N2304

PAPUA NEW GUINEA

[In the National Court of Justice]

CR No. 1132 of 2000

BETWEEN:

THE STATE

AND:

JAMES TEI WENA

AND:

CR. No. 1133 of 2000

BETWEEN:

THE STATE

AND:

GEND YANISA THOMAS

Kundiawa: Kirriwom, J.
2000 : 13, 19 & 21 September

CRIMINAL LAW – Particular Offences – Escape - Escape from lawful custody – Escape by prisoner - Exercise of Police discretionary powers when charging suspects for escaping from lawful custody – Criminal Code s.139 and Summary Offences Act s.22. 

Words and Phrases – "Prisoner" – Escape from lawful custody [by prisoner] – Escape from lawful custody by an accused awaiting trial – Prisoner as convicted criminal or offender as opposed to an accused held on remand awaiting trial 

Practice and Procedure – Plea of guilty – Rejection of plea by the trial judge after reading the depositions – Plea of not guilty entered – Prosecution offered no additional evidence other than the depositions already tendered in court – Acquittal ordered - Proper exercise of judicial discretion – Interest of justice – PNG Constitution, s.155 (4).

The potential for abuse of police powers when choosing between summary process and proceeding by way of indictment discussed.

The inequity of the wider and literal meaning or definition of the term ‘prisoner’ as decided in The State v Alan Bekau [1982] PNGLR 119 was discussed.

Appropriateness of summary process under Summary Offences Act Ch. 264 and by indictment under the Criminal Code Ch. 262 alluded to.

Both accused were charged with escaping under section 139 of the Criminal Code whilst awaiting trial at Barawagi jail outside Kundiawa. They were not convicted of any offence and were not serving any sentences to be categorized as prisoners. Both pleaded guilty to the charges which the Court rejected and entered pleas of not guilty in their behalf.

Issues:

(a)	Whether the term ‘prisoner’ as used in section 139 of the Criminal Code included accused person on remand awaiting trial in custody following committal?

Held, dismissing both cases, that the term ‘prisoner’ under section 139 of the Criminal Code does not include an accused person on remand or in custody awaiting trial who is not serving sentence on a current warrant. Appropriate charge is section 22 of the Summary Offences Act Ch.264. 

Cases cited:
The State v Alan Bekau [1982] PNGLR 119 not followed.
The State v Aruve Waiba – SCR 1 of 1994 Unreported Supreme Court Judgment (4 April 1996)
The State –v- Joe Ivoro and Gemora Yavura [1980] PNGLR 1

Counsel:
F. Kuvi for the State
M. Apiee for the Prisoners

21st September, 2000

REASONS FOR DECISION

KIRRIWOM, J. These two accused persons pleaded guilty to escaping from the lawful custody of the commander of the Barawagi Jail outside Kundiawa.

The brief facts of the case are that whilst awaiting trial on charges of robbery at Barawagi Prison James Tei Wena escaped from the lawful custody of the Commander of the Gaol on 16th June 1999, followed by co-accused Gend Thomas Yanisa who did likewise on 5th November, 1999. Both were remandees awaiting trial. They were apprehended on 17th July 1998 for robbery committed upon a policewoman on 16th July 1998 at Kerowagi station. However the Information sheet shows that both accused were charged for that offence on 29th July 1998 and if one were to accept the suggestion that the two accused surrendered themselves and substantial compensation has been paid to the policewoman concerned, it would probably be correct that they were handed over to the police by the relatives on or about 29th July 1998.

Both are charged under section 139 of the Criminal Code, which carries a mandatory minimum penalty of five years imprisonment. The section reads:

139.	Escape by prisoner

(1)	A person who, being a prisoner in lawful custody, escapes from that custody is guilty of a crime.

Penalty:	A term of imprisonment of not less than five years.

(2)	An offender under Subsection (1) may be tried, convicted, and punished, notwithstanding that at the time of his apprehension or trial the term of his original sentence (if any) has expired.

By comparison the same offence created under section 22 of the Summary Offences Act reads as follows:

22. Escaping from lawful custody

(1)	A person who, being in the lawful custody of a person under any law, escapes or attempts to escape from custody is guilty of an offence.

