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A Baiyer court case: A good kiap reflects.

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WARRADALE - Among the boxes of stuff in my shed, I dug up a document I had kept because I wanted to prove I had not embellished a story.

The document was a carbon copy of a Local Court case I heard at Baiyer River in the Western Highlands nearly 50 years ago, on 10 December 1971.

The document had been typed on foolscap paper, longer than the A4 we use now, and is now yellowing and faded, but still legible.

It was the only court case I presided over where I kept a copy of proceedings. I realised at the time it would be something I would find useful later in life.

The case concerned the aftermath of a tribal fight over land. As fights went, it was nothing out of the ordinary. There were no deaths although a number of people ended up in hospital with various wounds.

Guns had not yet penetrated this society, but axes and bush knives had displaced the traditional spears and bows and arrows.

The population of the Baiyer River area was about 20,000. Administering them in the name of government and law and order were three members of the Royal Papua New Guinea Constabulary and me.

The police could write their names and very basic Pidgin text. They had no formal training in the law, what they knew they had learnt on the job.

The three police had accompanied me to observe the fight and later, after hearing what both sides had to say, I concluded the police should take into custody a local government councillor from one of the opposing clans.

He had not only failed to take action to stop the fight, which he should have done as a councillor and leader, but had incited his side and taken a large part in the fight.

So the councillor was taken into custody. Section 30 of the Police Offences Ordinance was a well-used piece of legislation by us kiaps.

The next day at Baiyer River Patrol Post, we held the court case. As usual, both clans arrived in numbers to bolster their arguments.

Because of the crowd, I moved the ‘bench’ from inside the office to the verandah, and the two clans, each upwards of 100 men all armed to the teeth, massed on two sides.

Privately, I was in a state of agitation, afraid that the two clans might turn on each other again and make a literal bloody mess of proceedings.

If they did, there was no way that I and three police could have stopped such a huge brawl. The consequences could have been very disastrous.

However, I had to present a facade of control and dispassionate justice to the world, and so the trial began.

The police had little knowledge of prosecutorial niceties, so I had to adopt that role, ask the necessary questions, then change hats and ask questions as the defence would normally do.

I knew from experience that both sides would take liberties with the truth. They would say whatever they thought would bolster their case, regardless of what had happened.

In my key role as the Local Court Magistrate, I found the councillor guilty, and sentenced him to six months in prison.

As required by the law, I asked him did he want to appeal against the sentence and he said, yes of course, so I then lodged an appeal to the Supreme Court on his behalf against my own decision.

Because he was a councillor and it was a fairly high profile matter, I transferred him to Baisu Jail in Mt Hagen, rather than putting him in the Baiyer River lockup that I ran as part of my duties.

His appeal was not heard for six months, by which time he had served the sentence and been released.

When it was heard, the Supreme Court found, in its wisdom, that the burden of proof had not been met, so his conviction was overturned.

Looked at from the viewpoint of Western jurisprudence, it would be fair to ask how could one person act as crime scene investigator, arresting officer, prosecutor, defence, magistrate and jailer.

It was what most people would call a travesty of justice. Today, of course, I would agree. It could not be anything but a travesty.

But 50 years ago, in circumstances that very few people alive today could envisage, justice had to fit the times and the situation.

The then Administration of the Territory assigned its district administrators – the kiaps - to do a job few in Australia knew anything about to deliver results that now seem impossible: the bringing of Western law, somewhat tempered by culture; the pacification of warring tribes; the introduction of democratic process; the building of a nation.

And all this in a context of external political pressure to do this fairly and correctly. Even deep in the field we felt the expectations that were upon us.

So, was I wrong in my local court decision to send the councillor down for six months? The Supreme Court determined I was. The opposing clan in the tribal fight thought I was a wise man.

I don’t know whether that warfare over land continued. It could still be simmering away 50 years on.

I hope not because these days the weaponry is AK47’s not axes and bush knives.

Did my sending the councillor to jail solve anything? It solved the problem short term at least. And the local people were mostly prepared to accept our role and our calls. There seemed an understanding that we were doing our best, and we were doing it for them.

I’ve thought about this often. That the people were prepared to accept ‘rule by kiap’, in this case a court adjudication by a skinny kid (I was 26 at that time).

The contradiction between Western law and local custom could never be solved. It remains a live issue in Papua New Guinea. So we weren’t going to get anywhere on that one.

But we needed a reasonable conception of justice when we heard those court cases.

I reflect on whether the clan walking away from a court would say, we got what we wanted? Or might they scratch their heads and say, we wouldn’t have done it that way in custom days?

