N466(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APP. NO. 185 OF 1984

BETWEEN:

TERLEIYA YATUS AND KANDOPI NAKEPAN
APPELLANTS

AND:

TAIA JOSEPH
RESPONDENT

Mount Hagen: Kidu CJ
20 June 1984

JUDGMENT

KIDU CJ: The two appellants were convicted on the 28th of May 1982 of the offence that being in possession of offensive weapons they took part in an inter-group fight contrary to s.11(2) of the Inter-Group Fighting Act (now Ch. No. 344 of the Revised Laws). They were each sentenced to four years imprisonment with hard labour.

The appeal was against both conviction and sentence but when the matter came on for hearing on the 20th of June 1984 only the appeal against sentences was argued. I allowed the appeal, set aside the sentences and as each appellant had served two years I discharged them.

Section 11 of the Inter-Group Fighting Act was declared unconstitutional by the Supreme Court in 1978 (see Constitutional Reference No. 3 of 1978 [1978] PNGLR. 421). Subsequently a new s.11 was inserted by Act No. 25 of 1979 which came into force on the 24th of September 1979.

This section read as follows:

"11. TAKING PART IN INTER-GROUP FIGHT

1. 	For the purpose of this Act, an inter-group fight is deem to have taken place if any member of an unlawful assembly referred to in s.10(1) assaults or attempts to assault or commences to fight with a member of another group of persons.

2. 	A person who takes part in unlawful assembly, referred to in s.10(1) which is involved in an inter-group fight, is guilty of an offence.

Penalty: In relation to an inter-group fight in which a person is killed - a term of imprisonment for a term not exceeding five years.

In relation to an inter-group fight in which no person is killed - imprisonment for a term not exceeding three years.

3. 	Sub-section 2 shall not be construed as restricting the penalty to which a person may be subject under any other law for an offence arising out of or connected with an inter-group fight."

In 1981 sub-section (2) of s.11 was amended by Act No. 18 of 1981. Section 3 of this amending Act provides as follows:

"Section 11 of the principal Act is amended:

(a) by repealing the penalty clause in sub-section (2) and substituting the following:

‘Penalty: In relation to an inter-group fight in which a person is killed - a term of imprisonment not exceeding three years.

In relation to an inter-group fight in which no person is killed - a term of imprisonment not exceeding two years."

This amending Act also added a new sub-section (4) to s.11. The amendments came into operation on the 12th of August 1981.

So when the two appellants were convicted under s.11 on the 28th of May 1982 the maximum penalty for the offence of taking part in an inter-group fight where a person is killed was imprisonment with hard labour for three years and that of a case where a person is not killed was a maximum penalty not exceeding two years.

It seems the Magistrate who heard this case was not aware of the existence of the Inter-Group Fighting (amendment) Act 1981 (Act No. 18 of 1981). It is the responsibility of all Magistrates to ensure that the laws under which they exercise powers are checked properly, especially in cases of the criminal law, in case there are amendments as was the case here.

There were two things wrong with the sentence of four years imposed by the District Court at Liagam. Firstly, if there had been a person killed in the inter-group fight in which the two appellants had been involved then the maximum penalty applicable was three years. In this case the District Court had used the pre-1981 s.11(2) and imposed four years which was one year more than the maximum allowed by the new s.11(2). Therefore for that reason the sentence could not have been allowed to stand as it was in excess of jurisdiction. So the appeal would have been allowed for that reason alone. Secondly, there was another matter which is based on the facts of the case. From my perusal of the court papers it was quite clear that there was no admissible evidence that a person had died during the inter-group fight. The only evidence of that was by a policeman who was asked if someone had died in the tribal fight and he said yes. There was absolutely no other evidence that that had been the case. In fact it is quite clear from the evidence that the police went to the scene of the tribal fight after it had finished and they had been present when the appellant and some of his people had been pursued by people from the opposing clan and subsequently were arrested. But there was absolutely no evidence that this policeman ever saw a dead person. His evidence was based on hearsay and should not have been accepted by the Magistrate. The sentence applicable then was 2 years.

Magistrates should be careful as to the evidence they accept. In a charge under s.11 it is important whether a person was killed or not because there is a difference between the maximum sentence where someone is killed and the maximum sentence in a case where no one is killed during an inter-group fight. It is important that the prosecution prove by admissible evidence an allegation that a person is killed during a tribal fight. Hearsay evidence is not acceptable and in this case should not have been accepted. For these reasons the appeal was allowed, the sentences set aside and the two appellants discharged.

Lawyer for the Appellants: Richard Gawi
Counsel: Mr Pakau
Lawyer for the Respondent: Mr L Gavara-Nanu Public Prosecutor
Counsel: Mr G. Salika