase displaying varieties we had to contend with: Revolver, Pistol, Power, Big Gun, Big Girl, Blue Girl, St Pauli Girl, Three Girls, Three Elephants, Three Castles, Three Clouds and so on. And on. They stopped at 57 in homage to Mr Heinz but there were hundreds. Why? This was not an academic question because, apart from a hole, called The Bombhole, in the dead reef which covered all of Ela Beach, where one could swim, and tennis courts at Ela Beach and 4 Mile, there was nowhere one could go, in Port Moresby, for leisure time activities except the Snake Pit at the Bottom Pub or a club, and the same applied everywhere else. Before the war there had been a swimming baths inside the harbour and a golf course at Konedobu (Judge Gore was now rebuilding one on Scratchley Road) but, since everybody kept telling me how important it was to get an ‘outside activity', this was a worrying situation. Luckily, Joe Lynch, Andy O'Driscoll and I at the Legal Officers' Quarters (a tarred-paper donga in Hunter Street where ANG House now is) had to cater for ourselves so, when I asked our major domo, Aitau, why he always served freezer steak when fresh fish should be available, he took me 100 yards, through the Fire Station, and out onto a little jetty opposite. He then pulled on the rope there and the barge which took water to the Gemo Island Leper Hospital loomed out of the darkness. When we were on the barge he shoved against the jetty and we gently floated out into the harbour and he said, "You want fish? You catch fish! This is best place." So, for years, I often spent the evening there, opposite the Fire Station, and my catches were very welcome both at LOQ and when I was invited out.

No 6 - Bill Burford and Weekends at Brown River

Everyone agreed that you had to get an outside interest but nobody told you how. Monte Phillips had started the Port Moresby Music Society which put on musical comedies, and Ruth Carter, the librarian at Ela Beach, ran "Thursday Evening Discussion Groups" which became the Port Moresby Historical Society (we will see some of these discussions in later issues) but, apart from these and Bill Burford's effort, there was nothing. It was Bill's contribution to my sanity which I featured in my speech to the Old Boys Association when I went on leave in 1953. Ours was a Marist Brothers College at New Norcia Aboriginal Mission, and when I was demobbed in 1945 the brothers invited me, and my mate Norm Monk, back to the college for a week to recuperate. They gave us each a .22 with plenty of ammo and left us to ourselves. It was precisely what was needed. And so was Bill Burford's invitation to join his shooting party for the weekend when he found that my first circuit was delayed. He was the clerk at the Crown Law Office (CLO) and he insisted on one rule: I had to guarantee that I would not bring any grog. I went pillion on a motorbike because there was no road (the Brown River Bridge did not exist) and when we got to the camp I discovered the reason for the ‘no grog' rule. The two Papuan clerks from CLO - one later became a bishop and the other vice-president of the Public Service Association - were part of the party of eight, not as servants, ‘beaters' or guides, but as full and equal participants. And, since it was illegal for them to drink, none of us drank either. I remember, with great affection, many other picnic-type excursions - picnics at Watta Plantation, Col and Margaret O'Loghlen's famous Esky of beer and sandwiches in the Botanical Gardens at Lae or at Voco Point - but it was the fact that the Papuan clerks were part of those shooting weekends (in which none of us shot much, but we enjoyed the freedom of the jungle) which I remember most because it showed that, because of the experiences of the war, a feeling of equality existed which was sadly missing in later years. Thanks, Bill!

No 7 - Wonderful Detective Work - by Various People

The Queen against LAPAE was a wilful murder trial at Rabaul on 4 and 5 March 1952. It was so important that I immediately wrote a full report to Crown Law and it was circulated to all Kiaps and Police. It was later circulated to Law Students. The Defending Officer was Tom Leabeater (joined 10 June 1947) but before dealing with the case I should mention a peculiar background which is relevant. Admin. Departments had found that there was often no guarantee that monies allocated to them would arrive - for example, in one simple instance which I found particularly horrifying, somebody in Canberra had got rid of an importuning English doctor by giving her the Crown Law Library vote to print her lavishly illustrated paper on eye diseases in the Northern Territory. The result was that an unofficial agreement had come into existence whereby, in return for an understanding that they would get funds in five or six years time, the Judges went without Associates, official cars and other expensive trappings of office and the money saved helped Dr. Gunther's project of bringing in DP doctors (Displaced Persons - highly qualified medicos who were refugees from the Nazi Occupation of their own countries) and setting them up in places like Saidor which, normally, would never get a doctor. One result was that Monte drove his own car, Betsy - a Model A Ford which had gone through the Rabaul Eruption and which Des Sullivan, the Official Secretary (Government House), loved to race when Monte was on circuit. In return, Des (Distinguished Flying Cross and Bar) got pilots to carry judges' mail by hand. Thus Monte received the January 25 1952 issue of Australian Law Journal (ALJ) by ‘express post' and gave it to me before the circuit opened on 12 February because it contained the result of the appeal lodged by a famous radio announcer, named Kerr, against his conviction, on confession evidence, for killing a girl on a beach in Victoria. The case made headlines Australia-wide and, because of the publicity, Kerr refused to read what the police had recorded when they took his confession, saying they ‘already had more than enough'. The Appeal Court had now overturned the conviction because Kerr had not actually read the record made of his confession. Because the murder which I was charging LAPAE with had caused widespread outrage, it was vitally important that he be convicted but, as Monte pointed out in his speech of 12 February, I also had a duty to assist Defending Officers in any way I could so I gave the ALJ report to each Defending Officer. None of them used it in the 11 cases between 12 February and 4 March simply because I had never relied on a confession. I had always been able to produce plenty of other evidence.

