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State v Goina [1982] PGNC 40; [1982] PNGLR 112 (15 March 1982)

N373

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

KWALIMU GOINA AND THREE OTHERS

Waigani
Kearney DCJ

9-12 March 1982
15 March 1982

CRIMINAL LAW - Particular offences - Kidnapping for ransom - Elements of offence - Criminal Code s. 354.

Section 354 of the Criminal Code provides:

1. A person who

(a) ... detains a person with intent to:

(i) ...; or

(ii) to procure anything to be done or omitted to be done by, any person by a demand containing threats of injury or detriment, to be caused to the person ... detained either by the offender or any other person, if the demand is not complied with ... is guilty of the crime of kidnapping for ransom.

Held:

(1) The words "kidnapping" and "ransom" do not have established meanings which would provide a construction of the term "kidnapping for ransom" in s. 354, and resort should therefore be had to the terms of the section itself.

R. v. Campbell and Brennan [1981] Qd. R. 516 at pp. 520, 521 followed.

(2) The offence may be constituted when only two persons are involved; the person detained need not be a different person to those from whom the extortion demands are made.

R. v. Robson [1978] 1 N.S.W.L.R. 73 at p. 76 referred to.

(3) Infringement of personal liberty is of the essence of the offence and it is the intent to extort and the demands with accompanying threats which are the significant factors: the duration of the detention is immaterial to the serious quality of the offence, but may be relevant on sentence.

R. v. Campbell and Brennan [1981] Qd. R. 516 at p. 520 applied.

(4) The word "anything" in s. 354(1)(a) is not limited to tangible things; what is intended to be extorted may be tangible or intangible.

(5) Accordingly, that the offence was constituted, where persons detained A with intent to procure their transportation in a motor vehicle then driven by A, by a demand containing threats of injury to A if the demand was not complied with.

Cases Cited:

R. v. Campbell and Brennan [1981] Qd. R. 516.
R. v. Collett [1979] A.C.L.D. 418.
R. v. Hale [1974] 1 All E.R. 1107.
R. v. Kendrick [1933] Q.W.N. 21.
R. v. Robson [1978] 1 N.S.W.L.R. 73.
R. v. Wellard [1978] 1 W.L.R. 921.

Trial

This was the trial of three persons on charges of kidnapping for ransom under s. 354 of the Criminal Code.

Counsel:

J. Byrne and R. Auka, for the State.
N. Kirriwom and P. Poloh, for the accused.
Cur. adv. vult.

15 March 1982

KEARNEY DCJ: [The State case was as follows. The four accused were walking home one night on the Hula road. They were carrying some cartons and drinking beer from bottles; they had been drinking beer earlier at a tavern. A school truck approached them. They decided to use it, to get a lift home. They forced the driver to stop by spreading across the road, and threatening to throw bottles. When the vehicle stopped, they insulted, shouted at and threatened to attack or kill the driver who at first refused to comply with their demand that he turn the vehicle around, and drive them to their village. Eventually in fear for his own safety and that of his young passengers, the driver submitted to their demand. He was futher threatened on the way. Eventually, after a journey of some 45 minutes, he managed to get rid of the accused and get away from them by a stratagem at a village on the way.

The four accused were each charged upon three counts, the first of which was for the crime called "kidnapping for ransom" in s. 354 of the Criminal Code.

Defence counsel submitted, inter alia, that these facts did not make out the offence under s. 354(1) of the Code. The case is reported only as to the ruling on this point.]

The Criminal Code, s. 354(1), so far as material to the first count is as follows:

354. KIDNAPPING FOR RANSOM.

(1) A person who:

(a) ... detains a person with intent to:

(i) ...; or

(ii) to procure anything to be done or omitted to be done by,

any person by a demand containing threats of injury or detriment, to be caused to the person ... detained either by the offender or any other person, if the demand is not complied with ...

is guilty of the crime of kidnapping for ransom.

Mr. Kirriwom submits that the facts I have found proved do not make out this offence. He has five submissions, in support.

First, that s. 354 contemplates that at least three people must be involved, to constitute the crime: A, a person who "detains"; B, a person "detained"; and C,— see phrase "any person"—the recipient of a demand by A.

Second, that what is alleged here does not fall within the ordinary conception of a "kidnapping for ransom". The words "kidnapping" and "ransom" have an established meaning, to be found in dictionaries, which should be taken into account in construing the crime described by the phrase "kidnapping for ransom" in s. 354 of the Code. That phrase, so construed, restricts what might otherwise appear to be the meaning of the words used in the section. This is the first case under s. 354 of the Code to come before the court, the offence is intended to be a very serious one, its proper scope is restricted to such serious offences, and this should be made clear.

