Bekau, The State v [1982] PNGLR 119 (16 March 1982)

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CRIMINAL LAW - Particular offences - Harbouring escaped prisoner - “Prisoner” - Escapee awaiting trial - Criminal Code, s. 141[v]1.

WORDS AND PHRASES - “Prisoner” - Harbouring escaped prisoner - Escapee awaiting trial - Criminal Code, s. 141[vi]2.

The word “prisoner” in s. 141 of the Criminal Code is to be given its natural meaning: it means therefore one detained, deprived of his liberty, and includes those persons held legally in custody whether by arrest, committal, or sentence and who have not been released by due process of law.

At the close of submissions on a trial on a charge of harbouring an escaped prisoner under s. 141 of the Criminal Code the State requested a ruling on the meaning of the word “prisoner” in s. 141.

MCDERMOTT AJ: At the close of submissions the State Prosecutor requested a ruling as to the meaning of “prisoner” (Criminal Code, s. 141). This section is the same as s. 144 in the 1974 Criminal Code. It is not in the same terms as the equivalent provisions in the Queensland Code. Until the submission was made, I was not troubled by the meaning of “prisoner”. I ascribed to it the normal meaning of one detained, deprived of his liberty.

Does a problem exist when the wording of the Queensland and Papua New Guinea Codes is read side by side? Is it even correct to do this in order to ascertain the meaning?

The “prisoner” in this case is one who escaped from custody after he was committed to stand his trial. There is no mention of the word “prisoner” in the District Courts Act 1963 under which he was committed, or in the Corrective Institutions Act 1959 under which he was held as a “detainee”. This Act has no reference to escape either. There is no definition of “prisoner” in the Code itself or in the Interpretation Act 1975.

Does the word mean only those persons detained as a result of a criminal sentence or is it wider to include those detained awaiting trial or sentence for a crime? Archbold 40th ed., par. 3421 states that escape from prison is a common law offence. R. v. Hinds (1957) 41 Cr. App. R. 143 is cited. In the text there is an apparent distinction of “a prisoner serving a sentence or a person awaiting a trial”. This distinction does not appear in the case cited at p. 145: “... it is a common law offence for a person who is confined in a prison, either serving a sentence or awaiting trial, to escape.” Mindful of the risks of usage, an Oxford Dictionary meaning of prisoner is “one kept in prison for crime or until tried in a law court”. Can this be ascribed to the Code? I have used the approach of the learned author of Maxwell on Interpretation of Statutes (12th ed., 1969) by P. St. J. Langan. The approach to interpret a codifying statute was stated in Bank of England v. Vagliano Brothers [1891] UKLawRpAC 6; [1891] A.C. 107 at pp. 144-145, per Lord Herschell:

“I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.

If a statute, intended to embody in a code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated.”

In other words, the law is now to be determined by examination of the language used.

(2) That if there is a choice of interpretation, a narrower view which could mean failure to achieve the manifest purpose of the legislation should be avoided in favour of a broader view based on the notion that legislation should bring about an effective result.

(3) That words should be taken to be used in their ordinary sense and instruction can be taken from dictionaries—with care.

(5) That statutes imposing criminal or other penalties should be construed narrowly in favour of the person proceeded against—i.e. if there is ambiguity or doubt the provisions are to be resolved in favour of the person who would otherwise bear the penalty.

The offence is in Div. 6 of the Code, headed “Escapes: Rescues: Obstructing Officers of Courts”. It follows Div. 5—”Offences relating to the Administration of Justice”. The word “prisoner” is used deliberately, a distinct change from the Queensland Code on which the Papua New Guinea Code was based. I consider that there is no ambiguity about the word. It can be given its natural meaning. To restrict this in any way would create a gap where those in custody awaiting trial or sentence escape or those who and or harbour them would be immune from prosecution under the Code—a result the Legislature would surely not have intended.

I conclude “prisoner” includes those persons held legally in custody whether by arrest, committal or sentence and who have not been released by due process of law. Accordingly the escapee from custody awaiting trial in this case is a “prisoner”.

As to the facts, defence counsel submits there is a doubt whether the alleged escapee was one at all. I am satisfied by the investigating sergeant’s evidence that there was an escapee harboured by the accused. The prisoner was well known to this policeman in particular. On the alarm being given by the first witness, the police took action immediately. Admittedly the State did not, possibly could not, rely upon the best evidence—the warrants of committal and apprehension of the prisoner. Any doubt I had was overcome by the confession. I have no reason to doubt that he spoke the truth and indeed helped later police efforts.

[v]Section 141 of the Criminal Code provides: “Any person who harbours, maintains, or employs a person who is to his knowledge, a prisoner who has escaped from custody, and illegally at large, is guilty of a misdemeanour. ...”

For comparative tables of Revised Laws, see p. XIX.

[vi]Section 141 of the Criminal Code provides: “Any person who harbours, maintains, or employs a person who is to his knowledge, a prisoner who has escaped from custody, and illegally at large, is guilty of a misdemeanour. ...”

For comparative tables of Revised Laws, see p. XIX.

Papua New Guinea Law Reports

Bekau, The State v [1982] PNGLR 119 (16 March 1982)

Papua New Guinea Law Reports - 1982