SC783

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR 6 of 2004

Between:

BRIAN LAKI
-Appellant-

And:

THE STATE
-Respondent-

KOKOPO: JALINA, KIRRIWOM, KANDAKASI, JJ.
2005: 	26th and 28th April

APPEALS – Particular offence – Escape from lawful custody - Parity of sentence – Co-accused dealt with under Summary Offences Act and given lesser sentence – Appellant dealt with under the Criminal Code and given higher sentence – Whether Court can on appeal reduce sentence on the parity principle? – Illegal to proceed with charge of escape from lawful custody under the Summary Offences Act where the detention or imprisonment is in relation to an indictable offence – Subsequent correct proceedings under the Criminal Code can not be down graded to be on par with the illegal proceedings – Appeal dismissed as being without merit.

Facts:

The Appellant appealed against both his conviction and sentence of 5 years for escaping from lawful custody. He was held in lawful custody pending trial on two counts of armed robbery and two counts of unlawful detention. The appellant claimed that he escaped with several others, three of whom were recaptured and dealt with under the Summary Offences (Chp. 264) and got of with lighter sentence of 2 months to fines of up to K100.00. He therefore claimed by way of appeal that the proceedings against him were unfair and as such they should be quashed and set aside. However, the Appellant did not produce any evidence confirming that he had co-accused who were in fact dealt with leniently under the Summary Offences Act.

Held:

1.	The decision of the Supreme Court in Edmund Gima v The State and Siune Arnold v The State (Unreported judgment delivered on 03/10/03) SC730 settled the law as to where an escape from lawful custody charge should be proceeded with, in the light of the identical provisions in the Summary Offences Act and the Criminal Code. 

2.	Since the judgment in Edmund Gima v. The State and Siune Arnold v. The State (Unreported judgment delivered on 03/10/03) SC730, the law clearly is that, where a person is in lawful custody in relation to an indictable offence he must be dealt with under the Criminal Code while one held in lawful custody in relation to a summary offence, must be dealt with under the Summary Offences Act. 

3.	It would therefore be illegal to proceed with a charge under the Summary Offences Act if the escapee’s initial detention or imprisonment was in relation to an indictable offence and the same applies to a case in which an escapee was held in custody for a summary offence and he is charged under the Criminal Code. Where an escape charge has been dealt with illegally in either of these ways, a subsequent proceeding that proceeds correctly cannot be set aside or down graded to be on par with the one that had proceeded illegally because of the illegality.

4.	In the present case:

(a)	The Appellant failed to demonstrate a case of real disparity in the sentence in that he has not produce any convincing evidence confirming that he had co-accused who were held in custody for indictable offences but were dealt with under the Summary Offences Act and got lenient sentences; and 
(b)	He was correctly dealt with under the Criminal Code as he was held in custody for armed robbery which is an indictable 

5.	For these reasons the Appellants appeal was dismissed as having no merit.

Papua New Guinea Cases Cited:

Edmund Gima v. The State and Siune Arnold v. The State (Unreported judgment delivered on 03/10/03) SC730.
Rawson Constructions Limited and 238 Ors v. The State (judgment delivered on 04/03/05) SC777.

Counsels:
Appellant In Person
Mr. C. Manek and Ms. T. Berrigan for the Respondent.

28th April 2005

BY THE COURT:	You are appealing against a decision of the National Court delivered on 18th December 2003 that decided to impose a 5 years sentence for escape from lawful custody but suspended 3 years on conditions of good behaviour bond. The one and only complaint or ground of appeal is that you were unfairly dealt with in that three of your co-accused were dealt with under the Summary Offences Act (Chp. 264) (SOA) and received sentences far less than you.

 The relevant background and facts are straightforward. On 6th January 2002 at about 7:00pm, you and 13 other inmates at Lakiemata Correction Institution (CS) escape by cutting the bar of the cell you were in. You then cut three fences within the CS compound and finally cut the outer fence and escaped. You were on the run for two weeks before police recaptured you on 21st January 2002. 

At the time of your escape, you were in lawful custody for two armed robbery charges and two unlawful detention charges all of which were serious and therefore indictable offences. 

On 10th December 2003, you were charge for escaping from lawful custody under s. 139 of the Criminal Code. You pleaded guilty to the charge and the National Court sitting in Kimbe convicted and sentenced you against which you are now appealing.