Third, and linked with the second submission, the duration of the detention is the important factor. There must be a detention for a significant time, to constitute the infringement upon personal liberty which is of the essence of the offence.

Fourth, the word "anything" should not be widely construed, but should be limited to mean something tangible, such as money. See R. v. Kendrick [1933] Q.W.N. 21.

Fifth, the procuring of something to be done and the detaining, must involve separate and distinct acts; whereas on the facts of this case, they are one and the same act. That is, here the detaining involves the very thing that the detaining by threats was intended to achieve, as laid in the indictment, namely, transportation of the accused in the vehicle.

As Mr. Kirriwom made clear, these submissions were along the lines of submissions rejected by the Court of Criminal Appeal in Queensland in the recently reported case of R. v. Campbell and Brennan [1981] Qd. R. 516. Mr. Kirriwom submitted that that case should be distinguished on its facts, and also because the corresponding Queensland Code provision is slightly different in its wording to s. 354.

Before dealing with these submissions, it is convenient to examine R. v. Campbell and Brennan (supra). It appears that C and B had escaped from custody in N.S.W. They held up two police officers, and took their revolvers. At the time of this offence, they were being hotly pursued by police in Queensland. B eluded the police, came to the victim’s home through the bush, pointed a revolver at him, and told him to "get in the car and drive or else". The victim did so, while B lay on the back seat keeping the revolver pointed at him, and compelled him to ignore a police direction to stop. Eventually B directed the victim to stop, and left the car. B was charged with a "taking" of the victim not, as in this case, with a detaining. He was convicted of kidnapping the victim for ransom, and sentenced to eight years imprisonment. His appeal against conviction was rejected, but his sentence was reduced to 5½ years.

I turn to Mr. Kirriwom’s submissions.

First, as to the number of persons who must be involved to constitute the crime. Clearly, there must be a person who "detains"; and also a person who is detained. But I see no reason why the phrase "any person" in s. 354 cannot include the person detained as well as any third person. The phrase seems to me to be quite apt to include the victim, and is one which accords with common sense. Maxwell J. in R. v. Robson [1978] 1 N.S.W.L.R. 73 at p. 76, refused to apply a similar suggested limitation to the corresponding (but differently drafted) s. 90a of the Crimes Act, 1900 (N.S.W.).

Second, as to what s. 354 is intended to encompass. It will be noted that s. 353 deals with an offence described as "kidnapping", one element of which is that the person detained be compelled "to work for him against his will". Clearly, that does not accord with the dictionary meaning of "kidnapping" nor does it accord with the meaning in s. 354.

Nor does it accord with the common law crime of kidnapping. In East’s Pleas of the Crown (1803) vol. 1, p. 429 appears the following definition:

"The most aggravated species of false imprisonment is the stealing and carrying away, or secreting, of some person, sometimes called kidnapping. ..."

The elements of the common law crime are a deprivation of liberty coupled with a carrying away from the place where the victim wished to be. See R. v. Hale [1974] 1 All E.R. 1107. So in R. v. Wellard [1978] 1 W.L.R. 921 the offence was established when a girl was tricked by a pseudo police officer into going to and entering the vehicle 100 yards away from where she wished to be, namely, by the side of her boyfriend on a common.

The meaning of the words "kidnapping" and "ransom" in the closely corresponding Queensland provision is considered by Demack J. in R. v. Campbell and Brennan [1981] Qd. R. 516 at pp. 520-1; his Honour concludes, and I respectfully agree, that the words do not have established meanings.

In reaching that conclusion, I bear in mind for example the differing view expressed in R. v. Robson (supra). There Maxwell J. was dealing with s. 90a of the Crimes Act, 1900, (N.S.W.) a provision corresponding to s. 354 but significantly differently worded, viz. "Whosoever ... detains a person with intent to hold him for ransom or for any other advantage ..." . It was conceded the victims were not held for "ransom"; as to A, the "advantage" relied upon was the luring of the man’s brother to a certain place by means of a telephone call made by the victim A whilst under detention; as to victim B, the "advantage" was the preventing of a disadvantage, namely, preventing him (by tying him up) from raising the alarm while A was taken away. His Honour adopted the dictionary meaning of "ransom", as embracing acts referable to the payment of money or value for the release of a prisoner. But that approach follows I think logically from the way the particular provision is framed. Clearly enough, what took place in this case, in R. v. Campbell and Brennan (supra) and in R. v. Robson (supra) did not fall within the popular conception of a kidnapping for ransom. But I think it is the words of s. 354 which require to be construed and no real assistance is afforded in that task by the more usual examples of the crime, or from the phrase "kidnapping for ransom", or from statutory provisions elsewhere; that was also the approach adopted by Maxwell J. in R. v. Robson (supra), at p. 76. It is clear, I think, that like many provisions s. 354 encompasses factual situations with a broad range of seriousness, including what is commonly thought of as a kidnapping for ransom. See the comment to similar effect on the New South Wales provision by Melville D.C.J. in R. v. Toohey, unreported decision of 1st November, 1974 cited in R. v. Robson (supra), at p. 76.

