N309(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

LUPAM LAU AND 3 OTHERS OF SURINKI

Wabag: Pratt J
12-16 May 1981

NO CASE TO ANSWER - principles reviewed - The State v. Paul Kundi Rape followed.

HARBOURING ESCAPED - general requirements to constitute offence - requires some act towards the concealment or giving assistance to remain at large.

Cases cited:
Benney v. Dowling (1959) V.R. 237
The State v. Paul Kundi Rape [1976] PNGLR 96
Reg. v. Uno Tam and Anor. Unreported pre-Independence Supreme Court Judgment No. 766 dated 14th September 1973
May v. O’Sullivan 92 C.L.R. 654
Acting Public Prosecutor v. Barry Blythe Holloway Unreported National Court Judgment No. N298(M) dated 12th June 1981
Regina v. Dodd [1971-1972] PNGLR 255
The State v. Aige Kola Unreported National Court Judgment No. N209 dated 8th December 1979
The Queen v. Falconer-Atlee 58 Cr. App. R. 348
The Queen v. Kalaitzidas 20 S.A.S.R. 87
The State v. Tom Morris Unreported National Court Judgment No. N228 dated 28th May 1980
The State v. Kuri Wembra [1977] PNGLR 23
Wui-Wapi and seventeen others v. Ludwick Kembu Unreported National Court Judgment No. N226 dated 7th March 1980
John Tolna and 14 Ors. v. Paul Ari Unreported National Court Judgment No. N218 dated 20th March 1980
The State v. Lyanda Aken and Kenepia Tuink Unreported National Court Judgment No. N238 dated 6th June 1980
The State v. Lasebose Kuriday Unreported National Court Judgment No. N300 dated 18th June 1981
R. v. Wewak Resident Magistrate; Ex Parte Dyer [1967-68] PNGLR 511

INTERLOCUTORY JUDGMENT

PRATT J: In this matter the four accused before me are charged that on the 22nd June 1980 they harboured one, James Lau, who had escaped from custody and was illegally at large as they each well knew, thereby contravening s.144 of the Criminal Code. There has been an application at the conclusion of the State case by Mr Gawi on behalf of the accused that the defence should not be called upon to go into evidence. This application was placed on two grounds - firstly there is no prima facie case and secondly that if the Court applies the rule in Benney v. Dowling it will find that in all the circumstances the evidence is so unsafe or so unsatisfactory that the matter should not proceed. That latter rule is best summed up in the extract from Benney v. Dowling (supra) referred to in the reported case of The State v. Paul Kundi Rape as follows:

"That proposition" (i.e. the proposition in May v. O’Sullivan (92 C.L.R. 654) as to the basis of a no case submission) "in my opinion was never intended to carry with it the proposition that a magistrate has no discretion to say at the end of the informant’s case whenever there is, technically speaking, evidence upon which the defendant could lawfully be convicted that he does not want to hear the defendant but will dismiss the information ... It is common practice both in courts of petty sessions and in trials before a jury that at the end of the case for the informant or prosecution, although the evidence as it stands might justify a conviction, for the magistrate or a jury, very often at the suggestion of the trial judge, to say that he or it does or do not require to hear any evidence for the defence and to acquit at that stage."

I have heard detailed submissions on the evidence from both counsel. In the intervening period I have also had the opportunity of reading my notes on the evidence, the trial at this stage having extended over a period of some four and a half days. I must be careful to confine any comments in this area to precisely defined limits, especially if the case is to proceed. Dealing then with the first ground, that is whether or not the State has made out a prima facie case, I take this to mean that as there is no evidence in law to establish the State case, it should be dismissed. Counsel have correctly analysed the elements which constitute the offence. I shall adopt Mr Gawi’s division into four parts as follows:

It must be proved:

(1) 	that a prisoner was in lawful custody;

(2) 	that the prisoner has escaped;

(3)	

(a) 	that the accused have knowledge of the prisoner’s escape, and

(b) 	that he is still unlawfully or without lawful excuse at large;

(4) 	that there has been some act or conduct on behalf of the accused which constitutes harbouring within the meaning of the section.

