Koloi v R

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: Dixon CJ, Fullagar J, Taylor J
• Judgment Date: 15 October 1956
• Citation: (1956) 96 CLR 172; 30 ALJ 648; No83A [20/1956]
• Judgment Number: Ofu
• Year: 1956

High Court: Dixon CJ, Fullagar J, Taylor J

Judgment Delivered: 15 October 1956

1 Criminal Law—Offence on child—Unlawfully and indecently dealing with European girl—"European"—Meaning—Evidence and Discovery Act 1913–1952 (Papua), s71A—White Women's Protection Act 1926–1934 (Papua), s5(2).

2

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PRIOR–HISTORY: APPEAL from the Supreme Court of the Territory of Papua and New Guinea.

Ofu–Koloi was on 27th February 1956 charged before the Supreme Court of the Territory of Papua and New Guinea with having on 7th February 1956 unlawfully and indecently dealt with a named girl being a European girl under the age of fourteen years contrary to the provisions of s5 (2) of the White Women's Protection Act 1926–1934 (Papua). At the close of the Crown case it was submitted on behalf of the accused that there was no case to answer as the Crown had not brought any evidence that the girl was a European girl and it was impossible for the court to determine whether this was so pursuant to s71A of the Evidence and Discovery Act 1913–1952. It was further submitted that the wording of s5 (2) was vague and indefinite in that no indication was given as to the ambit of the term "European" and the legislation was thus not possessed of that certainty required in a penal statute.

The trial judge, Bignold J., ruled against the accused on both submissions, and, in relation to the first, held that the word "European" as used in the White Women's Protection Act 1926–1934 should be construed to mean "white" and that from the evidence of her parents, who were Australians, and the production of the girl, who was a fair white child, he was satisfied that there was evidence from which he might conclude that the girl was a European girl within the meaning of the Act. The accused was duly convicted and sentenced to five years imprisonment with light labour for the first two years and thereafter with hard labour.

On 18th May 1956 the accused moved the High Court for special leave to appeal against the judgment of Bignold J., which leave was granted. The relevant facts and statutory provisions appear in the judgment of the Court hereunder.

SUMMARY: S5(2) of the White Women's Protection Act 1926–1934 (Papua) provides that any person who unlawfully and indecently deals with a European girl under the age of fourteen years shall be guilty of a crime.

Held, that the word "European" refers to racial origin in or derivation from stock or stocks associated in ordinary understanding with the continent of Europe and a person derived from European stocks without known admixture of African, Asian or other stocks is properly regarded as European.

S71A of the Evidence and Discovery Act 1913–1952 (Papua) provides: "In any prosecution, if the court,...