Submissions

At the hearing of your appeal before us, you argued that, it was unfair that you were dealt with under the Criminal Code whilst three of your co-accused were dealt with under the SOA. You did not however, produce any evidence confirming your claims of having co-accused and more importantly, your co-accused being dealt with under the SOA. 

The State argued that the onus was on you to produce the required evidence but you failed. It also argued that you were correctly dealt with under the Criminal Code as you were in custody for four serious and therefore indictable offences. Further, the State argued that, even if you did have co-accused who were also in custody for serious indictable offences but they were dealt with under the SOA, that would give you no entitlement to a similar treatment. This is because your co-accused would have been dealt with illegally having regard to the judgment of this Court in Edmund Gima v. The State and Siune Arnold v. The State (Unreported judgment delivered on 03/10/03) SC730 and that no illegality can correct a correct legal position. Only the illegality is open to correction.

Issues:

From these submissions the issues for determine by this Court are:

1.	Is there evidence confirming you having had co-accused who were in custody for indictable offences but were dealt with under the SOA?

2.	Whether a charge for escape from lawful custody in connection with an indictable offence can legally proceed under the SOA? 

3.	If the answer to the second issue is in the negative can that fact combined with the need to act fairly warrant a reduction in sentence or otherwise a set aside of a subsequent proceeding that has proceed correctly under the Criminal Code? 

Consideration and Determination of the Issues

We deal firstly with the first issue. For the purpose of your appeal, all we have is the appeal book and the parties’ submissions in writing that were either, filed with the Court or handed up to us during the hearing of your appeal. The appeal book contains the transcript of proceedings before the National Court. A perusal of all of these materials fails to reveal any direct evidence of you having escaped with several others and that those several others were held in custody in relation to indictable offences. Accordingly, your appeal should fail on this ground.

Turning than to the second issue we note that this Court’s decision in the case of Edmund Gima v. The State and Siune Arnold v. The State (supra), where two members of the present Court, Kirriwom and Kandakasi JJ., were also members of that Court settled an apparent confusion in practice that existed as to an appearance of discretion in the prosecution to choose either to proceed with a charge of escape from lawful custody under the SOA or the Criminal Code. The Court there having considered the state of affairs and the kind of latitude the prosecution seemed to have said: 

"Quite appropriately and legitimately, one might ask, does this mean the police can continue to have the kind of latitude, Kirriwom J. was rightly concerned with? The answer to that is quite simple, which can be found in a combined application of a number of settled principles of statutory interpretation. The first of this is the principle that Parliament never makes a mistake … and that there is always a purpose, intent or policy behind each legislation … Thus, proceeding on the basis that Parliament did not make a mistake in enacting s. 22 of the SOA and s. 139 of the Code, what could be the purpose or policy behind the fact that there are two different provisions dealing with the same offence of escape?

What we have here are two different legislations. The first is the SOA and the second is the Code. The former creates and prescribes penalties for summary offences, while the later does that for more serious or indictable offences. The offences under the former are less serious and their sentences are less severe. The opposite is the case for offences created and or provided for under the Code. The District Court has jurisdiction over the offences created and provided for under the SOA, while the National Court has jurisdiction over the indictable offences except for the specified indictable offences that can be dealt with summarily. 

From this scheme of things, it would be hard to imagine that the District Court would have the necessary jurisdiction to deal with matters that fall within the jurisdiction of the National Court. Following on from that, it would hardly have been the intention of Parliament that the District Court should have jurisdiction over a case of an escape by a person who is convicted or is awaiting trial or such other further steps in connection with an indictable offence. To illustrate the point further, we note the position could be better seen in the context of a judgment or order of a court. In our view, an escape from prison by an offender after being convicted and ordered to serve a term of years is akin to a judgment debtor in a civil case refusing to pay up. In such a situation, the law allows for enforcement proceedings. The enforcement proceedings go before the relevant Court and not one below or above it except in cases where the law permits, as in the context of appeals. 

In a criminal case, where there is a conviction and sentence ordered to be served, the serving of the sentence in full is the final step required for completing a criminal process. An escape from prison is a refusal to comply with the orders of the Court. That non-compliance as to be enforced by the offenders’ recapture and being appropriately dealt with for escaping. In the normal scheme of the justice system and in accordance with logic, the Court whose order that have been breached would have to deal with the person in breach. Certainly by no means can a lower Court be allowed to deal with a matter that has been dealt with or is before a higher Court and likewise, no way should the higher Court get down low and deal with a matter that primarily rests with a lower Court. Of course, where legislation specifically allows for this to happen in any given case, it would be an exception rather than the norm. Presently, the only known exception to the above is in relation to the National Court’s appeal and or review powers, when properly invoked. 

