N766

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

KIAP BONGA

Waigani
Barnett J
20-22 September 1989
25-26 September 1989

STATUTES - Repeal - Implied repeal - By inconsistent statutes - Later Act covering field - Later Act inconsistent with former Act - Arrest Act (Ch No 339), ss 1, 3 - Criminal Code (Ch No 262), s 87(2).

CRIMINAL LAW - Practice and procedure - Arrest - Arrest without warrant - Official corruption - Bribing police officer - Criminal Code requiring warrant for arrest - Later provision in Arrest Act providing for arrest without warrant - Implied repeal of earlier enactment - Arrest Act (Ch No 339), ss 1, 3 - Criminal Code (Ch No 262), s 87(2).

CRIMINAL LAW - Particular offences - Official corruption - Bribing police officer - Warrant for arrest not required - Arrest Act (Ch No 339), ss 1, 3 - Criminal Code (Ch No 262), s 87(1)(2).

CRIMINAL LAW - Sentence - Particular offences - Official corruption - Bribing police officer - K5 offered to drop traffic offence charges - Corruption on increase - Deterrent sentence required - Four months imprisonment - Criminal Code (Ch No 262), s 87(1).

Section 87(2) of the Criminal Code (Ch No 262), which became law in 1974, provides that a person charged with official corruption "shall not be arrested without warrant".

Section 1 of the Arrest Act (Ch No 339), which became law in 1977, provides:

"Notwithstanding the provisions of any other law but subject to Section 24, this Act applies to and in relation to an arrest for any offence whether made by or under this Act or by or under any other law."

Section 3 provides that a policeman may arrest any person he believes on reasonable grounds to have committed an offence for which imprisonment is a penalty.

Held

(1) The rule of statutory interpretation that where the later of two statutes makes provision that is inconsistent with earlier legislation the later is to be taken as having impliedly repealed the former was to be applied. Because the Arrest Act was intended to cover all aspects of arrest it had by implication repealed s 87(2) of the Criminal Code.

(2) Accordingly, a warrant was not required for the arrest of a person reasonably suspected of having offered a bribe of K5 to a policeman to influence him not to lay a traffic charge.

(3) In the circumstances, and taking into account the increase in corruption in Papua New Guinea society, it was appropriate that the accused be sentenced to four months imprisonment as a clear warning to others not to offer bribes to the police.

Trial

This was the trial of an accused on charges of official corruption, contrary to s 87(1) of the Criminal Code (Ch No 262), in which the defence challenged the statement of the accused whilst in custody on the ground that the arrest was unlawful as having been made without a warrant as required by s 87(2) of the Criminal Code.

Counsel

P Mogish, for the State.
M Gene, for the accused.
Cur adv vult

22 September 1989

RULING ON ADMISSIBILITY OF THE RECORD OF INTERVIEW

BARNETT J: The accused was indicted under s 87(1) of the Criminal Code (Ch No 262) for official corruption (bribing a police officer). He was arrested without warrant and his constitutional rights under s 42 of the Constitution were explained to him. He was then cautioned in accordance with the Judges Rules and made a statement which was tendered in the form of a record of interview.

The defence objects to the admission of the record of interview on the sole ground that the arrest of the defendant was unlawful and therefore any statement taken during the course of an unlawful detention is automatically inadmissible.

The ground for saying the arrest was unlawful is that s 87(2) of the Criminal Code provides that a person charged with official corruption under s 87(1) "shall not be arrested without warrant".

It is conceded that the arrest in this case was without warrant.

Mrs Mogish for the State argues, however, that s 87(2) has been repealed by the Arrest Act (Ch No 339) which was a later enactment. The Arrest Act came into force on 3 November 1977 (whereas the Criminal Code Act came into force in 1974 and was adopted under the Constitution at Independence on 16 September 1975). Section 1 of the Arrest Act provides that:

"Notwithstanding the provisions of any other law but subject to Section 24 this Act applies to and in relation to an arrest for any offence whether made by or under this Act or by or under any other law."

Section 3 then provides that:

"A policeman may, without warrant, arrest a person whom he believes on reasonable grounds ... (c) has committed an offence for which a penalty is imprisonment."

Mr Gene argues that Act No 27 of 1977 repealed certain arrest provisions in the Criminal Code and yet left s 87(2) (and many other arrest sections) untouched. This, he claims, is by implication, an expression of the legislature’s intention to retain the warrant requirement in s 87(2).