In those days, Kiaps investigated all alleged offences ‘outside' a town and the Police investigated ‘town' offences, and Lapae's case started in town despite the fact the body had been washed ashore at Mailiwan Village. This was because the Tultul recognised the body as that of Iapilomon, 16 year old daughter of Tovua, a highly respected Tultul and Catholic Catechist and, believing that she would not have drowned, he bailed up the first vehicle to come by and asked the driver if he would take him, and the stinking body, to the Native Hospital in Rabaul. The driver, a European, agreed - I regret that I did not record his name but he managed a local plantation - and, when they got to the hospital the Tultul told Dr Saave that he wanted an autopsy done, which Saave did and then he (Saave) called in Sub Inspector Brian Holloway who started the investigation. I have also forgotten the Tultul's name but he was most impressive. Perhaps Brian or Jan can remember his name, and that of the planter?

At the trial, Tom Leabeater objected to the written confession which Holloway, in accordance with existing practice, wanted to give as evidence so a legal argument ensued and Monte upheld Leabeater's argument. This radically changed the way the law was to be administered because, until then, everyone had produced a record in English, a practice justified by The Judges' Rules. The point of Leabeater's strategy was obvious but I got over it by getting Holloway to give oral testimony of what had been said. Leabeater, however, had a second purpose. He had spoken to his client (as all Kiaps had been trained to do) so he asked Holloway questions about his conversation with a man called Turan, who was to be later defended by a senior lawyer flown in from Sydney. This showed that TURAN masterminded the whole crime - which had originally been rape but IAPILOMON died so he ordered LAPAE to tow the body out to sea so that people would think she had drowned. Thus LAPAE was only a tool and warranted a lesser sentence. Leabeater was complimented by the Chief Justice both in the case itself and, inferentially, in the Turan case where he said that ‘had I not given a sentence of only seven years in Lapae's case I would now be imposing a far greater sentence on Turan'. Possibly this was because he was ‘having a go at' the Sydney lawyer for letting people know that, being from Sydney, he was somehow superior, despite the fact he knew nothing about Kerr's case, but one cannot be sure. It could also be that he felt that Counsel from Sydney had not taken the time to adequately discuss the case with his client and this, in Monte's book was ‘letting The Law down'. I should also mention that Monte went out of his way to praise the work of Dr. Saave saying, "One could say that Accused was ‘unfortunate' that his attempt to pass off a dead body as ‘drowned' was wrecked by the care and thought given at the autopsy by a DP doctor, Dr. Jan Jerszy Saave, who proved conclusively that Deceased had been asphyxiated before immersion in the water and that she had been a virgin who had been raped immediately prior to that immersion."

 

No 8 - Speech of Chief Justice Phillips on Tuesday 12 February 1952 at Rabaul

Snapshot No 3 describes my first day in court in TPNG but, rather than give Monte's speech then, I preferred to give his performance in two truly remarkable cases. He commenced proceedings by speaking for five minutes in pidgin and then he delivered the following speech in English.

"It is good to see all of you here and, in particular, Mr Keith McCarthy, the District Commissioner, Mr Warner Shand, the District Officer (Magisterial) and Mr Commissioner Reid of the Native Land Titles Commission because they represent three of the five quite different careers which Kiaps can look forward to making their own. But before I discuss Kiaps, I would like to welcome Mr Quinlivan, our new Crown Prosecutor (and he then continued). We are celebrating two other events which, to my mind, must be connected. We welcome back, in the person of Mr Barry Copley, the 25 graduates of the Second Long Course of the Australian School of Pacific Administration (ASOPA) in Sydney and we celebrate the fact that, last week, the Administration sent our first group of young Natives to study in Australian secondary schools.

