N7151

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 77 OF 2016

  THE STATE

V

LAWRENCE RAKA

Kimbe: Miviri AJ
      2018   : 12th February

CRIMINAL LAW – PRACTICE AND PROCEDURE – aiding abetting Escape from lawful custody-police sergeant-honest mistake of fact S 25 CCA-self-serving-honesty question of fact-facts inconsistent-mistake of fact not made out-guilty of aiding escape.
Facts
Accused was police sergeant at Kimbe Police Station. He released two convicted prisoners sentenced in police custody.

Held
Prosecution case credible. 
Defence case self serving not worthy of belief.
No evidence to establish honest mistake of fact.
Prisoners in lawful custody
Both released in breach
Guilty of aiding escape

Cases: 
The State v. Gima [2003] PGSC 3: SC730 (3rd October 2003.
The State v Tiapu [2007] PGNC 274; N3182 (20 July 2007).

Counsel:

A. Bray, for the State	
D. Kari, for the Defendant
		
VERDICT
12th March, 2018 
1.	MIVIRI AJ: This is the verdict after trial of the defendant who let out two prisoners who were in lawful custody at the Kimbe Police Cells.

Short facts

2.	The Prisoners were John Kapre and Thomas Nathan who were awaiting remand warrants to be conveyed to Lakiemata Corrective Institution to serve the 12 months sentence imposed by the Kimbe District Court upon each of them for drug related offences. On 11th November 2015 He took the cell keys, opened it and let them out. He aided their escape from lawful custody.

Charge Aiding Escape from lawful custody S138 CCA
3.	The charge has been laid pursuant to Section 138 aiding prisoners to escape, the specific words of the section, “aids a prisoner in escaping or attempting to escape from lawful custody; or conveys anything or causes anything to be conveyed into a prison with intent to facilitate the escape of a prisoner, is guilty of a crime. Penalty: imprisonment for a term not exceeding seven years”. In the present I am concerned with an allegation upon the accused of aiding the escape of prisoners and not the latter. He who aids has knowledge or knows person assisted to be a prisoner and with that knowledge assists, aids or facilitates the escape from custody of that person is plainly the allegation against the accused here.

4.	This offence comes under division 5 of the Code headed, Offences Relating to the Administration of Justice.  In its administration a prisoner comes into being through the process of law. And Police administer as the enforcers of the law through the courts. Detention and denial of freedom is by law whether at the police Cells or at Corrective Institution. Confinement in police custody enroute to the Corrective Institution is part of police duties particularly from the evidence here of the police prosecutor Donatus Ombul whose evidence I set out under.

5.	The reading of section 138 therefore implies and invokes knowledge on the part of the accused assisting the prisoners. He must have had knowledge and defies by committing assistance to them both to escape. Because the term aid is analogous to helping or assisting or facilitating or providing means to ensure success in escaping in this case. The mere fact that both prisoners are locked up in the cells ought to have alerted the accused to make proper enquiries to establish lawfulness or otherwise of the locking up. And as a season veteran policeman of 30 years it was upon him to so exercise and determine before release. Could he be said to have acted reasonably but mistaken in the release of both prisoners?

Undisputed Facts

6.	The undisputed facts by both State and Defence is that both John Kapre and Thomas Nathan were prisoners in lawful custody both being convicted of drug related offences and were each sentenced to 12 months IHL to be served at Lakiemata Corrective Institution and were awaiting to be taken there.

7.	Further that Lawrence Raka a police Sergeant at Kimbe Police Station opened the cell doors on the 11th November 2015 with the keys and let out both prisoners who escaped as a result. And further he later went out and brought back both prisoners each into custody for both to serve and complete the terms imposed by the court.

8.	So the elements of the offence are proved that Firstly both were detainees or prisoner within that definition in Gima v. The Independent State of Papua New Guinea [2003] PGSC 3: SC730. And secondly their confinement or detention was in accordance with law as stated in State v Tiapu [2007] PGNC 274; N3182. Both were detained by process of law and did not come out on the 11th November 2015 by that process of law, in that they were discharged of the obligations in law there and then, and therefore released. Both came out in defiance of the law aided by Sergeant Lawrence Raka and remained at large in continued defiance until law finally caught up with them and detained them.

9.	The aid provided by Lawrence Raka is without production of a court order the key that he used to open the cell door is not sanctioned by Law. He asserts that he made an honest and reasonable mistake in accordance with Section 25 of the 
Code which materially reads, “(1) Subject to subsection (2), a person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist. (2) the operation of subsection (1) may be excluded by the express or implied provisions of the law relating to the subject”. The issue posed is therefore as follows:

Issue
10.	Did Lawrence Raka make an honest but a mistake of fact when he released both prisoners?