And as for those learned white men in the robes of the Supreme Court saying you got it right or wrong according to these Great Books, were they certain? Or did they think his six months is up, no further guilt is served?

There must have been a conception of justice in us as young men that it might be as simple as a fair go, that’s a fairly universal concept.

I suppose anthropologists and psychologists could explain how and why the people and the kiaps behaved as we did. Historians may argue over who was right, or was everyone right, or were we just lucky? And what might have been the better course in lieu of kiap justice?

The answer we would give them, of course, is there was no alternative at the time.

I suppose context is everything and we know there’s no going back. I doubt any historian will be able to accurately recount what was going through my mind on 10 December 1971?

Did I believe legal process would solve the land dispute? What was I thinking about ethical and human consequences, let alone legal consequences? What of the opposing clans? My court case did not determine whose land it was that inspired a war?

Both sides were entrenched in the belief the land was theirs. Both thought it honourable to fight for, even kill for in accord with custom and tradition.

It draws me to think about history’s larger patterns. We look back now with hindsight and more wisdom, with the benefit of better education, and we can say with some confidence that previous generations should have done this instead of that. No cavil will come from me.

But to in truth put ourselves into the minds of people who lived, acted and died long ago…. That, my friends, is hard for even those people to recapture.

I do not want to suggest we judge long-dead people by the standards we apply today in order to declare what was done was good or bad. But I do suggest we look at what they were and what they knew to better understand the consequences of what they did.

Weaponry PNG modern style 1As people and technology change, do rights change? Do obligations and modes of behaviour change? Does morality change?

I think of the Second Amendment of the United States Constitution relating to the right to bear arms. What would those Founding Fathers of 1780 think of its interpretation today? Would they applaud or would they gasp in horror at the consequences of their words?

So my decision in the court case of 1971 is preserved in the aspic of what was morally and culturally at the time. And it was judged by superiors according to laws acceptable in 18th century England. Would it have been better judged by those clans who were also operating according to venerated practice?

No such thoughts crossed my mind all those years ago. They didn’t need to, there was a job to do. A peace to impose.

Unless people like us write about our experiences and mindsets, future historians won’t see the whole picture.

Few of us possess the recall or the meticulous journals that people like Bill Brown retain. I give much credit to those who put pen to paper, recording what they saw and did and thought and who seek to better analyse and understand what happened. I wish I had their patience.

Memories are about all we have now. There are few people who were not kiaps, or who did not know kiaps, who will hear them, let alone understand them.

I have a 50-year old carbon copy of a Local Court case heard at Baiyer River on 10 December 1971. I was the magistrate, and just about everything else.


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Kindin Ongugo

Hi Jim, reading this story and a few similar one I heard from my old kiap friend in Townswille I think you gentlemen, the kiaps, did not behave like humans then.
You were angels and displaying biblical wisdom.
Your decision then was clear display of Solomon's wisdom. I have to agree with the opposing clan.

Kindin Ongugo

I have not much first-hand experience with kiaps back home in PNG but I met a retired kiap in Townsville in 2014.
He is a bit of a controversial figure in Australian politics.

We had lots of coffee together at Townsville Hospital where I worked. I learnt a lot about the kiaps during our coffees. We had our last coffee last year.

I call him once every one or two months to check on him as I live interstate.

That's very kind of you to keep in touch, Kindin. I'm sure it's greatly appreciated - KJ

Jim Moore

Garry - Sorry, the passage of time has meant I've lost memory of the lains involved in that fight. I recall it took place south of the Baptist Mission, not too far from the Baiyer Council office.

I remember the Hallstrom Bird of Paradise Sanctuary. It started at Nondugl near Minj in the mid 1950's and shifted to Baiyer sometime in 1967-68. It was run by Graham George, perhaps a trained ornithologist but he was certainly passionate about the birds.

Further along that road, an expat named Tas Hammersley started a small cattle project. I don't know how long he survived there. He had previously been District Inspector of Education for the Western Highlands District. His wife Brenda was a paediatrician at Hagen Hospital.

That road branched just after crossing the Baiyer River on a Bailey bridge. To the left it went downriver to where Pii Nalu, the Council President lived - again I can't remember the name of his place.

Keeping straight on the road lead to the Bird Sanctuary, and further up the valley to the ridge overlooking the Lower Jim River grasslands.

It was hoped one day the road would reach Ruti in the grasslands, but it certainly didn't in my time.

Garrett Roche

Jim, your contribution has me wondering what clans or tribes were involved in the tribal fight.

I had some familiarity with the Baiyer area, and travelled to where the Ukini tribe were living past the bird sanctuary. It is a beautiful area. Many thanks.

