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Downes v Maran [1984] PGLawRp 438; [1984] PNGLR 162 (19 June 1984)

Papua New Guinea Law Reports - 1984

[1984] PNGLR 162 - Trevor Downes v Maring Maran�

[1984] PNGLR 162

N471(M)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

DOWNES

V

MARING MARAN

Goroka

Woods J

19 June 1984

POLICE OFFENCES - Hindering police in execution of duty - �Hindering� - Elements of offence - Operating flash camera while police searching not offence - Summary Offences Act 1977, s. 60.

A person who operated a flashlight camera a number of times while police with search warrants were searching private company works, for �unemployed people illegally residing� was convicted of �hindering� police in the execution of their duty contrary to the Summary Offences Act 1977, s. 60. On appeal against conviction;

Held

N1>(1)����� To establish the offence of �hindering� police in the execution of their duty contrary to the Summary Offences Act 1977, s. 60, there must be proof of:

N2>(a)����� an actual hindrance, in the sense of some appreciable obstruction to or interference with the performance by the police of their duty; and

Plunkett v. Kroemer [1934] SAStRp 25; [1934] S.A.S.R. 124, followed;

N2>(b)����� an offence being committed or having been committed.

Young v. Owen (1972) 19 F.L.R. 70, followed.

(2) In the circumstances, the police were not, despite validly issued search warrants the basis for which was invalid, acting in the execution of a duty, nor had a crime been or was being committed and the offence had not been made out.

Cases Cited

Plunkett v. Kroemer [1934] SAStRp 25; [1934] S.A.S.R. 124.

Young v. Owen (1972) 19 F.L.R. 70.

Appeal

This was an appeal against conviction on a charge of hindering a police officer in the execution of his duty contrary to the Summary Offences Act 1977, s. 60.

Counsel

W. Neill, for the appellant.

M. Moroso, for the respondent.

19 June 1984

WOODS J: This is an appeal against a conviction of the appellant by the District Court at Kiunga on 12 April 1984 of a charge that he did on 25 January 1984 hinder members of the police force acting in the execution of their duty.

The facts are that the police obtained search warrants to search private company works camps at Kiunga �for anything as to which there are reasonable grounds for believing is intended to be used to commit any offence namely unemployed people illegally residing� and reference was made to s. 16 of the Summary Offences Act 1977. Initially this wording does not make any sense and I am surprised how any magistrate could issue such verbal nonsense.

This search was apparently to be done at night and the appellant, fearing an abuse of police powers, went to the premises with a flash camera and from about fifty metres away operated his camera a number of times while the police were searching accommodation dongas.

It was alleged that the action of the appellant in operating a flashlight whilst the police were performing a search was hindering the police within the terms of s. 60 of the Summary Offences Act.

For the purpose of this charge the complainant has to prove an actual hindrance, in the sense of some appreciable obstruction to or interference with the performance by the police of their duty: see Plunkett v. Kroemer [1934] SAStRp 25; [1934] S.A.S.R. 124. �Hinder� is not a word of art or capable of precise definition and it is a question of fact and of degree whether in the circumstances of the particular case the obstruction or interference was appreciable. A policeman can be hindered by any obstruction or interference that makes his duty substantially more difficult of performance.

It could not be said that operating flashlights from some fifty metres away was an obstruction or a hindrance, it is a bit further removed than the person who warns speeding motorists there is a police trap ahead. The flashlight is not telling anyone anything, whilst the person who warns speeding motorists is actually protecting law breakers.

Thus in Young v. Owen (1972) 19 F.L.R. 70 where Young saw a police amphometer or �speed trap� and went up the road and called out to motorists �slow down police ahead�. It was held that to warn persons of the presence of police did not amount to the offence of hindering police unless:

N2>(a)����� an offence was being committed;

N2>(b)����� there was some common purpose between the person charged and those warned; or

N2>(c)����� the policemen were carrying out a specific statutory duty.

There must be an offence being committed or that has been committed. On the depositions and on the basis of the search warrants I am unable to find what offence the police had reasonable grounds for believing was being committed at the time. The offence referred to in the search warrants is �unemployed people illegally residing� and it appears to be involving private property. There is no reference or evidence to the owners of the property having obtained any court orders in ejectment proceedings. It is not an offence to be unemployed. There is no evidence that persons were �unlawfully on premises� or otherwise there other than at the invitation of the occupiers.

It seems to me that the police were being used in civil actions for the companies concerned without the benefit of any court orders. The police may have been in uniform and acting under orders and had validly issued search warrants, however, in so far as I can make any sense out of the wording the whole basis for the search warrants was invalid. It is clear therefore that the police were not acting in the execution of their duty and further such action could render the police liable to prosecution for unlawful arrest or some similar action. Thus even if the operation of a flash could be found to be an act hindering the police there was no offence being committed and therefore there could have been no hindering of the police in the execution of their duty.

I find that there was no evidence to support a conviction of the accused under s. 60 of the Summary Offences Act.

I allow the appeal, quash the conviction and order of the District Court at Kiunga made on 12 April 1984 and order that the fine of K100 be refunded. I further order that the State pay the appellant�s costs.

Orders accordingly.

Lawyer for the appellant: W. Neill.

Lawyer for the respondent: Public Prosecutor.