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Aieni v Tahain [1978] PNGLR 37 (24 February 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 37 - Agiru Aieni v Paul T Tahain 

[1978] PNGLR 37

N123

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

AGIRU AIENI AND 12 OTHERS

V

PAUL T TAHAIN

Waigani

Wilson J

6 February 1978

24 February 1978

POLICE OFFICES - Intending to fight - Behaving in a manner likely to cause a reasonable person to believe that he intended to start a fight - What constitutes offence - Aiding and abetting offence -Whether s. 7 of Criminal Code and s. 23 of Interpretation (Interim Provisions) Act 1975, applicable - Proof of mere presence not sufficient to constitute aiding and abetting - Summary Offences Act 1977, s. 8.

CRIMINAL LAW - Parties to offences - Aiding and abetting - Presence at scene of offence - Aspects of aiding and abetting - Whether s. 7 of Criminal Code and s. 23 of Interpretation (Interim Provisions) Act 1975 applicable to offence of intending to fight contrary to s. 8 of the Summary Offences Act 1977 - Proof of mere presence not sufficient to constitute aiding and abetting.

CRIMINAL LAW - Practice and procedure - Pleas - Plea of guilty - Whether improperly entered - District Court - Unrepresented defendants - Statement of facts not disclosing offence - Statement of facts admitted - Words spoken by defendants not to be taken as amounting to unequivocal plea of guilty.

CRIMINAL LAW - Practice and procedure - Allocutus - Right to address on sentence after conviction not given - Effect of failure to administer allocutus - Denial of natural justice - Sentence nullified.

CRIMINAL LAW - Sentence - Maximum sentence prescribed - Circumstances in which maximum sentence may be imposed.

CRIMINAL LAW - Sentence - Relevant considerations - Offence against s. 8 of the Summary Offences Act 1977 - Mitigating circumstances to include previous good character, previous convictions and family responsibilities - Particular place where offence occurred not relevant as aggravating circumstance.

On appeal by thirteen appellants against their convictions by the District Court at Port Moresby, on charges of behaving in a manner that was likely to cause a reasonable person to believe that they intended to start a fight, contrary to s. 8 of the Summary Offences Act 1977, and sentences of three months’ imprisonment with hard labour (the maximum penalty prescribed) and one fine of K15, it appeared from the magistrate’s report of the District Court proceedings that there was an admission by each of the appellants of the Statement of Facts to the effect that a riot broke out between the Tari people and the Gumini people in suburban Port Moresby, that threatening and offensive gestures were made, that there was shouting and waving of hands in the air, that a chase developed, and that weapons including axes, metal spears etc., were carried, that each appellant was then recorded as having pleaded guilty or as having admitted the charge, was found guilty and sentenced without being given an opportunity to be heard on sentence:

Held

(1)      To constitute the offence of behaving in a manner likely to cause a reasonable person to believe that he intended to start a fight contrary to s. 8 of the Summary Offences Act 1977, there must be proof of some conduct on the part of the accused as well as compliance with some external standard:

(a)      if it is alleged that the accused was a principal, proof is required that he behaved or conducted himself in a certain manner (the behaviour aspect) and that such behaviour fell within the external standard (the external standard aspect).

Leonard Eliza and Others v. Mandina [1971-1972] P. & N.G.L.R. 422 referred to.

(b)      if it is alleged that the accused was an accessory, proof is required of some conduct in promoting the commission of the crime (the aiding and abetting aspect) and of some behaviour on the part of those encouraged (the behaviour aspect) and that such behaviour falls within the external standard (the external standard aspect).

(2)      Proof of mere presence at a place where a number of people are found will not constitute aiding and abetting, sufficient to support a conviction for breach of s. 8 of the Summary Offences Act 1977; there needs to be some proof of promotion or encouragement of the principal offenders.

