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Kakore v Sing [1975] PGSC 16; [1975] PNGLR 104 (26 June 1975)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 104 - Gaigo Kakore v� Sing

[1975] PNGLR 104

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

GAIGO KAKORE

V

ALAN JOHN SING

AND

GAIGO KAKORE

V

JOHN PAUL NASAI

Port Moresby

Frost CJ Williams Saldanha JJ

5 May 1975

7-9 May 1975

26 June 1975

CRIMINAL LAW - Procedure - District Court information - Procedure to be followed when defendant present - When plea of not guilty should be entered - When magistrate entitled to question accused - Form of questions - District Courts Act 1964, ss. 134, 135[cix]1.

INFERIOR COURTS - District Courts - Procedure - Information - Procedure to be followed when defendant present - When plea of not guilty should be entered - When magistrate entitled to question accused - Form of questions - District Courts Act 1964, ss. 134, 135[cx]2.

CRIMINAL LAW - Arrest without warrant - What powers of arrest available - Power under s. 8a of Crimes Act 1914-1966 (Cth) - Test for exercise of power, objective - Requirement that proceedings by summons not be �effective� - Relevant considerations - Crimes Act 1914-1966 (Cth), s. 8a[cxi]³.

WORDS AND PHRASES - �Effective� - Powers of arrest without warrant - Requirement that proceedings by summons not be effective - Crimes Act 1914-1966 (Cth), s. 8a[cxii]⁴.

The object of ss. 134 and 135 of the District Courts Act 1964 is merely to discover whether the defendant puts the truth of the information or complaint in issue: a plea of not guilty should be entered where the defendant makes a statement which does not clearly indicate: (i) that he admits the truth of the complaint, and (ii) that he has no cause to show why he should not be convicted, (Trebbin v. Turner, [1944] Q.S.R. 62 followed; Laeka Ivarabou v. Manau [1967-68] P. & N.G.L.R. 12; Pukari-Flabu v. Hambakon-Sma [1965-66] P. & N.G.L.R. 348; Moses Aikaba & Others v. Tami [1971-72] P. & N.G.L.R. 155; and Balu Mau�u v. Pare [1973] P.N.G.L.R. 64 referred to), and a magistrate is not entitled to interrogate an accused for the purposes of obtaining admissions, but in accordance with the well established practice may put questions to the defendant as to each of the matters charged in the information for the purposes of ascertaining whether the accused admits or not the truth of the information; and such questions should be put in the form: Do you admit or deny the truth of a particular matter?

Trebbin v. Turner, [1944] Q.S.R. 62 at pp. 67-68 approved.

Section 8a of the Commonwealth Crimes Act 1914-1966 which applies in Papua by virtue of s. 3a of the said Act, and which provides that �any constable may, without warrant, arrest any person, if the constable has reasonable grounds to believe (a) that the person has committed an offence against the law ...; and (b) that proceedings against the person by summons would not be effective:� (1) prescribes an objective test only so that it is unnecessary for it to be shown that a member of the police force had any belief as to the matters referred to in paragraphs (a) and (b); (2) and the considerations applicable under sub-par. (b) include not only whether there was a real risk of the offender not answering the summons having regard to his identity and standing as known to the arresting police officer but also the seriousness of the offence, and also whether there was a risk of continuation or repetition of the offence, or of some danger to the offender or other persons.

Construction of the word �effective� in R. v. Kakius Isiura, [1964] P. & N.G.L.R. 84 disapproved.

Appeals

The appellant was charged upon information with resisting a member of the police force in the execution of his duty contrary to s. 20 (i) of the Public Order Act 1970 and also while in lawful custody in respect of an alleged offence of behaving in a riotous manner (sic) escaping from that custody contrary to s. 3 of the Criminal Law (Escapes) Act 1968. The appellant was convicted and sentenced to four months imprisonment on both counts. Appeals against conviction were dismissed by Prentice J and the present appeals therefrom instituted, both appeals being heard together.