I feel bound by the clear expression of s 2 of the Arrest Act that it was intended to apply to arrests under all other laws. Being the later enactment, it is a basic rule of statutory interpretation that it will repeal previous inconsistent provisions. I find that it is intended to cover all aspects of arrest under the Criminal Code and that, by implication, when it was enacted in 1977 it repealed s 87(2) of the Criminal Code. If Act No 27 of 1977 was intended to preserve s 87(2) from this clearly expressed repealing provision, it would have done so expressly.

Consequently, the arrest of the accused was not unlawful as a warrant was not required under s 3 of the Arrest Act which I hold to be applicable to this arrest.

The defence has not challenged any other aspect of the way the interview was conducted as it was conducted after a careful caution was given and after due notification to the accused of his rights under s 42 of the Constitution.

Even if my interpretation of the effect of the enactment of the Arrest Act is incorrect, I believe the matter of admissibility would remain a matter for my discretion. Even if a warrant should have been obtained, this was not a case of violation of the accused’s constitutional rights as the arresting officer had reasonable suspicion that the accused had committed an offence which is one of the deprivations of liberty allowed by s 42(1)(d) of the Constitution.

There being no constitutional aspect, the admissibility question would be decided in accordance with ordinary statute and the principles of common law applicable in Papua New Guinea.

The principle applicable in Papua New Guinea is that if a statement is obtained from a person who has been unlawfully arrested, it is in the discretion of the court whether or not to admit it.

In exercising my discretion, I would examine all the circumstances of the unlawful arrest and the circumstances in which the statement was obtained. If there was serious and deliberate malpractice by the police at the time of the arrest or unfairness or serious breaches of constitutional rights in the taking of the statement, the discretion would be exercised in favour of the accused and the statement would be ruled inadmissible.

In this case, the police were not deliberately bypassing the magistrate in order to arrest, without warrant, a person without reasonable grounds. The arresting officer reasonably believed that he had offered a bribe. Failure to obtain a warrant was either through ignorance of the law or through misinterpretation of it. The accused was not put to any unfair disadvantage and any defect in the arrest was cured by the careful administration of the caution and explanation of his constitutional rights under s 42 of the Constitution.

This would be a case where I would exercise my discretion in favour of the prosecution and would admit the record of interview.

As I have said, however, it is not really a case where I am called upon to exercise this discretion as I have already ruled that it is not necessary for the police to obtain a warrant before arresting a person for an offence under s 87(1) of the Criminal Code.

(The Court then heard all the evidence at the trial.)

Verdict: The accused was found guilty of official corruption under s 87(1) of the Criminal Code.

26 SEPTEMBER 1989

SENTENCE

The accused Kiap Bonga has been convicted under s 87(1) of the Criminal Code of official corruption which carries a maximum sentence of seven years in hard labour.

This is what happened. The accused was a PMV driver who stopped his bus on an unauthorised bus stop near the Papua Hotel contrary to the Motor Traffic Regulations (Ch No 243). Constable Beno Buringu questioned him at the Port Moresby Police Station, arrested and charged him. While waiting for a police vehicle to take him to the Boroko police cells, the accused gave the constable K5, to induce him to forget the matter and let him go free.

Constable Buringu immediately called another constable to come into the room to witness what had happened and then charged the accused with bribery under s 87(1).

The offence of official corruption is a serious one. In this case a bribe was given to a policeman so he would omit to perform his duty to charge the accused with a motor traffic offence. The motor traffic offence is not very serious and the amount of the bribe was not very great (K5), but the principle involved is very important. To administer the law we must rely on our policemen to be honest and anyone who attempts to corrupt, or convert an honest policeman into a dishonest policeman is guilty of a serious offence.

Corruption is a growing problem in Papua New Guinea and it involves policemen, public servants, politicians and other public office-holders. It is like a deadly social disease which is spreading rapidly. It is difficult to prove as it relies on the honesty of the person who is offered the bribe and there are rarely independent witnesses to the event.

The accused’s counsel says he is a man of previously good character and has been a prominent member of his local church. He has a large family. He has no formal education. I accept those submissions.

Nevertheless, what he did was to attack the system of law enforcement itself and for that it is appropriate that he serve a prison sentence as a clear warning to others not to offer bribes to the police.

I sentence the accused to four (4) months imprisonment in hard labour.

I am aware that many persons who have been accused of giving or receiving very large bribes are apparently managing to avoid prosecution or conviction. When a case has been successfully proved, however, this Court has a duty to treat the matter seriously.

I commend Constable Beno Buringu for his honesty and dedication to duty. He is a new recruit to the police force and appears to be a credit to it. In times when the police are coming in for a lot of criticism, it is good to be able to praise a constable for honest and effective police work.

Verdict of guilty Sentenced to 4 months IHL

_______________________

Lawyer for the State: Public Prosecutor.
Lawyer for the Accused: Public Solicitor.