Until now, the solemn commitments which Australia made when she signed the Trusteeship Agreement have been little more than pious words because it has simply not been possible for anyone to do anything about creating a national feeling amongst the more than 700 different language groups and dialects here. With the two events I have just mentioned, however, we have a clear way in which such a feeling can be achieved. This is especially so in view of the fact that, since the resumption of Civil Administration, there have been constant calls for our court system to intervene in situations where, in former days, more drastic action would have been taken. ‘Bai mi kotim yu' (I'll take you to Court) is a common cry and something we should be proud of, especially since it is noticeably absent in other ‘dependent territories' and, in its place, there is MauMau and similar movements.

Another feature which is quite unique is the protection given to the Coastwatchers during the Japanese occupation. This was maintained, month in, month out, until Japan was conquered, despite the fact that the KEMPI-TAI were frighteningly powerful and they made it plain that unspeakable things would be done to any Native who harboured an Australian. We Australians should be forever grateful and remember that the men and women of the Territory helped us in our time of need when we are considering how best to fulfil our duty under the Trusteeship Agreement.

In addition to being eternally grateful, we should also ask ourselves: Why, when other territories have MauMau, did our people save us at such constant peril to themselves? There were two factors which make TPNG different and, to epitomise the first I quote from Sir William Fitzgerald's article "Dangerous Rigidity of Colonial Judiciary" in the current volume (vol.5 p.28) of ASOPA's magazine South Pacific. At page 29 he says: "It is in many ways a matter for regret that the dumping down of the English legal system with all its rigidity has become so firmly rooted in African soil. .... A great task remains for the Colonial Judiciary - the task of a Coke in England or a Holmes of America, not only to adhere to the principles of the common law of England, but to adapt them to the conditions in which they find themselves; to apply, as America did, the fundamental unchanging principle to the changing conditions and needs of the people, rather than to follow slavishly decisions based on the application of those same principles to totally different conditions."

On both sides of the cordillera we were fortunate in having ‘a Colonial Judiciary' which did precisely what Sir William now says should be the ‘great task' everywhere. Dr Albert Hahl, in German times, Sir Hubert Murray on the Papuan side and my own Chief, Wanliss, on the New Guinea side, laid firm foundations for our law and, although they agreed that it would be wrong to keep the Territory as an anthropological museum, they grafted onto the basic principle that everyone be left in peaceful possession of their ancestral lands - itself a revolutionary innovation - a system which means that Native Society is still rather much as they found it, apart from requiring a cessation of warfare and other practices declared to be unacceptable in a modern world. The second factor is that, in other places, the colonising power conquered the local people, or they either established a policy of ‘divide and rule' or they employed large armies to deter opposition. We did none of these. We sent in small representative bodies of one or two Kiaps and a handful of Native police whose rifles were quite inadequate for defence purposes. From the Natives' side there were also two factors which we should never forget. Every group has its methods of assessing ‘outsiders'. I first experienced this when I was in the Solomons and I well remember my horror at seeing how mercilessly they mimicked me. After that first natural reaction, however, I came to realise how important it was that people do make such tests so when I faced it again, here, I was glad that I was allowed to witness it (provided, of course, that I remained so unobtrusive that everyone could pretend I was not there!). For those who have not had that privilege I advise that, even though there may be nobody in the Public Gallery (which, if ever it happens, is itself a terrible indictment on the calibre of the person presiding in that court), the events of the day will be discussed that evening, in the minutest detail and with startling mimicry, and judgments will be made. It is by this constant review that Natives judge our conduct and the important point is that they judge us by our own standards. They compare each performance with all the others. And, provided we are honest according to our own lights, they accept. This does not prevent them making, in each case, decisions as to whether our system has produced a very inferior result - as, of course, would be obvious if we allow ourselves to convict ‘Z' when they know, since they go into these matters with a background of knowledge we can never have, that ‘A' is the person we were seeking. The second factor is that they were quick to see the value of complaining to one section of the white tribe (and we are, to them, a ‘tribe' which consists of three opposable parts, the Administration, the Mission and ‘Companies') if they find something in the others hurtful. They are quick to invoke the aid of one against the other. It is the ability to complain, and the fact that Courts have always been available, which explains the new phenomenon - the cry ‘Bai mi kotim yu'.

Because of these two factors our courts were tested, with untold benefit to Australia, when the need for comparison with the Japanese arose. But what courts were found to have passed the test? It is true that, since the war, the Supreme Court has adopted the Papuan practice of sitting in the ‘town' closest to the scene, no matter how small that ‘town' may be. But we are talking about before the war and in those days the Supreme Court of New Guinea followed the Australian model of seldom travelling outside of the capital. And since I am talking about the New Guinea side it is clear that, with a few notable failures, it is Kiaps who have been found to have passed the continuous testing process. Which brings me to my major point about Australia's duty under the Trusteeship Agreement.

