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State v Kiponge [2021] PGDC 173; DC7031 (30 November 2021)

DC7031

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS COMMITTAL JURISDICTION]

COM.NO. 1529/2020.

STATE
V

REX KIPONGE

Waigani: Garry Unjo
2021: 30 November

Criminal Law--Defendants charged on the one count of unlawful assault and one count of deprivation of liberty--Indictable Offence---- District Court-Practice and Procedure ---Prima facie evidence a requirement

Charged for unlawful assault –-type of assault alleged of does not fall within the meaning of section 340(1)—degree of injuries sustained by the act of the defendant not made out. ----in sufficient evidence to substantiate the unlawful assault charges.

Deprivation of Liberty---police in exercise of their duty the defendant was in their custody—defendant’s deprivation of liberty on the defendant no made out---no evidence to substantiate the charge under Section 355 (1.)—defendant discharged.

In sufficient evidence on the two charges laid against the defendant---defendant discharged on the two charges.
Cases Cited
State v Chris Koi Hannan (2010) N4525
State v Timothy Damusuk, (2016) N6229,
State v Songke Mai and Gai Avi [1988] PNGLR 56

Appearances:
Prosecutor
Mr. Chris Iga
Counsel
Putupang for the defendant.

G Unjo: Introduction

1. The defendant is before this court on one count of unlawful assault and one count of deprivation of liberty. He was arraigned in his elected language English, and understood the reason, why he was arrested and charged by police. The matter was then adjourned from time to time to allow police to file evidence. The police evidence was filed and served on parties. The parties were allowed to make submissions on the police file filed and is before the court for its determination on the evidence.

Back ground Facts

2. The defendant is 43 years of age from Tarlos Village, Kompiam/Ambum, Enga Province. He is currently the acting Managing Director of National Airport Corporation (NAC). Prior to this appointment, he was the General Manager of NAC and the complainant was his predecessor on the same position. It is alleged that, on the 22^nd October 2020, the defendant was in a company with a group of policemen went to Gate Way, with an intention to arrest the complainant over some allegation of fraud complaints, against the complainant.
3. The police found the complainant at Gate Way, and in the process of his arrest, they assaulted and manhandled him. He was thrown at the back of the police vehicle and was brought to the police station. The defendant was amongst the policeman that grabbed him by the neck and held his belt in an attempt to lift him up and throw him into the vehicle. In the process, his shot was torn and ID card ripped off and displaced. He was later taken to Boroko Police Station for questioning and released.

Issue

4. Whether or not there is sufficient evidence to commit the defendant to stand trial on the charge of unlawful assault and deprivation of liberty.

Law

5. The defendant had been charged on one count of unlawful assault under Section (1) and one count of deprivation of Liberty of under Section 355 of which I intend to deal with each count separately and reads:

6. 340. Assaults occasioning bodily harm.

(1) A person who unlawfully assaults another and by doing so does him bodily harm is guilty of a misdemeanor.
Penalty: Imprisonment for a term not exceeding three years.

355. Deprivation of liberty.

A person who unlawfully—

(a) confines or detains another in any place against his will; or
(b) deprives another of his personal liberty,
is guilty of a misdemeanor.

Penalty: Imprisonment for a term not exceeding three years.

