N3972

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 593 OF 2008

THE STATE

V

KOIVI IPAI

Waigani: Kawi, J
2010: 2nd, 3rd, 4th & 19th March

CRIMINAL LAW – Wilfully permitting prisoner to escape from lawful custody – Criminal Code s.140 – No Case Submission – Principles governing no case submission – Circumstantial evidence – Principles – Accused wilfully permitting prisoner to escape – To be inferred from the circumstance – Most logical and rational inference to be drawn – Wilfully Permitting escape - Mental intent to be established by the proven facts. – Includes deliberately and intentionally – Two competing inferences to be drawn from proven facts- Inference most logical and rational – Hypothesis of escaping through treacherous means, otherwise known as snake bail – A mere conjecture with no evidentiary basis - Not supported by proven facts - Hypothesis of wilfully permitting prisoner to escape from lawful custody consistent with proven facts - Accused has a case to answer.

Cases cited:

Paul Kundi Rape [1976] PNGLR 96
The State v. Roka Pep (No.2) [1983] PNGLR 287
State v. Tom Morris [1980] PNGLR 493
Paulus Pawa v. The State [1981] PNGLR 498
The State v. Jupui Kapera [1986] N567 
The State v. Iamge Waea [1990] N915 
The State v. Iamge Waea N915
R Flabu Pukari v. Hambakon-Sma [1965-1966] PNGLR 348
The State v. Devlin David [2006] SC881
The State v. Dr Moses Manwau Unnumbered Judgment of Cannings, J dated 4th December 2009.

References cited:

3rd Edition of the Macquarie Dictionary
Elliot and Phipson Manual of Law of Evidence 12th Edition, D.W. Elliott and Phipson 1987 Sweet and Maxwell

Counsel:
Mr. T. Ai & Mr. A. Bray, for the State 
Mr. D. Dusal & Mr. S. Sam, for the Accused

DECISION

19th March, 2010

1. KAWI, J: The accused Senior Constable Koivi Ipai pleaded not guilty on arraignment to one count of wilfully permitting a prisoner in lawful custody to escape from custody contrary to section 140 of the Criminal Code.

2. At the close of the State’s case, the accused through his counsel opted to make a no case submission. The no case to answer submission is mounted on both limbs of the test in State v Paul Kundi Rape [1976] PNGLR 96 case. Hence this Ruling on the no case submission. 

3. The accused is charged with one count of wilfully permitting a prisoner to escape from lawful custody which is contrary to section 140 of the Criminal Code. 

4. Section 140 is as follows: -

140. PERMITTING ESCAPE.

A person who, being an officer of a prison or police officer, and being charged with the custody of a prisoner in lawful custody, wilfully permits him to escape from custody is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

5. The State alleges that the accused whilst on duty on the 28th December 2007 from 3:00 pm to 11:00 pm as a cell guard at the Boroko Police Station wilfully permitted a prisoner to escape from lawful custody. The issue is simply whether the accused wilfully permitted the prisoner to escape from lawful custody.

STATE’S EVIDENCE

6. The State’s evidence is made up of four (4) policemen all senior non-commissioned officers, being called to give sworn evidence. The four policemen are –

•	First Constable Robert Ewail

•	Chief Sergeant Alois Yakapu

•	Senior Sergeant James Wafiambu; and 

•	Sergeant Mark Waruf

7. Other evidence included are the Record of Interview dated 12th February 2008 (Pidgin version) which was tendered through Chief Sergeant Alois Yakapu by consent and marked as Exhibit 1 and the Statement of Sergeant Mark Waruf dated 14th July 2008. Again this statement was tendered in by consent and marked as Exhibit 2. I assess the State’s evidence as follows: -