I know of no better way of doing our duty than to introduce Natives, as soon as possible, into the system as Kiaps so that village people can see that the white skin of the ‘tribe' which is ‘Big Government' is only incidental and that their own people, even those from the remotest areas, can become ‘The Big Government'. In fact, this is the only way we can bring about a true feeling of nationhood. An additional benefit would be that, in performing that task we will also be controlling the natural tendency for people to usurp power by force, cronyism (wantok), bribery or other unlawful means, as well as providing the future nation with a backbone of educated people, from every language group and area, who have learned, in the same way that Australian Kiaps learnt it, how to make sure that people have an unimpeded right to complain, how to deal with people so that their rights and dignity are safeguarded, and how public money is properly distributed and accounted for. With the 25 diplomates of the Second Long Course, and the 14 who graduated in 1949, we now have 39 graduates from the intensive two-year course of which Mr John Kerr assures me law is a major component. With the further 25 who are about to start their two year sojourn south this means that, by the beginning of 1956, when we have our first Natives matriculating from secondary schools and available for training as Kiaps, we can confidently count on 50 or more experienced officers, with Diplomas, available to superintend their training as Magistrates. It is the beginning of a bright new era, and one greatly desired!

It may be asked: why am I saying this when our first recruits are only now beginning their secondary schooling? And what about the claims of Medicine, Education, Agriculture and other fields? The answer is that when our students are approaching matriculation they will, I hope, have total freedom of choice. I would be the last to limit anyone's right to elect to go on to study medicine or teaching or agriculture. But it should be a valid election and, since our students will be surrounded by those who will pressure them to choose the more lucrative fields, I feel that it is appropriate for me, at this earliest stage, to put forward the example of the three gentlemen whose presence here I have singled out.

There is also the fact that our very presence here, as an administering power, presents a danger to the stability of Native society. Unless we are constantly on our guard we could undermine the function which the traditional disputes-settling machinery has performed, for countless generations, of controlling the power-grabbing tendency I have already mentioned. Until now we have, using our unique Kiap system, been able to protect the traditional disputes-settlers and allow them to perform their task. With the introduction of Natives into that system as fully trained Kiaps - Kiaps trained in the traditional way - we can allow a truly national feeling to grow."

No 9 - "It Is is Not For Anyone to Invent ..."

The next two snapshots are for the benefit of younger readers who may sometimes fear that, perhaps, their father or uncle who was in the Admin. may not always have been as upright as family pride demands. When I arrived in TPNG in January 1952 Canberra's policy was that rehabilitation and reconstruction of TPNG had to be completed by 1957/58 and that, from that date on, the Territory would have to operate within its own resources. It was therefore necessary for solid foundations to be laid which meant that any possible misconceptions had to be eliminated. As far as I could see, the method used was to circulate two of Monte's judgements, the Hamilton Case (2-5 March 1948) which effectively weeded out any ‘Sanders of the River' types, and the Pringle Case (6-12 April 1951) which we will see next.

Harry Edward Hamilton was a Kiap who became obsessed with the problem of how to maintain order in his sub-district (Kaiapit). In a later issue we will see how Kiaps were expected to deal with the problem of ‘control' but he decided to invent his own solution. Colonial governors, of every nationality, have devoted much thought to this; Julius Caesar, for instance (if you look at page 329 of Colleen McCullough's "Caesar"), chopped both hands off more than 4,000 valiant patriots so that, by spreading the handless beggars throughout France, he could make sure others toed his line. Hamilton decided to bring TUWARA into line by ‘putting shame on him' by having his (TUWARA's) female relative masturbate him in public. Hamilton was charged with ‘procuring an indecent assault' and, at trial, he claimed that some of the local people told him they approved of what he had done. In his written judgment Monte zeroed in on this claim and said, "Many Natives consider it unwise and lacking in tact to disagree with a Government officer. One Native Constable, (however) had the moral fibre to consider your conduct unseemly ...(T)he punishment prescribed by law is sufficiently drastic. It is not for anyone to invent or inflict punishments outside the law and everyone who does so, whether his motive be lofty or base, does so at his peril..." Two sets of words are vitally important: "It is not for anyone to invent" and "whether (your) motive be lofty or base". Monte accepted that Hamilton had been overworked and under great strain, that he had done good service both before and during the war, and that he would probably be dismissed from the Service and deported, but he said that, to discourage others from inventing their own forms of ‘control', the minimum punishment he could inflict was three years imprisonment. It had a strong dissuading effect. And, coupled with the fact that Monte was always repeating his Reichstag Fire Speech about ‘people having access to someone they can complain to' and with Gunner Gore constantly repeating Sir Hubert Murray's threat that if anyone prevented a complaint getting to the highest authority he would be instantly sacked, readers may rest assured that if someone in the Admin had cooked up a new type of control (such as handcuffing someone to the flagpole, or locking them in the cells without entering the fact in the Station Occurrence Book, or whatever) he would have been found out. And, if it was something more than a simple, honest mistake, he would have been tried with maximum publicity. So if your revered relative was not convicted and severely punished you can be pretty sure that he was a decent man of whom you can be proud.