Third, as to the significance of the duration of the detention, here about one hour, I respectfully agree with the analysis by Demack J. in R. v. Campbell and Brennan [1981] Qd. R. 516 at p. 521 that:

"... it is clear that the gravamen of the charge is the ... detaining of a person. The intent to extort, and the threats which must accompany those acts, give to the ... detaining (its) seriousness. ... The ... detaining of a person is serious because it infringes upon that person’s liberty. In the light of this it becomes clear that it is the quality of infringement, rather than its duration that is significant." (Emphasis mine.)

It may well be that a lengthy detention will go to sentence, as an aggravating factor; but the other circumstances—the intent to extort, and the demands with accompanying threats—are the significant factors in the crime. In this case, the driver was compelled to stop, and was detained by intimidating behaviour and threats both at the spot and during the course of the journey he was then compelled to take. The fact that the whole detention was only about one hour in duration, does not affect the serious quality of the infringement of the driver’s liberty which took place.

Fourth, as to the meaning of "anything". R. v. Kendrick [1933] Q.W.N. 21, involved a legislative provision quite differently worded to s. 354 of the Code, and, in particular, quite differently worded to s. 390 of the Code, its local equivalent. In the Queensland provision, in 1933, there was no reference to anything to be procured to be done or omitted to be done. It would be quite inapposite to the wording of s. 354 and s. 390 to restrict "anything" to tangible things. It is clear from the careful separation of sub-paragraphs (i) and (ii) of s. 354(1)(a), that what an accused intends to extort may be either of a tangible or intangible nature. R. v. Kendrick (supra) is of no assistance to the interpretation of either s. 354 or s. 390, in my opinion.

Fifth, as to the contention that the detaining (however effected) and the procuring (by demands, with threats) must involve separate and distinct acts. The short answer to this is: why should they? Once it is seen that the victim of the detaining may be one and the same person as the person from whom the extortion demand is made, it appears to be commonsense to contemplate that the act effecting a detainer (e.g. a threat of violence) may be the same as that constituting the extortion demand: see e.g. the situation of victim B in R. v. Robson (supra) mentioned above. In this respect, there is some apparent similarity with R. v. Campbell and Brennan (supra), where transportation in the vehicle was what the taking of the victim was intended to procure. However, in that case, the court held that the compelling of the victim to leave his front yard and to enter his motor vehicle was sufficient to constitute a "taking". The fact that only metres and seconds were involved, was considered irrelevant. The submission in that case on the identity of the acts, was based upon the (incorrect) premise that the "taking" occurred only while the victim was in the car; see per Demack J. at p. 522. So in that case, on the approach taken by the court, there was in any event a distinction between the act amounting to a "taking" and the transportation.

However, I do not in any event see why the "detaining" and the procuring of transportation must involve separate and distinct acts. Here the driver was detained, and prevented from driving home; he was compelled by some threats to drive elsewhere; the accused by compelling him so to drive manifested that their (expressed) intent in detaining him was to procure their transportation to their village. During the period of his detention he was, by driving as directed, enabling the accused to succeed in carrying out their intent. It seems to me that that situation falls clearly within the words of s. 354. The detaining may be by an act —e.g. a threat—quite distinct from (later) threats constituting the demand for transportation which was the intent with which the detention was effected; but it is not necessary, in my opinion, that it be distinct. Detaining is a continuing process; the intent to procure something to be done must exist at the time of the detaining, but it is sufficient if that intent is formed at any time during that detaining—see R. v. Collett [1979] A.C.L.D. 418. In this case, the intent to procure transportation existed from the beginning of (indeed, was the motive for) the detaining, and the demand with threats used to procure transportation also effected the major part of the detention, though I suppose it is correct to say that the detention was initially brought about by the blocking of the road, and the threat to throw bottles. That being so, the initial acts (resulting in detention) were in fact different to the demands with threats (the later acts) by which the intent to obtain transportation was achieved.

In the result, therefore, I reject the defence submissions on this point and hold that the facts as established satisfy the elements of the offence in s. 354. In effect, I apply the reasoning in R. v. Campbell and Brennan (supra).

(The accused were convicted as charged.)

Verdict of guilty as charged.

_____________________________________________

Solicitor for the State: L. Gavara-Nanu, Public Prosecutor.
Solicitor for the defence: A. Amet, Public Solicitor.