I agree with Mr Acting Justice Wilson (as he then was) in his decision Reg. v. Uno Tam and Anor. that in a no prima facie case submission, matters of weight and credibility are to be ignored. As the High Court said in May v. O’Sullivan, the test is not whether an accused ought to be committed, "but whether on the evidence as it stands he could lawfully be convicted". When for example the prosecution has failed to establish one of the elements of the charge, then clearly an accused could not be convicted. There is no case established against him. It is deficient in law (see also Miles J. in Acting Public Prosecutor v. Barry Blythe Holloway). When however all the elements requiring proof have been covered by the evidence but such evidence is so unsatisfactory that the tribunal must feel considerable hesitation as to whether all or any of the essential material can be believed, application to stop the proceedings may then be made under the Benney v. Dowling test. In those circumstances it is difficult to see how one can avoid giving some attention to matters of weight and credibility in reaching a final decision. Such applications are made of course, before an accused is asked to elect whether or not he will call evidence. Although the reference to "satisfaction beyond reasonable doubt" used by Mr Justice Kelly in Regina v. Dodd is unfortunate, it is clear from the earlier words used by His Honour on p.256 of that report that his mind was directing itself to the Benney v. Dowling aspect and that he was not giving a ruling on the absence of a prima facie case simpliciter. It seems therefore that the conflict suggested by Mr Griffin at p.74 of his book "Criminal Procedure in Papua New Guinea" may not exist.

For an analysis of the two principles involved in the present application, I do not think one can do better than turn to the lucid exposition by Mr Acting Justice O’Leary in The State v. Paul Kundi Rape. I adopt and incorporate the whole of the comments made by His Honour in that case. To add anything further, I think, would run the risk of clouding an issue which was previously somewhat prone to misunderstanding. I appreciate that Mr Justice Kapi in The State v. Aige Kola has formed the view that a third category exists but it seems to me that such a conclusion really stems from approaching the Benney v. Dowling (supra) principle from two different directions. Messrs Waight and Williams in their new work "Cases and Material on Evidence" at p.171 seem to take a similar approach. If a conviction may be set aside on the basis that it is "unreasonable", that is merely another way of saying that the evidence was so unsafe or unsatisfactory that no reasonable jury properly instructed would convict (see The Queen v. Falconer-Atlee and The Queen v. Kalaitzidas That there are really only two tests to be applied at this). stage of the proceedings was the unpublished view which I took in Kundiawa early last year and I note that it accords with the opinion of Mr Justice Miles in The State v. Tom Morris. There is perhaps a danger for once in referring to what happens with a jury in a jurisdiction where such an institution does not yet unfortunately exist. At p.99 of the report of Paul Kundi Rape (supra), the kernel of the entire issue appears in the following words:

"Where there is no case to answer, an accused may not, as a matter of law, be called upon to answer it. Where there is a case of insufficiency of evidence as explained above, an accused may as a matter of law be called upon to answer it, but there is a discretion in the judge either not to call on him at all, that is to take the case away from the jury, or, at least, to leave it to the jury to say whether or not they wish to hear more."

The reference however to leaving the matter for the jury to say whether or not they wish to hear more, does not really assist and the passage may perhaps best have terminated at the words "but there is a discretion in the judge ... not to call him at all". I think expressed in those terms the passage perhaps has a clearer and better application to the circumstances prevailing in Papua New Guinea. I do not however say that in criticism, but merely to remind myself that as no juries exist in this country, really what one is setting out to do is to divide one’s functions as a judge of law and a judge of fact.

Turning now to the facts of the present case, so far as concerns the first accused Lupam Lau, I am satisfied on either basis that the State has satisfied the necessary requirements and I rule in her case that the trial must proceed. My reasons will appear from what follows. The remaining three accused however present a different problem. There is no dispute that James Lau was in lawful custody. He was convicted of assault at Laiagam District Court on the 28th May 1980 and sentenced to eight weeks imprisonment with hard labour. Despite submissions to the contrary, I am quite satisfied that James escaped from custody on the 15th June and that he was located still illegally at large on the 22nd June at Laiagam. There may not be the degree of direct evidence on these points which Mr Gawi would prefer, but I am satisfied that there is ample evidence to warrant a finding of facts and inferences from facts by a tribunal performing the functions of a jury. Likewise bearing in mind the size of Laiagam, the fact that the mother Lupam Lau with her married daughter Letina Upuia as well as her single daughter Bepi Lau and son Annas Lau had been living there for some time with the husband and father of the family unit, Lau Ida who is a government interpreter, and the facts that the conviction and imprisonment occurred in Laiagam quite apart from what may or may not be gleaned by a tribunal of facts from the record of interview in respect of each individual accused, there is certainly sufficient prima facie evidence to establish a knowledge in each of the accused that their son and brother James Lau had escaped from custody and was illegally at large.

