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State v Aken and Tuink [1980] PGNC 11; N238 (6 June 1980)

Unreported National Court Decisions

N238

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
LYANDA AKEN & KENEPIA TUINK

Wabag

Narokobi AJ
6 June 1980

NAROKOBI AJ: In tase, the accused are care charged upon an indictment that they harboured John Tuink, an escapee from lawful custody, as they well knew contrary to section 144 of the Criminal Code. Separate indictments were presented against them, but by consent they were tried together.

Defence conceded John Tuink was an escapee who had escaped lawful custody on 15th August and was at large until captured on 7th September 1979.

The State case is that the accused harboured John Tuink, in the case of Lyanda Aken, by providing him with shelter and firewood and food; and in the case of Kenepia Tuink by providing him with shelter.

The State case depends further on several natural factors, first that the escapee was the brother of Kenepia Tuink and that Lyanda Aken was their brother-in-law. The truth is that John and Kenepia were half brothers - having one father, but two different mothers. Lyanda Aken’s sister was married to Pyande, not Kenepia Tuink. Lyanda Aken comes from a different clan, but had been given some land by his brother-in-law, and was living on it.

The case against Lyanda Aken goes something like this. Lyanda was staying in Kenepia Tuink’s house for a long time and had built himself a house on the land given to him by his brothers-in-law, Pyande and Kenepia Tuink. He had helped John Tuink by chopping firewood for him. Normally Lyanda sleeps in his own house, but on the night in question, Lyanda was sleeping in Kenepia Tuink’s house.

Following a police raid on the dawn of September 7th, they found John Tuink lying on the roof of the house, occupied by Lyanda and his sister and her children. According to the State case, the accused Lyanda knew John Tuink had escaped, and actively harboured him.

The vital evidence which emerges from the record of interview is contained in the following questions and answers.

34.Q. Did John Tuinko prison or n or not?

A. Yes he went to prison but he escaped.

Q. ټ&##160; I60; Is it t it true that you helped him chop firewood?

A. ټ&#Onlhoe codhio.

4.

42.Q. Why dWhy did yoi sleu slee sleep wiep with him (John Tuink) on Friday night oght on 7thn 7th September ‘79?

A. ;ټ&##160;ld hicome tome to the house ause and slnd sleep weep with me.

43.Q. Why did yoid you force Join Tuink to sleep with you?

A. He knew that he escaped foom police and he wantedanted to go so I stopped him.

It wi seen that the questions put to the accused are very leadineading. However the defence did not apply to strike out parts of that record of interview. The statements are further supported by another statement of the accused given to the police on the 7th September.

This evidence is largely corroborated by the evidence of the police officers who made the dawn raid.

I accept the State case against the accused Lyanda Aken and find that the escapee was found on the morning of the raid in the house occupied by Lyanda. I also find as a fact that Lyanda had provided some firewood for John Tuink, and I further find that Lyanda had assisted John Tuink to climb into the ceiling to avoid being caught by the police on the dawn raid.

On these facts I was left to consider whether the State has established beyond a reasonable doubt that the accused was guilty as charged.

If this was all the evidence, I would have acquitted the accused on the basis that in my view such facts alone in the Melanesian context would not be enough to establish harbouring with criminal knowledge or maintaining, with criminal intent.

However, the accused chose to give evidence on oath. On his own evidence, I was not impressed. He came over as a witness who was prepared to tell untruths to avoid any suggestion that what he did might be against the law.

I said, I would have acquitted him if all the evidence was his own admissions, corroborated as they were by the police.

The only case I have found on harbouring is a short judgment by O’Meally A.J. in The State v. Kuri WembraN238.html#_edn209" title="">[ccix]¹. In that case His Honour said:

“Maintaining and employing each clearly involves some act or something positive as distinct from something passive”.

In that case, His Honour specifically rejected the argument that giving of moral support was enough. He said the accused must do some act towards concealing the escapee or assisting him to remain at large.

In the facts of the present case, to help somebody, an escapee into the roof of the house when the police are attacking in the early hours’ of the day need not of itself amount to harbouring. The escapee may have entered the house at night, without the knowledge of the accused.

Certainly the provision of firewood and even a normal meal on their own in my view would not be enough to establish maintenance. In the cold Highlands of P.N.G., provision of firewood is no more than a humane thing anyone would be expected to provide, even to a criminal. Similarly, provision of no more than a normal meal, even to an escaped criminal would not amount, of itself, in my view to maintaining within s.144.

The evidence as shown in the question and answer 42., already quoted suggests strongly that, John Tuink wanted to go - presumably to be really at large, but the accused stopped him. Being a brother-in-law, as he was, Lyanda Aken would have done no more than what facts show he did.

However, that was not the end of the State case. When the accused stepped into the witness box and gave evidence on oath, I was satisfied beyond a reasonable doubt that the accused well knew John Tuink was an escapee and had provided him shelter which was enough to amount to harbouring. The accused’s assistance to the escapee to avoid detection in the context of all the facts was sufficient evidence to support a conviction on harbouring an escapee with knowledge.

I therefore convict the accused.

Having regard to the fact that he had been in custody for 8 months, the fact that he had no prior convictions and the cultural context in which the offence occured, that is to say, the accused was a long time visitor on the escapee’s land and at best of times, he would have had limited rights over the use and occupation of his sister’s house, I would sentence the accused to the rising of the court, I so order.

In the case of the other accused, Kenepia Tuink, I am not satisfied beyond a reasonable doubt that he Kenepia Tuink had knowledge of John Tuink, the escapee’s presence. There was certainly some evidence to establish knowledge but due to translation difficulties, there is no link of knowledge to harbouring. There was no evidence whatsoever that the accused Kenepia Tuink maintained the escapee in cash, or in food, or water or clothes or firewood.