Evidence

7. There are 14 witnesses giving evidential statements, with evidential materials to substantiate the charge. The principal witness Ephraim Wasem says, at the material time, he was an acting Managing Director of NCA.On the 22^nd October 2020, between 4:00pm and 5:00pm, he was at the Gate Way car park and three men approached him. One of them identified himself as Sergeant Kila Tale and said, he is attached to Boroko CID Fraud Division and introduced other two as Constable Jeremiah Benny and Win Tangele.
8. The Sergeant Kila asked, whether he was Ephraim Wasem and said Yes. The sergeant ordered him to hope on the police vehicle, a Grey Toyota Hilus registered as ZPD:208, to go to the police station for questioning. The complainant asked, what is the reason for the interview? He responded, he would go and find out the reason at the police station. He did not feel safe to go, so he called his lawyer to come. After calling his lawyer, asked the policeman, whether they could wait for his lawyer to arrive so that, he can also be present at the interview.
9. After he said this, Sergeant KilaTale and constable Jeremiah Benny grabbed him and attempted to force him into the police vehicle. The action of the police was suspicious and felt scared to go to the police station with them. The constable Win Tangele and Jeramiah Benny grabbed him again and tried to force him into the car. He told the police that, he has his own vehicle to drive to the police station, but the police did not want that. He continued to refuse to go on the police vehicle to the police station, as his lawyer was not present. The police also did not tell the reason. why he was to be taken to the police station. As the result, his rights to have his lawyer of his choice present and to know the reason for his arrest was not made known to him. They deprived of his personal liberty.
10. Whilst still there, the three more men came on a Toyota Mak 11 Sedan. They were Wally Eki, Robert Micah and Rex Kiponge.They shouted and aggressively approached him. They aggressively grabbed him and attempted to throw him into the vehicle. One Robert Micha was the first to assault him and he resisted and struggle with him. At this time also Wally Eki grabbed him and violently attempted to force him into the vehicle. Then the defendant joints the same. He grabbed him by his neck and assaulted him and attempted to throw him into the vehicle.
11. The commotion lasted for some time, when other team of policemen came and stopped the altercation, and at this time his lawyer was there as well. At 6:00pm of the same day, he went to the hospital for medication and Dr.Sam Yockopua attended to him.
12. Rober Kimi says, he was there when the police came to arrest the complainant. He was manhandled by the police to get him on the vehicle. Witness Willie Henao says, he walked to the market stall on the road side for betlenut, and on return he noticed the complainant was in confrontation between Wasen and the police. The defendant was amongst the policemen assaulting the complainants.
13. The witness Lima Robert says, he was there when the police came and demanded him into the vehicle. The complainant refused to go into the vehicle. He was manhandled in an attempt to threw him into the vehicle, until his lawyer arrived at the scene. Witness Kila Tali says, he is a police officer. Upon complaint by the defendant they went to Gate Way and told the complainant to follow them the police station and he called his lawyer. They told his lawyer to go to the police station and asked the complainant to get on the vehicle and the complainant refused. They applied reasonable force to have him brought to the police station for questioning. Witness Tangele Nick says, he is the police officer. He and others on complaint went to Gate Way to arrest the complainant. They asked the complainant to get on the police vehicle to the police station and he refused. They reasonable force to get him on the police vehicle. The witness Kalap Jeremiah also says the same. Constable Jason Wangut says, he was informed that the complainant was assaulted and proceeded to the scene. As soon as they approached the Gate Way, a vehicle drove out. The complainant called out and said, he was being assaulted. Rex Yochopua is a medical doctor. He says, on examination of the complainant’s complaint, the complainant was found to be in shock. He had high blood pressure and bruise to his body and psychologically traumatized.
14. The witness Reu Francis says, he is a constable. He saw the defendant in the bank and wanted to have him arrested, but he was in the company of other police officer from Waigani. However, later the defendant was taken to Hohola Police Station for questioning. Constable Agovaua Teddy also says the same. Constable Robert says, the police presented a report of the complainant being assaulted. He pursued the complaint and handed over to one Lazarus Ikamata to have him arrested and charged. The witness Kua Benjamin says, he is a constable. He was asked by constable Lazarus Ikamata to seek approval to deal with the serious assault. Constable Ikamata Lazarus says, he received a complaint and had the defendant arrested and charged after an interview.
15. In support of the evidential statement are material evidence such as photograph of the scene, medical report from a medical doctor and the text message between the defendant and the police officer in relation to the arrest of the defendant.
    

Ruling on Evidence.

