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Kuman v Howa [2016] PGDC 15; DC2092 (4 August 2016)

DC2092

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]

Case reference no 3485 of 2016
BETWEEN

AND

Waigani:

: 4 August
           

CRIMINAL- Practice and Procedure-Defective Information- essential elements not made out- Possession of illicit spirit- spirits must be from a licensed premises

References

Counsel

Sergeant M. Rambusumbi, for the Informant

L Wawun-Kuvi :

1. The defendant, Leo Howa was charged pursuant to section 45 (d) of the Distillation Act, for knowingly carrying or having in his custody an illicit spirit.
2. The defendant was arraigned on 4 August 2016 and he pleaded guilty to the charge. The defendant stated that he was given the home brew which he termed as “steam” by his cousin. He was drinking it out of a pepsi can when he was apprehended and arrested by Police.
3. The allegations which the defendant admitted is on the 28 July 2016 at about 10:30 am at Gerehu main market the defendant was seen consuming and was under the influence of illicit spirit or home brew. Police during their motorist patrol approached him and arrested him.
4. However, prior to me confirming the defendant’s plea, I perused the provisions of the offence. This is what now forms the basis for the Court’s decision to strike out the matter and discharge the defendant.
5. The offence of possession of illicit spirits is pursuant to Section 45 (d) of the Distillation Act and is in the following terms:

‘45. ILLICIT STILLS AND SPIRITS.

A person who knowingly–

(d) receives, carries, conveys or conceals or has on his premises, or in his custody or under his control, illicit spirits;’

6. Illicit spirits is defined by section 1 of the Distillation Act to mean ‘spirits distilled, moved, altered, or removed from a distillery or interfered with in contravention of this Act;’. Section 1 further defines a spirit to ‘include liquor of a like character and description to liquor on which under the name of spirits any duty of Customs is payable; and on which in the name of spirits or of power alcohol any excise is imposed by an Act, and whether distilled or made or in any stage of distillation or making; ethanol and potable alcohol;’.
7. Section 1 of the Distillation Act further defines distillery as the licensed premises of a person who holds a licence to distil liquor.
8. It can be seen that the legislation is intended to deal with the control or regulation of liquor and or spirits.
9. Pertaining to the offence, the provisions referred to above show that the intention was to charge persons who removed spirits from licensed premises. This provision was not intended to be used to charge persons who consume black market concoctions.
10. It then follows that the elements of ‘illicit spirits’ is not supported on the agreed facts.
11. In passing, I must state that police must charge appropriately under the relevant provisions. Police must analyse the facts and determine whether the elements of the charge are satisfied. In this case, it would have been better to charge the defendant for being drunk in a public place or drunk and disorderly under the Summary Offences Act.
12. In relation to the present case, as an essential element of the offence is not present, I have no jurisdiction to hear the matter because the charge is not proper under law.
13. On the basis that the information is defective, I now strike out the offence and the defendant is discharged.
14. The defendant is appearing from custody, so unless there are other charges the defendant is free to go after the Court adjourns.Lawyer for the Informant Police Prosecution Defendant Appearing In Person