Counsel

C. F. Wall, for the appellant (defendant).

B. M. Ryan, for the respondent (prosecution).

Cur. adv. vult.

26 June 1975

FROST CJ WILLIAMS SALDANHA JJ: At the conclusion of the hearing of these two appeals it was thought necessary, as the appellant was in custody, that our decision be given promptly. We accordingly pronounced formal orders in the matters and intimated that our reasons in writing would be given later.

The appeals, heard together, are from a judgment of Prentice SPJ dismissing appeals by the appellant against his convictions upon information by the District Court at Boroko, respectively for resisting a member of the police force in the execution of his duty, thereby contravening the Public Order Act 1970, s. 20 (1)[cxiii]5, and also while in the lawful custody of Alan John Sing in respect of an alleged offence of riotous manner (sic) escaping from that custody, thereby contravening s. 3 of the Criminal Law (Escapes) Act 1968.

The proceedings arose out of incidents on the night of 6th July, 1974, at Tatana Village near Port Moresby. One Paul Rut had driven to the village to pick up another man when a full bottle of beer was thrown at his motor vehicle. The incident was reported to the police at Port Moresby by Rut who later that night alleged to Inspector Sing that the offender was the appellant, who was known to Rut.

The facts as deposed to at the hearing were that the Inspector then followed Rut and drove to the village accompanied by two constables in a police car. On arrival at the village at about 12.30 a.m. Sing saw a number of groups of men and women standing on either side of the roadway, most of them appearing to be in various stages of intoxication. Some were dancing, others were drinking from beer bottles and there was a lot of shouting. After alighting from the vehicles Rut indicated the appellant to Sing and identified him as the man who had thrown the bottle at his vehicle. Sing approached the appellant and said to him, �You have been identified to me as the man who threw a bottle of beer at this car earlier tonight�, and it is material to note that Sing indicated the smashed utility driven by Rut. Sing was at that time in uniform. He took hold of the appellant by the left arm and tried to escort him towards the police car. In Sing�s opinion the appellant was under the influence of liquor to a moderate degree, but not to such an extent as otherwise to allow for his arrest for being drunk in a public place. The appellant struggled violently and eventually broke free. The appellant was blocked from Sing�s view by a crowd of people increasing from about 30 to 100 villagers, shouting loudly and waving their arms around, most of them being affected by liquor to various degrees.

Efforts to quieten the crowd did not succeed but eventually the appellant was seen and as he ran up a small hill on the high side of the village he was caught and handcuffed by Constable Eka. There was great difficulty in having the appellant placed in the police car as the crowd tried to pull him free.

By this time three other police cars had arrived but, in Sing�s opinion, the situation was extremely grave, and he was apprehensive for his own safety and that of the other police. He was punched and kicked but fortunately suffered no serious injuries.

Finally, the Inspector managed to enter the front seat of his car and commenced to drive out of the village with one hand on the horn. A large number of villagers ran beside the police car and threw stones at it. When the Inspector stopped the vehicle to see if the other police cars were following, another group of villagers ran towards the car also throwing stones. Much damage was done to the car. It was about an hour and a half before the police vehicles were able to leave the village.

The information under the Public Order Act, with which it is convenient to deal first, came on for hearing on 27th September, 1974, and we shall now refer to the course the proceedings took.

From the court record it appears that the charge was read and explained to the appellant who made a statement the material parts of which are as follows:

�It is true that police went to arrest me in connection with that matter.

It is true I knew they wanted to arrest me and I resisted them.

I knew at the time the law was one that should not resist arrest (sic).�

The court found that the appellant admitted the offence. The appellant then made a further statement in which he stated that he did not know who threw the bottle at the vehicle, that he was at a party and walking with his �wantoks� when police came to arrest him. It is relevant to note that he also stated that when the police arrested him he did not know what the trouble was about. At the time he was drunk and �running from their hands�.