16. This court is empowered under section 95 (2) of the District Court Act to determine the evidence of the police and establish whether the evidence is premafacie to commit the defendant to stand trial or not. It gives this court the power to screen and administer the evidence to ensure that the evidence is sufficient to commit the defendant to stand the trial. This requirement imposes an obligation on the police to produce reliable and credible evidences that would assist the court to form an opinion that, the evidence is sufficient to commit the defendant to stand trial. In doing so, it must also be done in compliance with the laws governing the committal processes. The failing to comply with the mandatory process would also render the police information null and void. As the result, the accused would be seen to be improperly brought before the court and the matter be struck out on want of form.
17. In light of the above requirement, there are 14 people giving evidential statement and further compiles evidential materials to substantiate the charge against complainant’s allegation of him being unlawfully assaulted by the defendant, and deprived of his personal liberty. Since the defendant had been charged under two counts, one count of unlawful assault and one count of deprivation of liberty, deriving from the same facts, it is proper to analysis each of the charges separately in this determination.
18. The first charge of the defendant was under Section 340 (1) of the Criminal Code Act. In support of this charge, the complainant says, the defendant was amongst the police officers in his arrest. The defendant held his neck and on his belt in an attempt to throw him into the police vehicle. In the process his shot was torn and ID card displaced. This is what he says, and the question to be asked is, does this type of charge come within the definition of section 340 (1) of the Criminal Code Act. The Division 5 and 6 of the Criminal Code Act captures the types or categories of assault, in accordance with the degree of harm in the body contact. The Section 342 further entails the type of assault that can be determined summarily under the summary jurisdiction. It reads:

The Section 243 of the Criminal Code defines assault and reads as:

(1) A person who;

(a) directly or indirectly strikes, touches or moves or otherwise applies force to, the person of another, without his consent, or with his consent, if the consent is obtained by fraud; or

(b) by or indirectly strikes, touches or moves or otherwise applies force to, the person of another without his consent, under such circumstance that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is send to assault that other person, and the act is called an assault.

(2) A reference is subsection (1) to the application of force includes a reference to the application of heat, light, electrical force, gas, odor or any other substance or thing in such a degree as to cause injury on personal discomfort.

(3) A male person under the age of 17 years shall be deemed not to be capable of consenting to any act any other male person that but for such consent would be an indecent assault.

The Grievous bodily harm is defined in section 1 of the Criminal Code as “any

Bodily injury of such a nature as to endanger or be likely to endanger life or to cause or be likely to cause permanent injury to health”.

19. The definition of assault and the types of assault prescribes in the criminal code enable the police to analysis and distinguish the degree of body contact with that of amount of force applied and the type of object used in the assault upon the complaint received. The section 340 (1) calls for a higher degree assault, as the result of the occasional attack. To have an assault come within the meaning of section 340 (1), the sustaining of injuries as evidence must be grievous ones, as the result he was treated with medication. This assertion must also be supported by medical doctor, with the type of treatment received on the injuries sustained.
    
20. In State –vs—Chris Koi Hannan (2010) N4525, the accused was found guilty on the charge under Section 340 (1) of the Criminal Code Act. The court established that the accused punched the victim hard on the face and fell unconscious and later whilst laying on the ground, the accused used the hydraulic belt to weep the victim. As the result, the victim sustained two deep lacerations at the upper facial of about 2cm and 6cm deep respectively. He also lost three upper incisor teeth’s and had abrasions on the face and shoulder.
    
21. It is to be reasoned from this case sighted and from the types of assault captures under Division 5 and 6 of the Criminal Code, the defendant charge does not fall within the meaning of section 340(1) of the Criminal Code Act, from the allegation of him was being held by the neck and on his belt by the defendant in an attempt to throw him into the police vehicle. The doctors report also does not support the assertion of the victim. The doctors report suggests that, as the result of the assault, the victim was in shocked stage, sustained abrasions and high blood pressure was noticed. There is nothing grievous to have the defendant brought before this court under this provision. There is also doubt created in the medical report in the absence of a prescription of the medication and treatment received by the complainant.
    
22. There is insufficient evidence to have the defendant committed stand trial on the charge of unlawful assault under section 340 (1) of the Criminal Code. The defendant is discharged from this charge.
    
23. The second count in which the defendant is charged is, under section 355 of the Criminal Code Act. The victim alleges that defendant had derived his personal liberty. In order for the act to come within the meaning of Section 355 of the Criminal Code Act, the act must be illegal, whether one doing it without authority or with authority, but not accordance with or within the limits prescribed by law. The act without authority would be a person with an intention to commit a crime for a purpose of a reward, except in exercise of a citizen arrest. This type of deprivation of liberty is not sanctioned by any law. The person executing is at the risk of the law and his kidnapping or abduction and detaining another person is against the will of another and is unlawful.
    
