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Aufe, Regina v [1974] PNGLR 331 (3 May 1974)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 331 - Regina v Erico Aufe

[1974] PNGLR 331

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

ERICO AUFE

Port Moresby

Frost ACJ Clarkson Prentice JJ

28 February 1974

25-27 March 1974

3 May 1974

CRIMINAL LAW AND PROCEDURE - Assaulting police officer in execution of duty - Illegality of force used by police officer - Relevant considerations - Criminal Code (Queensland adopted) ss. 340[cdxxxviii]¹, 254[cdxxxix]2, 256[cdxl]3.

In relation to an offence under s. 340 of the Criminal Code (Queensland adopted) which provides inter alia, that any person who assaults, resists or wilfully obstructs a police officer while acting in the execution of his duty is guilty of a misdemeanour, and when considering the possible illegality of any force used by a police officer in arresting or preventing escape from arrest at the relevant time, regard must be had to the provisions of both s. 254 and s. 256 of the Code.

Sections 254 and 256 of the Criminal Code (Queensland adopted) are found within a group of sections intended to protect the person making the arrest, and that protection would be incomplete unless it covered not only the application of force but also any threat or attempt to use force.

Appeal.

The appellant Erico Aufe was convicted of assaulting a police officer in the execution of his duty and sentenced to three months’ imprisonment with hard labour. He appealed against conviction and sentence on the ground that the trial judge had erred in a number of respects in law and at the hearing applied for leave to add the further grounds that the verdict was against the evidence and weight of evidence. The facts relevant to the offence are set out in the reasons for judgment of Clarkson J.

Counsel:

J. Bradshaw and P. A. Benson, for the appellant.

C. F. Wall, for the respondent (Crown).

Cur. adv. vult.

3 May 1974

FROST ACJ: I shall ask Clarkson J. to give judgment first.

CLARKSON J: On 8th October, 1973, in the Supreme Court at Port Moresby the appellant was convicted of assaulting a police officer in the execution of his duty. The offence was alleged to have occurred on 13th December, 1972. Upon conviction the appellant was sentenced to three months’ imprisonment with hard labour. Notice of appeal was given on the grounds that the trial judge had erred in a number of respects in law and later the appellant was admitted to bail.

When the appeal came on for hearing before the Full Court, counsel for the appellant applied for leave to amend the notice of appeal by adding the further grounds that the verdict was against the evidence and the weight of evidence and particulars were supplied. The court decided to hear the whole of the argument before ruling on the application.

The offence of which the appellant is convicted is set out in s. 340 of the Criminal Code which provides, inter alia, that any person who assaults, resists or wilfully obstructs a police officer while acting in the execution of his duty is guilty of a misdemeanour and is liable to imprisonment with hard labour for three years.

It appears that the appellant was in custody serving a sentence for some simple offence, and that he escaped. Several attempts were made to recapture him, the last being on the occasion when this offence is said to have been committed. At that time the police officer, Sub-Inspector Symonds, had in his possession a valid warrant for the appellant’s arrest.

The general sequence of events is not in dispute. A police party armed with batons and under the command of Symonds approached the appellant’s house. The appellant, carrying a bush knife ran into the bush with the police party in pursuit, Symonds at the rear. As he ran, Symonds drew his pistol. When he came up to the appellant the appellant was partly surrounded by members of the police party and this combined with thick vegetation appears to have prevented further immediate flight.

In the ensuing period, Symonds fired one pistol shot and then fired a second shot at the same time as the appellant hit Symonds’ hand with the bush knife. Members of the police party struggled with the accused and were driven off by fellow villagers of the appellant. Symonds was shot in the leg by his own pistol and the appellant suffered a wound, probably a bullet wound, to his leg.

In order to define more closely the issues involved four periods of time were identified by counsel for the appellants. Only the first three are now relevant; the first from when the appellant ran from his house until Symonds came up to him; the second from the time of Symonds’ arrival until the first shot was fired, and the third the period thereafter.

We are primarily concerned with the second period. The case was fought on the basis that the resistance alleged occurred in the second and third periods. I think, in fairness to the appellant, that we should accept that limitation and I therefore do not consider the interesting question whether the appellant’s flight from his house could be said to constitute resistance in the relevant sense.

