Fawkner v R [91/1952]

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: Dixon CJ, Webb J, Taylor J
• Judgment Date: 10 September 1953
• Year: 1953

High Court: Dixon CJ, Webb J, Taylor J

Judgment Delivered: 10 September 1953

1 Application for leave to appeal from a conviction of the Supreme Court of New Guinea—no reasonable prospect of an appeal succeeding if leave given—leave refused.

2 Mrs Fawkner charged under Criminal Code Amendment Act 1923–39 s9—voluntarily permitting a native to have carnal knowledge of her—convicted—bound over to be of good behaviour for 12 months. Conviction carried with it a liability to be deported under the Territory Undesirable Persons Act.

___________________________

IN THE HIGH COURT OF AUSTRALIA)

NEW SOUTH WALES REGISTRY)

BETWEEN

FAWKNER

—and—

THE QUEEN

(Motion on notice).

Coram: DIXON CJ

WEBB J.

TAYLOR J.

SYDNEY, THURSDAY, 10th SEPTEMBER, 1953, AT 10.50 A.M.

MR MF LOXTON QC, appeared for the appellant

LOXTON QC: This matter is an application for leave to appeal from a conviction by the Supreme Court of New Guinea.

DIXON CJ: Has notice been given to the Crown?

LOXTON QC: That would be required under the new Rules. I could find no corresponding rule under the old rules.

DIXON CJ: It has not been given?

LOXTON QC: No.

DIXON CJ: I am told by the Registry that the Crown actually do know about it but have no desire to be represented. I do not know that formally, of course.

LOXTON QC: I do not know whether I was in error in saying that there was no rule.

DIXON CJ: It was the practice.

LOXTON QC: This motion came before Your Honors on 11th December last. After the affidavit of Mr Tonking had been read, Your Honors adjourned the application to allow further affidavits to be filed.

It may be as well if I first of all generally outline the nature of the application and the grounds on which reliance will be placed for the making of it.

Mrs Brenda Ellen Fawkner was charged under the Criminal Code Amendment Act 1923, s9:—

"Any European woman who voluntarily permits any native other than a native to whom she is married to have carnal knowledge of her shall be guilty of an indictable offence."

The penalty is imprisonment for one year.

She was convicted and was bound over in her own recognisance of £25 to be of good behaviour for a period of 12 months. That conviction carried with it a liability for deportation under the Territory Undesirable Persons Act. Although the sentence in itself is not very serious, the consequences are very grave.

DIXON CJ: It is a year since she was convicted. Was she in point of fact deported?

LOXTON QC: This appeal has been pending and there have been no steps taken that connection. But the Criminal Code which has been adopted in New Guinea provides by s632 that a person cannot be convicted of an offence on the uncorroborated testimony of an accomplice or accomplices. Reliance will be placed on this provision of the Criminal Code in this application.

The trial came on before His Honor the Acting Chief Justice, Papua and New Guinea, on 4th September 1952. Perhaps Your Honors will remember that on that date three natives were also listed for trial before the same Judge, who was sitting without a jury. The cases against those three natives were called first. They were each charged under s10 of the Criminal Code, which is the corresponding charge against a male to that contained in s9 against a female:—

"Any native having or attempting to have carnal knowledge of a European woman . . . shall be guilty of an offence."

The penalty again is imprisonment for one year.

The three natives pleaded guilty. They had no legal representation. They were then remanded for sentence.

The case against Mrs Fawkner was then called and two of those natives were called to give evidence on behalf of the prosecution against Mrs Fawkner, Mrs Fawkner having pleaded not guilty to the charge against her.

DIXON CJ: She was indicted on two separate charges: does that mean two counts in the same indictment?

LOXTON QC: The first charge was not proceeded with. It was abandoned. The second charge only was proceeded with and the form of the charge is set out in the indictment, a copy of which is annexed to the affidavit of Mr Tonking sworn on 10 December. (Read).

Dau, having pleaded guilty to the charge, under s10, was called by the prosecution to prove the case against Mrs Fawkner. Another native, Timirin, who had also pleased guilty to a similar charge, gave evidence of the facts in support of the charge to which he had pleaded guilty, and those facts were relied upon by the Crown Prosecutor to some extent as providing the corroboration which was necessary in order to base a conviction on the evidence of Dau, Dau being an accomplice. The witness Timirin also would be an accomplice to the charge in the matters in which he had deposed to his evidence, but he was not an accomplice in the offence charged against Mrs Fawkner.

WEBB J: They were offences on separate days?

LOXTON QC: No. Later I will read Your Honors the evidence and Your Honors will get the evidence in more detail. There is considerable conflict in the evidence given by the native witnesses and the offence to which Timirin pleaded guilty happened either in 1949 or 1951—the evidence is conflicting as to the date. The evidence of Timirin was the only evidence of corroboration other than certain other circumstantial evidence of opportunity.

The important matter is that the charge in which the Crown proceeded charged the offence as having been committed on the 14th May. 14th of May was a Wednesday. The only direct evidence in support of the charge was the evidence of Dau.

Dau first in chief gave evidence that he had intercourse with Mrs Fawkner on Wednesday, 14 of May. In cross–examination he denied that he had intercourse on the Wednesday, alleging that it took place on the Thursday. On being pressed, he said he was quite clear it was not the Wednesday or the Thursday because he could not fix the date owing to at that time having broken a [missing]. If the Court held that this offence took on the 15th, not the 14th, there would be no corroborating evidence at all, because the nature of the corroborating evidence is this:

It was the evidence of the witness Timirin of having seen Mrs Fawkner either in 1949 or 1951 commit this offence I think at Salamau, and that evidence was supplemented by some Police evidence, the evidence of native police and by a white policeman on the particular night of the 14th; so that the corroborating evidence was evidence of relationship plus opportunity, but there is no evidence before the Court of any opportunity on the 15th. So the corroborating evidence would break down because corroboration must go more than simply showing a tendency to commit the particular crime, as it must prove in some particular that the crime was committed and it must connect the accused with the crime.

DIXON CJ: Is this purely a question of identifying the date, or do you say he was not sitting on the verandah on the Thursday in the manner described in par. 3 of Mr Tonking's affidavit?

LOXTON QC: On the night of 14th May, the Wednesday, there was no evidence given at all as to the 15th:—

"On the night of 14th May 1952 . . . away from the defendant's house."

There was no evidence given apparently relating to the Thursday.

DIXON CJ: There are two things. One is that the witnesses are speaking of the same occasions but differ as to the date, while the other is that they are speaking of two separate occasions.

LOXTON QC: I do not think that there is any question about that. The Assistant District Officer, Mr Ellis, fixed the date that he went out. He had with him a native policeman named Pakau, and the native witness also fixed the date and gave evidence of what he did on the following day, how he went with Ellis and made certain observations.

The witness Dau in chief gave evidence that he had intercourse with Mrs Fawkner on the 14th. In cross–examination (this appears from the later affidavit of Mr Tonking of 18th August 1953) it clearly fixed it, and he said he had made a mistake by saying it was the Wednesday and that it was the Thursday. On p 2 of the affidavit of 18th August 1953:—

"Now you say nothing happened on the Wednesday night . . . and it was Thursday."

I would like to read the whole of the evidence later because there are considerable contradictions in it. Of course, there is the further ground in the application that the evidence does not support the conviction. The evidence is so contradictory and conflicting on the very material matters that no court, I submit, could be satisfied beyond reasonable doubt of the guilt of the accused.

That is the general submission, that there were matters associated with the trial which went to the fairness of the trial itself, and the matters relied upon there are the matters which I have already indicated—the calling as witnesses for the prosecution of the...