Chris Overland

I think that Jim Moore has written an excellent piece that accurately describes the situation confronting any kiap when trying to administer the law in a fair and just way.

When I went to PNG in 1969 I was 18 years old and so knew virtually nothing about life generally. I received about 6 weeks of sporadic training in law, mainly focussed on the Police Offences Act and Regulations. I was admonished to not shoot anyone unless under mortal threat.

Thus armed, I was sent forth to ensure good order and good governance in remote locations in PNG.

Like most kiaps I never thought that my police functions were even remotely close to my main task. It was soon apparent to me that if I arrested someone for every technical breach of the law that I saw, I would soon fill the local kalabus to capacity.

Consequently, I was only involved in arresting people for crimes such as murder or assault causing grievous bodily harm. Common assaults (especially domestic violence) were often left to be sorted out by the local people themselves (perhaps with a police adjudicator) according to custom and practice.

Most kiaps did not like enforcing laws that we thought were inappropriate or unfair.

One such law related to the collection of the local government poll tax which those on high had decreed must be paid to support the local government system then being introduced in PNG.

I have written previously about how an insistence on collecting this burdensome tax from some of the poorest people in the world was an odious and unwanted task. None of us signed up to be tax collectors.

As a consequence, this task received a very low priority. It was always easy to think of something else to do that was much more important.

In general, kiaps worked on the basis that the law should be enforced in ways that made sense to the local people. Hence Jim Moore's pragmatic and entirely reasonable decision to jail the local village councillor for his failure to even attempt to prevent a tribal fight.

The local people would have understood perfectly well that the man had an implied duty to do this because he represented the gavman by dint of his status as a councillor.

It seems that this understanding was not shared by the Supreme Court, which preferred a more rigid adherence to the legal process as practiced under the British legal system. Perversely, this thinking tended to subvert justice, at least in the eyes of the local people.

Overall, I think that kiaps can be proud of their efforts in enforcing the rule of law in PNG. The processes involved may not have conformed to the practices and expectations of those steeped in the intricacies of the law, but they did tend to mostly result in a fair and just outcome for both plaintiffs and defendants.

Philip Fitzpatrick

"Bayesian networks are a type of probabilistic graphical model that can be used to build models from data and/or expert opinion.

"They can be used for a wide range of tasks including prediction, anomaly detection, diagnostics, automated insight, reasoning, time series prediction and decision making under uncertainty."

For instance, the way the government in Australia is managing the Covid-19 pandemic.

Bernard Corden

A little more from King and Kay:

"But following the principle that justice should be administered in an individual not a statistical manner, the law adopts the presumption of innocence.

"This is very different from the idea that before the evidence is heard one should attach equal prior weight to guilt and innocence. Indeed, a presumption of innocence cannot be translated into any particular numerical probability of guilt going into the case, including zero.

"The case must be decided on its merits. The principle of Bayesian updating of a prior probability of guilt is incompatible with an initial presumption of innocence or with the requirement in civil proceedings that the claimant discharge the burden of proof.

"Because justice is administered not on average but in individual cases, bare statistical evidence, in the absence of a narrative, is never enough.

"Whatever frequencies might tell us about probabilities, such statistics cannot, without a narrative context, form a basis for a conviction. We need a story.

"Narratives are the means by which humans – as judges, jurors or people conducting the ordinary business of life – order our thoughts and make sense of the evidence given to us.

"The legal style of reasoning, essentially abductive, involves a search for the ‘best explanation’ – a persuasive narrative account of events relevant to the case.

"The great jurist and US Supreme Court Justice Oliver Wendell Holmes Jr began his exposition of legal philosophy with the observation that ‘The life of the law has not been logic; it has been experience . . . The law embodies the story of a nation’s development through many centuries and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics'."

[King, Mervyn; Kay, John. Radical Uncertainty: Decision-making for an unknowable future. Little, Brown Book Group. Kindle Edition]

Bernard Corden

A fascinating piece that had me searching for the following extract from a recent book entitled 'Radical Uncertainty' by Mervyn King and John Kay:

"There is no Bayesian dial above the head of the judge in a court of law. A judge who walks into the court on the first day of a trial with a prior probability in his or her mind is a bad judge, and juries are explicitly warned to disregard any prior probabilities they may hold.

"And these juries are often enjoined not to make up their minds before they have heard the whole of the evidence and the respective submissions of the parties.

"For compelling reasons. Courts wish to exercise control over the nature of the arguments used to determine the outcome of a case. And thoughtful decision-makers in other fields of life should do the same."

[King, Mervyn; Kay, John. Radical Uncertainty: Decision-making for an unknowable future . Little, Brown Book Group. Kindle Edition].

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