Penalty:	A fine not exceeding K200.00 or imprisonment for a term	 not exceeding six months.

(2)	A person who escapes from lawful custody is deemed to be continuing to commit an offence under Subsection (1) until he is arrested for that offence, any other offence, or under any other law.

Both charges are worded identically and read something like this:

"……….stands charged that he on the …… day of …. 1999 at Barawagi Correctional Institution Services (CIS) Kundiawa in Papua New Guinea being a remandee in lawful custody, escaped from such custody…"

The charge relates to escaping by a remandee in lawful custody, not a prisoner as is clearly stated in the section. This means that the charge was technically bad as there was no such offence under the Code or under any other statute. Without first appreciating the real nature of the charge as it stood, I suggested to the prosecutor that the charge be amended by substituting the word "remandee" with the word "prisoner" which is the term used in s.139 of the Code. With respect to the accused, Gend Thomas Yanisa, this was accordingly done. However, the same amendment was not made to the charge against James Tei Wena. As it stood, the charge against him was naturally defective for the same reason. 

Mr. Apiee for both accused at the outset invited me to treat the two accused as unconvicted persons awaiting trial and as such not subject to the jurisdiction of this court under section 139 of the Code. He submitted that section 139 quite specifically refers to ‘prisoners’ who escape from lawful custody while serving sentences following their convictions.

I decided to write a single combined judgment because when they escaped, albeit at different times, both accused were on remand together for the same robbery offence, which I also heard and disposed off in this sitting of the National Court in Kundiawa.

Initially I did not grasp the full import or significance of Mr. Apiee’s submission but as I began writing this judgment I could see the basis from which it was being made. I subsequently accepted the argument because if I proceed on the premise that the Parliament does not make mistake, then it is a foregone conclusion that it was the intention of the legislature that section 139 ought only apply to convicted prisoners serving sentences and not suspects detained under warrant of remand or commitment awaiting trial following committal. This reasoning would accord with the purpose for the mandatory minimum penalty of five years coming into being. This harsh penalty was introduced at the time when incidences of escapees from prisons committing violent crimes upon persons whilst on the run, many of whom were hardcore criminals who had no respect for the law at all, were at their highest peak.

The facts in respect of their escape charges are uncontested and the only issue arising in each case is with respect to the term "prisoner" in the context of section 139 as opposed to "remandee" or a person on remand only awaiting trial. Remandee is a term ordinarily applied to a person held in remand awaiting trial. Mr. Apiee submitted that I must differentiate between a remandee and a convicted prisoner because they both are not the same; one is a convicted felon where as the other is not, he is only a suspect until a court of competent jurisdiction finds him otherwise. Mr. Kuvi however submitted to the contrary that the term "prisoner" included a remandee as a person in lawful custody. It was submitted that this issue was previously determined by this Court but was not able to cite me the case in point. The case he was referring to, I subsequently read, is The State v Alan Bekau [1982] PNGLR 119 where McDermott, AJ (as he then was) was asked to rule on whether the term "prisoner" in the context of section 141 of the Criminal Code included those detained awaiting trial or sentence following committal. Section 141 created an offence for anyone to harbour, maintain or employee a person whom he knows to be a prisoner in lawful custody having escaped and being at large on the run from the responsible authorities. The accused was charged for harbouring a defendant who escaped from custody whilst awaiting his trial. 

A prisoner is defined in Oxford Dictionary to mean "a captive, hostage, detainee, criminal, inmate, jailbird and a convict". Black’s Law Dictionary 6th Edition defines prisoner as ‘one who is deprived of his liberty or one who is kept against his will in confinement or custody in a prison, penitentiary, jail, or other correctional institution, as a result of conviction of a crime or awaiting trial’. The dictionary definition supports the wider meaning given to the word ‘prisoner’.