As to the third period, the trial judge found that although Symonds intended to fire the first shot over the appellant’s head and thought he had done so, probably he fired it into the appellant’s leg and that the appellant’s subsequent resistance was justified or excused, a conclusion which was not challenged before this court by the Crown.

We are concerned, then, with one period, that of the confrontation between Symonds and the appellant up to the point when the first shot was fired.

As to this period, counsel for the appellant conceded that the appellant was then resisting Symonds and this is a concession which I think was properly made.

Three defences were then raised. The first was that the appellant’s resistance was lawful as being in self-defence. Secondly, and alternatively, it is said the appellant held an honest and reasonable but mistaken belief that Symonds intended to shoot him although Symonds did not so intend.

Thirdly, it was argued that Symonds was not acting in the execution of his duty because the pointing of the pistol constituted an unlawful assault by Symonds on the appellant.

I turn then, to the events of this period. The trial judge referring to Symonds as “S.” said: “I believe S. when he says, “Erico was about five (5) paces away facing me. He had a bush knife in his right hand and at shoulder height, its blade was about eighteen (18) inches long. When I ran in the revolver was held down at my side pointing at the ground.” (Sgt. Niribo says it was in S.’s pocket, as he arrived at the clearing, but when running towards them S. had it in his hand. Constable Wani says the accused was walking towards S. when Wani heard the first shot, and that he then rushed him. Constable Mauare said S. arrived with a gun in his hand.) “I said, ‘Drop that knife, you’re under arrest.’ He started to walk slowly towards me and I raised my pistol and pointed it at him, at his body. He continued walking towards me and he said in a loud voice, ‘Don’t point that pistol at me’. My attention was directed at him, I could not see what the local police were doing. When he first started walking towards me I had a fear he was going to attack me with the bush knife. When he was about eight (8) feet away I raised the pistol, pointed it above his head, I cocked it and deliberately fired a warning shot over his head. He then rushed at me swinging the bush knife at me in a large arc. I raised my pistol, pointed it at his midriff, and started to squeeze the trigger”, and S. then goes on to describe how the accused deflected the weapon, so that S. actually shot himself in the leg.

Later his Honour says: “I appreciate the fact that S. came up after the native police with a pistol in his hand, but up to the point that the accused was probably shot in the leg, I do not believe that the accused’s attitude changed from what it had been since a day or so after he left the corrective establishment. That attitude very simply was that he would not go back, would not give himself up, and would resist all attempts to apprehend him. In my opinion, up to the point where the first shot was fired on 13th December, the Crown has negatived the various defences raised, namely mistake, self-defence, provocation, emergency, etc., and this beyond all reasonable doubt. These defences all fail, up to the point when the accused was shot in the leg. As will be seen, I do not regard him as being at fault after that.

However unwise it was for S., viewing what he did objectively, to go charging around with a loaded pistol in his hand, I do not think, viewing Erico subjectively, that it made the slightest difference to his attitude up to the point of time I believe he was probably shot in the leg. The police say he did not look frightened, nor do I think he was.

I am satisfied beyond reasonable doubt that, as in the past, he was determined to elude the police, and, if they stood in his path, to act violently towards them. What had previously occurred only added fuel to existing flames. But the accused was in a mean and angry temper, I do not believe for a moment that the rash, indeed, improper action of S., in brandishing a pistol, had the slightest effect on the accused. He would have ‘gone for’ S. in any event, such was the state of his mind. I am satisfied beyond reasonable doubt that S. told him to drop the bush knife, and that he was under arrest (although not what for), and that Erico deliberately disregarded S. and advanced menacingly upon him.”

From all this a number of important facts emerge. The appellant, endeavouring to avoid lawful arrest, had been temporarily halted. He was carrying his bush knife at shoulder height. Symonds arrived at the scene carrying his pistol at his side. Symonds told the appellant to drop his knife, that he was under arrest.

The appellant advanced menacingly towards Symonds who feared that the appellant was about to attack him with the bush knife. Symonds then raised his pistol. The fact that Symonds had a loaded pistol made no difference to the appellant’s attitude. Symonds intended to fire over the appellant’s head and thought he had, but he probably shot the appellant in the leg. Thereafter the appellant’s violence towards the police was justified or excused.

His Honour at the end of his judgment made a more elaborate summary of the facts than that which I have just given but for reasons I have explained I have restricted myself to what I see as the critical period.