No 10 - Persons in Authority must be Particularly Careful

Readers who watched the recent BBC TV series "Ruling Passions" on SBS, and whose father or grandfather served in the Admin. must have been affected by the fact that it depicted ‘free sex' as a perquisite of empire - free, that is, for officers of the administering power and their troops. The main speakers in the programme were the women involved, who had no say in the matter. In answer to this I can only point out, as Monte did in his 1952 speech, that we did not have troops in TPNG - except to fight the Japanese. In addition there is the fact that five great judges controlled the legal system for incredibly long periods and they all regarded The Rule of Law as sacred. As a result, anyone coming to TPNG with ‘free sex' in mind was quickly disabused of it, not because of prudery or unreasonable beliefs in celibacy but because ‘consent' was a requirement as was made frighteningly clear by the case of R v George Evan John Pringle who was sentenced, at Kundiawa, to five years imprisonment for rape on 6-4-1951. Pringle was a Medical Assistant, a trained paramedic, and he was both conscientious and good in his work. Unfortunately for him, his wife left him and he turned his attentions to a young female attendant at Kundiawa hospital. He claimed that she consented but Monte disagreed, HOLDING that: "She was a young Native girl of 15 or 16, he was a ‘white man' and her superior officer. He was also, to her, ‘the Government'. She did not physically beat or scratch him because, she said, he was a ‘white man' and that explanation, I consider, rings true. She was not on equal terms with him .... She put up all the resistance that a young Native girl, in these circumstances, could be expected to make ..." The warning which Monte's words convey was widely circulated and it was, indirectly, the cause of my writing the article "Afek of Telefomin" published in Oceania for Sept-Dec 1954, pp 17-22. I had been sent, in April 1954, to investigate the Telefomin killings and the reasons for the killings were a prime consideration. Imagine my horror when, during the trials, I was told that the assumption had been voiced, at ASOPA and in Canberra, that the killings were in retribution for someone breaching the Rule in Pringle's Case! This was not only pure speculation, it was totally untrue! But it shows how all- pervasive the Warning from Pringle's Case was!

 

 No 11 - Planters, Traders (and Monte) and their Former Employees

The King against Peter James Jameson (Kavieng, 14-22 February 1952) was my very first trial in TPNG and the only one in which I faced two lawyers defending the one man. I issued two reports on it, the first in my speech to the Old Boys Association (this follows as No 12) and this one to the Law Students because of the basic rule that you never ask, in cross-examination, a question to which you don't know the answer. Nowadays, this one's value lies in the insight it gives into the type of relationship which grew up in those days but which was not liable to develop when people are appointed from Australia to high positions in the Territory.

Jameson had been Officer-in-Charge of the Production Control Board (PCB) weighbridge at Kavieng and he was charged with stealing £221/5/7, in small amounts, from PNG nationals who sold copra to PCB. The amount may seem small but he used his position to victimise Papua New Guineans and, in those days, (Australia's Good Name 'and trusteeship' were terms often spoken about). It was the most complex trial in TPNG history, with 39 Prosecution Witnesses, so Jameson employed a team of lawyers (Mr Foy, the Kavieng solicitor, and Harold James, a barrister from Rabaul) and their efforts were aimed at proving that an elderly Luluai, MAMAWUS of Nonopai, was a liar and part of a conspiracy to frame Jameson. During the cross-examination of MAMAWUS Mr Foy tugged at Harold James' gown and said, in a stage whisper, "Ask him about his Luluai's hat". Normally, a lawyer never asks, in cross-examination, any question he/she does not know the answer to beforehand but, since Foy had presumably investigated what he was now instructing Harold James to ask, he complied, with disastrous consequences. Patrol Officer William Arthur Stokes was the Interpreter. My notes of the cross-examination read:

Q. by James: I put it to you that you are lying.
A. by MAMAWUS: No. What I have said is the truth.
Q. You say you have been Luluai since long before the war.
A. That is true.
Q. But you were stripped of your Luluai's hat, at one time, weren't you?
A. That is not true.
Q. We will call KASE to tell the court that he wore your Luluai's hat for some years.
A. That is true.
Q. How could he wear the Luluai's hat when you were Luluai? What you have said proves that you are a liar! Therefore everything else you have said is a lie!
OBJECTION by Quinlivan
Question WITHDRAWN by Mr James.
Q. Can you explain to the court how KASE could wear your hat when you were supposed to be wearing it?
A. One day a letter came to a man in our village. It was from his former employer and, since it was written in pidgin, all the people assembled and he read it to us. It said, "When you went back to your village and I came to England to serve in the war on the other side of the world, I thought you would be safe".
OBJECTION by Mr James: "Not interested in employer/employee relations".
Quinlivan: Witness was asked to explain something and is entitled to do so in his own way. If it becomes clear that he is wasting the court's time, he can then be reigned in. At this stage, he is only beginning his explanation.
Court OVERRULED Mr James saying, "He will be stopped if or when his explanation becomes irrelevant. Let him proceed".
A. "the letter said: 'I thought you would be safe but the Japanese have bombed some American warships so Japan has now joined the war and you and your family may now be in danger.