Whilst it would seem that the Supreme Court already answered one of the inequities of the effect of section 139 of the Criminal Code in its literal interpretation and application in The State –v- Aruve Waiba, it seems obvious that the state of uncertainty in the law still remains. In my view, there is a distinction, however restrictive or narrow it maybe. But this narrower view was either over-looked or ignored, hence, lack of appreciation of that distinction. To accept the law as it stands in The State v Alan Bekau (supra) will result in gross injustice to the citizens caught under this section bearing in mind the mandatory minimum penalty. McDermott, AJ was asked to give a ruling on the definition of the term ‘prisoner’ as used in section 141 of the Criminal Code. The wide definition given to the term prisoner in the context of section 141 was appropriate in that case because the law would have been meaningless and left open to abuse by those who had no regard for the rule of law. It was necessary for the definition to include anyone held in lawful custody because those who knowingly harboured those persons whom they know to be on the run from the law must be made to account for their actions. But the considerations before me are not the same as those that were before McDermott AJ. What must be of concern here is the potential abuse of discretion by police when there is no clear demarcation between section 139 of the Code and section 22 of the Summary Offences Act. The police have an open hand to choose which of the two laws to apply when charging suspects on escapes and the courts are powerless to do anything about it. In my view this is a most unsatisfactory vacuum to be placed in when the National Court must be dispensing justice fairly and correctly. 

McDermott, AJ adopted and applied the more wider and liberal interpretation to the term as it suited the circumstances of the case before him. I am not bound to follow that approach if that is not in the best interest of the individual in whose favour an ambiguity in the law must be resolved. In coming to the conclusion as he did McDermott, AJ was guided by these general principles of interpretation at pp120-121.:

"(1)	That a literal construction be given to the words used.

(2)	That if there is a choice of interpretation, a narrower view which could mean failure to achieve the manifest purpose of the legislation should be avoided in favour of a broader view based on the notion that legislation should bring about an effective result.

(3)	That words should be taken to be used in their ordinary sense and instruction can be taken from dictionaries - with care.

(4)	That the words are to be read in their context.

(5)	That the statutes imposing criminal or other penalties should be construed narrowly in favour of the person proceeded against-i.e. if there is ambiguity or doubt the provisions are to be resolved in favour of the person who would otherwise bear the penalty."

Applying the same general principles in this case, there is no doubt that the narrower interpretation is the only fair and more accurate and precise intention of the legislature in the construction of the term prisoner for purposes of section 139 of the Criminal Code. Given that this offence prescribes a minimum penalty, the law should be applied strictly to those it is intended. 

Consequently, the appropriate charges for these two accused would have been under section 22 of the Summary Offences Act. But considering the length of time both accused have already spent in custody awaiting their trial both before and since their recapture, no useful purpose can be served and justice will go begging to remit the case back to the District Court for retrial under the Summary Offences Act. 

James Tei Wena had spent a total of one year and three months and Gend Thomas Yanisa had spent a total of one year three months in custody, periods far in excess of what could lawfully be imposed upon them by the District Court exercising summary jurisdiction. 

I have decided to adopt this course notwithstanding that I had already accepted their pleas of guilty and convicted them accordingly. There are case authorities that say that conviction is not complete until the sentence is passed and where the trial judge can enter a plea of not guilty - see for example The State –v- Joe Ivoro and Gemora Yavura where the court held, inter alia, as per the head note: 

"(1)	The court has power to change a plea of guilty after the plea is confirmed and the allocatus administered but before sentence is passed. R. v. Phillips and Lawrence [1967] Qd.R. 238 at p. 288 adopted and applied.

(2)	A plea of guilty may be changed where circumstances indicate that:

(a)	the accused had not really pleaded guilty;
(b)	there was a mistake on the part of the accused;
(c)	there is a clear defence to the charge."

Until the sentence is passed, it is within the powers of the court to recall its verdict and either quash or amend it as justice of the case requires it. In this case there is definitely clear defence to the charge and the Court has a duty to draw this to the attention of the accused. This power is further strengthened by section 155(4) of the Constitution, which gives this court inherent power to make such orders as are necessary to do justice in the circumstances of a particular case. Justice must, as the saying goes, not only be done, but must be seen to be done.

I therefore, set aside the conviction I recorded against both accused and enter pleas of not guilty. And in view of the fact that the State is not offering any new evidence contrary to what I have found on the materials before me, both charges are, legally unsustainable and must therefore be dismissed. The accused be discharged forthwith if they are not bound under any other warrants.
_______________________________________________________________________
Lawyer for the State: 				Public Prosecutor
Lawyer for the Defence: 			Public Solicitor