The Queen v. Coney and Others [1882] UKLawRpKQB 30; (1881-1882) 8 Q.B.D. 534 at pp. 557-558; R. v. Clarkson and Others [1971] 3 All E.R. 344 at p. 347; Fabinyi v. Anderson (1974) 9 S.A.S.R. 336 at p. 339; Barrington v. Austin and Others [1939] SAStRp 38; [1939] S.A.S.R. 130; Rice v. Hudson [1940] SAStRp 37; [1940] S.A.S.R. 290; United States v. Poenic (1938) 100 F. 2d. 401; Dennis v. Pight (1968) 11 F.L.R. 458 at p. 461; R. v. Russell [1932] ArgusLawRp 98; [1933] V.L.R. 59 at p. 66 and George Donald Allan, James Joseph Boyle, Albert Ballantyne, Michael Mooney (1963) 47 Cr. App. R. 243 at p. 249, referred to.

(3)      In the circumstances, the magistrate was not entitled to accept that any admission of what was in the statement of facts amounted to more than an acknowledgement of being present in the area, nor that any admission had been made that the behaviour of any of the appellants was likely to cause a reasonable person to believe that any particular appellant was likely to start a fight (or in the case of aiding and abetting was promoting or encouraging another’s like behaviour).

(4)      In considering whether a plea of guilty has been properly entered, the words spoken by the defendant are the words to be looked at and cannot be taken to amount to a plea of guilty unless those words unequivocably point to an adoption of each of the elements of the charge.

Laeka Ivarabou v. Nanau [1967-1968] P. & N.G.L.R. 12 and Balu Mau’u v. Pare [1973] P.N.G.L.R. 64 at pp. 68-69 followed.

(5)      In the circumstances including the fact that each of the appellants was unrepresented before the District Court, and the admission of nothing more than that each was present, none of their statements to the magistrate could be said to be an unequivocal admission of guilt, and the pleas of guilty were accordingly improperly entered.

(6)      The pleas of guilty having been improperly entered, the appellants could not in law have been convicted of the offences charged, and the convictions must be set aside on this ground.

Reg. v. Blandford Justices; Ex parte G. (An Infant) [1966] 2 W.L.R. 1232 applied.

(7)      Further, no allocutus having been administered to any of the appellants was a denial of natural justice and rendered each sentence pronounced a nullity.

Moses Aikaba and Others v. Tami [1971-1972] P. & N.G.L.R. 155 followed.

(8)      Each of the appellants having been deprived of a trial according to law there had been a substantial miscarriage of justice and the appeals against conviction should be allowed.

Mraz v. The Queen [1955] HCA 59; (1955) 93 C.L.R. 493 at p. 514 and The Queen v. Van Beelen (1973) 4 S.A.S.R. 353 at pp. 410-411 referred to.

(9)      Where a maximum sentence is prescribed for any particular offence, such maximum sentence should be reserved for the worst or most serious of cases, and before it is imposed it is essential that there be some enquiry (particularly where there are co-accused) as to the extent to which each accused participated in the offence.

(10)    For the particular offence it was relevant to take into consideration in favour of the appellants, their previous good character, absence of previous convictions and family responsibilities, and failure to consider these matters rendered the sentences erroneous.

(11)    Further, for the particular offence, it was improper to take into account (as was done by the magistrate) as an aggravating circumstance, the fact that the offences were allegedly committed in the nation’s capital as opposed to any other town or city in the country.

(12)    The appeals should be allowed and the convictions quashed.

Appeals

These were appeals by thirteen appellants against their convictions and sentences by the District Court at Port Moresby, on charges of behaving in a manner that was likely to cause a reasonable person to believe that he intended to start a fight, contrary to s. 8 of the Summary Offences Act.

Counsel

I. C. Campbell, for the appellants.

W. J Karczewski, for the respondent.

Cur. adv. vult.

24 February 1978

WILSON J: These are appeals by each of thirteen appellants against his conviction by the District Court at Port Moresby on 17th January, 1978 under the Summary Offences Act 1977, s. 8, for behaving in a manner that was likely to cause a reasonable person to believe that he intended to start a fight. Each was sentenced to three months’ imprisonment with hard labour, the maximum penalty prescribed under that section, except the appellant Kwave Kui who was fined K15.00.

In each case the grounds of appeal against conviction are that the statement of facts did not disclose an offence and that a plea of guilty should not have been entered. In each case the ground of appeal against sentence is that the sentence was manifestly excessive.