Two matters require further consideration, the carrying of the pistol by Symonds and the blow struck by the appellant at Symonds.

In the course of his judgment his Honour was critical of Symonds’ conduct in respect of the pistol. He said that it was unwise for Symonds “to go charging around with a loaded pistol in his hand”. Later in the judgment, when considering the possible application of s. 256 of the Criminal Code to the present case, he said “As to s. 256 I can see no warrant for S. drawing his pistol during the chase, or in the initial confrontation, after the native police had succeeded in cutting off the accused. But, up to the time Erico was shot, deliberate use of the pistol was not intended. Of course, there was no warrant for it under the section. The fact that it could be likely to cause grievous bodily harm, and did, does not exculpate Erico for his prior resistance.

It is not to the point to say that things went from bad to worse. There was absolutely no warrant, under s. 256, for S. to have a loaded pistol in his hand. I am not concerned with the later situation, that is a different case. But how can it be said, in the light of the section, that S. had any right under it, to follow his men up to the path, not knowing, at this stage, what would ensue, with a loaded pistol in his hand, which he presented at a man, who probably looked very menacing, but who was ‘surrounded’ by bush behind, and police in front of him? There is an embargo against all that S. did up to the time he fired the first shot.”

It was suggested in the course of argument that these strictures indicated that the trial judge found that the appellant’s conduct during the second or critical period was justified or excused. In my view this argument is untenable.

According to Symonds, whose evidence—except as to the path of the first shot—was accepted, the pistol was in the police vehicle. Symonds no doubt had the choice of leaving it behind or taking it. He chose the latter and said he did so because he knew the person he had gone to arrest was armed and could be dangerous. Opinions may properly differ as to the circumstances in which police officers should carry firearms but whether it was unwise for Symonds to have been carrying his pistol or not does not, in view of the trial judge’s finding that it had no effect on the appellant, appear of any significance here.

The reliance placed by the appellant on the longer passage which I have set out arises from what I see as a misunderstanding of the point his Honour was making. Section 256 of the Code provides in effect that where a police officer is proceeding lawfully to arrest and the offender takes to flight to avoid arrest the police officer may use reasonable force to prevent escape. The section goes on to provide that the use of force intended or likely to cause death or grievous bodily harm is not authorized unless the offender is suspected of having committed a crime punishable with death or life imprisonment and has been called upon to surrender.

I read the passage as saying, albeit in forceful terms, that s. 256 could not itself have justified either the carrying of the pistol or the firing of it at the appellant and this I think is correct. Justification for the carrying of the pistol must be found in other circumstances of the case and, presumably, in relevant police regulations whilst the firing of the pistol at the appellant which act was likely to have caused death or grievous bodily harm was not protected by the section.

I agree that the statement occurring in the trial judge’s judgment that “there is an embargo against all that S. did up to the time he fired the first shot” tends to suggest that what Symonds did was more than unwise. It was argued that the passage means that what was done was not only impermissible but that in some way it justified or excused the appellant’s conduct in this the second period.

I do not myself think that this would be a fair reading of the judgment. If Symonds was acting unlawfully in a relevant sense so that he was not acting in the execution of his duty then the trial judge could not properly have come to his earlier conclusion that the Crown had negatived the various defences raised, “namely mistake, self-defence, provocation, emergency, etc. ... Those defences all fail up to the point that the accused was shot in the leg”.

One of the major issues at the trial was that “even if there was originally some legal basis for the proposed arrest, the defence says that the manner in which the attempted arrest was made was quite illegal and improper”, and the trial judge would obviously have had this well in mind when he said that the various defences failed and later that the case was not one of assault but concerned violence to Symonds, “acting in the execution of his duty”.

I think the trial judge, while criticizing the carrying of the pistol, accepted that Symonds was acting in the execution of his duty. The alternative is to say that the trial judge completely overlooked an essential element of the offence which he himself described as a major issue at the trial and I am not prepared to do this.

I turn now to the blow struck by the appellant at Symonds. Reliance was placed on the fact that the blow would appear to have been aimed to disarm Symonds. It was said this was consistent with an allegation that the act was done in self-defence. This is so, but it is also consistent with an intention to escape from the police and all the other findings if accepted support the existence of such an intention and are inconsistent with the suggestion that the appellant was acting in self-defence.