It is when one comes to the fourth element requiring proof by the State, that real problems emerge in respect of the three last accused named on the indictment. There are some significant conflicts in the State case including whether or not Bepi Lau and Annas Lau were inside or outside Mrs Lau’s house when the warders entered and apparently found James and the other escapee inside. It is certainly not clear what Letina Upuia’s connection with the household was since her marriage, other than the prima facie fact that she was there that morning. The State lays considerable emphasis on the fact that the accused were brother and sister to the escapee, that all of them were then behind a locked door with the escapee when the police and warders arrived and that they were together some time albeit the period is difficult to establish with any certainty.

Mr Roddenby has proceeded on the basis that the law relating to harbouring is properly set out in the judgment of Mr Acting Justice O’Meally in The State v. Kuri Wembra and more particularly that there must be some Act towards concealing the escapee or assisting him to remain at large. If he merely did nothing or did something which did not assist, then no offence has been committed. Certainly mere moral support is not sufficient. With these propositions I agree and I repeat in the content of the circumstances of this crime what I said in a previous decision involving the Inter-Group Fighting Act and also mentioned by Mr Justice Wilson in his decision in John Tolna and 14 Ors. v. Paul Ari that mere presence is not sufficient. There must be proof of some active participation. Harbouring of course is defined in the dictionary as "giving shelter". Such an interpretation was clearly made by Mr Acting Justice Narokobi in The State v. Lyanda Aken and Kenepia Tuink. Regretfully I beg to differ in some respects from His Honour for I feel that a Melanesian context presents no special or individual characteristics that would not apply in respect of this offence to an extended family in any other culture and I cannot agree that giving food or shelter of themselves may not amount to harbouring or maintaining. Consequently, were there evidence of such matters before me, I would have no hesitation in dismissing the defence application in this case. In my view however, what the State, just make up the technical requirements necessary to put the matter before a jury so that it may draw what inferences may be open. But in so doing, I think there would exist considerable inherent danger. The leap from possible presence behind a locked door by persons who are merely members of a household and nothing more, when there is not a tittle of real evidence to show any assistance to the escapee, save what might be established on a hypothesis of guilt in the accused, leads me to believe that the accused would be convicted merely because they are relatives sharing the same house with their mother when the escapee arrived on the scene. Apart from conflicts in testimony, the evidence on assistance and support is very shaky.

The whole thrust and content of the evidence is so unsatisfactory that in my view the matter should not proceed any further. Applying the principle of Benney v. Dowling therefore, I uphold the defence submission in relation to the last three accused. I therefore enter a verdict of "not guilty" against Bepi Lau, Letina Upuia and Annas Lau and order their discharge.

ADDENDUM:

Since giving my reasons in Wabag, I have read the judgment by Kearney D.C.J. in the matter of The State v. Lasebose Kuriday handed down on 18th June last. I note with regret that His Honour has departed from a long-standing practice of this Court both before and after Independence. The judgment of O’Leary A.J. was merely a promulgation of views held by most of the judges, at least until Kapi J. added a third approach at the end of 1980. It seems to me that as the law in this country has stood for many years, an accused person had certain rights at the end of a prosecution case depending on whether the evidence had failed to establish a prima facie case or was so unsatisfactory that a conviction ought not in all reasonableness be entered against him. One of those rights has now been declared illusory. Apart from any question of rights, it seems to me counter-productive to have a trial struggle on for days, or maybe even weeks, at cost not only to the State but to an accused where he is being privately represented (not to mention mental anguish), when the prosecution was obviously in deep trouble at the close of its case. The reference to juries in other jurisdictions serves to remind courts in this country that they have a dual role to perform and that at the end of the prosecution case certain functions of law must be observed. In the absence of a declaration by the Supreme Court stating the law is otherwise than I have always understood it to be, or submissions from an extremely persuasive counsel, I cannot see how I could follow the path newly hewn by our learned Deputy Chief Justice. Although Sir John Minogue was dealing with committal proceedings in R. v. Wewak Resident Magistrate; Ex Parte Dyer, I think his comments most apposite:

"If he (the magistrate) forms the view that the evidence called before him is clearly tainted or worthless to me it seems consonant with good sense and justice that he should discharge the defendant forthwith. From the community viewpoint the unnecessary expense of a trial is probably saved and from that of the defendant it is proper that he should not be in jeopardy if the magistrate is of opinion that no reasonable jury or ... no Judge of this Court would convict."

Solicitor for the State: B. Emos, Acting State Solicitor
Counsel: K. Roddenby
Solicitor for the Defence: Richard Major
Counsel: J. Gawi