A fourth ground of appeal which I allowed to be added to the grounds of appeal by way of amendment was “that no opportunity was given to the appellants to be heard on sentence”.

The prosecutions arose out of the appellants’ alleged participation in a riot which appears to have become known as “the Boroko riot” and which broke out between the Tari and the Gumini people in Port Moresby on Sunday, 15th January, 1978. At about 1.29 p.m. on that day the riot started after a peace meeting had taken place between the two groups at Boroko Market. The meeting had been arranged by the leaders of both groups to settle some compensation payments. The Gumini leaders had agreed to pay the Taris K12,000 as compensation for the death of a Tari man who had been killed in Boroko on 23rd December, 1977. However, when the meeting ended, a Tari man threatened the Guminis. Thereupon trouble erupted as the Taris made offensive gestures to the Guminis. Those Taris as were involved in that conduct chased the Guminis. The Guminis had their wives and children with them. However, the Taris were stopped by police, who used tear gas.

During the riot a woman was injured. She received severe cuts and bruises, and was admitted to hospital. Those involved in the riot ran up Okari Street shouting and waving their hands in the air in anger. After the police had intervened the two groups were surrounded at Four-Mile stores and many, including the appellants, were arrested. During the arrest of the groups, the police confiscated axes, metal spears, wood, knives and broken bottles.

The appellants were then taken to the Boroko police station and each was interrogated. The prosecution alleged that each admitted being involved in the gathering from the market to Four-Mile stores. The appellants were then cautioned, arrested and subsequently charged with a breach of s. 8 of the Summary Offences Act.

It was further alleged by the prosecution that an estimated 800 people were in each of the two groups involved in the riot.

This disturbance, involving a serious risk of fighting between the members of two Highland tribes in suburban Port Moresby, led to the police taking quite drastic and wholesale action.

From the summary of proceedings and reasons for decision supplied by the magistrate, the proceedings were conducted in the manner set out in the numbered paragraphs below. I set out after each paragraph my comments and conclusions in relation to each stage of the proceedings.

1. The charge was “read and explained each and severally” to the appellants and the seventeen other accused persons who appeared at the same time on the same charge.

I assume that the magistrate meant by his endorsement to that effect that the charge was read, interpreted (where necessary) and explained to each in turn.

The magistrate does not state in full detail what explanation he gave as to what constitutes behaviour “in a manner that was likely to cause a reasonable person to believe that he intended to start a fight” (Summary Offences Act, s. 8). The offence described in s. 8 is an offence the limits of which cannot be sharply defined. What can be said, however, is that, for the offence of “intending to fight”, which is the description used in the Act to describe a breach of s. 8, to be made out, there needs to be proof of some conduct on the part of the accused as well as compliance with an external standard. If the prosecution is alleging that the accused were principals, i.e. criminally liable through application of the notion of direct responsibility, proof is required that the accused behaved or conducted himself in a certain manner (the behaviour aspect) and that such behaviour fell within the external standard (the external standard aspect). As Kelly J said in Leonard Eliza and Others v. Mandina[xxxi]¹ at p. 430:

“... What is being looked at for the purpose of the offence ... is the nature of the conduct by the individual concerned and not the fact of his engaging in that conduct as part of a group.”

If the prosecution is alleging that the accused were accessories, i.e. criminally liable through application of the notion of derivative responsibility, proof is required of some conduct in promoting the commission of the crime (the aiding and abetting aspect) and of some behaviour on the part of those who have been encouraged (the behaviour aspect) and that such behaviour fell within the external standard (the external standard aspect).

Although no authority was cited in support of the contention, it was submitted by Mr. Karczewski, on behalf of the respondent, that proof of mere presence at a place where a number of people are found may be sufficient to support a conviction for a breach of s. 8. It was not suggested that mere presence could constitute “behaviour”, it being conceded that “behaviour” on the part of a principal offender connotes something more than that, and no doubt Mr. Karczewski was aware of the effect of Leonard Eliza and Others v. Mandina[xxxii]². What was urged upon me was that, by virtue of the operation of s. 23 of the Interpretation (Interim Provisions) Act 1975 and s. 7 of the Criminal Code, proof of mere presence at a place where a number of people are found may be sufficient to support a conviction for a breach of s. 8 arising through the application of the notion of derivative responsibility. Mere presence could constitute, so it was argued, aiding and abetting another person in committing an offence under s. 8.