The procedure adopted by the learned stipendiary magistrate on hearing the case was then to have taken on oath the evidence of Inspector Sing the effect of which had already been set out. The appellant then made a further statement in the course of which he said that the only thing he disagreed with in the Inspector�s evidence was a detail, in our judgment immaterial, as to the place where he was arrested and handcuffed, which the appellant said was on the top of the hill instead of a little further on in the village as deposed to by the Inspector.

In the forefront of the case for the appellant was the submission that the magistrate wrongly entered a plea of guilty to the charge. It was argued that the plea could not be sustained because there was no admission by the appellant that Inspector Sing was at the time effecting a lawful arrest, and thus acting in the execution of his duty, or alternatively, after the plea was entered further facts were disclosed which threw doubts on the correctness of the plea.

The illegality of the arrest was said to arise from the failure of Sing to state the reason of the arrest or to make clear to the appellant that he was being arrested, relying on the authority of Christie & Anor. v. Leachinsky[cxiv]⁶, and also because there was no compliance with the Crimes Act (1914-1966), s. 8a of the Commonwealth of Australia which is applicable in Papua, or the Police Offences Act (1912-1966) of Papua, s. 17c (1)[cxv]7. The latter enactments are the relevant statutes concerning the power of arrest in this case.

This general submission raises similar considerations to the issue which in all appeals from the District Court fails to be considered, that is, whether it appears to the Court that there has been a substantial miscarriage of justice � District Courts Act 1964, s. 236 (2).

The decision upon this latter issue must depend upon an examination of all the material including the evidence of Inspector Sing on oath which was accepted by the appellant.

The same submissions were put before the learned appeal judge who in rejecting them held that the plea was properly entered, that the arrest was justified under the Crimes Act s. 8a and also under the Public Order Act s. 19 and, finally, held that the sentence of four months� imprisonment, which was challenged on the ground of severity, was not excessive.

At the outset it is necessary to refer to the procedure to be followed at the hearing of an information when the defendant is present, as stated in the District Courts Act 1964, ss. 134 and 135[cxvi]⁸. As pointed out in Kennedy Allen�s textbook The Justices Act (Queensland), 3rd ed., p. 343, in the notes to s. 145 which is in substance in the same terms as the relevant Papua New Guinea provision, the word �plea� does not occur in the legislation. In practice however the defendant is asked by the Court how he pleads. A plea of not guilty should be entered where the accused makes a statement to the magistrate which does not clearly indicate: (i) that he admits the truth of the complaint; and (ii) that he has no cause to show why he should not be convicted. Trebbin v. Turner[cxvii]⁹. The same principle has been adopted in a number of cases in Papua New Guinea including Laeka Ivarabou v. Nanau[cxviii]¹⁰, Pukari-Flabu v. Hambakon-Sma[cxix]¹¹, Moses Aikaba & Ors. v. Tami[cxx]¹²�and Balu Mau�u v. Pare[cxxi]¹³.

No point was taken in this Court as to the propriety of the method adopted for taking the appellant�s plea. It must in our opinion be assumed that the statements made by the appellant after the charge was read and explained were made pursuant to questions put to him. Upon this procedure valuable guidance is to be found in the judgment of the Full Court of Queensland in Trebbin v. Turner[cxxii]¹⁴. In Papua New Guinea it must be rare for defendants or accused persons to plead in terms of either guilty or not guilty. We would adopt the opinion in Trebbin v. Turner[cxxiii]¹⁵�that a magistrate is not entitled to interrogate an accused for the purposes of obtaining admissions, but in accordance with the well-established practice of the courts of Papua New Guinea and to suit the conditions of the country, a judicial officer may, in ascertaining whether the accused admits or not the truth of the information, put questions to the defendant as to each of the matters charged in an information. The questions should be put in the form: Do you admit or deny the truth of the particular matter? The object of the legislation is merely to discover whether the defendant puts the truth of the information or complaint in issue. (Trebbin v. Turner[cxxiv]¹⁶). It must be assumed that the recorded statements of the appellant were made in response to questions of such a character.

