Sutherland v R (1934) 52 CLR 356; 8 ALJ 355; [1935] ALR 227 [64/1934]

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: Dixon J:
• Judgment Date: 17 December 1934
• Citation: [1935] ALR 227 [64/1934]
• Year: 1934

High Court: Rich J, Starke J, Dixon J

Judgment Delivered: 17 December 1934

1 Criminal Law and Procedure—Trial by jury—Territory of New Guinea—Criminal Procedure Act 1889 (British New Guinea) (No 11 of 1889), s21—Laws Repeal and Adopting Act 1921 (NG) (No 1 of 1921)—Judiciary Act 1921 (NG) (No 3 of 1921)—The Criminal Code (Qld) (63 Vict No 9), s604.

2 By the Laws Repeal and Adopting Act 1921 (NG) s21 of the Criminal Procedure Act 1889 of British New Guinea (Papua) is made applicable to the Territory of New Guinea and excludes trial by jury in that Territory.

APPLICATION for special leave to appeal from the Central Court of New Guinea.

Reginald James Vivian Sutherland was tried before a Judge without a jury in the Supreme Court of the Territory of New Guinea and was found guilty on two charges of stealing as a servant certain gold specimens, the property of his employer. He was sentenced on the first count to three months' imprisonment with hard labour, and on the second count to four years' imprisonment with hard labour, concurrent with the sentence on the first count.

From these convictions and sentences Sutherland now applied for special leave to appeal to the High Court. The principal ground was that he was entitled to be tried before a jury.

Further material facts appear in the judgments hereunder.

O'Sullivan, for the applicant. There is not any evidence directed to the value of the gold specimens, or of the gold amalgam said to have been stolen. The evidence as to the ownership of the gold, and that it had been stolen, is insufficient and inconclusive (Trainer v R (1906) 4 CLR 126).

[DIXON J referred to Schiffmann v R (1910) 11 CLR 255.]

The evidence is equally consistent with the applicant's innocence as with his guilt (Peacock v R (1911) 13 CLR 619 at 634). As the applicant was not warned beforehand, statements relating to the gold, made by him to the police officers, are inadmissible (R v Currie (1912) 29 WN (NSW) 201; Phipson on Evidence, 7th ed (1930), pp 255–258).

[DIXON J referred to Ibrahim v R [1914] AC 599.]

The applicant was not tried before a jury as was his right under the law in force in the Territory of New Guinea. The Laws Repeal and Adopting Act 1921 (NG) made applicable to New Guinea (a) the Queensland Criminal Code; (b) the Criminal Procedure Act 1889, of Papua; and (c) the common law of England.

[STARKE J referred to Jolley v Mainka (1933) 49 CLR 242.]

S21 of the Criminal Procedure Act, which provides that trials shall be taken by the chief magistrate alone, was not capable of being applied to New Guinea in 1921, because there was then no such person as a chief magistrate, nor any such office in New Guinea. The judiciary system set up in that Territory by the Judiciary Act, No 3 of 1921, provides for a Central Court constituted by a Chief Judge and other Judges. If the words "Chief Judge" be substituted for "chief magistrate" then it would exclude the jurisdiction of the other Judges provided for by the Judiciary Act. The Criminal Procedure Act was not capable of being incorporated in its entirety in the general scheme of the laws of New Guinea. The Queensland Criminal Code and the Judiciary Act together provide a complete scheme for the administration of criminal law. If the Criminal Procedure Act and the Queensland Criminal Code are in conflict, then to the extent of that conflict the Code must be deemed to have repealed the Act, the former being later in point of time than the latter.

S21 of the Criminal Procedure Act was, in 1902, superseded in Papua by the Queensland Criminal Code (R v Bernasconi (1915) 19 CLR 629), and it was also affected by the Jury Act, No 7 of 1907; it therefore was not in force when adopted in New Guinea and was incapable of being applied (see s15 of the Laws Repeal and Adopting Act 1921–1927). By applying the common law of England, the jury system, which is embodied in the common law, became applied to the Territory by the Laws Repeal and Adopting Act. The Crown has not discharged the onus of showing an express provision in a law of New Guinea which deprives the applicant of the right to trial by jury. There are not, and were not in 1921, any physical difficulties in New Guinea which operated to prevent the application of the jury system in that Territory. The trial Judge was in error in commenting upon the attitude adopted by the applicant at his trial (Tuckiar v R (1934) 52 CLR 335). In the circumstances of the case the punishment imposed is excessive.

Sugerman, for the respondent, was called upon on the question of trial by jury, and as to the second count. In the absence of statutory provisions prescribing the qualifications of jurors, the summoning of jurors, the empanelling of juries and other relevant matters, the provisions of s604 of the Queensland Criminal Code are not applicable to the Territory of New Guinea (R v Valentine (1871) 10 SCR (NSW) 113 at...