10 ALJ 199 [41/1936]

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: Dixon J, Evatt J, McTiernan J:
• Judgment Date: 19 August 1936
• Citation: (1936) 55 CLR 509; 10 ALJ 199 [41/1936]
• Year: 1936
• Docket Number: Cranssen v The King (1936) 55 CLR 509

Full Title: Cranssen v The King (1936) 55 CLR 509; 10 ALJ 199 [41/1936]

High Court: Starke J, Dixon J, Evatt J, McTiernan J

Judgment Delivered: 19 August 1936

1 Criminal Law—Territory of New Guinea—Burning of native huts—Arson—Plea of guilty—Conviction—Sentence—Severity—Appeal to High Court.

A priest established a mission in a wild and uncivilized area of the Territory of New Guinea, amidst natives who carried arms and were by nature treacherous and revengeful. A missionary of another religious faith later entered the area, left native "boys" at villages near the priest's mission and departed. Subsequently the priest learned that these "boys" were stirring up disaffection against him amongst the local natives. He warned them, but shortly afterwards he again learned that they were stirring up disaffection against him. He organised an armed party of his own natives, who with some violence expelled the "boys" and burned their shelters and huts. The priest was charged with arson. His solicitor advised him that if he pleaded guilty he would avoid publicity and would only be fined a small sum. He pleaded guilty and was sentenced to five years' imprisonment with hard labour. He appealed to the High Court against the conviction and sentence.

Held that the conviction must stand, but that the sentence was excessive and should be reduced.

APPLICATION for leave to appeal and APPEAL from the Supreme Court of the Territory of New Guinea.

Anthony Cranssen, a priest of the Roman Catholic Church, was charged before the Supreme Court of the Territory of New Guinea that on or about 25 December 1935, in the Territory of New Guinea, he wilfully and unlawfully set fire to a dwelling house. He pleaded guilty to the charge and was sentenced to five years' imprisonment with hard labour.

Cranssen applied to the High Court for leave to appeal against the conviction and sentence.

In an affidavit sworn by Cranssen he stated that "I consulted my solicitor and told him I wanted to plead not guilty. My solicitor said 'No, it would be better to plead guilty because if you plead not guilty we will have to go all over this evidence again and if you plead guilty it will be over to–day and you will be fined a little sum of five or ten pounds and nothing will be in the newspapers. If you plead not guilty the papers will be full of it.'"

The application for leave to appeal was, without objection, treated as an appeal.

Further facts appear in the judgments hereunder.

Gorman K.C. (with him Evatt K.C. and O'Sullivan), for the applicant. It is clear from the evidence that the applicant had no intention of tendering a plea of guilty to a charge of arson, and that he did not even apprehend the nature of the charge preferred against him. The evidence did not establish the charge. The difficulty of reducing to the written word the evidence given in "pidgin English" by the native witnesses, as well as their difficulty in expressing their thoughts, resulted in an exaggeration or distortion of the real facts to the prejudice of the applicant. The accuracy of the evidence given by the native witnesses is open to question. The applicant was also handicapped by his own imperfect knowledge of the English language. The full facts were not before the trial judge, as a result of which he was led into error. There is no evidence that the structures that were burned were "dwelling houses." A "dwelling house" is the sleeping place of the owner, or the members of his family. Although the area was an "uncontrolled area," the applicant had official permission to be there. During the time he was in the area many inter–tribal fights occurred, and, as a result, many natives were killed. As a result of the intrusion of the Lutheran missionary and his "boys," the peaceful conditions which the applicant had established in the area were disturbed, and the natives, who were, and are, in a very primitive state, became considerably agitated. This unhappy state of affairs afforded ample foundation for the applicant's apprehensions for his safety, and—being, as he was, the only white man in the area, and several days' journey from the nearest white man—justified the remedial measures undertaken by him, or on his behalf. The information before the court shows that the applicant's apprehensions were very real and were well founded. The position in which he found himself was the result entirely of the wrongful and provocative acts of the Lutheran "boys," who were in the area without official permission. For a long time the applicant endeavoured to persuade the Lutheran "boys" to leave the area before trouble ensued, but his efforts were fruitless. The whole of the applicant's evidence is a negation of guilt. The history of the applicant shows that he is a very quiet, pleasant, kindly man who at all times used his best endeavours to avoid strife and to bring about and maintain peaceful conditions. Some of the remarks made by the trial judge are without justification and, in the circumstances of the case, are altogether too violent. In all the circumstances the trial judge should have taken a lenient view of what was a technical offence created by the application of laws of a more or less civilized community to an uncontrolled area, but, on the contrary, he assumed an attitude which was quite unwarranted and was not supported by the true facts of the case. Both as regards the facts and the law the trial judge was in no better position than are the members of this court. His Honour's judgment contains numerous inaccuracies. There is no evidence that the applicant caused or fomented ill–will between his "boys" and the Lutheran "boys," who were in the area in contravention of the law. The applicant's actions and conduct under peculiar and difficult conditions were in accord with prudence and good and peaceful government. The conviction should be quashed. Alternatively, the sentence imposed is excessive and should be considerably reduced, especially having regard to the history and work of the applicant and the fact that he has no criminal inclinations. This court should not surrender its power to draw its own inferences (Coghlan v Cumberland [1898] 1 Ch 704).

Badham, for the respondent. The evidence supports the view of the trial judge that the offence of which the applicant was charged was not the result of a sudden outburst of temper, or frenzy, or misunderstanding on his part, but was a premeditated attempt, the carrying out of which had been contemplated by the applicant for some considerable time. The applicant's action was unjustifiable. He was not entitled to take the law into his own hands and forcibly and violently expel the Lutheran "boys" from the area merely because they were not permitted under the law to be there. Conduct of that nature by a person of the applicant's position and training can only operate as a disturbing influence upon the natives, and embarrass the Administration. The time, the place and the occasion were most inopportune. Even assuming that the fears of the applicant had some foundation in fact, the method employed by him was ill–conceived and could only result in disaffection and unrest among the natives. A method less likely to ensure peace could hardly be conceived. In awarding punishment the trial judge was entitled to take all these matters into consideration. It has not been shown that the trial judge proceeded on some wrong principle, or erroneously accepted something as a fact. Where there was a conflict of evidence the trial judge was entitled to accept whichever version he chose. His Honour had the advantage of seeing and hearing the applicant (Skinner v R (1913) 16 CLR 336 at 339; also he had the advantage of knowing the local conditions. The conviction should not be quashed, nor should the case be sent back for a new trial. In all the circumstances of this case the sentence imposed upon the applicant is not manifestly excessive; therefore it should not be disturbed. Had any difficulty been experienced as regards the obtaining of evidence from native witnesses the trial judge could, and doubtless would, have availed himself of the provisions of s28 of the Papuan Criminal Procedure Act 1899.

Gorman K.C., in reply.

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Starke J:

The appellant is a priest of the Roman Catholic Church, born in Holland, and thirty–one years of age. He was charged, before the Supreme Court of the Territory of New Guinea, that in or about December 1935, in the Territory of New Guinea, he did wilfully and unlawfully set fire to a dwelling house, and to this charge he pleaded guilty. The Chief Judge of the Supreme Court of the territory, before whom the appellant was charged, sentenced him to imprisonment for five years with hard labour. He now appeals to this court against both his conviction and the sentence.

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