So far as the validity of the plea is concerned the principle applicable is that stated in R. v. Blandford Justices; Ex parte G. (an Infant)[cxxv]¹⁷. In that case a Divisional Court had to consider a plea of guilty by an appellant, a girl of 15, who appearing unrepresented pleaded guilty and was convicted of larceny before the Justices. The principle applicable in such cases was stated by Widgery J as follows:

�... the magistrate ought, in my judgment, to accept the plea, as it were, provisionally, and not at that stage enter a conviction. He ought, in my judgment, in these cases to defer a final acceptance of the plea until he has had a chance to learn a little bit more about the case, and to see whether there is some undisclosed factor which may render the unequivocal plea of guilty a misleading one. I have no doubt that experienced magistrates in fact do in these cases wait until they have heard the facts outlined by the prosecution and wait until they have heard something of what the accused has to say.�

The learned judge then went on to say that if the magistrate then feels that nothing has been disclosed to throw doubts on the correctness of the plea of guilty he properly accepts it and enters a conviction. If however he finds that there are elements in the case which indicate that the accused is trying to plead not guilty then the magistrate has no discretion but must treat the plea as a plea of not guilty. See Laeka Ivarabou v. Nanau[cxxvi]¹⁸, where the passage from the judgment is set out in full.

It is this latter principle upon which it appeared to this Court that Mr. Wall submitted on behalf of the appellant that the plea was wrongly entered. The issue is thus whether at the hearing any facts emerged from the statements made after what was taken to have been an admission of the offence to throw doubts on the correctness of the plea of guilty. But if the only proper conclusion from the admitted facts was that the arrest was lawful, not only would the plea of guilty be sustained but also no substantial miscarriage of justice would be shown.

From the note in the court record it is to be presumed that every element of the charge was read and explained to the appellant, including the element that Inspector Sing was acting in the execution of his duty, which was not challenged by the appellant.

In our opinion the learned magistrate was justified in then accepting from the appellant�s remarks that he admitted the truth of the charge.

By reason of the procedure then taken by the learned magistrate in effect he had heard both sides, and had available to him all the evidence relating to the issue of the legality of the arrest.

It is convenient first to consider the ground of appeal involving the power of arrest available to Inspector Sing. Although the argument before this Court proceeded on the basis that the power was conferred either by the Police Offences Act s. 17c (1) or the Commonwealth Crimes Act s. 8a, in the end it was clear that s. 8a alone was relied upon by the respondent. It is thus unnecessary for this Court to express any opinion as to the operation of s. 17c (1).

Turning to s. 8a of the Commonwealth Crimes Act, its provisions are applicable in Papua because the Act applies throughout the whole of the Commonwealth and the Territories (s. 3a). Section 8a is in the following terms:

N2>�8a.��� Any constable may, without warrant, arrest any person, if the constable has reasonable grounds to believe:

(a)����� that the person has committed an offence against the law of the Commonwealth or of a Territory; and

(b)����� that proceedings against the person by summons would not be effective.�

In our opinion the section prescribes an objective test only so that it is unnecessary for it to be shown that a member of the police force had any belief as to the matters referred to in pars. (a) and (b).

In this case there could be no question � nor was it contested � but that, in view of the information received by Inspector Sing from Rut, the requirements of sub-par. (a) were complied with. There were clearly reasonable grounds for him to believe that various offences had been committed ranging from the minor offences under the Police Offences Act s. 5 of throwing a missile and behaving in a riotous manner contrary to s. 8 ibid., to the indictable offence under s. 469 of the Code of wilfully and unlawfully damaging property punishable, as the offence was committed at night, by imprisonment for a period of three years.