These findings I have already referred to. They show that Symonds called on the appellant to drop his knife and told him he was under arrest. The first move was then made by the appellant advancing with his knife towards Symonds who was holding his pistol at his side. These are the objective facts which were accepted.

In addition, the trial judge was satisfied that on the one hand, Symonds feared, when the appellant first started walking towards him, that the appellant was going to attack him with a bush knife and that on the other the appellant was determined to elude the police and if they stood in his path to act violently towards them and that he advanced on Symonds ignoring, if he listened, orders to drop the knife not because he feared Symonds but because he wished to oppose him.

If these findings as to the sequence of events and as to the state of mind of the actors are accepted — and I shall refer to this aspect later—it seems quite clear that the first two defences must fail.

The third defence is that by pointing the pistol at the appellant Symonds unlawfully assaulted him and that whilst so engaged Symonds could not be acting in execution of his duty. This leads to a consideration of a number of sections of the Criminal Code. An assault constitutes an offence unless authorized, justified or excused (s. 246). For there to be an assault there must be, inter alia, either an application of force by one to another or a bodily act or gesture amounting to an attempt or threat to apply force (s. 245). Several sections, such as ss. 247, 248, 249, 254 and 256, provide that it is lawful “to use force” in the circumstances specified in the sections. I take it that the “use of force” comprehends both the application of force and also the threat by bodily act or gesture to apply force and not merely the former otherwise such actions as the raising of a baton or the pointing of a loaded pistol could never be justified under s. 247 or the other sections I have referred to although the actual striking with the baton or the firing of the pistol could.

I therefore accept that the pointing of a loaded pistol at another is capable of constituting an assault. Further, I accept without deciding, that a police officer whilst unlawfully assaulting another cannot be acting in execution of his duty in any circumstances. At least two questions remain. First, was there at the relevant time, that is between the time of Symonds’ arrival and the firing of the first shot an assault by Symonds? Second, if there were, was that assault unlawful?

The appellant’s version of what occurred as given in his statement from the dock, is as follows:

“I was fast asleep, my children were yelling and I did not know whats the matter the children were yelling for. After I got up very quickly and took my knife, I came outside my house and jumped off my platform. I did not see the police. I ran half way and I heard a voice saying, ‘the police are coming after you’. I ran half way up to the bush, I heard a voice calling to me, ‘Stop.’ So I stopped. I had my knife beside me, not raised in the air. All of a sudden I saw the police surrounding me and Mr Symonds came up in front of me. When he came up in front of me he took his cap off his head and threw it on the ground so all the police threw their caps on the ground. And pointing the gun at me and I called to him, I said, ‘Drop that gun’. He called to me, ‘Drop that knife’. Me looking very hard at him because me very frightened, he had the gun very close to me. So I raised my knife into the air to try to frighten him, he just let go the gun and the bullet hit me and he was getting ready to fire again. I try to stop him—I hit the point of the gun with the knife. When I hit the point of the gun I got struck on the head and I fell on the ground—laid unconscious.”

It will be seen that this version contradicts Symonds’ account in such material particulars as when the appellant raised his knife, who spoke first and when Symonds raised the pistol. The appellant says he raised his knife to frighten Symonds and that he himself was frightened.

I do not doubt that if this version of the events were accepted it would have been open to the trial judge to find that Symonds was unlawfully assaulting the appellant or at least to conclude that the Crown had not excluded that possibility beyond reasonable doubt. I say only that it would have been open to the trial judge to so find because I think even accepting the appellant’s version, that it would also have been open to him to find that in all the circumstances the pointing of the pistol at the time the appellant says it occurred, was justified.

But the fact is that in a hearing extending over seven sitting days the trial judge saw the witnesses and heard the evidence and the testing of it in cross-examination. He expressly states that as to the events now being considered he believed Symonds. There is no objective fact established which disproves any finding of the trial judge nor can this be described as a case in which the appellate court is not disadvantaged by not seeing and hearing the witnesses (cf. The Queen v. Worobi[cdxli]⁴).

The crucial facts as found are that the appellant was admittedly resisting arrest, that he moved menacingly with his bush knife at shoulder level towards Symonds who standing with his pistol at his side feared that the appellant was about to attack him.