Having considered the various authorities on the notion of derivative responsibility and particularly those that apply to the Codes, I am satisfied that mere presence is not enough to constitute aiding and abetting. In The Queen v. Coney and Others[xxxiii]³ the proposition was established that mere voluntary presence does not as a matter of law necessarily render persons so present guilty of aiding and abetting. That case was the well-known prize fight case. In that case Hawkins J said at pp. 557-558:

“In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted.”

That dictum was applied by the Courts-Martial Appeal Court in R. v. Clarkson and Others[xxxiv]⁴ at p. 347 where the Court said:

“It is not enough then, that the presence of the accused has, in fact, given encouragement. It must be proved that the accused intended to give encouragement; that he wilfully encouraged.”

The Court added that there must be both an intention to encourage and an encouragement in fact.

Both of the abovementioned dicta were applied by Mitchell J in Fabinyi v. Anderson[xxxv]⁵ at p. 339.

In Barrington v. Austin and Others[xxxvi]⁶, approved in Rice v. Hudson[xxxvii]⁷, it was held that, besides mere presence, there needs to be some proof of encouragement of the principal offenders.

In an American case United States v. Poenic[xxxviii]⁸, approved by Smithers J in Dennis v. Pight[xxxix]⁹ at p. 461, Learned Hand J said:

“The words aiding, abetting, counselling and procuring all demand that he (the accessory) in some sort, associate himself with the venture, that he participate in it as something he wishes to bring about, and that he seek by his action to make it succeed. All the words used, including the most colourless ‘abet’, carry an implication of a purposive attitude towards it.”

In R. v. Russell[xl]¹⁰ Cussen A.C.J in his judgment (at p. 66) said:

“Various words, such as ‘aiding’, ‘abetting’, ‘comforting’, ‘concurring’, ‘approbating’, ‘encouraging’, ‘consenting’, ‘assenting’, ‘countenancing’, are to be found in the authorities. A principal in the second degree is sometimes defined as a person present aiding or abetting, but in this context each of these words has, as I have indicated, a wide meaning. A common dictionary meaning of ‘abetting’ is ‘encouraging’ or ‘countenancing’; and this is to be remembered when the words ‘aiding or abetting’ alone are used. All the words abovementioned are, I think, instances of one general idea, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely such commission.”

In George Donald Allan, James Joseph Boyle, Albert Ballantyne, Michael Mooney[xli]¹¹ it was held by the Court of Criminal Appeal in England that, in the case of an accused being charged with being a principal in the second degree to affray, there must be proof of some encouragement as well as proof of presence. At p. 249, their Lordships said:

“Indeed, in our judgment, encouragement in one form or another is a minimal requirement before an accused person may properly be regarded as a principal in the second degree to any crime.”

When this Court has placed before it on an appeal of this kind a magistrate’s report containing an endorsement to the effect that the charge was read and explained to each appellant in turn and nothing more, then this Court may assume that the magistrate gave an explanation along the lines set out above. Yamore Memera, Weina Ariga, Raina Waburi, Aligi Wina, Siburu Vaita and Idana Budova v. Matthew Bisang[xlii]¹².

In this case, however, the magistrate reports that the “defendants almost without exception did not deny their presence in area” which suggests to me that he took the view (and had so explained to the appellants) that their mere presence at a gathering which was likely to lead to fighting was sufficient to constitute the offence. Such is not the law.

2. The magistrate satisfied himself that each of the thirty accused understood the charge.

3. Each of the thirteen appellants pleaded guilty or otherwise admitted the truth of the charge.

It is not clear whether the other seventeen accused pleaded guilty or not guilty.

4. The “facts of the case (were) read each and severally” to the thirty accused and there was “no objection by any” of them.