First Constable Robert Ewail

First Constable Robert Ewail gave evidence of conducting a Record of Interview with a suspect for Break and Enter and Stealing, one Benson Pukari commencing at 3:20pm and concluding at 4:45pm on the 28th of December 2008. After that both First Constable Ewail and his corroborator, Constable Nau Lailai escorted the suspect Benson Pukari back to the cells and had him locked up. The cell guard on duty that day was the accused Senior Constable Koivi Ipai who opened the cell door and had the accused locked up in cell Block #1, which Senior Constable Ipai Koivi was requested to do by First Constable Ewail and his corroborator Constable Nau Lailai. Constable Ewail did not know the whereabouts of the suspect Benson Pukari until the 3rd of January 2008 when he was alerted by Senior Sergeant James Wafiambu, who enquired with him as to where the suspect Benson Pukari was. According to Senior Sergeant Wafiambu, the suspect Benson Pukari was not returned to the cell block after the Record of Interview was conducted and concluded by First Constable Ewail and Constable Lailai on the 28th December, 2007. This news prompted First Constable Ewail to confront the accused who upon such confrontation confirmed and admitted that the suspect Benson Pukari was indeed locked up in cell on the 28th December 2007. The accused Senior Constable Koivi Ipai was on duty on the 28th December 2007 from the 3:00 pm to the 11:00 pm shift.

Chief Sergeant Alois Yakapu

He was the arresting officer who conducted a Record of Interview with the accused Senior Constable Ipai Koivi. During cross-examination he maintained that the suspect Mr. Benson Pukari escaped between 3pm and 11pm on 28th December 2007. He stated that this conclusion was based on reports he received in his investigations from Sergeant Mark Waruf and Senior Constable Dominic Gim who were the cell guards on the 11:00pm shift on the 28th December 2007 to 7:00am on the 29th December, 2007

Senior Sergeant James Wafiambu

He is the officer in charge of Committal Court proceedings. He confirmed conducting a roll call on the 3rd January 2008 to confirm suspects who were held in custody and whose cases were being mentioned as fresh committals in the Committal Court that morning only to find that the suspect, Benson Pukari was missing from custody. He (Senior Sergeant James Wafiambu) enquired with Senior Constable Ipai Koivi who initially told him that the suspect Benson Pukari was never returned to the cell for lock up by First Constable Ewail and Constable Nau Lailai on the 28th December 2007 after completing the Record of Interview. This led Senior Sergeant Wafiambu enquiring with Constable Ewail who in turn confronted Senior Constable Koivi (the accused). It was only upon such confrontation that the accused Senior Constable Ipai Koivi changed his story again, to confirm that the suspect Benson Pukari was indeed returned to cells on the 28th December 2007 by First Constable Ewail and Constable Lailai.

Sergeant Mark Waruf

He gave evidence that he was the cell guard supervisor on the 11:00pm (28th December 2007) to 7:00am shift on the 29th December 2007 along with his NCO Supervisor, Senior Constable Gim.

The outgoing shift which he was relieving commenced at 3:00pm that afternoon and ended at 11:00pm that night. He stated that Senior Constable Ipai Koivi was the lone cell guard on that shift which himself and Senior Constable Gim were relieving that night. He gave evidence of not being briefed by Senior Constable Ipai Koivi during the handover. However he says that there are two ways of obtaining briefings from outgoing cell guard. The first is by an oral briefing from the outgoing guard and the second is by checking out the Occurrence Book Entries in the cell Occurrence Book (OB) Charge Book. He gave evidence that he was not briefed on the suspect Benson Pukari escaping, but stated that Senior Constable Gim did conduct a head count of all the suspects in the cells by calling out their names three times, immediately after commencing their shift at 11:00 pm on the 28th December 2007. The suspect Benson Pukari was not present in his cells when his name was called out in his cell block that night. It was Senior Constable Gim who told him (Sergeant Mark Waruf) later that night of the suspect Benson Pukari escaping. An Occurrence Book (OB) entry was then immediately made after discovering the escape. 

On the basis of the State’s evidence as it stands, I find that the existence of the mental intent of "willful" can be inferred, thus satisfying the first leg of the Paul Kundi Rape test.