I did not understand counsel for the appellant to argue that Symonds was assaulting the appellant by holding his pistol at his side and in the absence of any bodily act or gesture amounting to an attempt or threat to apply force there was clearly no assault.

What was complained of was the pointing of the pistol at the appellant but this did not occur until after the appellant moved menacingly towards Symonds. At that stage, Symonds’ act was justified either by s. 254 or s. 271 depending on whether the appellant’s intention is seen as resistance or attack.

In my view all three defences rightly failed.

I should refer to one further aspect. I have said that in my view the trial judge did not hold that merely by carrying a pistol in the way he did Symonds ceased to be acting in the execution of his duty.

If I am wrong in that conclusion I would still not allow the appeal. Symonds knew the appellant was armed and thought he could be dangerous. I think it was quite proper for him to take the pistol with him and to carry it by his side until he raised it in the circumstances I have described. On this basis the appellant’s conviction did not arise from any miscarriage of justice.

I would refuse leave to amend the notice of appeal and dismiss the appeal.

FROST ACJ: It is unnecessary for me to refer to the facts or issues in this appeal as they are fully set out in the judgment of Clarkson J. I should say at the outset that I have read his careful and critical analysis of the judgment under appeal, but I regret I am unable to agree with it. On the view I take of the case there are two main issues, one is whether upon the trial judge’s findings the Crown had failed to prove that Inspector Symonds was acting in the due execution of his duty, and the other is whether, if that ground of appeal is made out there has been any miscarriage of justice.

At the trial s. 256 of the Criminal Code was treated as the relevant provision concerning the Inspector’s use of force. That section renders it lawful for the police officer, in certain circumstances, where the person sought to be arrested takes to flight in order to avoid arrest to use such force as is reasonably necessary to prevent the escape. However, in this Court it was accepted by both counsel that s. 254 of the Criminal Code was the relevant provision. That section renders it lawful for a person who is engaged in making any arrest to use such force as may be reasonably necessary to overcome any force in resisting such arrest. As will be seen, the interpretation of the word “force” is important in this case. The point is whether the word “force” includes a threat of force. I am content to adopt the view put forward during argument by Clarkson J., that ss. 254 and 256 are found within a group of sections intended to protect the person making the arrest, and that that protection would be incomplete unless it covered not only the application of force but also any threat or attempt to use force. Although specifically related to s. 256 his Honour’s finding is equally applicable to the issue of the use of force under s. 254. He found that under that section there was absolutely no warrant for Symonds to have a loaded pistol in his hand during the chase, or in his initial confrontation—“there is an embargo on all that Symonds did up to the time he fired the first shot”.

If in fact the trial judge held that there was an excess of force, or threat of force, on the part of the Inspector, then the Crown has failed to prove that he was acting in the execution of his duty. R. v. Galvin (No. 1)[cdxlii]⁵ which was approved by the High Court in the case of The Queen v. Reynhoudt[cdxliii]⁶. In this court Counsel for the Crown submitted that it was implicit in the judge’s conclusion that the offence was proved, that the Crown had proved that the arrest was carried out in a lawful manner, and that his Honour’s findings amounted merely to some criticism of the Inspector’s actions, without going so far as to hold that unnecessary force was used. His Honour’s conclusion (par. 6) in answering the rhetorical question, “Why did the appellant have a bush knife in his hand?” that, “for some reason Erico was bitterly resentful and angry. The bush knife was much more than a symbol. There was a real possibility it would be used. He was, with this dangerous weapon, a dangerous and frightening man”—would be consistent with such an approach. The difficulty I feel is that it is equally possible that the trial judge may not have adverted to the full effect of his finding as to the use of the pistol by Symonds, or he may have taken the view that the effect of the excessive use of force was removed by reason of his finding that the Inspector’s improper action did not have any effect on the appellant. I could not agree that such a view of the law was well founded. But any doubt I might have on this matter I consider must be resolved in favour of the appellant, because the trial judge specifically stated that it was under s. 256, that is as to the issue as to whether excessive force was used, that he said Symonds’ actions were unwarranted. It would be quite unreal, in my opinion, to split the confrontation up into segments, and to endeavour to uphold the conviction by reference to the period from the time after Symonds’ arrival when he faced the appellant with the bush knife raised, until Symonds raised his pistol. Considering the incident as a whole, as his Honour did, during the period of his “embargo” on Symonds’ actions, I cannot but conclude that the effect of the trial judge’s finding was that from the beginning Symonds’ holding of the pistol amounted to an unlawful threat of force. Accordingly, Symonds could not have been acting in the execution of his duty, and the Crown had failed to prove one of the elements of the crime.

