N475(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL NO. 204 OF 1984

BETWEEN:

GAMUNU NONOGA, GUDILI NAUVE, KWADOGI GABANI, 
LAMU GABANI AND RULEO BAGANA
APPELLANTS

AND

CONSTABLE KILA LAKANA
RESPONDENT

Waigani: Kidu CJ
12 July 1984

JUDGMENT

KIDU CJ: I heard this appeal on 5th July 1984 and I allowed it and quashed the conviction and sentences of the Kwikila District Court dated 22nd March 1984. As promised I now publish my reasons.

FACTS

The appellants and another man were on 12th February 1984 charged with the offence of "fighting". The records do not show which Statute was used for this charge. Anyway the charge was dismissed on the morning of 14th March 1984, and the appellants were released and they left the premises of the court. The following is taken from the affidavit of Ruleo Bagana (admitted into evidence by consent):

"8. I walked out of the Court House together with the other four appellants and saw the Magistrate go to his office and the Police remained in the Court House.

9. About twenty minutes later while I was standing near the Market with the four other appellants a policeman came and led me and the other four (4) appellants to the Police Station at about 11.00a.m.

10. At the Police Station I was interrogated together with the other appellants and our statements were taken down in writing. After the statements were taken I was told to appear again in Court at 1.00p.m. on the same day (March 14, 1984).

11. At 1.00p.m. I again accompanied by the four (4) other appellants appeared before the same Magistrate at Kwikila District Court.

12. Then the Magistrate asked the Policeman to read out the charge and the Policeman read out the charge for fighting. The Magistrate then said to the Policeman:

‘You have charged them under the wrong section; you cross out section 10 and charge them under section 6’ or said words to that effect.

13. The Magistrate then said:

‘The first case was about fighting. Now it is assault. Because the Complainants are not here I will adjourn it for one week. If you have money you pay bail if not you will be locked up. Bail is K40.00 each.’

and at that point the court adjourned and we left to organise our bail. Our case was set down for Thursday, March 22, 1984 at 9.30a.m.

14. On Thursday, March 22, 1984 at 9.30 a.m. I appeared again with the other four (4) Appellants.

15. The Magistrate read out a charge for assault and then asked the Policeman to read out the Statement of Facts, and after that the Magistrate asked each of us:

‘Did you fight?’

16. The Magistrate did not explain to me or to the others that the charge had been changed to assault. He simply asked:

‘Did you fight?’

17. The Magistrate did not tell me or the others that we could look for a lawyer to defend us if we wanted to."

The appellants Ruleo Bugana (Lules) and Gudili Nauve pleaded guilty to fighting and not assault. When asked to plead the appellant Gudili Nauve said: "True, because they are stealers - they stole our pig so I fought them." So Gudili Nauve’s plea was not unequivocal and the magistrate should have entered a plea of not guilty. Also he was asked to plead to fighting rather than the actual charge in the information of unlawful assault.

Ruleo Bugana said when asked to plead: "True, but the stick I used to hit Guim Gei was not big." Once again this was in answer to the charge as to whether he was in the fight. The charge put to him was not unlawful assault. Therefore the plea of guilty was wrongly entered.

The Statement of Facts read to the appellants was based on their interviews by the Police, interviews in which the rights guaranteed by s.42(2) of the Constitution were not administered. The statement, tainted by this failure to administer the s.42(2) rights, was used by the District Court without any consideration of its fairness or otherwise to the appellant. The statement quite clearly shows that the appellants were interviewed first and at the end of the interview they were "...then arrested, told of their rights, cautioned and placed in the cells."

It seems, from a lot of appeals I have dealt with, that both Police and some magistrates think that in summary offences cases, at the beginning of interviews, the s.42(2) rights do not have to be administered to persons charged or arrested. This is a misconception. Section 42(2) of the Constitution applies to all persons arrested or detained for any offence and not just indictable offences.

Gamunu Nonoga, Kwadogi Gabani and Lamu Gabani pleaded not guilty but their trial was very irregular to say the least. They were prevented from properly cross-examining the Police witnesses and the police were instructed by the Magistrate to call witnesses.

A court (whether the National Court or District Court or Local Court, etc) cannot instruct the prosecution to call witnesses. Judges and Magistrates in all cases must not take sides with any party. They are required to do justice but one cannot do justice by taking sides with a particular party in a case.

Of course preventing parties from cross-examining witnesses of the opposing side is illegal. In a criminal case the Constitution in fact guarantees the right to question prosecution witnesses. Section 37(4) of the Constitution provides as follows:

"(4) 	A person charged with an offence:
	...

(f) 	shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, ..."

Now this right is a fundamental right and cannot be modified in any way. By stopping the three appellants from cross-examining the prosecution witnesses the magistrate deprived them of their fundamental rights.

APPEAL ALLOWED AND CONVICTIONS QUASHED.

NO OTHER ORDERS.

Lawyer for the Appellants: J. Gawi
Counsel: J. Gawi
Lawyer for the Respondent: L. Gavara-Nanu, Public Prosecutor
Counsel: G. Salika