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Samana, Public Prosecutor v [1984] PNGLR 301 (2 August 1984)

Papua New Guinea Law Reports - 1984

[1984] PNGLR 301 - Public Prosecutor v Utula Samana 

[1984] PNGLR 301

SC274

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE PUBLIC PROSECUTOR

V

UTULA SAMANA

Waigani

Kapi DCJ Pratt Woods JJ

2 August 1984

28 June 1984

SUMMARY OFFENCES - Using insulting language whereby breach of peace likely to occur - Real likelihood necessary - Relevant considerations - Summary Offences Act 1977, s. 7(b).

The Premier of the Morobe Province was charged under s. 7(b) of the Summary Offences Act 1977 with “using insulting language whereby a breach of the peace was likely to take place”, by saying to a Chief Superintendent of Police outside a police station, following a demonstration, “Mugugia get out of this province. Piss off from here.”

Held

(1)      Whether a breach of the peace is likely to occur for the purposes of s. 7(b) requires a finding as to a real likelihood of a breach of the peace as to which the following considerations may be relevant when taken into account with all the surrounding circumstances:

(a)      the fact that a breach of the peace did or did not occur;

(b)      the pertinence of any political context;

(c)      whether a breach of the peace was likely to occur only if additional action took place; and

(d)      the fact that police and public officials by virtue of their occupation and office should be less likely to be provoked by insults than ordinary citizens and must expect some abuse.

(2)      In the circumstances as there was no evidence, upon which a finding that a breach of the peace was likely to occur could be made, there could be no conviction.

Cases Cited

Barunke Kaman v. L. Dabiri (Unreported National Court judgment No. N277(L) dated 12 November 1980).

Siwi Kurondo v. Lindsay Dabiri (Unreported National Court judgment No. N258 dated 26 September 1980).

Appeal

This was an appeal against an order of the National Court allowing an appeal against conviction by the District Court on a charge contrary to s. 7(b) of the Summary Offences Act 1977.

Counsel

J. Brown, for the appellant.

I. Molloy and T. Doherty, for the respondent.

Cur. adv. vult.

28 June 1984

KAPI DCJ PRATT WOODS JJ: This is an appeal by the State against an order made by Amet J. upholding an appeal by the respondent against his conviction before the District Court at Lae on a charge of “using insulting language whereby a breach of the peace was likely to take place”, contrary to s. 7(b) of the Summary Offences Act 1977.

The respondent was (and is still) the Premier of the Morobe Province. On the day in question a demonstration march was being staged by about 400 unemployed youths over a matter which need not concern us. A senior officer of police falsely told the gathering that the Provincial Government had cancelled the demonstration. When the Premier heard of this he left his office, where he had been waiting to receive the marchers with their petition, and went down to the area where the youths had congregated. By this stage there were about 100 left and he led them in their march back to the Provincial Government offices via the Lae police station:

“When the demonstration reached the police station, it stopped and faced the police station which is on the right. The demonstrators were still shouting and calling out. The appellant (the respondent in the appeal before us) using the megaphone, directed words at the police station. It was at this time that the appellant used the words complained of which were ‘Mugugia get out of this province. Piss off from here.’”

Chief Superintendent Mugugia was the Divisional Commander for C Division and was outside the police station with a number of other policemen and women at the time the demonstration stopped and was being harangued by the Premier. He heard the words used by the Premier. He was, on his own evidence, angered and insulted by the actions and words of the appellant, so much so that he had to retire back to his office. It is not clear whether the Premier saw Mugugia at the time he actually pronounced the offending words.

The magistrate found both that the words were insulting and that “there could have been a breach of peace if Mugugia had not remained ‘cool’ and consequently found the offence proved against the appellant”. (Extracts from the judgment of Amet J. at Appeal Book 76.)

Whilst there is some division of opinion amongst the members comprising this Court about whether or not the words used amount marginally to an insult, we are under no such difficulty in relation to the second element necessary to prove the offence, namely, whether a breach of the peace is likely to occur. We have no hesitation in finding that the learned judge correctly upheld the appeal against conviction on this leg. We do not consider it necessary to go into any detail on the matter. As with the law concerning the first element of the offence, the law involved in the second element has been dealt with quite adequately for the purposes of this appeal by the National Court in the judgments referred to prior to and during this appeal, namely Siwi Kurondo v. Lindsay Dabiri (Unreported National Court judgment No. N258 dated 26 September 1980) especially, and also Barunke Kaman v. L. Dabiri (Unreported National Court judgment No. N277(L) dated 12 November 1980). There is only one reservation which we express about the statement by Miles J. in Siwi Kurondo’s case, where he says:

“There was obviously some political significance in his outburst, which I think would reduce rather than increase any tendency to be insulting.”