I assume that the magistrate meant by this endorsement at least that facts of the case as contained in the statement of facts (included amongst the papers placed before me at the hearing of these appeals and set out in some detail by me at the commencement of this judgment) were read and interpreted to each appellant in turn and that no objection was raised to any of those facts by any of the appellants. The second endorsement is also consistent with an indication that there was no objection by any of the accused to them being tried together. I assume for the purposes of these appeals that each gave his assent that the facts were understood and admitted as true.

The conclusion I have reached is that, as indicated by the magistrate’s report of the proceedings, which I accept, there was an admission by each of the appellants that a riot broke out between the Taris and the Guminis, that threatening and offensive gestures were made, that there was shouting and waving of hands in the air, that a chase developed, and that weapons, including axes, metal spears, wood, knives and broken bottles were carried.

The magistrate was not entitled to accept that any admission amounted to more than an acknowledgement of being present in the area. The magistrate was not entitled to accept that any admission had been made that the behaviour of any of the appellants was likely to cause a reasonable person to believe that any particular appellant was likely to start a fight (or, in the case of derivative responsibility, was promoting or encouraging another’s like behaviour).

5. The magistrate then noted in respect of each appellant that he had pleaded guilty or admitted the charge.

Having regard to the course which the proceedings had so far taken, it was not appropriate to accept that anything more had been admitted than what had been read from the statement of facts had happened, i.e. that behaviour of that type had occurred. As I have already indicated, whether for an offence under s. 8 (which has two aspects, viz. the behaviour aspect and the external standard aspect) or whether for an offence of aiding or abetting another to commit an offence under s. 8 (which has several aspects) it is plainly not sufficient to rely upon an admission merely that certain general behaviour occurred.

6. The magistrate, having noted a plea of guilty from each appellant, thereupon heard the substance of each appellant’s version and called upon each appellant in turn to make a statement if he desired.

I set out what each of the appellants said.

AGIRU AIENI — “I went because the big men called me. I went to the 4-Mile where I was arrested.”

DABE DANGI — “I was at 4-Mile with a friend when I was arrested. The fight was around me.”

KOTANGE BARA — “I was at a friend’s place in the Hospital. I went to 4-Mile Boroko where I was arrested.”

KURUBU FAMAKA — “I came to Sogeri by P.M.V. and the fight engulfed me. I was then arrested.”

RAIO KEWAIE — “I brought my food to Boroko 4-Mile market. That is all except that I was arrested with the rest of the people who were in the fight.”

ITABE UNDIARU — “I was at a 4-Mile store. I went outside. There I was arrested by police as there was a fight. I work on a plantation at Sogeri.”

AYENDI DIKI — “I had finished selling my food at the market and was at 4-Mile Boroko when the tear gas affected me. I do not remember more.”

WARA TUKURU — “I was at 4-Mile when the police came. The fight was going on and I was affected by tear gas and do not remember any more.”

AENA BUNUMA — “I went to the meeting. The fight broke out and I was arrested. That’s all.”

PAPA YONGI — “I came to 4-Mile from 15-Mile to buy food. The fight came to me and I was arrested.”

WAYAPA — “I was at Koki Market. I came to 4-Mile. The police threw tear gas. I was waiting for a P.M.V. at 4-Mile and I was arrested. That is all.”

YAMIS YURE — “I went with an old man to the market at Koki. We went to 4-Mile and the police arrested us on a P.M.V. bus-stop at 4-Mile when the fight came and tear gas was thrown.”

KWAVE KUI — “We were waiting at P.M.V. stop 4-Mile. The fight came and I became involved and the tear gas was thrown. I was arrested.”

It is to be noted that each appellant acknowledged having been present in the area; none of them admitted participating in the riot in any way; none of them admitted making any gesture or shouting or waving his hands or chasing or holding a weapon.

7. The magistrate accepted the plea that had previously been recorded and made a finding in each case “guilty as charged”.

