N7767

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 266 and CR 910 of 2017

THE STATE

V

JOSHUA YAWIJAH & DENNIS AVIUPA

Waigani: Berrigan, J
2019: 15, 18 and 20 February; 11 March

CRIMINAL LAW – s. 92 of the Criminal Code, abuse of office, nature of offence, “breach of public trust”, connection with public office, duplicity on the face of the charge – s. 355, “unlawful detention”, right under s. 42(2)(a) of the Constitution arises at time of arrest.     

Cases Cited:
Papua New Guinea Cases

McKenzie v The State (1998) SC 596
The State v Mai and Avi [1988-89] PNGLR 56

Overseas Cases

Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868
DPP v Merriman [1973] AC 584
R v Radley (1974) 58 Cr App R 394
Walsh v Tattersall (1996) 188 CLR 77 

References Cited

Sections 16, 92(1), 355 and 386 (1) (2) of the Criminal Code, Chapter 262 (the Criminal Code)
Section 42(1) and 42(2)(a) of the Constitution 

Counsel:

Mr D. Kuvi, for the State 
Mr E. Sasingian, for Dennis Aviupa
Mr A. Ninkama, for Joshua Yawijah 

DECISION ON VERDICT

11th March, 2019

1.	BERRIGAN J:  Both accused persons pleaded not guilty to the following charges contained in the indictment, namely that they Joshua Yawijah and Dennis Aviupa:

Count 1: “on the 29th day of December 2016 at 3 Mile, National Capital district in Papua New Guinea stole from one Billy Kauri with actual violence, a bag containing K420 in cash and 14 packets of cigarettes valued at K202, and a bag valued at K20, all the property of the said Billy Kauri.

And at the time the aforesaid were armed with a dangerous weapon namely an M16 rifle and were in the company of each other and that of other persons,” contrary to s. 386 (1) (2) of the Criminal Code (Ch. 262) (the Criminal Code).
                           
Count 2: “on the 29th day of December 2016, at Jack Pidik Park, National Capital District in Papua New Guinea stole from one Billy Kauri with actual violence, K287 in cash and one Alcatel mobile phone valued at       K360, and a pair of KT shoes valued at K75, all the property of the said Billy Kauri.

And at the time the aforesaid were armed with a dangerous weapon namely an M16 rifle and were in the company of each other and that of other persons,” contrary to s. 386 (1) (2) of the Criminal Code.

Count 3: “between the 29th day of December 2016 and the 1st day of January, 2017 at Badili, National Capital District in Papua New Guinea, unlawfully detained one Billy Kauri in the Badili Police Station cell, against his will,” contrary to s. 355 of the Criminal Code.

Count 4: “on the 29th of day of December 2016 at 3 Mile General Hospital and Jack Pidik Park, National Capital District in Papua New Guinea whilst being employed in the Public Service as Police Officers, did in abuse of  their authority of their office, forcefully commanded, searched and stole K707 in cash, one Alcatel mobile phone valued at K360, 14 cigarette packets valued at K202, a pair of KT shoes valued at K75, and a bag valued at K20, all the property of one Billy Kauri, prejudicial to the lawful rights of the said Billy Kauri,” contrary to s. 92(1) of the Criminal Code.

Count 5: “between the 29th day of December 2016 and 1st day of January 2017 at Badili Police Station, National Capital District, Papua New Guinea whilst being employed in the Public Service as Police Officers, did in abuse of their authority of their office, unlawfully detained one Billy Kauri at the Badili Police Station cellblock, prejudicial to the lawful rights of the said Billy Kauri,” contrary to s. 92(1) of the Criminal Code.

State Case

2.	The State called one witness, the complainant, Billy Kauri and tendered the records of interview, English originals, of Dennis Aviupa and Joshua Yawijah dated 3 April 2017 and 29 March 2017, respectively, which were admitted as:  Exhibits A and B.  They contained no admissions. 

