SC104

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

REFERENCE NO. 1 OF 1976

IN THE MATTER OF A REFERENCE OF A POINT OF LAW TO THE SUPREME COURT BY THE PRINCIPAL LEGAL ADVISER TO THE NATIONAL EXECUTIVE

AND IN THE MATTER OF X, THE ACCUSED ON THE TRIAL

Waigani
Prentice DCJ Raine Williams JJ
31 August 1976
2 September 1976

CRIMINAL LAW - Particular offences - Grievous bodily harm with intent to prevent lawful arrest - Intention actually to make an arrest not an ingredient of proof provided circumstances show an arrest might lawfully have been made - Criminal Code s. 3231.

On a charge of committing an offence with intent to prevent the lawful arrest of any person contrary to s. 323 of the Criminal Code, it is not necessary for the prosecution to prove, that at the time of the alleged offence some person actually then had a present intention to effect such an arrest, provided that the circumstances show an arrest might lawfully have been made.

Cases Cited:

Reg. v. Heavey (1965) 84 W.N. (Pt. 1) (N.S.W.) 248 followed.

Reference

This was a reference of a point of law to the Supreme Court by the Principal Legal Adviser to the National Executive pursuant to s. 41 (1) of the Supreme Court Act, 1975, the point of law arising out of the acquittal of a person tried on indictment. The question referred was:

"Is it necessary for the prosecution to prove on a charge of committing an offence with intent to prevent the lawful arrest of any person, that at the time of the alleged offence some person actually then had a present intention to effect such an arrest?"

Counsel:

LW Roberts-Smith, for the Principal Legal Adviser to the National Executive
WJ Andrew, for the accused on the trial

Cur. adv. vult.

2 September, 1976

1. PRENTICE DCJ: The Principal Legal Adviser to the National Executive has referred to this Court for its opinion a question of law arising on the acquittal of a person tried on indictment. Some argument might have been addressed to the Court that the question should not have been answered (see Regina v. P.M. and Regina v. B.P.); but for the provision that now appears in s. 41 (1) of the Supreme Court Act 1975. This section enacts that on such a reference "The Court shall, in accordance with this section, consider the point and give their opinion on it".

2. The question was amended at the hearing by consent, to read as follows:

"Is it necessary for the prosecution to prove on a charge of committing an offence with intent to prevent the lawful arrest of any person, that at the time of the alleged offence some person actually then had a present intention to effect such an arrest?"

3. I consider it is unnecessary for purposes of this judgment to advert in any detail to the facts of the case, which involved an off duty police officer disturbing a number of men in a house which they had broken into at night. The accused had been charged with a number of offences. That of doing grievous bodily harm to the police officer with intent to prevent the lawful arrest of one of the intruders, was dismissed on a submission of no case to answer. It was the opinion of his Honour the trial judge that this course was necessary because the police officer had given evidence that he then had no present intention of making an arrest.

4. The section concerned, s. 317 of the old Code (s. 323 present Code) so far as applicable reads:

"Any person who with intent to ... prevent the lawful arrest of any person ... unlawfully does any grievous bodily harm to any person whatever ... is guilty of a crime ..."

5. The Court has been referred to the case of Reg. v. Heavey; a decision of the New South Wales Court of Criminal Appeal on a similar section — s. 352 (1) of the New South Wales Crimes Act. A study of the Papua New Guinea Criminal Code and the judgments of the Court in Heavey’s case, leads me to the conclusion that the two sections produce similar results. The ingredients of an offence under s. 323 as charged here, are: (1) the doing of grievous bodily harm; (2) with the intent to prevent arrest (as charged); (3) in circumstances such that the arrest sought to be prevented would have been a lawful one.

6. I am of the view that the latter element may be established without there being evident a present intent in the person sought to be hindered, to effect an arrest; and that the only intent with which the section is concerned is that of the accused to prevent an arrest.

7. By s. 266 of the old Code (s. 269 of the present Code) it is lawful for any person to use such force as is reasonably necessary in order to prevent the commission of an offence which is such that the offender may be arrested without warrant. Section 5 provides that the definition of an offence as a crime imports that the offender may be arrested without warrant.

8. Section 546 (a) (now s. 2 (a) of the Criminal Code Miscellaneous Provisions Act 1975) empowers a police officer believing on reasonable grounds an offence to have been committed — to arrest without warrant. Subsection (c) of that section empowers any person to arrest without warrant one found committing a crime. Section 549 empowers any person who finds another committing an indictable offence, to arrest him without warrant.

9. Clearly, the police officer here, or indeed a private citizen, would have been entitled to arrest the intruders found inside the house of the police officer’s neighbour, for crime committed either under s. 419 or s. 419 (a) of the old Code. The accused must have appreciated that. If the doing of grievous bodily harm with intent to prevent arrest had been shown, the offence charged would have been made out.

10. I am of the opinion that the question asked should be answered "No; provided that the circumstances show an arrest might lawfully have been made". Counsel for the accused person agrees that this is the correct answer.

11. RAINE J: This is a reference by the Principal Legal Adviser seeking the opinion of the Supreme Court pursuant to s. 41 (1) of the Supreme Court Act, 1975. Before setting out the question asked it is convenient to quote from the judgment of the learned judge who presided at the trial out of which this reference arises.