Credibility of State witnesses

I assess the demeanour of all the four (4) Policemen who appeared as State witnesses as being quite satisfactory. I find all of them to be witnesses of truth. I do not think any of them gave any false evidence and neither of them were shifty or evasive witnesses. I am satisfied with their evidence.

PRINCIPLES OF LAW ON NO CASE SUBMISSIONS

8. On the basis of the State’s evidence, the Defence made a no case submission mounted on both legs of the test in Paul Kundi Rape’s case.

9. At this stage I must warn myself that the question is not whether the State has established its case beyond reasonable doubt, but rather on the evidence as it stands can the accused be lawfully convicted? The leading case on a no case to answer submission is the case of Paul Kundi Rape where it was stated that following the close of the State’s case two distinct and separate questions arise; 

•	The first is usually referred to as the first limb or first test in the Paul Kundi Rape’s case. The test is – 

"whether on the evidence as it stands, the accused could lawfully be convicted?" In other words, is there some evidence of each element of the offence which, if accepted, would either prove the element directly or enable its existence to be inferred?"

•	The second limb or test of the Paul Kundi Rape case is –"

"whether the evidence is so insufficient that the accused ought not to be called upon to answer it? In other words, although there is a case to answer, is there sufficient evidence on the basis of which the court ought to convict the accused?"

10. These principles of law were approved by the Supreme Court in the State v. Roka Pep (No.2) [1983] PNGLR 287.

11. In the Roka Pep case, then Chief Justice, Sir Buri Kidu, explained the second limb of the rule in Kundi Rape’s case in this way:

"It appears to me that a submission on this basis should be entertained only when the Judge has no weighing up to do. That it must be a very clear case, where the State evidence is so dubious, or so tainted, or so obviously lacking in weight or reliability, or has been so discredited in cross-examination that it is clear that no reasonable tribunal could safely convict on it."

12. At this stage, I am not asking whether the elements have been proven beyond reasonable doubt or not. That can only be determined at the end of the trial if the trial continues and will be determined on the whole of the evidence including that adduced by the accused. If the answer to the above question is no, then the conclusion to be reached, is that on the evidence adduced at the conclusion of the State’s case, the accused does not have a case that he can answer and so this entitles him to an acquittal.

13. On the other hand if the answer is yes then the trial proceeds. 

14. If I find that there is insufficient evidence, I have the discretion to either enter an acquittal or order the trial to proceed. If the answer to the second question is yes, then of course, I must order that the trial proceeds.

15. On the evidence as it is, can the accused be lawfully convicted? The State evidence must show that there is some evidence of the existence of each of the element of the offence which if accepted would establish the element directly or enable its existence to be inferred. 

ELEMENTS OF THE OFFENCE UNDER SECTION 140 CRIMINAL CODE

16. Under section 140 the following elements must be established by evidence at the close of the State’s case or allow its existence to be inferred.

a)	There must be a person;

b)	This person must be an officer of the Prison or the Police Force.

c)	This Prison or Police officer must be charged with the custody of a person in lawful custody.

d)	That such an officer willfully permitted the prisoner to escape.

Elements (a) and (b)

17. There can be no doubt the accused is a Police Officer. He holds the rank of Senior Constable and has been a member of the Royal Papua New Guinea Constabulary without a break since joining the Police Force in 1969. He has been in the Police force for over 40 years now.

Element (c)

18. The primary duty of the accused is that he is charged with the responsibility of guarding and looking after persons who have been suspected of having committed a crime or an offence and are locked up in Police custody. The accused is one of a number of policemen who guard the cells on rotational or shift duties. In this case there is no dispute by both the Prosecutors and Defence Counsels, that the accused was rostered for duties on the 28th December 2007 and covering the 3: 00pm to 11: 00 pm shift. The Boroko Police Station has a number of cell blocks which are normally used to hold suspects awaiting their trial or committals. After the Committal proceedings or trial is completed the suspects are then conveyed to the Bomana Correctional Institution. Under s.65(1)(2) and schedule 4 of the Corrective Institutions Act, 1995 the Boroko Police lockup is a duly established and gazetted police lock up. I therefore find that the Boroko Police Station cells are a lawful custody for holding persons suspected of committing an offence. 

