N3942
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 696 OF 2007

THE STATE

V

RUEBEN BAMATU

Madang: Cannings J
2007: 10, 11 October;
2008: 15 February

VERDICT

CRIMINAL LAW – escape from lawful custody, Criminal Code, Section 139 – trial – elements of offence – whether the accused intended to escape – proof required of conscious decision to abscond.

The accused was a prisoner sent on a work party outside a jail under the supervision of warders. He went missing before being located by the warders at a nearby village. On a charge of escaping from lawful custody his defence was that he was just taking the opportunity to visit his relatives, that he had sought permission from one of the warders and that he had no intention of escaping.

Held:

(1)	There are four elements of the offence under Section 139: (a) the accused was a prisoner; (b) in lawful custody; (c) the prisoner removed himself from actual custody; and (d) did so by a conscious decision, intending to remain at large (The State v Rimbon Tiapu (2007) N3182 applied).

(2)	The court may infer intention (the prisoner's state of mind) from the circumstances of the case and the overall conduct of the accused, including any attempt to hide himself from warders or members of the public; whether he responded immediately to commands issued by warders; whether there was a reasonable explanation for his removing himself from actual custody; whether he had the opportunity to permanently abscond.

(3)	The first three elements of the offence under Section 139 were proven by the State. There was a failure, however, to prove that the accused intended to escape: he had permission to leave the work party; he had a reasonable explanation for wanting to leave; his conduct was inconsistent with someone intending to escape; and he was a trusted prisoner who had ample opportunity to escape if he really wanted to. He was therefore acquitted.

Cases cited
Papua New Guinea cases

The State v Rimbon Tiapu (2007) N3182

Overseas Cases

R v Scott [1967] VR 276

Abbreviations

The following abbreviations appear in the judgment:
 
CR – Criminal case reference
J – Justice
N – National Court judgment
No – number
v – versus
VR – Victorian Reports 

TRIAL

This was the trial of an accused charged with escaping from lawful custody.

Counsel

M Ruarri, for the State
E Turi, for the accused

15 February, 2008 

1. CANNINGS J: The accused, Rueben Bamatu, is a 31-year-old man from Alopa village, Madang Province. He is serving a ten-year sentence in Beon Jail for arson. On 3 February 2007 he and 20 other prisoners were dispatched on a work party to the Bogia rural lock-up under the supervision of seven correctional officers (warders). After the group had been working for a few hours the warders did a head count and realised that the accused was missing. They went looking for him and with the help of some locals apprehended him in a nearby village.

2. He is charged with escaping from lawful custody under Section 139(1) of the Criminal Code, which states:

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.

3. He says that he was just taking the opportunity to visit his relatives, that he had sought permission from one of the warders and that he had no intention of escaping.

ELEMENTS OF THE OFFENCE

4. In a recent Madang case, the facts of which are remarkably similar to this one, Gavara-Nanu J concluded that for a prisoner to be convicted of escape, the State must prove that "there was a conscious decision by the prisoner to abscond and to free himself from actual custody he was in and that he had the requisite intention to remain at large"; and also "the act of escaping must concur and coincide with the intention to escape".

5. In that case, The State v Rimbon Tiapu (2007) N3182, a prisoner at Beon Jail was in a work party on the outskirts of the jail. He and others were cooking bananas when he decided to go and look for some fallen dry coconuts. He did not seek approval to do so and was missing for ten minutes before the supervising warder located him. The matter was reported to the Jail Commander and the prisoner was charged with escaping. Gavara-Nanu J found him not guilty, relying on an Australian case, R v Scott [1967] VR 276, in which a prisoner on a work party was hit on the head with a lump of timber by another prisoner, rendered senseless and walked for 20 kilometres in a state of automatism. He was acquitted of escape on the ground that he had no intention of escaping.

6. In Tiapu Gavara-Nanu J highlighted the fact that when the court determines whether a prisoner intended to escape, it has to apply a subjective test. The prisoner's state of mind is the important thing: did he make a conscious decision to remove himself from lawful custody? The court may infer intention from the circumstances of the case and the overall conduct of the accused, including any attempt to hide himself from warders or members of the public; whether he responded immediately to commands issued by warders; whether there was a reasonable explanation for his removing himself from actual custody; and whether he had the opportunity to permanently abscond.

7. In Tiapu Gavara-Nanu J considered that the conduct of the accused after he was found near the coconuts (returning willingly to the work party when ordered to do so), the reasonable explanation he gave for walking away from the work party and the opportunity to permanently abscond – which he did not avail himself of – all led to the inference that the prisoner had no intention of escaping. Hence he was acquitted.

8. The prosecutor in the present case, Mr Ruarri, pointed out that I am not bound to follow Tiapu as it is a National Court, not a Supreme Court, decision. I should not follow it, he submitted, as it is bad law. It makes it too easy for prisoners who are caught escaping to say that they did not really intend to escape, eg that they were just going for a walk or using some excuse like that.

9. I agree that I am not bound to follow Tiapu. And I can see that there is a danger, in following that case, of allowing prisoners to come up with all sorts of excuses if they are caught escaping. Gavara-Nanu J was not suggesting, however, that a prisoner only has to say that he had no intention of escaping, and he will be believed. It will always be a matter of proof. The State bears the onus of proof but if what the prisoner is saying makes no sense or if his story does not stack up against all the evidence, intention will be easy to prove. I have carefully considered Gavara-Nanu J's reasoning. It makes clear sense and accords with the constitutional duty of the courts, when interpreting the laws, to give paramount consideration to the dispensation of justice. This duty is acute when interpreting a law like Section 139 as it is one of the rare offences that attracts a minimum, not a maximum, penalty. If a prisoner, through whatever circumstances, finds himself outside actual custody of warders (whether he is hit over the head by another prisoner or there is a breakdown in communication) there might be an innocent explanation and he should be given the opportunity to give that explanation. That right is enforced by making it an element of the offence (something the State must prove) that he intended to escape. I am going to follow Tiapu.