3.	The complainant gave evidence that at about 7pm on 29 December 2016 he was walking towards 3 Mile General Hospital from Manu Autoport when an unmarked police vehicle stopped in front of him.  An officer from the vehicle took the complainant’s bag and removed cash and packets of cigarettes, which he kept along with the bag itself.  A second vehicle, a marked Boroko Police Station Toyota Land Cruiser, manned by the two accused, then pulled over.  The officer from the first vehicle ordered the accused Yawijah to throw the complainant in the cage at the back of the marked police vehicle.   From there they went to Jack Pidik Park.  At the park Yawijah, in the presence of Aviupa, told the complainant to remove his clothes before searching the complainant’s belongings and taking at least K300 cash, his shoes and mobile phone.  The complainant was then conveyed to Boroko Police Station and then to Badili Police Station where he was detained without charge for four days before being released by an unnamed police officer.

Count 1 
4.	I will return to the State’s case below but at the close of the prosecution case both accused submitted that there was no case to answer under the first limb of The State v Roka Pep [1983] PNGLR 287 with respect to Count 1.  On the complainant’s evidence neither of the accused were present at the time of the offence alleged in Count 1.  The point was quite properly conceded by the State and each of the accused were acquitted of Count 1 on the indictment. 

Defence Case
5.	The accused each gave evidence in their own defence.  Senior Constable Aviupa gave evidence that he was conducting a motorised patrol with his co-accused on the day in question.  At about 5:30 pm they were pulled over by police officer Kerry Palma, who was in the company of 2 other officers,  Constable Israel Bip and Constable Peter Arube, the complainant and a “build up” of the public.  He asked the accused to convey the complainant in their vehicle, which had a secure “cage” at the back, to Boroko Police Station, which they did.  On the way the complainant was very aggressive, talking about knowing senior members of the police hierarchy.  At the car park he continued arguing and mentioned Inspector Charles Winuan and Kerry Kaman.  He was handed back over to Kerry Palma, the arresting officer, and formally charged with one count of loitering contrary to s. 19 of the Summary Offences Act and one count of street selling contrary to s 11 of the NCDC Street Selling and Marketing Act.  Aviupa was present at the time.  The complainant was then returned to the accused’s vehicle and taken to Badili Police Station.  The cells at Boroko Police Station had been condemned.  Waigani Police Station was being used to hold those charged with serious offences whilst Badili was being used for summary and minor offences. Once at Badili Police Station the complainant was handed over again to the arresting office.  He denied ever taking the complainant to Jack Pidik Park or anything that was alleged to have happened there.

6.	Constable Joshua Yawijah gave evidence that it was about 5:30 pm when they saw crowds, some police officers and Black Swan Security near 3 Mile Hospital.  When they stopped the complainant was sitting on the ground barefoot and under arrest.  His hands had been tied behind his back with his t-shirt.  He was very aggressive and talking a lot.  Constable Kerry Palma asked them to convey the complainant to Boroko Police Station, where Constable Palma took him inside.  Yawijah waited outside. Palma subsequently brought the complainant out and asked them to convey him to Badili.  Yawijah asked what the charges were and was told.  The two accused conveyed the complainant to Badili Police Station and left him with Palma.  Yawijah denied ever taking the complainant to Jack Pidik Park or anything that was alleged to have happened there.

7.	Let me be clear from the outset, neither of the accused impressed me as witnesses.  They were arrogant and clearly had little regard for the complainant who, with their counsel,  continued to refer to as the “suspect” instead of “the complainant” as he was in this matter.  This case concerns a serious allegation of police brutality and no one is above the law.  Nevertheless, they gave evidence although they were not obliged to do so. By entering the witness box and giving evidence they did not take upon themselves any obligation to prove anything in this trial and the question remains whether the State has established the allegations contained in Counts 2 to 5 of the indictment beyond reasonable doubt.   