Element (d)

19. The last element of this offence is that the Prison or Police officer willfully permitted the prisoner to escape from lawful custody.
Both the Prosecution and Defence counsels agree and I accept that a suspect for Break and Enter and Stealing, one Benson Pukari was locked up in custody at the Boroko Police station holding cells about 6:00 pm on the 28th December 2008. Both further agree and I so find that the accused Senior Constable Ipai Koivi was the lone cell guard on duty that day, ie 28th Decemeber 2007 manning the 3:00 pm to the 11:00pm shift. It is however hotly disputed by the Defence that the accused willfully permitted the suspect Benson Pukari to escape from lawful custody. It is further disputed that the suspect Benson Pukari escaped between 3:00 pm and 11:00 pm that night. The Defence argues that the element of wilfully permitting has not been directly established by the State’s evidence as it stands and so I have the discretion to acquit the accused. It is argued that the first rule in the Paul Kundi Rape case is not satisfied.

20. The 3rd Edition of the Macquarie Dictionary at page 2428 defines the term wilfully as a "wish or desire" or a "purpose or a determination." 

21. None of the counsels were able to cite me any case authorities dealing with the term "wilfully." The case which I cite below deals with damage to property and not willfully permitting a prisoner to escape. Nonetheless the case discusses the word "wilfully" in the context of a charge for wilful damage to property.

22. The word "willfully" as used in section 140 of the Criminal Code means "intentionally" or "deliberately" or "recklessly" or "maliciously". Pukari Flabu v. Hambakon-sma [1965-1966] PNGLR 348. In the above case Justice Frost made the following pertinent comments: 

"Wilfully" in the present context bears the meaning of deliberately and intentionally and not accidentally and the mental element is construed as an intention to do the act forbidden by statute. Indeed the problem with which the cases are generally concerned is whether the mental element thus imported the word "willfully" goes further than its application to the act forbidden and also indicates a knowledge of wrong doing. But I consider that s.480 should be read with s. 468 and s.469 so as to avoid any inconsistency, by attributing to the word "willfully" a wider meaning than "intentionally" and including "recklessness" ……. The word "willfully" in a statute has been held to embrace recklessness . Given this meaning which is both of "intentionally" and "recklessly" as stated by Maule J "willfully" has the overall established meaning of "malicious’.

23. The above case was concerned with the accused person in a moving vehicle throwing a bottle which smashed the windscreen of the vehicle driving behind. He was charged for wilfully damaging property. Hence the word willful was given a wider meaning to include the elements of "recklessness" and malicious". 

24. In this case I am dealing with willfully permitting a prisoner to escape. I must therefore satisfy myself as to the mental intent of the accused to determine whether his actions can be said to have been "deliberate or intentional". To determine exactly what was going on in the mind of an accused person at the relevant time is pretty difficult as these are matters peculiar within his own knowledge. This being so I must try my best and determine the state of his mind by his actions and by drawing inferences from the proven facts in this case with the relevant question being asked is, do the proven facts lead reasonably to one question – that the accused did all the things constituting the elements of the offense? 

25. There is no rule of law that says that the State can only prove its case by hard, credible facts, or direct evidence. It is open to the State in any criminal case to prove its case by circumstantial evidence. In this case I find that an eventual conviction or acquittal will depend much on circumstantial evidence.

26. The State’s evidence as it stands is merely circumstantial and does not point directly to the accused willfully or deliberately or intentionally permitting the said Benson Pukari to escape. I must therefore be satisfied on evidence available as to whether the mental intent of the accused was such that he intentionally or deliberately permitted the suspect Benson Pukari to escape from lawful custody. Rather than examine all elements in detail to establish the mental intent I am only required to ask the question; do the proven facts lead reasonably to only one conclusion that the accused did all the things constituting the elements of the offence? If yes the accused is guilty. If no the accused is entitled to an acquittal.

