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Besia, Regina v [1975] PNGLR 74 (7 April 1975)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 74 - Regina v Edison Kopada Besia

[1975] PNGLR 74

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

EDISON KOPADA BESIA

Mount Hagen

Prentice ACJ

2-5 April 1975

7 April 1975

CRIMINAL LAW - Particular offences - Unlawful confinement - Circumstances rendering confinement unlawful - Failure to inform defendant of reason for confinement - Common law, application of - Human Rights Act, compliance with - Exculpatory defences under Criminal Code - Onus of negativing on Crown - Particular circumstances - Human Rights Act 1972, s. 11 (1) & (2)[lxxv]¹ - Criminal Code (Queensland adopted), ss. 23, 24 and 355[lxxvi]².

HUMAN RIGHTS - Unlawful confinement - Failure to inform defendant of reason for confinement - Failure to comply with s. 11[lxxvii]³ of the Human Rights Act 1972, rendering confinement unlawful.

The accused, a police sergeant, then in charge of Banz Police Station was charged under s. 355 of the Criminal Code (Queensland adopted) with having unlawfully confined a village woman in a police cell at Banz in September/October of 1974; the confinement followed on a complaint as to theft of goods which were found to be in a house also occupied by the woman. The woman was arrested and confined for a period of over a week without at any time being informed of any charge she was facing but having been told she would be kept in custody until her husband was caught. The accused, alleged that in fact he directed the woman be charged and that the consequence that she never was so charged was an event that occurred independently of the exercise of his will (s. 23 of the Criminal Code), or alternatively that he had an honest and reasonable but mistaken belief that all things necessary to render the confinement lawful were being carried out, and at a later point of time had been carried out (s. 24 of the Criminal Code).

Held

(1)      The requirement of s. 11 of the Human Rights Act 1972, that a “person who is arrested or detained shall be informed promptly, in a language which he understands, of the reasons for his arrest or detention and of any charge against him ...” has the effect of rendering a detention effected in breach of its terms, unlawful.

(2)      The initial confinement, on the basis that the woman would be kept until her husband was caught was unlawful either at common law or by failure to comply with s. 11 of the Human Rights Act 1972.

(3)      The onus of negativing the exculpatory defences which rested with the prosecution had in the circumstances been discharged; (a) the degree and length of dereliction of duty as officer-in-charge amounting in effect to recklessness and the possibility, which a reasonably prudent person as officer-in-charge would have foreseen, that the woman would not be charged for sometime and that her confinement would therefore be unlawful unless he carried out his responsibility by seeing that his subordinates did their work properly, negatived the defence of lack of willed act under s. 23 of the Criminal Code (Queensland adopted) and (b) the degree of responsibility of the accused as officer-in-charge and the lapse of time involved rendered any mistake of fact under s. 24 of the Criminal Code (Queensland adopted) nugatory.

Trial

The accused, then the Officer-in-Charge of Banz Police Station with the rank of sergeant was charged pursuant to s. 355 of the Criminal Code (Queensland adopted) with having unlawfully confined a village woman in a police cell at Banz in September/October 1974.

Counsel

A. M. Webb, for the prosecution.

K. R. Roddenby, for the accused.

Cur. adv. vult.

7 April 1975

PRENTICE ACJ: The accused stands charged with having unlawfully confined a village woman in a police cell at Banz in September/October 1974. The accused was then Officer-in-Charge of Banz Police Station with the rank of sergeant.

The confinement was clearly illegal; if for no other reason, because during the whole period of her confinement she was never charged with any offence except that of escaping from lawful custody; following an escape during the said period. On this charge she was convicted — the magistrate having been wrongly informed that at the time of her escape she was being held on a charge under s. 42 (1) Police Offences Act (N.G.) — that is of having in her possession property suspected of having been stolen. At the time when she was released following this improper conviction, the woman had still not been, nor has she ever been, charged under s. 42 (1).

The instant charge is brought against the accused under s. 355 of the Code which so far as is relevant, reads as follows:

“Any person who unlawfully confines or detains another in any place against his will, or otherwise unlawfully deprives another of his personal liberty, is guilty of a misdemeanour.”

The section does not appear to have received in Papua New Guinea any construction in association with the exculpatory sections of the Code. At any rate none has been cited to me; and indeed none appears noted in Judge Carter’s work.

The Crown accepts that the onus lies on it to negative the existence of exculpatory circumstances — it is agreed therefore that the position under the Code is other than that stated to be the law in the United Kingdom, where Archbold (38 ed., p. 2798) states that once an imprisonment is shown the defence must justify.

The defence here, while admitting the illegality of the confinement; asserts that the accused is entitled to the benefit of s. 23 of the Code. The accused in fact directed the woman be charged, it is said; and the consequence that she never was so charged was an event that occurred independently of the exercise of his will.

