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Eiserman v Nanatsi [1978] PGLawRp 570; [1978] PNGLR 457 (23 November 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 457 - Fred Eiserman v J Nanatsi�

[1978] PNGLR 457

N174

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EISERMAN

V

NANATSI

Waigani

Wilson J

23 November 1978

CRIMINAL LAW - Proof of offence - Burden of proof - Absence of formal proof of essential ingredient of offence - Whether failure of proof can be cured by �admission� by accused - Mere suspicion not sufficient - Knowingly harbouring prohibited immigrants.

IMMIGRATION AND ALIENS - Offences - Knowingly harbouring prohibited immigrants - What constitutes offence - Need to prove persons allegedly harboured were �prohibited immigrants� - Failure of proof cannot be cured by �admission� by accused - Migration Act 1963, s. 27(2)(b).

On appeal against conviction and sentence on a charge of knowingly harbouring two prohibited immigrants contrary to s. 27(2)(b) of the Migration Act 1963 it appeared that the appellant had pleaded guilty, and by implication from this evidence and the record of interview that he suspected that the two men concerned were �prohibited immigrants�, but that there was no formal evidence to this effect:

Held

N1>(1)����� Proof that persons allegedly harboured were �prohibited immigrants� is an essential ingredient of the offence of knowingly harbouring prohibited immigrants contrary to s. 27(2)(b) of the Migration Act 1963.

N1>(2)����� Absence of proof of an essential ingredient of an offence cannot be cured by an admission by the accused, where that ingredient is not an act of, or within the knowledge of, the accused.

Surujpaul v. R. [1958] 3 All E.R. 300 followed and applied.

N1>(3)����� Mere suspicion cannot establish proof beyond reasonable doubt in a criminal case.

N1>(4)����� Accordingly the prosecution not having proved beyond reasonable doubt that the two men concerned were �prohibited immigrants�, there had been a substantial miscarriage of justice and the conviction should be quashed.

Appeal

This was an appeal against conviction on a charge of knowingly harbouring two prohibited immigrants contrary to s. 27(2)(b) of the Migration Act 1963.

Counsel

I. R. Molloy, for the appellant.

N. King, for the respondent.

23 November 1978

WILSON J: This is an appeal by Fred Eiserman against his conviction on 28th September, 1978 in the District Court held at Vanimo for an offence of knowingly harbouring two prohibited immigrants, namely Mr. Jacob Prai and Mr. Otto Ondawaume (contrary to s. 27(2)(b) of the Migration Act 1963). The appellant was, following his conviction, sentenced to 6 months imprisonment.

The first ground of appeal relates to the alleged failure on the part of the prosecution at the trial to prove as part of its case that the two men, Jacob Prai and Otto Ondawaume, were �prohibited immigrants� within the meaning of the Act. It is a matter of record that the appellant was unrepresented before the District Court and had pleaded �not guilty� to the charge. The appellant was eventually convicted after evidence had been given by a number of witnesses. None of the witnesses purported to give any formal evidence tending to show that the two men, Jacob Prai and Otto Ondawaume, were �prohibited immigrants�.

The Constitution of the Independent State of Papua New Guinea which was adopted on 16th September, 1975 guarantees certain basic rights and freedoms. One of the fundamental rights so guaranteed is the right of every person to the full protection of the law (s. 37). Under s. 37(4)(a) any person (whether he be a national of Papua New Guinea or not) when charged in Papua New Guinea with an offence �shall be presumed innocent until proved guilty according to law�. It will be seen therefore that, at Independence, Papua New Guinea had enshrined into its Constitution this basic presumption, which, incidentally, is at the foundation of those legal systems that are based on the notion of British justice.

In a criminal case of this type a number of essential ingredients must be proved by the prosecution. Just as in a murder case there must be proof, inter alia, of the fact that the victim actually died even in circumstances where the accused may believe that the victim died and where there may really be no dispute that the victim died, so, in a case such as the present, even in circumstances, as here, where the appellant may have believed that the two men concerned were �prohibited immigrants� and apparently did not at his trial actively dispute that aspect of the prosecution case there must be proof of each and every ingredient essential to the charge including the fact that the two men were �prohibited immigrants�.

It was argued by Mr. King on behalf of the respondent that a statement made by the appellant in a record of interview and certain other evidence from which it might be inferred that the appellant had some belief as to the status of the two men concerned is sufficient proof that they were prohibited immigrants. However, it was pointed out by the Privy Council in Surujpaul v. R.[dclxii]¹�which was cited by Mr. Molloy, to the effect that:

�(a person) can confess to his own acts, knowledge or intention but cannot �confess� as to the acts of other persons which he has not seen and of which he can only have knowledge by hearsay. A failure by the prosecution to prove an essential element in the offence cannot be cured by an �admission� of this nature.�

In my opinion the statement by the appellant in his record of interview and indeed such other indirect evidence that was adduced at the District Court hearing in Vanimo leads me (and it presumably led the learned magistrate) to suspect that the two men concerned were �prohibited immigrants� at the time. But suspicion is not enough. Proof in a criminal case must be proof beyond reasonable doubt. In the absence of any formal evidence from an officer of the Migration Department or some other appropriate authority to depose to the lack of status of the two men concerned in Papua New Guinea at the time, it could not be said that the fact of their being �prohibited immigrants� had been proved beyond reasonable doubt.

I have no reason to suppose that his omission of proof was any more than an oversight on the part of the prosecuting authorities and subsequently by the learned magistrate. Nevertheless, as the appellant was deprived of a trial in which the rules of procedure were strictly followed and as the appellant did not have which the law of Papua New Guinea says he shall have, I find that there has been a substantial miscarriage of justice, because justice is justice according to law. (See Mraz v. The Queen[dclxiii]²�Fullagar J at p. 514.)

N1>This appeal will therefore be allowed on the first ground that was argued.

N1>Appeal allowed.

Conviction quashed.

Order that the sentence be set aside and that the appellant be discharged.

Solicitor for the appellant: Craig Kirke & Wright.

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

[dclxii][1958] 3 All E.R. 300.

[dclxiii][1955] HCA 59; (1955) 93 C.L.R. 493.