27. As there is no direct evidence on this point, I will look at the proven facts and determine whether on the proven facts, can the existence of this element of mental intent of intentionally or deliberately or willfully be inferred? This indicates looking at all the established facts and circumstantial evidence. 

28. In Manual of the Law on Evidence, 12th Edition, the learned authors D.W. Elliott and Phipson at page 11 make the following comments on circumstantial evidence: - 

"Circumstantial evidence of a fact to be proved, is the testimony of a witness who perceived, not the fact to be proved, but another fact from which the existence or non-existence of the fact can be deduced, or the production of a document or thing from which the fact to be proved can be deduced. The fact to be proved can be either a fact in issue or a fact relevant to the issue." 

PRINCIPLES ON CIRCUMSTANTIAL EVIDENCE

29. These principles on acceptance of circumstantial evidence have been stated in this jurisdiction in a number of case authorities both in the National and Supreme Courts.

30. In the State v. Tom Morris [1980] PNGLR 493 it was said that – 

"Where there are a number of competing inferences it is a question of fact for the court to decide which inferences should be drawn, which rejected, which are reasonable, which are mere conjecture, and which party, if any, they favor and at the end of the prosecution case there are inferences inconsistent with the guilt of the accused, there is a discretion to acquit."

31. These principles have been applied in cases such as Paulus Pawa v. The State [1981] PNGLR 498, The State v. Jupui Kapera [1986] N567 and The State v. Iamge Waea [1990] N915.

32. These local authorities say that failure by a trial judge who sits as a jury to warn himself of the dangers of convicting an accused on circumstantial evidence could be fatal and quite dangerous. 

33. In the Paulus Pawa case, the Supreme Court summarized the principles on circumstantial evidence as follows:

(a) The accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt; and

(b) to enable the Court to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt be a rational inference, but that it be the only rational inference that the circumstances would enable it to draw.

34. In Devlyn David –v- the State [2006] SC881 the Supreme Court re-stated the Paulus Pawa principles by saying that the question to be asked is; 

•	Do the proven facts lead reasonably to only one conclusion- that the accused did all the things constituting the elements of the offence? If yes the accused is guilty. If no the accused is entitled to an acquittal.

35. I must therefore remind myself that I am only required at this stage to decide if there is a case for the accused to answer and I am not sitting here to determine his guilt beyond reasonable doubt.

SO WHAT ARE THE PROVEN FACTS OF THIS CASE?

36. The proven facts which have been established by the State evidence are these. 

(a)	A suspect for break and enter and stealing one Benson Pukari was apprehended and locked up in the Boroko Police cells initially on the 27th December 2007.

(b)	He was picked up by his arresting officer First Constable Robert Ewail and his corroborator Constable Nau Lailai for a Record of Interview to be conducted on the 28th December at 3:00pm. The interview commenced at 3:20pm.

(c)	The suspect Benson Pukari was returned to the cell lockup by First Constable Robert Ewail and his corroborator Constable Nau Lailai after their record of interview ended at 4:45pm on the 28th December 2007.

(d)	The suspect Benson Pukari was handed over to the accused to be locked up which he did by locking him in cell block number 1 at 6:00pm on the 28th December, 2007.

(e)	First Constable Robert Ewail and his corroborator Constable Nau Lailai were the ones who returned the accused to the cell guard Senior Constable Ipai Koivi to be locked up.

(f)	The accused Senior Constable Ipai Koivi was the lone cell guard on duty that evening from the 3:00pm to the 11:00pm shift that night. The suspect Benson Pukari was locked up in cell block No. 1. This was witnessed by F/C Robert Ewail and Constable Nau Lailai.

(g)	The accused failed to brief or provide handover briefs and notes to the incoming shift of Sergeant Mark Waruf and Senior Constable Gim that night when they replaced the accused for the 11:00 pm to 7:00 am shift.

(h)	Sergeant Mark Waruf and Senior Constable Gim conducted a head count of suspects in custody after taking over at 11:00pm and found that Benson Pukari was missing from custody.