Alternatively it relies under s. 24 on what it is said to have been an honest and reasonable but mistaken belief that all things necessary to render the confinement lawful were being carried out; and at a later point of time, had been carried out.

Not surprisingly, it is difficult to ascertain the facts of this arrest and confinement.

The stories are those of three of the women arrested, none of whom has a complete understanding of Tok Pisin — and who were brought before the accused, who could not speak their Middle-Wahgi tongue. And of the accused and other police officers who also had no knowledge of Middle-Wahgi — and who kept no note as to what was happening in September 1974, some seven months ago. Apparently no notation was made in the occurrence book; and the charge book of Banz station which is before me, makes no mention of the arrest or of course of charging the woman in respect to the “goods in possession”.

It seems that following a complaint, by a plantation manager as to theft of his goods, the accused authorised some policemen to go to Talus village and to arrest any persons who might be found in possession of such goods (furnishings from a European style house). Police attended the village. On their arrival, the husbands of each of four particular women hurriedly decamped. Their wives remained. Looking inside the absconders’ houses, various articles were found — in the case of Waian, a double mattress and some seat cushions, identified by the plantation manager as his. These facts were said to justify s. 42 (1) charges. There was no suggestion that the women had assisted their menfolk in the robbery or had in any way reduced the articles found to their own exclusive control or their own possession. Unless the admission by the woman Waian that she and her husband had slept on the double mattress could constitute such. The power of arrest actually exercised was no doubt that under s. 10 (e) of the Police Offences Act (N.G.), whereby a policeman may arrest without warrant “any person whom he has just cause to suspect of having committed ... any felony, misdemeanour or offence ...”.

I am extremely dubious whether the facts revealed justified a reasonable suspicion (s. 10 (e)) that Waian had stolen goods “in her possession” (s. 42 (1)), and would be “unable to give an account to the satisfaction of the Court how she came by the property”. So close in time to the absconding of the husbands, was the “finding” that I consider it highly improbable that a court would not accept an explanation of a New Guinean village woman as exculpating her — if she merely said “I had nothing to do with the stealing, my husband brought the goods back — I could not stop him. He has directed their use”. I am therefore of the opinion that the arrest was probably unlawful for this reason. Nor do I think any further particulars were before the accused at the police station such as would justify his believing that such a charge (s. 42 (1)) could be made to stick. On his version, he was dubious as to his course of action and rang Sub-Inspector Farapo his superior at Minj and received advice from him to hold the woman (and, he says, to hold further investigation). And indeed Sergeant Kumo’s evidence was to the effect that one of the women Mos, said her husband had stolen things and run away and she didn’t know anything about it.

At common law I understand a confinement to be illegal if the person confined is not informed of the reason why he is seized and detained. (There are situations where the circumstances themselves make this plain of course), (Christie v. Leachinsky)[lxxviii]⁴.

In Papua New Guinea it is further specially ordained that “No 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 which he understands, of the reasons for his arrest or detention and of any charge against him, ...”. (sub-sections (1) and (2) of s. 11 Human Rights Act 1972). Though s. 8 (4) in Pt. II of that Act provides that “Nothing in this Part of itself creates a criminal offence”; I am of the opinion that s. 11 must have the effect of rendering a detention effected in breach of its terms, unlawful. In his interview with Constable 1/C Sakail, recorded on 13th November, 1974, the following admissions occur:

“Q.     That woman Waian Yami at that time your policeman had taken her in did you charge her or not?

A.       We didn’t charge them we hold them until we can arrested (sic) their husbands.

Q.       But that woman you put her inside the cell at police station for nothing, is that true?

A.       We didn’t put them for nothing in the cell. We followed the rules for before, patrol officers and police used to do, at the time if the man makes trouble and ran away they used to kept them in the cell, a man or woman if her husband ran away.

Q.       But that woman Waian Yami she doesn’t want to go in the cell, because she didn’t make any trouble is that true?

A.       No, we have got her for having possession of those things.

Q.       But you didn’t charge her for the offence of being in possession, and that woman Waian had been in the cell for almost two weeks is that true?

A.       No she is not in for two weeks — she stayed only for one week.”

Constable Samba gave evidence that when the women were brought before the accused, he rang up his officer Farapo at Minj. He then said “Farapo told me ‘don’t let the women go — hold them until you find their husbands’ “. That the accused then called Yanofi in and said “Take them” (the women) “away and charge them” and this was said in Pisin. The accused did not speak after that. It is not contended that in the circumstances, this was anything other than a direction that they be placed in the cells after being charged. According to this witness all the accused said to the women was — “Your husbands have stolen things — they’ve run away — so we’ll keep you in the cells”.