Particular care was called for at this stage. The appellants were uneducated nationals and they were not represented. As is not uncommon in this country, the appellants did not simply plead “guilty”; instead, as was recorded by the magistrate in each instance, each of the appellants “admitted” the charge. In cases of this kind care needs to be taken before accepting even a plea of “I plead guilty” in so many words; a fortiori when an accused simply “admits” the charge.

Mr. Campbell, on behalf of the appellants, referred me to the case of Cooling v. Steel[xliii]¹³ in which Wells J emphasized the need for courts to give careful attention to matters of practice and procedure. It is unnecessary for me in this case to deal with each of the duties which Wells J considered rest with a court having an unrepresented defendant before it. It will be sufficient to refer to his Honour’s judgment at p. 251:

“... if the defendant proceeds to dispute any of those facts the court should ... be quick to recognize any denials or explanations by the defendant that suggest that he should not have pleaded guilty ... If the court is of the opinion that the plea of guilty should not have been entered, the court should ask the defendant whether he adheres to his challenge of the material facts or to his explanation (as the case may be) that has led the court to its opinion as to the plea, and if the defendant does so adhere, a plea of not guilty should be recorded.”

In the case of each of these appellants it appears that what was admitted was what was in the statement of facts, i.e. that what is stated therein actually happened. The statement of facts, whilst it disclosed an offence or offences by some of those who participated actively in the riot (and, in particular, those — if their identity be known — who shouted, those who made threatening or offensive gestures, those who waved their hands in the air, and those who carried a weapon of the kind described), did not disclose an offence under s. 8 against any of the appellants. The statement of facts is not specific as to the behaviour which any of the appellants is alleged to have been guilty of. The statement of facts is not specific as to the manner or aspect of that behaviour which was alleged to be likely to cause a reasonable person to believe that he (i.e. the particular appellant whose behaviour is under scrutiny) intended to start a fight. The statement of facts is not specific as to the manner in which any of the appellants is alleged to have promoted the commission of an offence under s. 8 by another. In each of the statements made by the appellants there had been nothing more than an acknowledegment that they had been present in the area.

I have already concluded that mere presence at a riotous gathering cannot alone constitute behaviour of the type referred to in s. 8. It follows therefore that, each of the appellants being unrepresented and having admitted nothing more than they were present, none of their statements to the magistrate could be said to be an unequivocal admission of guilty. Laeka Ivarabou v. Nanau[xliv]¹⁴ approved in Balu Mau’u v. Pare[xlv]¹⁵ at pp. 68-69.

These cases are authority for the proposition that the words spoken by the defendant are the words to be looked at and cannot be taken to amount to a plea of guilty unless those words unequivocably point to an adoption of each of the elements of the charge. Applying that principle of law in these appeals, not only are the words spoken by each appellant equivocal as to the participation by each appellant in the riotous gathering (i.e. the behaviour aspect) but also they are equivocal as to the external standard aspect of the charge. What was alleged in the statement of facts is that some people, quite a large number in fact, behaved in a manner that was clearly likely to cause a reasonable person to believe that a fight was likely to start. It was not alleged that the appellants or, for that matter, any person in particular behaved in that manner, and it was not alleged that the reasonable belief engendered by the behaviour related to any intention on the part of the appellants that they or any of them intended to start a fight. The words spoken by each of the appellants suggest that in the case of each of them he was disputing that his behaviour was such as to be likely to cause a reasonable person to believe that he intended to start a fight. The words in each instance are at least consistent with each appellant having been either an innocent bystander or a person reluctantly present at, or caught up in, or, as one of them put it, “engulfed” by, a fight which he had no intention of being involved in, let alone starting.

It follows that I conclude that, when the appellants gave their explanation (from which it appeared that a defence or defences arose on the facts), it was not proper for the magistrate to have accepted the pleas by entering pleas of “guilty as charged”, as he did, and he should have proceeded to try the matter. Thus the decision to convict as on a plea of guilty was a nullity. Reg. v. Blandford Justices; Ex parte G. (An Infant)[xlvi]¹⁶.

The pleas of guilty having been improperly entered, the appellants could not in law have been convicted of the offence charged. Accordingly, the conviction in each instance cannot stand.