The other grounds of appeal are in substance, that having regard to the effect of the trial judge’s findings he was wrong at law in failing properly to consider defences of self-defence, and the defence that the appellant acted under the honest and reasonable belief that the Inspector was in fact unlawfully assaulting him, and these actions were reasonably necessary for self-defence.

This part of the case depends on the effect of the Supreme Court (Full Court) Act, s. 28 (1) (a). It seems to me that it is difficult to depart from the plain meaning of the sub-section as construed in Reg. v. Cooper[cdxliv]⁷ which was accepted as the construction applicable by the majority in Kampangio v. The Queen[cdxlv]⁸. However as no argument was addressed to this Court upon the effect of Reg. v. Holland[cdxlvi]⁹ and the other case referred to by Clarkson J., I express no opinion upon these grounds of appeal and indeed it is unnecessary for me to do so.

This brings me to the remaining issue in the appeal, which is whether any miscarriage of justice has actually occurred. Supreme Court (Full Court) Act 1968, s. 28 (2). From what I have said it is certainly not to be taken that I am in agreement with the trial judge’s findings as to the impropriety of Inspector Symonds’ actions in the attempted arrest of the appellant. My strong feeling is that in reaching his conclusion upon this matter the trial judge may not have given full weight to his other finding that there was a real possibility that the appellant would use the bush knife. It is on this part of the case that I have had the greatest difficulty. However, not without doubt, I am not prepared to go so far as to hold that his Honour’s finding that the Inspector’s use of the pistol was not warranted, was not open on the case. The considerations that the appellant was heavily outnumbered and that the police were armed with batons, including a special long riot baton, could be taken to support that finding.

Accordingly I do not consider that no miscarriage of justice has occurred.

For these reasons I would allow the appeal.

PRENTICE J: The appellant was convicted under s. 340 (2) of the Criminal Code, of having resisted a police officer whilst acting in the execution of his duty. At the trial, the issues of whether the police officer was acting in the execution of his duty, and whether the appellant’s actions—while amounting to a “resistance” — were not justified, were vigorously contested.

Before this Court it was argued that in the light of the trial judge’s findings, including as they did stern criticism of the nature of the arresting Inspector’s actions, there should have been a finding that the Inspector at all material times was acting otherwise than in the execution of his duty. The argument here on the appellant’s behalf, as at the trial, was developed from an interpretation of s. 256 of the Code. It was said that the charge therefore should have failed in limine, as the judge had in effect found that such “resistance” as occurred, was not made to a police officer acting in the execution of his duty.

It was next contended that a second echelon of defence existed, assuming the officer to have been acting in the execution of his duty. This lay in that the happenings of 13th December, 1972, considered in the light of previous attempts of a bizarre nature to recapture the appellant, then a prisoner-at-large, were such that (1) either the appellant was entitled to defend himself as a matter of self-defence (s. 271) against the Inspector’s advances; or (2) that he laboured under such a mistake of fact, honestly and reasonably held, as to the Inspector’s intentions unlawfully to do him harm, that by s. 24 he became entitled to the benefit of the self-defence provisions of s. 271.

Submissions were also made that the trial judge did not properly consider the defences raised of self-defence, and of mistake allied with self-defence; and that if he did adequately consider these defences, his conclusions negativing their existence were clearly at variance with his findings and such that this Court should set them aside. Alternatively, it is said this Court should pronounce the conviction unsafe and unsatisfactory and allow the appeal, after consideration of the evidence and findings and the circumstances of the case.

Finally, at the hearing of the appeal, leave was sought to add another ground — that the verdict was against the evidence and weight of the evidence.

(At this point I delete a summary of the facts of the case, having since writing this judgment read that of my brother Clarkson which sets them out succinctly.)

I proceed to consider the grounds of appeal seriatim.

(His Honour then dealt with the ground that the verdict was against the evidence and weight of evidence concluding that the appeal should be dismissed on this ground even if leave to add it were granted.)

WAS THE INSPECTOR ACTING IN THE EXECUTION OF HIS DUTY?

...

