Cooper v R (1961) 105 CLR 177; 35 ALJR 32; [1961] ALR 725; No219 [4/1961]

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: Dixon CJ, Fullagar J, Kitto J, Menzies J, Windeyer J
• Judgment Date: 13 April 1961
• Citation: [1961] ALR 725; No219 [4/1961]
• Year: 1961

High Court: Dixon CJ, Fullagar J, Kitto J, Menzies J, Windeyer J

Judgment Delivered: 13 April 1961

1 New Guinea—Adoption of Queensland Criminal Code—Substitution of New Guinea for Queensland in sedition provisions—New Guinea Act 1920 (Cth), s14—Laws Repeal and Adopting Act 1921 (New Guinea), s17—The Criminal Code (Qld), s44, s46, s52.

2 Criminal Law—Publishing seditious words—Intention to excite disaffection against government of New Guinea—"Advisedly" publish—Evidence—Admissibility—Similar facts—Relevant facts—Evidence of accused's political beliefs inadmissible—New trial—Trial before judge without jury—Wrongful admission of evidence prejudicial to accused—Question determined without reliance on inadmissible evidence—The Criminal Code (Qld), s44, s46, s52.

2

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PRIOR–HISTORY: APPLICATION for leave to appeal from the Supreme Court of the Territory of Papua and New Guinea.

The applicant Brian Leonard Cooper was tried before Mann CJ sitting without a jury in the Supreme Court of the Territory of Papua and New Guinea upon an indictment that on or about 15th September 1960 in the Territory of New Guinea he advisedly spoke and published seditious words. The seditious words were alleged to have been spoken in pidgin and were translated in the indictment as follows: "You must have a new Government of your own. Often I've heard that some countries refer to Australia as an Imperial country and I've been very ashamed about this. Now the Menzies Government, I hate it very much all the time. He hasn't done any good for Australia, and the Cleland Government is the same, it is very worthless. Now I don't want a long delay. You must set a date and you must sing out for all the men and speak to them so that they will all hear. I don't want a long delay. Set a Saturday, that's a good day. All right then, I can send talk to some people so that they can come and help you. Me, I'm not afraid. All right if they want to do something to me later on I can go in the high part at the back of Amele and put headquarters there. Now some men can come and help me. You have heard that in Africa in the Congo, that they have got a new Government of their own, and they all stay contented. Now I want you people to get it within six months. It'll be no good to leave this talk for very long because the District Office will hear of it and prevent us. Set a meeting and tell all the men so that they'll hear, tell the Police who speak you same language to hear this now. Don't worry about the Native Affairs Field Staff. Consider only the Police Officer. First a group can go and take hold of the Police Officer and tie him to a post with a rope so that he'll remain there. Some groups can go and break into the stores, into the place where the rifles are and get them all; some groups can go the big stores and break into them and take things such as beer, rum and food and they can all eat and drink. Expel all the white people and tell them they have to go back to their own place. Now all the men must go and occupy the places of employment so that they can't come back. They must remain in their houses, board a ship and then they can go back. Now at the airstrip a group can go and cut some trees and throw them on to the airstrip, burn some aircraft and put them on the airstrip so that the Australian and American soldiers can't come down. Your own army can get rid of all the Europeans so that they go back to their own place, Australia. If the Australians want to do something, if they want to come and fight with you, all the Russians and Chinese can help you. The Australians will be frightened if the Russians and the Chinese make threats. I can get a message to the Russians and they will come and help you."

He was convicted and was sentenced to imprisonment for two months. From his conviction he applied to the High Court for leave to appeal.

The relevant facts are set out in the judgment of the Court.

J. H. Staunton, for the applicant.

J. J Davoren QC (with him K. V. Anderson), for the respondent. Cur. adv. vult. DISPOSITION: Application for leave to appeal dismissed.

SUMMARY: The applicant was tried and convicted in the Territory of Papua and New Guinea before a judge sitting without a jury on a charge of having advisedly spoken and published seditious words. The charge was laid under s52 of The Criminal Code (Q.) which provides by s44 that a purpose to excite disaffection against the government of Queensland as by law established is a seditious intention. Held, that s17 of the Laws Repeal and Adopting Act 1921 (New Guinea) requires for the purposes of the application of The Criminal Code to the Territory the substitution of "New Guinea" for "Queensland".

The applicant gave evidence in which he admitted having referred in public discussions with natives to the possibility of a violent seizure of power by the natives in terms substantially similar to those set out in the charge, but he said that he had used the words hypothetically during the course of discussions about the methods by which they might obtain self–government.

Held, that the words "advisedly publishes" in s52 of The Criminal Code mean no more than that the publication must be made deliberately in the sense that there is an intention to publish. All the prosecution had to prove was that the words in the charge had been spoken publicly by the applicant.

Evidence was called by the prosecution that the applicant had stated in private that he thought it would be a good thing if the natives rose and expelled the white people from the Territory, and that the applicant was a communist or had communistic leanings and was an atheist and hostile to missionaries. Held, that such evidence was irrelevant and inadmissible and ought to have been rejected as soon as its objectionable nature became apparent. But, as the trial judge had used the objectionable evidence not in relation to the question of fact whether the appellant had advisedly spoken the words charged but in the appellant's favour in the sense that it explained his conduct as dictated by his political views and justified the imposition of a sentence of imprisonment of only two months, the conviction ought not to be quashed.

Leave to appeal from the Supreme Court of the Territory of Papua and New Guinea (Mann CJ), refused.

COUNSEL: Solicitors for the applicant, Edward Rowe & Co, Sydney, by Patrick H. Kearney, Kelly & Co Solicitor for the respondent, H. E. Renfree, Crown Solicitor for the Commonwealth. J D. M.

JUDGES: Dixon CJ (1), Fullagar (1), Kitto (1), Menzies (1) and Windeyer (1) JJ.

JUDGMENT–1: April 13. The COURT delivered the following written judgment:—This is an application by Brian Leonard Cooper for leave to appeal against his conviction in the Supreme Court of the Territory of Papua and New Guinea on a charge that on or about 15 September 1960 in the Territory of New Guinea he "advisedly spoke and published seditious words". The charge was laid under s52 of The Criminal Code of Queensland. The Code was adopted as law in the Territory of New Guinea by the Laws Repeal and Adopting Act 1921 made by the Governor–General under s14 of the New Guinea Act 1920 (Cth). This Act was still in force when the Commonwealth Parliament enacted the Papua and New Guinea Act 1949, which provided for an administrative union of the Territory of Papua and the Territory of New Guinea. That Act repealed the New Guinea Act 1920, but, by s32, provided in effect that, notwithstanding that repeal, all other laws in force at the commencement of the Act in the Territory of Papua or the Territory of New Guinea or both should continue in force in the Territory of Papua, or the Territory of New Guinea, or both, as the case might be. (at p179) 2. What is logically the first ground of the present application may be dealt with very shortly. It was founded on the absence of any reference to the Territory of New Guinea in the Queensland Code. S52 of the Code provides, so far as material, that any person who advisedly publishes seditious words is guilty of a misdemeanour and is liable to imprisonment with...