My First Talk is that this danger is very real. The Japanese will try giamining everyone that, because they have coloured skins, they are wantoks, but they have been raping and killing people with coloured skins in Manchuria and China for years.

My Number Two Talk is that, because Australians are helping England fight this war, many people from this side of the world, including the Americans who have just been bombed, will come and help Australia. So although the Japanese may arrive, they will not be allowed to stay long. My Number Three Talk is that you must get your people to build gardens in a far-away place which is secret so that, when the Japanese come, you can all move to safety until the Australians come back and get rid of them". What he said had wisdom so everyone agreed to do what he suggested. Then, when the new gardens were built the Japanese came so we moved to the new gardens and stayed there. Before we left, however, I said to KASE, in the presence of all our people: "You have always coveted my hat. Here it is. We are now leaving for our safe place but you must remain here and wear my hat so that you can convince the Japanese that you are the Luluai and they will stop searching for us. When the Japanese are got rid of we will come back and I will want my hat back. Make sure that you do not dirty it while I am away". "That is why the Japanese never found us. And that is why, for a time, KASE wore my hat but I never lost it".

Q. How can we know if what you are saying is the truth?
A. Ask the Big Judge here (pointing with his chin to the Bench). He can tell you! It was he who wrote the letter his former servant read out in the village.

JUDGE: I have not been writing down what was said because we have been in a voire dire (a trial within a trial) to see whether the explanation is relevant. That last answer gives us something totally unexpected. It would appear, Mr James, that if you wish to pursue this line, I may have to make an important decision.

COUNSEL FOR BOTH SIDES CONFERRED and it was agreed that the Judge was intimating that he would stand down and order that another judge do the trial again, from the beginning, if Counsel for the Defence wished to take this line of cross-examination any further. Mr James: "I do not wish to pursue this line of cross-examination". (End of my notes)

It is interesting that, although the discovery that it was Monte who had written the letter did cause a flurry of interest, this was because of the discomfort it caused Jameson's lawyers, not because Monte had laboriously pecked away on a typewriter because nobody could read his writing and his letter was in pidgin. That was 'no big deal' because everyone who had 'grown into their careers' in the Territory would, I am sure, have done the same if danger had arisen again. Nor was there any significance in the fact that, since we had discovered this letter, it is probable that he wrote many because he had 'worked bush' with many people who would have come into jeopardy. But, as more and more people arrived to take up important positions, this aspect (which originally had had no significance) began to take its place beside another feature of the case which impressed me greatly in those earlier days.

Two Asians and eight Australians were there for much of each of the eight days of the trial and, since I had been told that Kiaps often sat in to see how courts should be conducted, I remarked to Tom Aitchison, the DC, that he must have a lot of spare Kiaps. He laughed and said, "They're not Kiaps. They're planters or traders and they want to see the bastard go for a row! Some of them were caught up in the Jap Occupation and owe their lives to growers he fleeced; others employed one or other of the growers and, in their own quiet way, they want to show support". This was my first trial and I was supposed to have an accountant sitting beside me, piloting me through the exhibits, but he disappeared after the first day because of a foul-up in Moresby. I could easily have become dispirited but the fact that so many busy planters and traders were there, day after day, to give support to people who had been victimised, gave me a continuous boost. And I have often wondered just how many, in other parts of the Territory, helped former employees etc. in more lasting ways. Mowapo, Andy O'Driscoll's "monkeymaster", told me Andy left his estate for the education of his (Mowapo's) children. And the trusts set up by Fred Archer and Dr Strong are well known. Who are the others who should be remembered because of the quiet works of goodness they did?

 

No 12 - What "Trusteeship" Means, Part One

In the Jameson Case I produced evidence that he had used several different schemes for stealing the money, all of them directed against village people and never against European or Asian producers or companies. In a lengthy judgment Monte went through the evidence in regard to each of those schemes and seemed to enjoy saying that Counsel had raised a 'reasonable doubt' in regard to several. He convicted Jameson of stealing £33/2/5d by means of only one scheme and sentenced him to six months gaol. He then said, "There is a further Order which all Europeans, tempted to adopt the course of action which you took, might well ponder. This is a Trust Territory, administered by Australia under the terms of a Trusteeship Agreement which Australia has signed and for the upholding of which she has pledged her good name. And, incidentally, your good name and mine. You were employed by the Production Control Board in a position of trust. A trust which you depended upon for the success of your various schemes. For that reason, alone, you are a person whose presence in this Trust Territory must be reviewed in light of what the Legislature has decreed regarding 'Expulsion of Undesirable Persons'.