The contest in this Court as to the applicability of s. 8a was as to the effect of sub-par. (b) and, in particular, as to the meaning of the word �effective�. Mr. Wall relied upon the decision of Minogue J (as he then was) in R. v. Kakius Isiura[cxxvii]¹⁹, which was followed by Lalor J in Nenk Pasul v. Robson[cxxviii]²⁰. The former was a case in which the accused was tried with the offence of assaulting a police officer whilst in the execution of his duty. It was held that the word �effective� in s. 8a (b) of the Commonwealth Crimes Act means �effective to ensure the attendance of the alleged offender at Court�. The basis of the judgment was that, having regard to the inclusion in the Crimes Act of the relatively minor offences of trespass by cattle upon Commonwealth land (s. 90) and removing a poster relating to a Commonwealth loan contrary to s. 90a, the legislature could not have intended the wider construction contended for by the Crown. But it is to be noted that s. 8a applies in relation to offences against the law of a territory, an expression which must include laws relating to the most serious offences as well as minor offences. Equally compelling is the consideration that the Crimes Act in which s. 8a is found makes express provision for offences of the utmost gravity including treason, which was made punishable by death (s. 24), and treachery (s. 24aa). Another consideration of which the decision fails to take account is the protection of the offender himself from reprisal.

The effect of the decision was to place a severe limitation upon the power of arrest, for the ground of illegality of the arrest, which was upheld in that case, was the absence of any enquiry by the police officer making the arrest as to the accused�s identity, standing or character, or any evidence which would afford ground for belief that a summons would not be effective to procure the accused�s attendance at court. Thus the learned trial judge did not advert to the seriousness of the charge as a factor to be taken into account in deciding whether a summons would be effective to ensure attendance at court.

It is significant in our opinion that the Australian legislature imposed no limitation upon the meaning of the word �effective�, which was left unqualified. Any such limitation should be implied by this Court only if it appears that that was the clear intention of the legislature. In our opinion a construction of s. 8a should not be adopted which would render the power of arrest without warrant ineffectual in relation to the serious offences contained within the purview of the Act. The conclusion we have reached is that whilst the word �effective� includes the meaning adopted in R. v. Kakius Isiura[cxxix]²¹, it cannot be limited to that meaning. To this extent we over-rule that decision and Nenk Pasul v. Robson[cxxx]²².

In our view the considerations applicable include not only whether there was a real risk of the offender not answering the summons having regard to his identity and standing as known to the arresting officer but also the seriousness of the offence, and also whether there was a risk of continuation or repetition of the offence, or of some danger to the offender or other persons.

The fact that the section may be capable of a drastic operation in relation to the minor offences referred to in R. v. Kakius Isiura[cxxxi]²³�would not, in our opinion, lead us to reject the plain meaning of the section.

In the circumstances of the present case the relevant facts are that whilst Inspector Sing was aware that the appellant was a villager living at Tatana, he had reasonable grounds to believe that the appellant had committed an indictable offence, that is wilful and unlawful damage to a motor vehicle, that he was in a state of intoxication, and that he was in the company of persons similarly so affected and behaving in an excitable manner. In our opinion, the only conclusion open on the facts was that the Inspector had reasonable grounds for believing that there was a real risk either that the appellant would not attend Court upon a summons or would commit a further offence, and thus that proceedings by summons would not be effective. The argument under s. 8a therefore fails.

The next ground of appeal relied upon was that the facts disclosed a defence that Inspector Sing was not acting in the execution of his duty, on the ground that he failed to inform the appellant of the ground of the arrest or that he was being arrested. At common law if a police officer arrests without warrant he must inform the person arrested of the true ground of the arrest (Christie & Anor. v. Leachinsky[cxxxii]²⁴), unless the circumstances are such that that person must know the general nature of the alleged offence for which he is being detained (ibid). It is sufficient if the person detained is informed in substance of the reason for the restraint (ibid). That case is also authority for the proposition that the person arrested cannot complain that he had not been supplied with the above information as and when he should be if he himself produces the situation which makes it practically impossible to inform him, e.g., by immediate counter-attack or by running away. At common law it is also necessary for the arresting officer to show that it had been made clear to the appellant that he was under arrest. The question whether it had been so made clear to him is a question of fact (R. v. Inwood[cxxxiii]²⁵). There is an �obligation to make it plain to the suspect by what is said and done that he is no longer a free man� (ibid. at p. 649). But it is not necessary that the fact of arrest should be stated in plain terms � Hussien v. Chong Fook Kam[cxxxiv]²⁶. In that case in delivering the judgment of the Privy Council, Lord Devlin said: �An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. It occurs also when by words or conduct he makes it clear that he will, if necessary, use force to prevent the individual from going where he may want to go. It does not occur when he stops an individual to make enquiries�. See also Alderson v. Booth[cxxxv]²⁷.