As each of the appellants was deprived of a trial in which the rules of procedure were strictly followed, I find that there has been a substantial miscarriage of justice, because justice is justice according to law (see Mraz v. The Queen[xlvii]¹⁷ per Fullagar J at p. 514).

As the appellants did not have what the law says they shall have, these appeals must be allowed. (See also The Queen v. Van Beelen[xlviii]¹⁸ at pp. 410-411.)

Having come to the conclusion that the attack on these convictions can be sustained, I will, therefore, order that the appeals be allowed and the convictions and sentences set aside. I will hear counsel for the parties as to whether I should order the cases to be remitted for rehearing.

8. The magistrate then obtained something in the nature of an Antecedent Report about each appellant, except in the case of AGIRU AIENI.

9. The magistrate then, without giving any of the appellants an opportunity to be heard on sentence, proceeded to impose sentence.

The magistrate has not indicated in his summary of proceedings or his reason for decision whether he administered to the appellants, or any of them, anything in the nature of an allocutus or otherwise gave them an opportunity to speak to him on the question of penalty. If he had done so and if they had made a statement, then, judging from the format of the notes he did make, it seems apparent that he would have recorded that he had given them such an opportunity to speak to him and that he would have recorded what each of them said (if anything). I therefore conclude that nothing in the nature of an allocutus was administered to the appellants or any of them and none of them was given an opportunity to be heard on sentence.

To have denied the appellants that was to have denied them natural justice and renders each sentence pronounced a nullity. Moses Aikaba and Others v. Tami[xlix]¹⁹.

Counsel for the respondent was frank enough to concede that these appeals should be allowed on this ground.

10. The sentence imposed was, in the case of all but one of the appellants, the maximum penalty prescribed by s. 8 of the Act.

There are no grounds for criticizing the magistrate’s decision to impose a sentence of imprisonment. He would have been in a good position to assess whether that type of penalty was appropriate in the circumstances. It was open to him to take into account the alarm that was likely to be aroused by the behaviour of such a large crowd as this and its effect on the people of Port Moresby. The riot was sufficiently serious to have called for a custodial sentence for those who were found to have used or threatened violence.

However, the troublesome feature of what the magistrate did is that he saw fit to impose the maximum penalty in the case of all but one of the appellants. It is well established in this Court that the maximum penalty should be reserved for the worst or most serious of cases. If that principle is to be applied properly, it is essential that, before the maximum penalty is imposed, there be some inquiry as to how seriously any particular accused was involved in the offence. There needs to be some inquiry as to the extent to which each accused was culpable or, to put the nature of the inquiry in yet another way, there needs to be some inquiry as to the extent to which each accused participated in the offence.

There having been no such inquiry in the case of any appellant, these sentences ought not to stand. It is to be noted that counsel for the respondent conceded that these appeals should be allowed to the extent of setting aside the sentences of imprisonment that were imposed.

Even if the pleas of guilty were allowed to stand (and it is my conclusion that they should not), such pleas should not be taken to extend to behaviour such as gesturing, shouting, waving of the hands, and carrying of weapons on the part of these appellants. No allegation of threatened or actual violence was alleged against any of them.

Furthermore, except in the case of Kwave Kui, the magistrate did not take into account in favour of the appellants their previous good character or lack of previous convictions. Except in the case of Kwave Kui, the magistrate did not take into account the family responsibilities of the appellants; Wara Tukura, who like Kwave Kui, was said to be “married in village” was sentenced to the maximum penalty whereas Kwave Kui was fined K15.00. In the case of Agiru Aieni no inquiry seems to have been made as to his antecedence or family situation.

The sentences of imprisonment imposed by the magistrate are open to criticism on a number of additional grounds. The magistrate was not justified in taking into account the fact that these offences were allegedly committed in the nation’s capital as opposed to any other town or city in the country. Had the legislature intended that this offence, if committed in Port Moresby (where overseas residents live and where embassies are situated and, therefore, where the behaviour of people might be said to affect the image of Papua New Guinea overseas) should be punishable by greater penalties than are appropriate for the same offence if committed in any other large town or city, then it would have made an enactment accordingly.

