Ofu–Koloi v The Queen [1967–68] PNGLR 194

• Jurisdiction: Papua New Guinea
• Judge: Dixon CJ, Fullagar J, Taylor J
• Judgment Date: 15 October 1956
• Judgement Number: No83A
• Year: 1956
• Citation: [1967–68] PNGLR 194
• Court: High Court

Full Title: Ofu–Koloi v The Queen [1967–68] PNGLR 194

High Court: Dixon CJ, Fullagar J, Taylor J

Judgment Delivered: 15 October 1956

1 Criminal law—indecent dealing; Evidence; White Women's Protection Act; High Court

2 No83 upheld by High Court; European discussed

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CRIMINAL LAW—Unlawfully and indecently dealing with European girl—Meaning of "European"—Evidence and Discovery Act 1913–1952, s71A—White Women's Protection Act 1926, s5(2)

S71A of the Evidence and Discovery Act 1913–1952 provides as follows:

"In any prosecution, if the Court, Judge, Magistrate, Justice or Justices do not consider that there is sufficient evidence to determine the question whether a person is a Native, part–Native or European, the Court, Judge, Magistrate, Justice or Justices having seen the person may determine the question."

S5(2) of the White Women's Protection Act 1926–1934 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.

"European" in s5(2) of the White Women's Protection Act 1926–1934, racial origin or derivation being the criterion, refers to the racial stock or stocks associated in ordinary understanding with the continent of Europe; and people derived from European stocks without known admixture of African, Asian or other stocks are to be regarded as European.

In the course of a trial on a charge laid under s5(2) but before any evidence had been given as to whether the girl was a European, the trial judge inspected her and noted she was a fair white child. Evidence was subsequently given by the girl's father and mother that their birthplace was Australia and that their child had been born at Port Moresby.

Held:

(1) That, in view of the evidence of the parents, s71A did not apply.

(2) That the words "Native", "part–Native" and "European" are not used in a technical sense but in the vernacular sense as they would be understood by people living in Papua and New Guinea.

Muramats v Commonwealth Electoral Officer (W.A.) (1923) 32 CLR 500, referred to.

Decision of the Supreme Court of the Territory of Papua and New Guinea (Bignold J.), affirmed.

Appeal By Leave.

Ofu–Koloi having been convicted of an offence under s5(2) of the White Women's Protection Act 1926–1934 by the Supreme Court of Papua and New Guinea (Bignold J.) appealed to the High Court of Australia. The appeal related solely to the element of the offence requiring that the complainant must be "a European girl".

Counsel:

Holt, for the appellant.

Shannon, for the Crown.

Cur. adv. vult.

15 October 1956

By the Court: This appeal comes by leave from the Supreme Court of the Territory of Papua and New Guinea. At the criminal sessions of that Court at...