As the rules we have set out are based on the common law principle that �the liberty of a man is a thing specially favoured by the common law� � Christie & Anor. v. Leachinsky[cxxxvi]²⁸�� we have no doubt that these rules are applicable to the circumstances of Papua New Guinea and are consequently in force in Papua. (The Courts and Laws Adopting Ordinance (Amended) of 1889, s. 4.)

The issue which was more strongly argued by Mr. Wall was whether it had been made plain to the appellant that he had been arrested. Upon this point the evidence of Inspector Sing was that after he first spoke the words referred to to the appellant, the latter made no reply but began to back away, and that he then took hold of the appellant by the left arm and tried to escort him to the police car. Mr. Wall argued that this evidence is equivocal, and that it was open to the construction that he was merely being asked to accompany the Inspector for further questioning. However, it is plain from the fact that the appellant struggled violently and eventually broke free that the appellant must have known that he was being taken into custody.

This conclusion is supported by the subsequent actions of the police in chasing the appellant and eventually effecting an arrest � actions which were quite inconsistent with any intention of the police merely to request the appellant to come to the police station.

We are also of opinion that the appellant must have been made aware of the true ground of the arrest, in view of Inspector Sing�s words at the outset � �You have been identified to me as the man who threw a bottle of beer at this car earlier tonight� � which were plainly sufficient to let the appellant know the general nature of the act for which he was being arrested. It is irrelevant that the act was subsequently made the subject of a charge of riotous behaviour rather than of the indictable offence of malicious injury to property. Christie & Anor. v. Leachinsky[cxxxvii]²⁹�per Lord Simond at p. 593.

For the reasons stated we are of the view that there was nothing before the magistrate which should have given him reason to believe that the common law rule relating to the arrest of offenders had been contravened by Inspector Sing.

Upon a consideration of the matter as a whole, we do not think that following the provisional plea of guilty recorded by the magistrate that anything emerged thereafter which should have caused him to vacate that provisional plea. It does appear to us from the record of the proceedings that the appellant had a proper appreciation of the matters alleged against him, and that no factor has emerged which causes us to think that there was any miscarriage of justice.

It was also contended that the sentence of four months� imprisonment imposed on the appellant was manifestly excessive. The appellant�s conduct amounted to a serious breach of the peace. Unfortunately incidents involving the police and villagers are becoming all too common. The police have a difficult duty to perform and when acting properly in the course of their duties must receive the support of the courts.

In all the circumstances it has not been shown to us that the sentence was manifestly excessive.

Upon the appeal against the other conviction, having regard to our conclusions upon the first appeal we have no doubt that the only proper conclusion was that the appellant�s admitted escape was from lawful custody. Accordingly this appeal is also dismissed.

So far as the appeal upon sentence is concerned, as the offence arose out of the same or closely related facts as those the subject of the charge in the previous appeal (Tremellan v. The Queen[cxxxviii]³⁰), the sentence should be served concurrently with the sentence imposed on the other charge. This was the effect of the magistrate�s order, but for the sake of clarity we think it should be made expressly concurrent with that sentence.

Appeals dismissed.

Solicitor for the appellant: N. H. Pratt, Acting Public Solicitor.

Solicitor for the respondent: B. W. Kidu, Crown Solicitor.