10. To obtain a conviction under Section 139 the State must therefore prove:

•	the accused was a prisoner;
•	he was in lawful custody;
•	he removed himself from actual custody; and
•	he did so by a conscious decision, intending to remain at large.

THE KEY ISSUE: INTENTION

11. In the present case, the first three elements are non-contentious. It is the fourth element – intention – that is the key issue. What was Rueben Bamatu's state of mind when he went missing from the work party?

12. To work that out, I have to consider all the evidence. The State presented three witnesses, three of the warders who were supervising the work party. For the defence, the accused gave sworn evidence, as did one of the other prisoners who was in the work party with him.

EVIDENCE OF THE STATE WITNESSES

13. Warder Peter Sakap was one of the seven warders in charge of the work party. After travelling in a truck from Beon the work party arrived at Bogia at about 8.30 am. The rural lock-up has a fence surrounding it and the prisoners were working both outside and inside the fence. Officer Philip Gabu was in charge of the work party.

14. Warder Sakap said that at one stage Rueben approached him for permission to go and see his sister who is married to someone from that locality. But he did not give him permission to leave. He told him the place he wanted to go was too far away. He did not see any other warder give him permission.

15. Warder Sakap did a headcount at 11.30 am and that is when he realised Rueben Bamatu was missing. They got on to a vehicle and went looking for him. With the help of local villagers they found him at Laulau, about 1 kilometre from the rural lock-up. He was taken back into custody at about 12.00 midday.

16. In cross-examination Warder Sakap said that he knows Rueben well. He is a low risk, well behaved prisoner, who stays in the minimum security unit. He is allowed out on weekend leave and has no history of attempted escape.

17. Ms Turi put to Warder Sakap that he and some other warders were drinking yawa (home brew). He flatly denied that. He also denied telling Reuben it was OK for him to leave, as long as he finished his work and he was quick.

18. Warder Sakap, who is from that area, said that the house where they caught up with Rueben was not Rueben's sister's house. When they arrived at the house Rueben tried to run down to the beach.

19. Lance Corporal Lanceford Aire said that they did a headcount at 11.30 am and Rueben was not present. He is a very trusted prisoner and is allowed out on weekend leave. Asked whether any of his colleagues were drinking yawa, Lance Corporal Aire replied 'That I would not know'.

20. Corporal Kevin Bayamo was one of two off-duty officers who accompanied the work party. He was not present when the 11.30 am headcount was taken. He only stayed with the group from 8.00 to 11.00 am then went about 500 metres away from the lock-up. Ruben asked him if he could go and look for his sister and get some greens to cook with the chicken that the district administrator had given them. He told Rueben that he was not the duty officer so he should go and ask the duty officer. He did not know that Rueben Bamatu was missing and only found out about it in the afternoon. Rueben is a low risk prisoner and is sometimes left to work unsupervised. Corporal Bayamo said it was true that three of his colleagues were drinking alcohol while looking after the work party.

DEFENCE WITNESSES

21. The accused, Rueben Bamatu, said that he first asked Corporal Bayamo if he could leave the work party but he said that he was not on duty so he should ask the duty supervisor. He then asked Warder Sakap, who was at the edge of the work area, drinking yawa and beer with two other warders. Warder Sakap told him that when he finished cutting the grass, he could go quickly and come back. The warders were not too worried about him and the others as they were all trusted prisoners.

22. He walked along the road, still wearing his prison uniform and went to Laulau village, looking for his sister's house. He found his sister's husband, Richard, at his family's house. He had been there for less than 30 minutes and was getting ready to return to the work party when the warders arrived. He got on the vehicle and no one accused him of escaping. He apologised to officer Philip Gabu. He thought he was late and that was the reason they had come looking for him.

23. Francis Mui was a prisoner in the work party. He comes from the same area as the accused and they were co-offenders in the case that resulted in them being sent to jail for ten years. He gave the same evidence as the accused: Rueben had first asked Corporal Bayamo who said he should ask one of the duty officers; Ruben then asked Warder Sakap who gave him permission to leave.

DID THE ACCUSED INTEND TO REMAIN AT LARGE?

24. I consider that the State has fallen well short of proving this element of the offence. The key State witness, Warder Peter Sakap, was unimpressive. He denied giving the accused permission to leave the work party but the evidence of the other State witnesses did not corroborate that claim. I thought the accused was a more impressive witness. His demeanour was sound. I am inclined to believe that he did ask Warder Sakap for permission, and that he gave him the OK.

25. I conclude therefore that the accused was given permission to leave after he had finished cutting the grass; which is what he did. His conduct during the half hour or so he went missing is inconsistent with that of a prisoner wanting to escape. He went to his in-law's family's house and the warders had no trouble finding him. If he had really wanted to escape, he would have headed into the bush or gone somewhere else; to a place where it would be difficult to find him. There was no drama or struggle involved in bringing him back into custody. The evidence is that none of the warders even accused him of escaping when he was reacquainted with them. He had a reasonable explanation for wanting to leave the work party: to catch up with his sister and secure some greens to go with the chicken given to the group by the district administrator.

26. Besides that, he was a trusted prisoner who is allowed weekend leave and the privilege of working unsupervised. It does not make sense for a prisoner in his position to want to escape while he is on a work party.

27. For all those reasons I conclude that Rueben Bamatu had no intention of remaining at large or absconding.

VERDICT

28. The accused is not guilty of the offence of escaping from lawful custody. 

Verdict accordingly.
___________________________

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