11.	What are the express or implied provisions of section 138 relating to aiding a prisoner to escape from lawful custody?

State evidence

12.	To answer firstly the State evidence comprised, Donatus Ombul a Constable Police prosecutor with Police prosecution Kimbe who prosecuted John Kapre and Thomas Nathan on the 9th February 2015 for possession of drugs marijuana before the Kimbe District Court successfully sustaining conviction and sentence of both to 12 months IHL. Both were conveyed to the cells and were awaiting the warrant to be conveyed to Lakiemata Corrective Institution. On the 11th November 2015 warrant was ready but both were not in custody to be conveyed up. There was no entry in the Occurrence Book and mobile squad 19 who had arrested the prisoners finding them not in custody raised the alarm of their escape and entered details in the Occurrence Book.

13.	Second state witness Morris Itoro was the executive officer of the Provincial Police Commander Kimbe Police. He arrested Sergeant Lawrence Raka and brought him to the Provincial Police Commander who charged him with the offence. And there was no authority from Provincial Police Commander to release both prisoners.

Defence evidence
14.	Defendant gave sworn evidence affirming his record of interview admissions Exhibit S1A and S1B that on the 11th November 2015 he was on duty that day at the Kimbe Police Station. He inspected the cells and found the two prisoners Jason Peter and Stanis which were their real names at the settlement. He went and checked the Occurrence book and could not find the real names there and so released them. In cross examination he confirmed that he was a police officer for 30 years and was in Kimbe since 2003. He was a Sergeant of police. He agreed that he did not consult the investigator, nor the police Station Commander or the Provincial Police Commander before he released them. He never investigated and agreed that it was a mistake when he released both. And realizing that he went back and looked for and picked up both and brought them back into custody. And both have since served their term in jail. Had they used their real names he would not have released them. 

Analysis of Evidence

15.	The identity of Jason Peter and Stanis are the accused’s own assertions. He has an interest to see out a favourable outcome in the proceedings. Therefore there ought to be independent material evidence to support what he contends. This is not to say that he has the onus of proof but proper weighing of evidence determines this to be fundamental as to whether evidence is upheld by court or not otherwise. There is no evidence to this effect led. Accused released both from the police cells where they were kept. He did so because he could not find any police records to confirm their continued custody. He is a police Sergeant of 30 years service in the Constabulary. And persons who were detained in the cells were for alleged breaches of the law. Also as here convicted persons on transit to the Jail. Given it was reasonable in view to check out identity of the persons in the cell. It was not enough to merely take the word of the prisoners as to their names and to cross check with Occurrence Book and to release them as did the accused here. It was upon him to check out and confirm as to who had arrested both prisoners and for what. Better still it was pertinent upon the accused to check out the Police Station Commander and the Provincial Police Commander as to why both prisoners were in custody.  No evidence is before me that there were two other persons named Jason Peter and Stanis also on top of John Kapre and Thomas Nathan also held in custody from the place where Lawrence Raka lived who were released by him.

16.	The only persons in the cell were John Kapre and Thomas Nathan and no other. And because it was official police records corroborated by the courts records reinforced by the Police Prosecutor Donatus Ombul a Constable Police there had no room for mistake or an honest mistake of fact as contended here. By itself honesty denotes truthfulness and reasonableness which is always a question of fact. Are the facts here consistent with being truthful on the part of the accused? 

17.	Given the evidence here particularly that Sergeant Lawrence Raka was a policeman for 30 years, I adjudge he did not make an honest mistake of fact in the release of the prisoners lawfully in custody John Kapre and Thomas Nathan. This is born out with his own personal attendance to bring back both into custody and for both to serve out the orders of the court. It was before him to detail out with the informant in the case the Station commander and the Provincial Police Commander on their status and when he did release both no evidence has been led before me about the entry in the occurrence book held at the Kimbe Police Station of that fact. 

18.	It means his assertion are his alone, viewed in total does not extend his case to create any doubts upon the case of the prosecution. And by operation of sub Section (2) of the Code implied under Section 138 is knowledge that the person assisting and aiding the escape must have prior knowledge that the subject assisted is a prisoner lawfully in custody. That being the case here by operation of Section 25 (2) Sergeant Lawrence Raka did not have an honest mistake of fact to exonerate him from the allegation pursuant to Section 138 of aiding escape of prisoners. 

19.	Consequently I find that the State has discharged the burden of proof and find the accused Lawrence Raka guilty of aiding an escape pursuant to Section 138 of the Criminal Code and convict him as charged. I return a guilty verdict on the Indictment presented.

20.	Verdict of guilty of aiding escape of prisoner.

Ordered  Accordingly

__________________________________________________________________Public Prosecutor:  Lawyer for the State	
Public Solicitor   : Lawyer for the Defendant