(i)	The head count was done by calling out the name of the suspect three times (3x) and then marking his presence or absence in the cell roll call book.

(j)	From the cell Charge Book they ascertained that there was no record of any suspects being granted bail that day by Police let alone bail to the suspect, Benson Pukari.

(k)	They made an entry in the cell Occurrence Book (OB) that the suspect Benson Pukari was missing on the 28th December 2007.

(l)	On the 3rd of January 2008, Senior Sergeant James Wafiambu conducted a roll call of all committal suspects and found that the suspect Benson Pukari was missing. 

(m)	He then inquired with the cell guard on duty that day, Senior Constable Koivi Ipai who told him that the suspect Benson Pukari was not returned to the cell lock up by First Constable Robert Ewail and Constable Nau Lailai after the record of interview was completed on the 28th December 2007.

(n)	When this information was brought to the attention of First Constable Robert Ewail and Constable Nau Lailai by Senior Sergeant James Wafiambu they in turn confronted Senior Constable Koivi Ipai. It was only upon such confrontation that Senior Constable Koivi Ipai confirmed and admitted that the suspect Benson Pukari was indeed returned by First Constable Robert Ewail and Constable Nau Lailai for lock up after completing their record of interview on the 28th December 2007.

(o)	As this was the Christmas period there were many other suspects brought in to the lock up as well.

(p)	The accused told two different versions of the events to Senior Sergeant James Wafiambu. First he said Benson Pukari was never returned to the cell block for lockup by First Constable Ewail and Constable Lailai after concluding the Record of Interview on the 28th December 2007. Then to First Constable Ewail upon confrontation he did confirm and admit that Benson Pukari was indeed locked upon the 28th December after the Record of Interview was concluded. He in fact lied to Senior Sergeant James Wafiambu. 

(q)	There could be no other opportunity for escaping through treacherous means in what is colloquially known as ‘snake Bail’

37. On the State’s evidence as it stands, I cannot say that it is so dubious or so tainted or so obviously lacking on reliability. Neither has it been so discredited in cross-examination that I cannot rely on it anymore. In fact I find that there is more than an iota of evidence and this prompts me to weigh up the State’s evidence on the inferences that I will be drawing up based on the State’s evidence. The second test in the Kundi Rape’s case is so far as it says that the State’s evidence is to dubious or tainted or cannot be relied upon, would in my view, not apply there. 

What inferences can be drawn?

The inferences to be drawn are these: -

(1)	So why did the accused lie to Senior Sergeant James Wafiambu? The inference to be drawn here is that the accused was intentionally trying to conceal something, which only he knows, and considering all the evidence put together he was concealing the escape of suspect Benson Pukari; 

(2)	In addition why did he not provide a brief, whether written or verbal to the incoming shift of Sergeant Mark Waruf and Senior Constable Gim? Again the inference I draw is that he purposely failed to provide a brief again to conceal the fact of the escape of the suspect Benson Pukari. On the basis of the proven facts it appears that there are two other competing hypothesis or inferences emerging; 

(3)	One is that contended for by the prosecution, that is the accused willfully, permitted Benson Pukari to escape and the other is the one the Defence contends; 

(4)	That is the suspect escaped through treacherous means or what is colloquially referred to as "snake bail." Snake bail is the idiomatic expression used to describe a situation where there are many suspects moving in between cell blocks while Police are giving bail to some other suspects, there is a window of opportunity created where no cell guard is monitoring the suspects. In this kind of situation cell guards often mistake a suspect for someone else, and the suspect or the prisoner walks out of custody unmonitored and undetected by cell guards. Sergeant Mark Waruf was cross-examined on this aspect. He was asked whether there existed a possibility of the suspect Benson Pukari escaping through treacherous means or "snake bail" and he stated that although he has heard of snake bail occurring, it had never happened to him whilst he was on duty. Furthermore, he stressed that while he was on duty, there was no police bail given, as recorded in the cell charge book and so there was no opportunity for suspects going away on "snake bail."