The only evidence is that John Tuink was found in Kenepia Tuink’s house, which was occupied by Lyanda Aken, his sister and their children. Kenepia Tuink was sleeping in the trade store of John Tuink which he took over following John’s initial imprisonment.

At the first impression, it would seem that the police case against Kenepia Tuink was without a doubt. However, close examination of and a comparison of the pidgin record of interview with the English version throws doubt on credibility of the State evidence.

In the pidgin version of the answer to Q.42 - “You save olsem wanem John Tuink silip long haus?” The answer was:

“Em painim trabel pinis na em ronowe long polis na mi ting em silip long haus” (my underlining).The Enhe English version of the answer reads:

“He got the trouble and he also escaped from police and I know that he will sleep.”

The correct translation of the pidgin version in so far as it is relevant, as underlined, in English should read:

“and I think he is sleeping in the house”.

I read this translation in the context of several other factors in mind. In the record of interview the accused is reputed as saying that in the month of August he saw John’s face at the store and told him to go to the police station at Wabag.

When asked why he didn’t report the escape of his half brother, he replied - “I wanted him to come himself to the police station and so I asked him gently”.

I find that such knowledge as is suggested in the evidence is capable of supporting two theories. One theory is that the accused did encourage John the escapee to surrender to the police. The other theory is that the accused had a general idea that John might be at his house or that he was about.

Although the police witnesses were generally impressive, I am afraid I was not impressed by evasive answers of Sub Inspector Lance Kanai. In his evidence in chief, the Sub Inspector stated that Kenepia Tuink, the accused had told him in the early hours of the morning in pidgin:

“Em i slip long haus bilong mi”.

This version is at variance with the version already quoted above.

The accused himself said in evidence through an interpreter that he spoke no pidgin that morning, and said in Enga that he thought John Tuink was in his house - by way of an answer to police questions.

When cross examined, the Sub Inspector stated the accused replied in pidgin:

“Em i silip long haus bilong mi”.

Defence counsel next put this question to him:

“Did he not ask you to check in his house to see if John Tuink was there?”

The witness hesitated and was again asked the same question in a different form:

“Did he not tell you that you should check his house?”

The immediate answer was:

“It was in a state of emergency, and we made an operation order to search for John Tuink an escapee, so we went to the house, straight after he said he was sleeping in the house”.

Defence counsel again asked him:

“You said you arrested him. Did you tell him why you arrested him” (Kenepia Tuink)?

(And a noticeably hesitant answer was):

“In an operation order it was stated, we go to arrest any occupant and bring him to Wapenamanda police station for identification parade”.

When asked what he told the accused when he took him into custody, he gave what I believe to be a predetermined answer:

“I took him into custody because he told me that the escapee was sleeping in his house”.

This, to me is a consistent departure from the original pidgin version which translates into an inquiry - “I think”.

The other matter which troubled my mind is the fact that the accused Kenepia Tuink is living in another house, some two kilometers away. Quite apart from the fact that the escapee was found in Kenepia Tuink’s house, there is no other evidence to suggest a positive act to conceal, or hide the escapee.

With respect the dictum of O’Meally A.J. in The State v. Kuri WembraN238.html#_edn210" title="">[ccx]² (supra) at p. 25 that R,0;if, knowing that another were an escapee, he merely did nothing or did something which did not assist the escapee to remain at large he could not be convicted of harbouring an escapee&#8221ld seem apt in the present sent case.

In that case, the accused was seen playing cards with his brother. He wore his brother’s coat which he took from the house of his “last father”. In that case, His Honour was not satisfied the accused actually played cards with the escapee.

In the present case, I am not satisfied beyond a reasonable doubt that the accused knowingly harboured the escapee. For these reasons I would acquit the accused and return a verdict of not guilty and discharge the accused.

I might add that the accused gave evidence on oath and impressed me. His evidence throws new light on police evidence. According to Kenepia Tuink, he, the accused was taken into police custody at Wapenamanda. According to the accused, he was arrested and would be released only if John Tuink was arrested, otherwise he would be locked up.

The law against harbouring can impose severe strains on family ties and Melanesian social obligations. Traditionally, a brother could not hand his brother up to be punished. In a nation state, the needs of the nuclear family have to be weighed against the needs of the nation at large. But the national interests cannot ignore the social reality of strong family ties.

Any brother is expected to provide food and shelter for his lost and found brother, whether he be a prisoner at large or not. In my view, it is not enough simply to show that the prisoner was found under his brother’s roof, or that he was feeding off his brother’s land or was getting warmth from his firewood.

The State, in my view has to establish some deliberate act by the accused to keep the escapee from being delivered up to the law enforcement agencies. In this case, the escapee was a grown up man, quite capable of concealing himself. He had as much right to the family house and land as the other members of his family.

Nearest relatives like brothers may well feel bound by custom not to report their escaped brothers, but instead to persuade them the escapees, gently to surrender themselves up to the authorities. This could be done to avoid straining social relations which may have far reaching impact on other rights, including land rights.

I make these comments by way of observations and place no emphasis on them in relation to the actual acquittal of the accused Kenepia Tuink. I base that verdict of not guilty on a lack of connection between alleged knowledge, of the escapee and the alleged physical harbouring. There was no suggestion that Kenepia Tuink was maintaining the accused. This law needs reform.

Solicitor for the State: Public Prosecutor, C. Maino-Aoae

Counsel: J. Pollak

Solicitor for the Accused: A/Public Solicitor, D.J. McDermott

Counsel: A. Yer

N238.html#_ednref209" title="">[ccix]^{(1977) P.N.G.L.R. 23}

N238.html#_ednref210" title="">[ccx]^{(1977) P.N.G.L.R. 23 at p. 25}