BY HARRY TOPHAM
RECENT DISCUSSIONS RELATING TO the Papua New Guinea’s deputy minister’s antics and previous criminal form got me thinking about how certain laws in PNG are somewhat out of date in terms of today’s more liberal way of thinking.
PNG’s current criminal code was originally adopted and adapted from the Queensland criminal code and, whilst certain offences still remain relevant to meeting the social controls required by society, it would seem that other breaches of the law still on the books are out of date.
The charge of sedition is a prime example of such irrelevance as it relates primarily to restricting the individuals right of free speech and originating in history’s previous allegiance to the Regal Crown and its agents as being the supreme governing body demanding allegiance without dissent.
The western concept of law originated, in most cases, in England. It has its check method the right of appeal whereby aggrieved parties can take their grievances to higher courts and those wiser mentors of society can, through interpretation, adjudicate that the original finding was either wrong in law or illegal in content.
Such process of law can result in legislators amending or appealing those laws so successfully appealed.
It would appear that certain current laws enshrined under PNG’s penal code, like dinosaurs, remain cemented in the colonial past.
The reliance by courts on accepting the confessions produced by Police as prima facie evidence is based upon the principle that the police are people of good character who will act in good faith and are above reproach.
Unfortunately this has not been the case in many instances whereby innocent people have found themselves convicted of crimes they did not commit based upon “confessions” allegedly made.
Many years go a famous barrister in Sydney was appearing before the court and during the proceedings a loud cry rang out from the adjoining corridor.
The wise judge looked up concerned to which the barrister commented.
“Don’t worry about it your honour it is merely the police extracting a statement from a witness”.
On matters relating to treason and sedition, the following article taken from the Goulburn Herald-Empire of 27 March 1868 provides an insight into the thinking of the government of that day and reinforcing that old slogan ‘loose lips sinks ships’.
As one of the people involved in this case was a forebear of mine, the matter had direct relevance to me and, intrigued, I tried to discover the eventual outcome the case – unfortunately without result.
It would appear that legal action never ensued probably as the defendant’s legal defence would have been based upon the legal excuse “mistake of fact” when he commented: “ It was not me, its was only the booze talking your honour”.
It also must be remembered that, at that time in Australia’s history, a new sense of nationalism was emerging as the new chum Australians started to exert their independence and revolt against the draconian and vile actions of their earlier penal history; a factor taken into consideration by the judges in this matter who thus reacted in a more favourable manner to the more liberal thinking being espoused at that time.
THE, FIRST COMMITTAL UNDER THE TREASON AND FELONY ACT
Goulburn Police Court, Tuesday 24 March 1868 (before the Police Magistrate)
Bartholomew Twomey was charged with a breach of the Treason and Felony Act
Senior Sergeant Fenton deposed:
I arrested prisoner this morning on a charge of having, on the 28th instant, used language disrespectful to her Most Gracious Majesty, by saying " it served the Prince right, he had no business in this country." In reply, prisoner said "Where? “Who heard me?" I said “Mr Topham”.
I saw the prisoner last night at my house with a- lame man. The man before the court (James Freeny) is the man. I heard them talking about the Prince I understood them to mean the Duke of Edinburgh. Freeny said, “lt was a pity to shoot him”. Prisoner said “It served him right”, or words to that effect, “He had no business in the country”.
Prisoner had been in my house for about two hours. He came in about 9-oclock. Prisoner had been drinking, but was not drunk. Freeny was more drunk than prisoner. They had only one glass of rum each at my house to which I served them, but Freeny had, a bottle of rum from which both drank. I heard no other conversation about the prince, nor was any other person present.
James Freeny deposed:
I saw the prisoner last night. I was drinking with him somewhere. I believe I said, “It was a pity that the Prince was shot”. I believe the prisoner said “It served him right”. I had been drinking, and am in the habit of doing so, and was dealt with here yesterday and today. We were speaking of the Duke of Edinburgh. I suppose it was him. Some nonsense passed. I did not say it served him right.
Prisoner, who said nothing, was committed to take his trial at the next circuit court. Bail allowed- prisoner in £150, and two sureties in £70 each.