Apart altogether from the fact that you were employed by an organ of Government, there is another reason why I will be recommending that you be deported and forbidden re-entry for as long as this remains a Trust Territory. You are a European who deliberately preyed upon the Native producers. You never attempted to use your schemes on Europeans and the only explanation I can think of is that you thought Europeans might find you out but Natives were, to your way of thinking, uneducated and therefore easy prey. In this case the fact that the Chief Accountant was unable to remain here for the duration of the trial meant that Counsel for both sides had to rely on their own resources in regard to the intricacies of the documents. Had it been otherwise we might not have seen an elderly witness, who could neither read or write, pointing to his Weightnote amongst the array on the Bar Table and then, when Counsel for the Defence mixed it in with dozens more to test him, selecting it a second time although it appeared, to untrained eyes, to be no different from the others. And that is my point. To untrained eyes they all appeared to be the same but, to one educated in what to look for, it was clearly a unique item. I am sure that, had a jury been determining this case, its members would have been greatly impressed and it is possible that, on the parts of the charge where I acquitted, that jury might not have been so kind. Be that as it may, the question of who is an uneducated person is by no means as simple as you seem to have thought. More to the point, your duty, the duty of all Europeans here, is to advance the local people so that they can become rulers of their own country and members of the Community of Nations.

What I want to be very clear is that any European who tries to 'take the Natives down' undermines Australia's sworn task. He besmirches Australia's Good Name and he can expect to be declared an UNDESIRABLE PERSON and expelled."

 

No 13 - What "Trusteeship" Means, Part Two:

God alone knows how often Monte hammered home the 'Expulsion of Undesirables' warning before I arrived in TPNG but he returned to it (so as to make sure that it was not applied) in The Queen against Francis Terence Murphy (Rabaul, 3 March 1952) but my report of that case is too long to be given here. He returned to it in The Queen against Reverend Johannes de Roo (Lorengau, 13 March 1952). De Roo was in charge of Loniu Protestant Mission and, with HILUN, a Manus man, he was charged with stealing an oil drum and 25 gallons of oil from ComWorks. He claimed that he was justified in taking it because "everybody was doing it" and this meant that HILUN's case was separated and the court was compelled, by section 22 of the Criminal Code, to hear de Roo's "bona fide claim of right". When he was unsuccessful in this he claimed a second "claim of right" in that ComWorks owed him money and this was the only way he could get the debt repaid. He was unsuccessful again and was convicted and sentenced to two months gaol. The Judge then spoke about TPNG being a Trusteeship Territory, as he had in Jameson's Case, and then said, "You failed, signally, in your duty in regard to HILUN but there is a substantial difference between failure to be a good example and 'taking a person down because he is a Native'. Moreover, I have taken account of this when imposing a light sentence on HILUN. I have decided that, as far as this Court is concerned and I am, of course, speaking purely in so far as this Court's jurisdiction is concerned, I should order that your sentence be served at Rabaul, rather than draw the attention of the Administrator in Council to the fact that you have been convicted and can be deported under the Expulsion of Undesirables Ordinance 1935."

 

No 14 - What "Trusteeship" Means, Part Three:

Not that it was only Monte who was talking about deportation and "undesirables". The case of Queen against Donald Drury (no relation to the then Director of Civil Aviation) was the first of the series of more than a hundred roneoed documents which became widely known as the "Q" Reports and came about because the case, which I prosecuted in Port Moresby on 20 September 1952, was so badly reported by the South Pacific Post that the trial judge, Judge Bignold, asked me if I would publish a "law report" on what actually happened. My report was also issued to the Law Students. Drury worked with ComWorks and the facts which I proved were that, during the night, he forced his way, uninvited, into a Papuan home in Hanuabada village and banged an unopened bottle of rum on the table, making movements which the people in the house interpreted as indicating that he wanted a woman "unspecified" to have sex with him. I quoted a ruling from New Zealand (in Boland's Case, 1907) which said that it was not necessary for the prosecution to nominate what purpose the Accused was in the house for but I also called witnesses to show that the body movements he had made had been made by other Whites who had intruded into other homes in Hanuabada recently and the interpretation I have mentioned was what a "man on the Clapham omnibus" would make. Despite Drury's claim that he went into the house because he thought a friend of his was there (a friend he named but whom nobody had heard of) he was convicted. The Judge gave a long speech in which he said, "Before the war, everyone knew that Papuans were protected in their homes by 'The Law' but, when the Army used the Wartime Emergency Powers to forcibly remove them from their homes in the Port Moresby area simply because they were Papuans, and resettle them elsewhere, doubts arose. The evidence in this case shows that Papuans no longer feel secure in their homes so it is necessary that 'The Law' restore their security. For this reason I want it known, far and wide, that anyone doing what this man has done must expect to be deported, as an "Undesirable Person", in addition to any other punishment, and he will never be able to return no matter what business or other connections he might have here".