Count 4 Abuse of Office
8.	Prior to the close of the prosecution case I advised counsel for the State that it was my view that Count 4 on the indictment was duplicitous.  The rule against duplicity prohibits the prosecution alleging two or more offences in a single charge:  Walsh v Tattersall (1996) 188 CLR 77 applying DPP v Merriman [1973] AC 584. 

9.	Counsel declined the opportunity to either amend it, or elect on which aspects he wished to proceed. Whether or not a charge is duplicitous is always a question of degree: Walsh v Tattersall, supra. Where a charge is duplicitous the prosecution is expected to apply to amend the charge, see R v Radley (1974) 58 Cr App R 394. In some instances it may be necessary to prefer an additional charge.  In this case, however, the count reveals numerous issues of duplicity and would not have been readily cured.  The count refers to the offence taking place at two separate locations, and through at least three different modes, namely that the accused “forcefully commanded, searched and stole”.  At least one of those, stealing, is an entirely separate offence with its own elements.  Counsel conceded on submissions on verdict that the count should fail.  

10.	It is not necessary for me to decide but, in general terms, whether or not an offence under s. 92 could properly be regarded as a “continuing offence” will in my view depend on the circumstances of the case concerned.  As will whether or not the failure to prove certain particulars would necessarily be fatal.  In most cases it would not, provided they are not essential particulars.  In this case, however, the reference in Count 4 to two separate locations, in combination with items from both locations, was on its face duplicitous.  As was the reference to the multiple arbitrary acts alleged, which were also by their nature unclear.  The count is therefore bad for duplicity and cannot stand.  The accused are each acquitted of Count 4 in the indictment.

11.	In considering the terms of a charge under s. 92 of the Criminal Code in the future it may be helpful to note that the provision recognises that those who are entrusted to exercise the power and authority of public office must be accountable to the public.  The offence involves, broadly speaking, a wilful abuse of the authority of office that amounts to an abuse of the public trust: see Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868 (UK).  Thus the arbitrary act prejudicial to the rights of another for the purposes of s.92 must have a sufficient connection with the accused’s public office: Attorney General’s Reference No 3 of 2003.  

12.	In this case the gravamen of the offence alleged in Count 4 was arguably the arbitrary exercise of a police officer’s right to lawful seizure, or in other words, the unlawful seizure of items in the possession of the complainant.  

13.	I also note here that it was unnecessary in my view to allege in Count 4 that the property belonged to the complainant.  Ownership of the items taken is an element of the robbery charged under Count 2 but as above, an offence under s. 92 of the Criminal Code has a different focus, namely the abuse of the rights associated with public office and not the usurpation of property rights as such.  Whilst not an issue in this case the averment of ownership adds a potentially unnecessary complication and additional burden on the State for the purposes of s. 92.

Counts 2, 3 and 5 Armed Robbery and Unlawful Detention

14.	The State’s case in support of these counts rests entirely on the complainant.  His evidence was challenged by both accused on a number of fronts.  It was suggested that there was some relationship between the complainant and Charles Winuan, the investigating officer from the Internal Affairs Division of the RPNGC, and that the latter was biased against the two accused because of an insult Yawijah had allegedly told the complainant to convey to Winuan.  This line of questioning about bias in the police investigation holds very little weight to my mind.  Bias is a serious allegation which should have been put to the investigating officer.  He wasn’t called by the State, a matter I will return to below, but he was listed on the indictment and I agree with State counsel that the accused should have required him for cross-examination if they wished to properly pursue this issue.   

15.	It was also put to the complainant that within a few days of the arrest of the accused he sought, via both text messages and in person, to extort K10,000 and K2000 from Yawijah and Aviupa, respectively, in return for dropping the charges against them.  It appears that he was charged in relation to this allegation, although the State was clearly taken by surprise in this regard.  The complainant strongly denies the allegation and says that the matter was struck out at the District Court.  