We feel that his Honour’s statement here does not purport to enunciate a principle of law, and should be restricted exclusively to the facts of the case before him. We consider it would be quite dangerous for this Court to give any apparent support to an observation which might be taken to indicate that a matter is less insulting than it would normally be merely because there is some political significance surrounding the outburst. Obviously there would be occasions on which it would be extremely likely a breach of the peace would occur if certain words are spoken at or in front of a group of supporters of a particular political party or faction. The pertinence of any political context is more appropriately allied we believe, to the second element of whether a breach of the peace is likely to occur rather than the first element of whether or not the words are insulting. Like any other factor, it must be taken into account with all the surrounding circumstances of a particular case before the trial court.

We agree with the learned appeal judge there is no evidence from the police witnesses, apart from the divisional commander, that they considered a breach of the peace likely, and there was indeed evidence not alluded to by the learned magistrate which indicated that the public certainly felt no alarm. Indeed the magistrate himself said “there was no fear immediately after the words were spoken on the part of the bystanders”. Apart from the station commander putting some police on stand-by after the words had been spoken, there was no other evidence of any activity taken by the police which indicated a belief that a breach of the peace was likely to occur. The fact that a breach did not occur of course is of itself a relevant feature to take into account when assessing the likelihood or otherwise of such a breach.

At the very most, in our view, it might have been said a breach of the peace may have occurred, but it certainly could not be said on the evidence that such a breach was likely.

There is a further point, strongly argued by Mr Molloy on behalf of the respondent, which contains a great deal of merit. The magistrate had found that Chief Superintendent Mugugia was much angered by the offending words — so much so that in order to contain the situation he considered it necessary to move back inside the police station. He thus exercised a certain amount of self-control, though one could hardly say he remained “cool” and professional. To quote from the magistrate’s reasons:

“... the slightest move by Mugugia to challenge the defendant’s words or express his concern at the use of the words could very well have caused a breach of the peace by the demonstrators ... I am satisfied beyond reasonable doubt that there could have been a breach of the peace if Mugugia had not, in his own words, remained ‘cool’.... In the circumstances prevailing there was a real possibility, in my mind, that the demonstrators could have become violent as a result of the use of the insulting words by the defendant if Mugugia had attempted to challenge the words by the defendant even in the slightest manner. ... The slightest hint of challenge from the police could have led to violence.”

What the learned magistrate has found here is that a breach of the peace was likely to occur only if something else happened, namely that Superintendent Mugugia and through him the police made some movement towards the demonstrators. His Worship did not direct his attention however, to the likelihood or otherwise of such additional action taking place. Consequently not only has the magistrate introduced an additional factor into the equation by indicating that the act which provoked the breach of the peace was not the words enunciated by the respondent, but the reaction of Superintendent Mugugia to those words; he has also failed to follow on with the logical consequence of allowing the entry of this additional factor, namely coming to a decision whether or not such intervening action would be likely to occur. It is difficult to find how it could occur because, as the magistrate himself observed, the most senior police officer in the area retired inside the police station, together with his number two, apparently in order to calm themselves down, and there is no evidence that any other police officer or policeman or policewoman was particularly upset or annoyed at the comments of the respondent. It is therefore quite true, as counsel says, that in view of that finding it is impossible to come to a conclusion, had the magistrate given thought to the issue, other than that no resultant action on the part of the police would have taken place. It appears that the learned magistrate has confused certain actions of the defendant/respondent leading to a breach of the peace with certain reactions from the senior police officer leading to such a breach. One cannot prove the charge under s. 7 by showing evidence that the police themselves were likely to break the law as a result of what had taken place and therefore in their breaking of the law the citizen charged before the court must also have been taken to have broken the law. For this reason also we find the decision of the learned magistrate cannot be sustained.

We agree with the learned author of the article in the 1967 Criminal Law Review, at 398 that police, by virtue of their occupation, should be less likely to be provoked by insults than the ordinary citizen and that public officials by virtue of their office must expect some abuse. We were particularly impressed by the Nova Scotian judge who enunciated that “a policeman is a peace officer, and his duty is not only to the public generally but to every individual citizen, and to protect that citizen, and to protect him, as far as possible, even against his own weakness, and not to haul him before the magistrate for every foolish thing he does”. Bearing in mind the facts of this case however, the more political power and responsibility borne by a citizen because of his high political office, the less would one expect him to engage in abusive conduct towards a senior police officer in the face of the public. Playing politics with the criminal law can have disastrous consequences.

In our view there was no error made by the learned appeal judge in quashing the conviction because of an absence of proof as to the second element of the charge concerning a likelihood or otherwise of a breach of the peace occurring. We therefore dismiss the appeal.

Appeal dismissed.

Lawyer for the appellant: L. Gavara-Nanu, Public Prosecutor.

Lawyer for the respondent: Theresa A. Doherty.