In his report the magistrate has gone a long way towards acknowledging that he was in error in taking into account the fact that these offences were allegedly committed in the nation’s capital. He gave as his seventh reason for his decision:

“Finally and not least although of no judicial importance is the consideration of (a) P.N.G. image (i.e. overseas residents and embassies) and the security of the average citizen of this country who does not feel secure whilst incidents, or to be more correct, rampages of this nature, occur as has proved to be the experience found in the Highlands where transfers etc. have taken place as a result of such conduct.”

If, as he stated, the matter was of “no judicial importance”, he should have disregarded the fact that Port Moresby, as distinct from any other large town or city, was the scene of this disturbing incident, and he should not have taken that fact into account against the appellants. That is the conclusion I have reached regarding this aspect of the case. However, the magistrate stated, when setting out his reasons for his decision, “finally and not least although of no judicial importance is the consideration of (a) P.N.G. image ...”. The words underlined by me suggest that the magistrate in fulfilling his sentencing task, placed considerable emphasis upon this aspect of the matter. To have done so, in my opinion, was to have been in error.

It was contended on behalf of the respondent (and I think it was the view of the magistrate) that s. 8 of the Summary Offences Act was enacted in order to deal with the type of situation which arose on 16th January, 1978 in the Boroko riot. With respect I cannot agree. The wording of s. 8 suggests to me that it was intended to apply, not to large groups of people gathering for a fight, but instead to those individuals who show an intention of starting a fight. In the interests of crime prevention or crime control, the legislature has provided that such individuals commit an offence and may be so charged with that offence even though no fight has actually started. That being the intention of s. 8, as I interpret it, it is perhaps unfortunate that s. 8 was drafted in its present form. In order to achieve simplification, I consider that that section could well be amended so as to remove from this part of the legal process the external element aspect (i.e. the notion of reasonable belief) which is difficult enough for skilled lawyers to understand to say nothing of the difficulty which unsophisticated or uneducated nationals, to whom such an enactment can be expected to be applied, must face. This fault in the legal system which these appeals have exposed is one which illustrates the difficulties that are created when a procedure is introduced (in this case it is a new one — the Summary Offences Act is a 1977 Act) that is too complex and insufficiently reflective of the realities of the situation in which most Papua New Guineans live.

As I have already indicated, I will hear counsel for the parties as to whether I should order the cases to be remitted for re-hearing. In making that decision I will need to take into account, inter alia, the fact that the appellants have been in custody for some five and a half weeks and the fact that, notwithstanding any problems that the prosecuting authorities may have with regard to lack of evidence or otherwise, the Boroko riot was a serious incident which not surprisingly gave rise to feelings of great concern throughout Papua New Guinea.

Appeal allowed and convictions quashed. Order that the sentences be set aside and that the appellants be discharged. Cases not remitted for re-hearing.

Solicitor for the appellants: M. Kapi, Public Solicitor.

Solicitor for the respondent: K. B. Egan, Public Prosecutor.

[xxxi][1971-1972] P & N.G.L.R. 422.

[xxxii][1971-1972] P. & N.G.L.R. 422.

[xxxiii](1881-1882) 8 Q.B.D. 534.

[xxxiv][1971] 3 All E.R. 344.

[xxxv](1974) 9 S.A.S.R. 336.

[xxxvi][1939] S.A.S.R. 130.

[xxxvii][1940] S.A.S.R. 290.

[xxxviii](1938) 100 F. 2d 401.

[xxxix](1968) 11 F.L.R. 458.

[xl][1933] V.L.R. 59.

[xli](1963) 47 Cr. App. R. 243.

[xlii][1976] P.N.G.L.R. 419.

[xliii][1971-1972] 2 S.A.S.R. 249.

[xliv][1967-1968] P. & N.G.L.R. 12.

[xlv][1973] P.N.G.L.R. 64.

[xlvi] [1966] 2 W.L.R. 1232.

[xlvii](1955) 93 C.L.R. 493.

[xlviii](1973) 4 S.A.S.R. 353.

[xlix] [1971-1972] P. & N.G.L.R. 155.