In my opinion the events at the commencement of this confrontation in the clearing are those which are vital to the consideration of whether the offence is made out. For even if the Crown is shown not to have negatived to the necessary degree of conviction beyond reasonable doubt (which I conceive to be its duty, Woolmington v. D.P.P.[cdxlvii]¹⁰; contrast the apparently differing position in Victoria qua a statutory offence Reg. v. Galvin (No. 1)[cdxlviii]¹¹, approved in The Queen v. Reynhoudt[cdxlix]¹²), defences possibly available as to the actions at the moment of and after the shooting which transpired; this earlier behaviour may constitute the offence.

...

In considering whether the Inspector was acting in the execution of his duty, I am by no means persuaded that it is sufficient to suggest that he was not, merely to establish some element of unlawfulness in his behaviour (e.g. a breach of police regulations). I note in this regard the contrast between “acting in the execution of his duty” (s. 340 (2) on the one hand; and “the lawful arrest or detention” (s. 340 (1)), “the lawful execution of process ... lawful distress” (s. 340 (3) and (4)), “duty imposed by law” (s. 340 (5))— on the other.

And I am of the view that it is appropriate to look at s. 254 rather than at s. 256 when considering the possible illegality of any force used at the time I regard as relevant, that of the initial confrontation in the clearing. The primary purpose of ss. 254, 256, 257, 258, appears to be that of providing protection to the arresting person, while safeguarding the arrested person against excessive violence. The power given the arresting person under s. 254, which is not hedged by a proviso, appears ampler than that given by s. 256. One can readily imagine that a greater use of force would be justified in actually making an arrest in the face of a forceful resistance (perhaps by an armed person), than would be in trying to stop the flight of a person sought to be arrested.

(His Honour then went on to deal with certain of the findings of fact of the trial judge and continued):

The trial judge’s attention does not seem to have been directed by counsel to the section which I consider to be that appropriate to the initial confrontation in the clearing, viz. s. 254. In my opinion, under that section at that point of time the Inspector, in challenging a defiant, determined armed man who, though in a sense brought to bay, was holding off a circle of policemen armed with truncheons, was entitled to use reasonable force, and I include thereunder the threat of force, which I think necessarily follows, to effect an arrest. The holding in readiness and perhaps pointing of, a loaded pistol at this armed man, seems to me quite conclusively an appropriate and permissible act at that point of time. If his Honour’s criticisms, contrary to my attempted analysis of them above, ought to be construed as a finding of illegality, I would with the greatest respect, myself come to an opposite conclusion as to legality on the facts as found by him. I am therefore of the opinion that there was no unlawful assault at this point of time and that this argument is not well grounded.

WERE THE DEFENCES OF SELF-DEFENCE, AND OF MISTAKE ALLIED WITH SELF-DEFENCE, PROPERLY CONSIDERED AT THE TRIAL?

(His Honour then dealt with certain of the findings of the trial judge and continued):

With respect, I am of the opinion that his Honour has made clear that he has properly considered and rejected these defences.

WERE THESE DEFENCES PROPERLY NEGATIVED?

Once raised, the onus lay on the Crown to negative these defences. His Honour’s findings in his “Conclusions” numbered 1-13, together with those set out under the heading “Background” and elsewhere in his judgment, are all in my opinion amply supported by evidence, and such as negative beyond reasonable doubt the defences raised, up to the point when the shot was fired probably wounding the accused. These findings establish a resistance by the accused, and indeed such was conceded by his counsel.

I would therefore hold that the accused was properly convicted. I would wish to add that were I persuaded to the contrary in regard to either the legality or self-defence arguments, I would still with respect, view the facts proved before his Honour in relation to resistance at and after the point of time when one handcuff, but not the other, was fastened to the accused, as establishing also a resistance within the meaning of the section. In that event I would yet consider that no miscarriage of justice had occurred and I would dismiss the appeal under s. 28 (2)

SUPREME COURT (FULL COURT) ORDINANCE.

For the reasons set out above I am also of the opinion that the submission that the conviction was unsafe or unsatisfactory must be rejected.