24. In State –vs- Timothy Damusuk (2016) N6229, the accused for the purposes of rape, kidnapped the victim and tied her up and kept in custody, but escaped later. His honor Justice Canning’s found the accused guilty of having the victim in custody unlawfully, as such breach Section 355(a) of the Criminal Code Act.
    
25. The act with authority, but not within the limits of the prescribed laws would be the act authorized, but in the process of executing that authority had not complied with the laws that gives the authority.
    
26. The police on compliant have the powers and the authority given by law to arrest and charge a person on complaint. The act of arresting and charging a person come about after interviewing a person alleged to have committed a crime. In order to facilitate this, the police also have the powers to take into custody a person found to have committed a crime for questioning, at any place to be brought to the police station. When on apprehension, the suspect resist police arrest, reasonable force is allowed to have him taken to the nearest police station.
    
27. The other type of detention would be for the safety and protection of the person, and he can be released at any time, and this in my view, is done not against the will of another person, as such deprivation is not unlawful.
    
28. The police upon interview finds that there is no case on the complaint, the person shall be released as soon as possible. The person cannot unreasonably be kept in custody without the charge. In The State v Songke Mai and Gai Avi [1988] PNGLR 56. Kidu then CJ stated (at 60-61):
    

"... the terms 'arrested' and 'detained' (or 'arrest' and 'detain') in ss 42 (2) (3) (5) and (6) mean total deprivation of personal liberty — - they are two different forms of deprivation of personal liberty. And the deprivation must be legal. There cannot be any legal deprivation of personal liberty outside s 42 (1)."

His Honor further alluded at page 61 that

"It is apparent, in my view that s 42 (2) allows the police to detain a person without arresting him if the police suspect he has committed an offence or is about to do so. The condition of this right to detain without arrest is that an Act of Parliament ... must provide for it ... At present I am not aware of any statute, which permits a police to detain a person suspected of having committed an offence or being about to commit an offence without arresting him."

The Supreme Court clearly states there is no Act of Parliament, which permits detention and there is no right to detain, short of arrest. I referred counsel to the few jurisdictions where such detention is legal (eg South Africa or Northern Ireland in the Prevention from Terrorism Act of that country).

Since there is no right to detain and since there is no evidence before me that the defendant or any of his fellow villagers were actually arrested and charged with a criminal offence, I consider that the detention and separation of the defendant and his fellow villagers was illegal and wrong. I consider that this constitutes a breach of his and his fellow villagers' constitutional rights. I say this even though the evidence before me was that the defendant and his fellow villagers agreed to accompany the police and (as Wali said) "hopped on the vehicle". This may have been from an ignorance of the law or respect for authority.

29. In perspective of the above distinction on the type of deprivation of liberty with that of the evidence before this court, I find there is no evidence substantiating the charge. The defendant did not take the complainant into custody. It was the police who took him to the police station in execution of their lawful duty. Whether the detention was lawful or not, would be against the police and not the defendant. The defendant is a wrong person to be made accountable under this charge. You cannot have an ordinary citizen charged for the police action or have one liable for another’s action, because the action of the both are different, as one’s action would be lawful, but only becomes unlawful, if their duty goes beyond the processes sanctioned by law and the others would be unlawful, as his action is not protected by any form of law. This must be clearly distinguished and demarcated to have one become liable for their conduct or crime.
    
30. From the evidence educed, the defendant did not in any manner deprived the complainant’s liberty. The police in an attempt to arrest had used reasonable force and the defendant assisted the police in trying to grab him to have him get into the police vehicle, to be taken to the police station. It is the police that kept the complainant in their custody in execution of their duty and the complainant cannot make the defendant liable. Therefore, there is insufficient evidence to commit the defendant to stand the trail and the defendant is discharged from the charge under section 355 (1) of the Criminal Code Act as well.