38. As to which of these two hypothesis I must draw as being more logical and rational is a question of fact which I have to weigh taking into account the proven facts. 

39. In the case of the State v. Dr. Moses Manwau, Unreported judgment of Cannings, J dated 4th December, 2009 the accused, a private medical practitioner in Wewak was indicted on one count of preventing an unborn child from being born alive contrary to section 312 of the Criminal Code. The accused is alleged to have induced a 14 year old girl in giving birth to a fresh still born baby girl by administering a drug called Misoprostol which in turn artificially ruptured the membrane leading to the stillborn birth. The evidence also established another hypothesis that the still born birth could have been also induced by another cause – the untreated syphilis infection of the mother.

40. Cannings, J relying on circumstantial evidence held that the accused must be acquitted unless the facts proved in the evidence are inconsistent with any reasonable hypothesis other then guilt and to enable the Court to be satisfied beyond reasonable doubt of the guilt of the accused, it is necessary not only that his guilt be a rational inference, but that it be the only rational inference that the circumstances would enable it to draw. Here the Court found that the proven facts did not only reasonably lead to one conclusion; there was another reasonable hypothesis available to explain the death of the child, namely the untreated syphilis. The accused was therefore not found guilty.

41. The Dr. Moses Manwau case makes it clear that where there are two logical and rational but competing inferences, both supported by proven facts, the accused is entitled to an acquittal. In that case the proven fact of the untreated syphilis, causing the death of the still born child, was found to be inconsistent with the guilt of the accused. Hence, the acquittal of the accused.

42. In the present case, whilst there appears to be two competing inferences, I find that the possibility of the accused escaping through treacherous means or otherwise through snake bail lacks sufficient facts and evidence to establish it as a logical or rational hypothesis. 

43. In find the hypothesis that the suspect Benson Pukari, escaped through the medium of snake bail, a mere conjecture. Unlike the situation in the Dr. Moses Manwau case, where the inference of the baby being still born was also due to the untreated syphilis of the mother, which was established also by medical evidence, here the opportunity of escaping through treacherous means or snake bail is not an inference that is well grounded in evidence. At its highest it is a mere conjecture, which lacks reliability and factual foundations. The proven facts in this case lead reasonably to one logical and rational conclusion. That is that the accused did all the things constituting the elements of the offence.

44. It is not unreasonable to draw the inference – as contended for by the prosecution; namely that the escape of the suspect Benson Pukari was willfully permitted by the accused, Senior Constable Ipai Koivi. He being the only cell guard on duty that night who could reasonably be suspected of having done that. I am fortified in arriving at this conclusion when I consider that Benson Pukari was locked up on cell block #1 which cell key was kept by the accused on that shift. The accused was the only cell guard on that shift that night. He told lies to Sergeant Wafiambu of the suspect not being returned to the cell block after the interview. And he failed to brief the oncoming shift of the escape. But is that the only reasonable hypothesis available to be drawn? I answer yes. I also find that there could have been no other opportunity created for the suspect Benson Pukari to escape, other than the accused wilfully creating that opportunity for the escape.

45. The hypothesis that the accused Senior Constable Ipai Koivi willfully permitted the suspect one Benson Pukari to escape from lawful custody is therefore the only logical and rational inference that could be drawn from the proven facts. The test in the Paulus Pawa case has been satisfied and applying the test in Devlyn David’s case the proven facts lead me reasonably to only one conclusion unlike the situation in the Dr. Moses Manwau case – here the accused Senior Constable Ipai Koivi, did wilfully permit the suspect Benson Pukari to escape from lawful custody on the 28th December 2007 between 6:00 pm and 11:00 pm when he was the lone cell guard manning the 3:00pm to 11: 00 pm shift on the 28th December 2007.

VERDICT

46. Senior Constable Ipai Koivi having been indicted on a charge of willfully permitting a person to escape from lawful custody contrary to section 140 of the Criminal Code – has a case to answer. I therefore order that the No Case to Answer Submission be dismissed and the trial proceeds.

______________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Prisoner