12. His Honour said:

"The accused is charged upon indictment with three alternative counts under s. 317 of the Criminal Code of unlawfully doing grievous bodily harm on 28th March, 1975, to one David Bolton, an Inspector of Police, the intents alleged being to prevent the lawful detention of one Philip Gabi, to disable the said David Bolton, or to do some grievous bodily harm to him.

Upon a fourth count of doing grievous bodily harm with intent to prevent the lawful arrest of Philip Gabi I upheld a submission that there was no case to answer in view of Inspector Bolton’s evidence that he had no present intention of making such an arrest.

The main facts are not in dispute. On the night in question in his house at Saraga at about 9.00 p.m. Inspector Bolton was in bed when he was wakened by his wife because of noise and the barking of dogs coming from the adjoining house, which was apparently unoccupied and in darkness. Having asked his wife to telephone the police he took with him a torch and a service pistol, which was without doubt unloaded, and proceeded to the house which was less than 30 feet away. Outside the house he noticed a youth who made off up the hill. The Inspector went around the back of the house, opened a flywire door which was not fastened and then proceeded to push open the kitchen door which was also unfastened. He noticed an obstruction, so he slipped inside, closed the door and, switching on his torch, noticed an intruder behind the door who proved to be Philip Gabi. The Inspector then grappled with Gabi and, he said, another youth who came from behind the refrigerator. In the course of the struggle the accused, who had been posted outside to keep watch and must have been the man whom Inspector Bolton noticed on his way over to the house, entered the kitchen and hit the Inspector upon the head with a piece of wood. The three intruders then made off, Philip Gabi taking the pistol."

13. It is the portion underlined by myself that is really what the reference is about.

14. The question asked reads:

"Is it necessary for the prosecution to prove on a charge of committing an offence with intent to prevent the lawful arrest of any person, that at the time of the alleged offence some person actually then had a present intention to effect such an arrest?"

15. Section 317 of the former Code, applicable at the trial, is reproduced in s. 323 of the new Code, except for differences in numbering and lettering. 
It reads, to the extent applicable:

"317.	Acts intended to cause grievous bodily harm or prevent apprehension. — Any person who, with intent to maim, disfigure, or disable, any person, or to do some grievous bodily harm to any person, or to resist or prevent the lawful (arrest) or detention of any person:

(1)	Unlawfully wounds or does any grievous bodily harm to any person by any means whatever; or

...

is guilty of a crime, and is liable to imprisonment with hard labour for life, with or without solitary confinement."

16. With great respect to the trial judge, the fact that the Inspector had not actually made a decision to effect an arrest, or had a chance to do so, was not to the point. Viewed subjectively it is not hard to guess at the state of mind of the accused man, and his companions. It was night-time, they were in a house which was not theirs, where they had no right to be. Of course, they were there to steal. So they knew what it meant, they knew they were caught red-handed, and, no doubt, were well aware that the sudden appearance, armed as he was, or as he seemed to be, of a European, was likely to lead to their immediate apprehension and arrest. They probably thought he was a policeman. They would have been under no misapprehensions.

17. The Inspector, on the other hand, was not quite so well placed when it came to making a decision. No doubt he was very highly suspicious. But, as a commissioned police officer he would be well aware that there could possibly, even faintly, be an innocent explanation for the presence of these apparent intruders. They might have been caretakers, or friends. Also, it was dark, and he had been woken from his slumbers.

18. In these circumstances it matters not that he had yet to make up his mind what he would do. It is certainly on the cards that he would have soon summed-up the situation but for being hit on the head and tried to make an arrest, and it is apparent that he had every right in the world to do so. Those in the house were liable to be arrested, for the best of reasons.

19. In my respectful view the matter cannot be better put than it was by the late Sir Cyril Walsh, then a judge of the Supreme Court of New South Wales, prior to his elevation to the High Court of Australia, in Reg. v. Heavey; Reg. v. Hoare6. His Honour said:

"I think it may be taken as established, in relation to a charge of this kind, that the inquiry at the trial is not concerned solely with the subjective question as to the state of the mind of the accused. It is necessary also that it should be shown that objectively the situation was one in which an arrest would be lawful."

20. The facts in that case are dissimilar to those in this one in some respects, and the issues were not as clear-cut as here. But this does not cause me to regard what Walsh J. (as he then was) said as being distinguishable.

The objective fact is that when the Inspector burst upon the scene the intruders were liable to be arrested on one or more serious charge or charges. The fact that the Inspector did not, in the time available, make a positive decision to effect an arrest does not alter the situation that existed, namely, a situation where the intruders were clearly liable to be arrested.

21. In my opinion the question should be answered in the negative with the same proviso that appears in the judgment of the Deputy Chief Justice.

22. WILLIAMS J: I agree that the question raised in this reference should be answered as proposed by the other members of the Court. I have nothing to add to the reasons they give.

23. The point of law referred to the Court in the form of a question should be answered No — provided that the circumstances show an arrest might lawfully have been made.

________________________________

L. W. Roberts-Smith, Public Prosecutor: Solicitor for the Principal Legal Adviser to the National Executive
N. H. Pratt, Acting Public Solicitor: Solicitor for the accused on the trial