Sergeant Kumo (in September 1974 a Senior Constable gave evidence that he brought the women to the Sergeant and lined them up telling the Sergeant (accused) “These women’s husbands stolen those things and have run away — so we’re bringing the women instead”. He also spoke of the accused’s words after he the accused had spoken to Farapo. He informed the police that Farapo had said we are to keep these women here until we find their husbands. The accused then called Yanofi the prosecutor, and told him “charge these women”. Nothing more was said in Pisin — but some things apparently in English. Waian said that the Sergeant wrote their names first and then said “because your husband stole things and ran away — you’ll have to stay in the cells until we find your husband”. She denied that the Sergeant told her she would be charged with having stolen goods in her possession.

Nembil Tongil, another of the arrested women, also stated in evidence that the Sergeant said “Your husbands stole something so you’ve got to stay here until your husbands come — then you can go”; the other policeman said the same things. In cross-examination she denied the accused said “You will be charged with having stolen goods in your possession”.

Mos Bunt, a third woman told a similar tale. Her evidence was in effect a denial that the accused had informed the women of the charge they were facing. Pressed in cross-examination she agreed that the accused said “You knew your husband stole these things and had them in your house — so you will have to stay”.

The accused gave sworn evidence that he told the women “You’re going to be charged with having possession of stolen property”. But he also agreed that he had not told them they would be held at the police station until their husbands were caught. He did not make a favourable impression on me as a witness.

It is curious that neither Crown nor defence sought to call the station prosecutor Yanofi, whom the accused stated he directed to charge the women. This leaves a big gap in the evidence. The only inference I think I am entitled to draw in the circumstances (Jones v. Dunkel)[lxxix]⁵, is that his evidence would not have assisted either case. There is thus in effect no evidence that the women were told of the charge they were facing — other than that of the accused. I find myself unable to accept his evidence. I find it established beyond reasonable doubt that the women and Waian in particular, were never informed of any charge they were facing. I believe that they were merely told they would be kept until their husbands were caught. I think the necessary conclusion is that the initial confinement was ordered by him in circumstances which rendered it unlawful for non-compliance either with common law or the Human Rights Act. And that this would support the charge.

I think the defence raised under s. 23 has also been excluded beyond reasonable doubt by the Crown. The accused was Officer-in-Charge of the station. He admitted that as a proper procedure he should check any charge presented by the station prosecutor, and formally “accept it”. He agreed that he should check his charge book regularly. He did not do so. I find the woman to have been confined illegally from either 26 or 27th September to 8th October, 1974. At no time during that period did the accused check whether a charge had been laid. I am investigating this on the basis of the story that he himself tells this Court. He did not inquire as to the charging or possible previous court appearance even when the women were on 8th October brought up on the charge of escaping custody. On his story he had opportunities to inquire as to the correctness of procedures when Yanofi spoke of taking them to Minj police station the first weekend of their confinement; again when Yanopi came back and there was some vague talk of a remand; again when the women returned on the Monday from Minj — again the following Monday when he himself granted the women bail.

His degree and length of dereliction of duty as Officer-in-Charge of Banz police station, I consider amounted to a recklessness that would disentitle his being able to urge that his will did not go with the actual unlawful imprisonment as it continued.

There is I think an additional factor compelling the conclusion in my mind, that the defence of lack of willed act under s. 23 is not available to the accused. It appears to me that when the accused directed the confinement of Waian, it was perfectly foreseeable that his intention may have been effected without its accompanying directions (viz. “to charge her” — assuming for the moment, he said that). In other words that it was foreseeable and that a reasonably prudent person as Officer-in-Charge of police station, Banz would have foreseen the possibility that she would not be charged for some time and that her confinement would therefore be unlawful, unless he carried out his responsibility as Officer-in-Charge lock-up of seeing that his subordinates did their work properly. (Reg. v. Knutsen)[lxxx]⁶.

Similarly, I am of the opinion that the facts proved by the Crown disentitle the accused to the benefit of the defence of mistake. Even if one were to assume that at the initial complaint (setting aside my conclusion that it was unlawful anyway, because no account was given Waian of the charge to be presented — in a language that she could understand) an honest and reasonable mistake was made by the accused that his directions as to entry of a charge were being carried out; I cannot see that such a mistake could be held in an honest and reasonable manner as to a state of affairs that existed immediately after the women were removed from the office and thereafter for many days. Indeed the accused did not speak of entertaining a mistaken belief that she had been charged throughout the total period of her confinement. In view of his responsibilities and the lapse of time involved — I do not think any such mistake could be found to be reasonable.

For the above reasons I am satisfied that the defences raised have been excluded and that the offence has been proved. I convict the accused.

Verdict: guilty.

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

Solicitor for the defence: N. H. Pratt, Acting Public Solicitor.

[lxxv]The effect of s. 11(1) and (2) is set out infra at p. 77.

[lxxvi]Infra p. 75.

[lxxvii]The effect of s. 11(1) and (2) is set out infra at p. 77.

[lxxviii][1947] A.C. 573.

[lxxix](1959) 101 C.L.R. 298.

[lxxx] [1963] Qd. R. 157.