Having said as much, I wish to add that though reference has been made to the R. v. Cooper[cdl]¹³ formula in one or two previous decisions of this Court; with respect, I doubt whether this Court should take the same approach to the interpretation of s. 28 (1)(a) of the Supreme Court (Full Court) Ordinance of Papua New Guinea. I find myself disturbed by the prospect of this Court adopting any substitute such as entertaining a “lurking doubt”, or “the general feel of the case”, or “reacting unhappily” for the plain words of the section. With respect, such a test would seem to replace proof beyond reasonable doubt on the evidence, with a new one that of test beyond lurking doubt at large. I find difficulty in agreeing that this court of appeal (the Full Court), should not base its considerations “strictly on the evidence as such”. I say this despite the possibly inferential approval of this aspect of the R. v. Cooper[cdli]¹⁴ formula by the House of Lords in the speech of Viscount Dilhorne in Stafford v. D.P.P.[cdlii]¹⁵. Though I note that Viscount Dilhorne went on to say “The Court has to decide whether the verdict was unsafe or unsatisfactory and no different question (italics mine) has to be decided when the Court allows fresh evidence to be called.” I am, as at present advised, of the opinion that the court’s duty should be to scrutinize only the evidence of the case under appeal, together with any other fresh evidence which it might allow to be admissible in support of the appeal. The time-honoured rules whereby an appeal court gives full faith and credit to the superior position of the trial tribunal as to the atmosphere of the trial, the demeanour of, and assessment of witnesses (some of its conclusions as to which it may not express), seem to me of the greatest importance in the administration of justice and the harmonious working of the court.

To my mind the approach adumbrated by the Chief Justice of Australia in Hayes v. The Queen[cdliii]¹⁶ as to the “older” Australian appeal sections, may be more suitable to the needs and responsive to the wishes of the people of this country, than that devised in what frankly appears to me, legislative dictum of the Court of Appeal, Criminal Division, of England. Any tendency to proliferate appeals and to allow of a second trial in effect, before three judges (selected from the same bench as the trial judge), particularly in a country where there are no sanctions as to costs and 100 per cent representation of accused and appellants in criminal matters at Supreme Court level, would I consider work a mischief that should be resisted.

If the R. v. Cooper[cdliv]¹⁷ dictum is to be incorporated into the appeal structure of this Court, then it should be done, I consider, only after full argument has been presented on the issue.

I would refuse leave to add the further ground of appeal. I would dismiss the appeal and confirm the conviction and sentence.

Appeal dismissed.

Conviction and sentence confirmed.

Solicitor for the appellant: G. R. Keenan, Acting Public Solicitor.

Solicitor for the respondent: P. J. Clay, Crown Solicitor.

[cdxxxix]Section 254 of the Criminal Code (Queensland adopted) provides:

“It is lawful for a person who is engaged in the lawful execution of any sentence, process, or warrant, or in making any arrest, and for any person lawfully assisting him, to use such force as may be reasonably necessary to overcome any force used in resisting such execution or arrest.”

[cdxl]Section 256 of the Criminal Code (Queensland adopted) provides:

“When a police officer is proceeding lawfully to arrest, with or without warrant, a person for an offence which is such that the offender may be arrested without warrant, and the person sought to be arrested takes to flight in order to avoid arrest, it is lawful for the police officer, and for any person lawfully assisting him, to use such force as may be reasonably necessary to prevent the escape of the person sought to be arrested.

But this section does not authorize the use of force which is intended or is likely to cause death or grievous bodily harm, except in a case where the person sought to be arrested is reasonably suspected of having committed an offence punishable with ... imprisonment for life under this Code, nor until the person sought to be arrested has been called upon to surrender.”

[cdxli][1974] P.N.G.L.R. 23.

[cdxlii][1961] VicRp 113; [1961] V.R. 733, at pp. 737, 738.

[cdxliii](1962) 107 C.L.R. 381.

[cdxliv][1969] 1 Q.B. 267.

[cdxlv][1969-70] P. & N.G.L.R. 218.

[cdxlvi][1974] P.N.G.L.R. 7.

[cdxlvii][1935] A. C. 462

[cdxlviii][1961] V.R. 733.

[cdxlix](1962) 107 C.L.R. 381.

[cdl][1969] 1 Q.B. 267.

[cdli][1969] 1 Q.B. 267.

[cdlii] [1973] 3 All E.R. 762, at p. 764.

[cdliii](1973) 47 A.L.J.R. 603.

[cdliv][1969] 1 Q.B. 267.

[cdlv]Infra, p. 414.