16.	There were, however, other issues with the complainant’s evidence.  Both accused submitted that he was unimpressive and unreliable.  Some of their submissions were ill conceived.  The fact that the complainant is a street vendor does not mean that he must have a grudge against all police officers.  Nor does the fact that he was clearly an intelligent man mean that he must be conniving and dishonest.  

17.	Nevertheless, it must be said that overall he was less than impressive.  At times he was reluctant or refused to answer, asking to remain silent at one point.  I think it is fair to describe him as argumentative.  It is unclear whether he was made aware of the nature of the court proceedings before being called to the stand.  The question to my mind is whether his demeanour might be explained by genuine frustration and a sense of injustice or something else.  The State effectively conceded that he was unimpressive but asked the court to find him truthful nonetheless.  It is very difficult for the Court to do so, however, when there is no other evidence to corroborate his account.

18.	Moreover, I do have some other concerns about the content of his evidence.  At times he contradicted himself.  At others he was unable to recall simple matters.  He maintained throughout his evidence that he was first placed in the vehicle and travelled with the two accused to Jack Pidik Park.  He gave a detailed account of what happened there.  He also said that he was taken by the two accused to Boroko Police Station and then to Badili Police Station.   Other than a drug addict who was passed out in the back, no one else was in the vehicle.  He made no mention of either accused being armed.  Nor did he say that anyone else was present at Jack Pidik Park.  It was only very late in cross-examination that he mentioned for the first time the presence of a third police officer at Jack Pidik Park who was holding a gun.  There was no explanation as to who he was, how he came to be there, what happened to him or whether he had any interaction with the two accused.  Nor was there any explanation as to why the complainant hadn’t mentioned him earlier.   The omissions are significant. 

19.	A detention is unlawful unless it is authorised or excused by law: McKenzie v The State (1998) SC 596.  Section 42(1) and 42(2)(a) of the Constitution provide that “[n]o person shall be deprived of his personal liberty except as authorised by law in certain specified cases” and that “[a] person who is arrested or detained shall be informed promptly, in a language that he understands, of the reasons for his arrest and detention and of any charge against him”.  It is important to make clear that the police cannot detain a person without arrest, and further that the obligation to inform a person of his rights under s. 42(2)(a) of the Constitution arises immediately upon arrest:  per Kidu DCJ in The State v Mai and Avi [1988-89] PNGLR 56.  The allegations in both Counts 3 and 5, however, are confined to the complainant’s detention in the Badili Police Station and not at any time earlier.     

20.	On the evidence it does not appear in dispute that the complainant was taken to Boroko Police Station before being taken to Badili.  The State did not call the investigating officer in this case.  Nor did it lead evidence as to the arrangements in place that night between Boroko, Waigani and Badili Police Stations.  Nor to the standard procedure on charging and detention, nor the use of motorised patrol vehicles to transfer detainees.  Neither the duty sergeant, nor any other responsible officer, at Boroko Police Station that evening was called.  Nor was the cell guard at Badili Police Station, nor the officer who released the complainant from custody four days later.   Neither a charge book nor the occurrence books were produced.  I won’t speculate about what any of these potential witnesses or records may or may not have shown, other than to say that if there had been a formal charge one would expect a record of it somewhere; if not, its absence would have provided cogent evidence to support the complainant’s claim that he was not charged, nor indeed made aware of why he was being detained and moreover, would have gone a long way towards corroborating his evidence generally. 

21.	On the evidence as it stands, however, and despite the serious reservations I have about both accused, I cannot be satisfied beyond reasonable doubt of the matters alleged.  Each are acquitted of Counts 2, 3 and 5 on the indictment.

22.	In the circumstances it is not necessary to consider the issues of double jeopardy which may have arisen under s. 16 of the Criminal Code with respect to Counts 3 and 5.  

23.	Verdict: Not guilty of all counts on the indictment.

________________________________________________________
Public Prosecutor: Lawyer for the State		
Public Solicitor: Lawyer for the accused, Dennis Aviupa
Ninkama Lawyers: Lawyer for the accused, Joshua Yawijah