It would logically follow therefore that, Parliament intended that the District Court would have the necessary jurisdiction to deal with escapes from lawful custody where the custody escaped from relates to a summary matter. Likewise, we are of the view that, Parliament intended that the National Court would have jurisdiction over escapes from lawful custody, where the custody escaped from relates to an indictable offence. 

As a necessary consequence of this, we are of the view that, the police and or the prosecution does not have a choice or discretion as to whether to deal with an escapee under s. 22 of the SOA or s. 139 of the Code. Instead, they are under an obligation to proceed under s. 22 if the primary reason to hold the offender in custody is in respect of a summary offence matter. Similarly, they are under an obligation to proceed under s. 139 of the Code if the primary reason to hold the offender in custody is in respect of an indictable offence or is one in which the National Court has the primary jurisdiction. 

As we speak, we are aware that, the police and or the prosecution have been in some cases unfairly and without good course, proceeded under s. 139 of the Code. In some cases they have literally divided co-offenders by proceeding with a charge under s. 22 of the SOA for some and the others under s. 139. This has inevitably resulted in an immediate and apparent disparity in the penalty. For under s. 139 of the Code, an offender stands to receive the minimum prescribed sentence of 5 years, which may or may not be reduced by suspension. But for an offender charged under s. 22 of the SOA his or her penalty ranges from a fine of up to K200 or imprisonment of up to 6 months. 
…
Given the views just expressed, we feel compelled to direct the kind of practice adopted by the police and or the prosecution we have just highlighted to stop immediately for it has been carried on illegally and possibly in breach of the Constitution’s call for equal treatment of all persons. In its place we would suggest or direct that the procedure out lined above be immediately adopted." 

Although the learned trial judge did not refer to that decision, we not that he did in fact make similar observations in his judgment against you. This appears clearly from pages 25 – 26 of the appeal book. On the authority of Edmund Gima v. The State and Siune Arnold v. The State (supra) we endorse the learned trial judge’s views and proceed on that basis to answer the second issue in the negative.

This leaves us to deal with the third and final issue, which we now turn to. We note that in a number of cases, this Court has upheld appeals on the parity principle in escape cases. An example of this is the unreported and unnumbered decision of this Court in Oliver Benny Gapi v. The State SCR 42 of 2001 (judgment delivered on 02/10/03). This practice has effectively allowed illegal proceedings to take precedence over a legal process. It is well settled law that no one can gain from an illegality or illegal conduct. This Court’s recent judgment in Rawson Constructions Limited and 238 Ors v. The State (judgment delivered on 04/03/05) SC777 restates that legal position at page 13 to 14 in these terms:

"It therefore follows in our view that, if indeed the Solicitor General allowed those other claims without meeting the condition precedent in s. 5 of the Claims By and Against the State1996, they would be nothing short of illegal claims. Thus, if we admitted the evidence in question, they will not advance the Appellants’ claim in any respect. The law cannot simply permit one illegal claim to proceed merely because another illegal claim proceeded. After all, one wrong or illegal act does not justify or correct another."

This Court in that case, had before it a case of the Solicitor General having allowed a number claims to proceed against the State without complying with the requirements of s. 5 of the Claims By and Against the State Act 1996. That was clearly illegal. Nevertheless, the appellants sought to gain from that illegality.

In your case, you are precisely doing the same arguing as you have in your favour the principle of fairness. Whilst we accept that fairness is a Constitutional guarantee, it must be accorded in accordance with the law and wherever it is legally possible to so accord. You are seeking to gain by way of a set aside or and reduction of your sentence to that which was illegally arrived at in your alleged co-accused cases. The law clearly is that you cannot gain from an illegality. If there is any need for any correction, it should be the proceedings that proceeded illegally and not the proceedings leading to your conviction and sentence that proceeded legally and correctly. 

For all of these reasons, we find your appeal is without merit. Accordingly, we order a dismissal of your appeal and confirm your conviction and sentence by the National Court.
____________________________________________________________________
Lawyers for the Appellant:	Appellant in Person.
Lawyers for the Respondent:	The Public Prosecutor