The local weekly newspaper, the South Pacific Post, reported the case in its issue of 26-9-1952, under the headline "Man Fined for Entering Native House" but it failed to mention any part of the speech which Mr Justice Bignold made, or the order for deportation. My report rectified this omission.

 No 15 - The Comparison with Quislings and Collaborators Elsewhere

In previous Snapshots I have described certain roneoed sheets so that, if you come across one when clearing out an old collection of papers, you will think twice before you throw it out as useless junk. But, since most will never have to do that kind of sorting, we will now deal with matters where the reference is in the public domain. The first is brought to mind by the statesmanlike attitude of the leaders of both sides in East Timor. In Europe after World War II there was an attitude that, in addition to the hunting down of murderers, rapists and other war criminals, very ordinary people who had ‘fraternised’ with the Occupiers in any way should have their heads shaved so that they could be deprived of their livelihood. In TPNG the attitude was very different, as can be seen from The Barry Report (dated 2 August 1945) which recommended that War Damage Compensation be paid to Papua New Guineans for canoes, houses, cooking pots and other items damaged, taken or destroyed as a result of the war. At page 26 we read this:

"76. The views of Chief Judge Phillips command our full assent and concurrence. He writes - "Let me take the case of the Natives... In the middle eighties of the last century they were subjected for the first time, and for reasons beyond their ken, to government by Europeans - the Germans. They found, after some disastrous clashes, that the newcomers were too strong to be resisted. After approximately thirty years of German rule the Germans were, for reasons unknown to the Natives, conquered and supplanted by Australians who bore arms and whose governance it was hopeless to refuse to accept. After nearly thirty years of Australian rule, the Australians, again for reasons quite unknown or unappreciated by the Natives, were ousted by the Japanese. With negligible exceptions these Natives had never been outside their islands and had no conception whatever of world politics, or of the size, strength, population and resources of other countries. They therefore completely lacked the knowledge and experience which might have enabled them to judge just when a de facto government should be recognised as one de jure, a question which even enlightened European governments have found embarrassing ... It is submitted that Natives who, at the point of the bayonet or under other enemy duress, have led the enemy to an aerodrome or landing site or along a road cannot fairly be classed as "collaborators".

77. We consider that Natives who are alleged to have actively assisted the Japanese should be interrogated by the Director of District Services and Native Affairs. Unless he is satisfied beyond reasonable doubt that in so acting they did so voluntarily and without coercion or duress and with a realization that it was wrong to do so, they should be entitled to come within the compensation scheme."

The result was that, in addition to normal patrols and those for special purposes (eg chasing suspect murderers, immunising whole populations in the anti-yaws campaign etc) a minimum of three patrols went out into every area which might conceivably have been affected by the war: one to tell them the good news, the second to find out what was being claimed and the third to cover items forgotten or people missed out on earlier patrols. It was a way of saying, "We are back. The war is finished," and this simple (but unfortunately forgotten) fact had much to do with the wonderful spirit of inter-racial harmony and trust which was so impressive in those days.

 

No 16 - Difference in the Commonwealth Grant

There can be no better indication of the difference between the early 50s and, say, the mid 60s and 70s than the report in The South Pacific Post, in its issue of 16 September 1953 that, "The Administration will receive an increased grant from the Commonwealth Government this financial year. The 1953-54 grant will be £5½ million, which is £30,000 more than the 1952-53 figure." This was thrilling news because, up until then, we had all been led to believe that the grants from Australia would soon be reduced and the Territory would have to rely entirely on internal raisings. A little further down the report, however, it said, "The handing over of stevedoring to private enterprise meant a reduction in collections. In 1951-52 the Administration received £79,000 from stevedoring charges and had budgeted for an estimated £50,000 for 1952-53," so 29 of the 30 thousand was already eaten up and the report went on to say that, "Mr Reeve said internal revenue had also shown a drop in the collection of Customs Duties (due to) import restrictions," so, since those restrictions had been imposed by Canberra, the increase was actually a loss. To give some measure of scale for the five and a half million I would point out that, on 14 June 1962, there were complaints (see Legislative Council Debates of that date at page 491) that £5.8 million was in the latest estimates for the provision