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McKenzie v The State [1998] PGSC 55; [1999] PNGLR 526 (30 April 1998)

[1999] PNGLR 526

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

RONALD ALEXANDER MCKENZIE

V

THE STATE

WAIGANI: LOS, HINCHLIFFE & INJIA JJ
27, 30 April 1998

Facts

The appellant was convicted on a charge that he unlawfully detained a woman, Janet David, at Goroka on 3 November 1993. The charge was laid under s 355 of the Criminal Code Act. The section provides:

"A person who unlawfully —

(a) confines or detains another in any place against his will; or

(b) deprives another of his personal liberty, is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years."

The appeal is against both conviction and sentence.

On November 3 1993, at about 8.00 a.m. the victim together with two other women and a small child entered the store when it opened for business. The appellant was not at work at this point in time. Whilst she was inside the store, she was accused of stealing a "Hubba-bubba bubble gum" by the store supervisor and a security guard. At this point in time, the appellant drove in. After conducting his own inquires on the matter, the appellant directed the store security men to lock her up in a brick-wall storeroom situated at the back of the store. She was kept there for some eight (8) hours until policemen, after receiving a complaint from the victim's relatives arrived at around 3.30pm and took her away.

At the trial the appellant argued that he acted lawfully in directing the victim's detention because:-

1. a policeman from the dog unit who attended at the scene in the morning did not return within 20 minutes to collect the victim, as earlier promised.
   
2. That he (the appellant) was busy attending to the business of the store because the store had just opened for business for only one month;
   
3. That there was no motor vehicle to take her to the police station because he used the only motor vehicle he had to gather eggs for the "kai bar" of the store.
   

The State called evidence of the policeman on duty on that day at the Goroka Police Station to prove that the police did not receive any complaints on the matter from the appellant or his subordinates on that day, that they did not attend at the scene at the appellant's store that morning and that it was only at 3.30pm that day that they received complaint from the victim's relatives of her detention at the store and attended at the scene and collected her. The trial judge rejected the appellant’s evidence and accepted the State witnesses' evidence and convicted and sentenced the appellant to 6 months imprisonment.

Held

1. This case involves the arrest and subsequent detention by a person other than a policeman, of another person allegedly found committing or having committed an offence. An ordinary citizens’ power to "arrest" another person is founded on statute, namely the Arrest Act. It empowers an ordinary person to arrest another person, without warrant, if that person believes on reasonable grounds that such person is committing or has committed an offence for which the penalty is imprisonment. Section 14 of the Act requires the person arresting to inform the person arrested of the arrest and the reason(s) for the arrest and request the person arrested to accompany him to the police station or to a Court or place of confinement, as the case may be. Section 16 of the Act requires the person arresting to hand over the arrested person to a policeman or take the arrested person or cause him to be taken to a police station, as soon as possible" after making the arrest. Sections 14(2) and 16(2) requires the person arresting to use reasonable force or means to make the arrest or to prevent the person arrested from escaping.
   
2. The use of the word "unlawful" in s 355 of the Criminal Code, means a detention is unlawful unless it is authorised or excused by law. By virtue of s 32 of the Criminal Code in conjunction with s 355, it is a defence to a charge under s 355 that the person making a citizens' arrest and subsequent detention under the Arrest Act was done "in execution of the law": A lawful "detention" following a lawful "arrest" under the Arrest Act comes within the meaning of s 32 of the Criminal Code Act, hence a defence to a charge of unlawful detention under s 355.
   
3. A citizen’s power to "arrest" and "detain" another person under the Arrest Act is however qualified by five (5) important conditions. They are:-
   

(1) The person arrested must be found committing or has committed a criminal offence for which the prescribed penalty is imprisonment: Arrest Act, s 5.

(2) The force used, if any, to make the arrest or to prevent the escape of an arrested person must be reasonable in the circumstances: Section 14(2), of Arrest Act.

(3) The means or method used to detain a person arrested must be appropriate or reasonable in the circumstances: Arrest Act, s 14(2), s 16(2). As to what is reasonable depends on the given facts of each case. Relevant factors include the seriousness of the offence, resistance to arrest and the imminent risk of escape.

(4) Detention must only be for the purpose of enabling the person arrested to be conveyed to a policeman, a police station, a Court or a proper place of confinement.

(5) The person arrested must not be detained for any period longer than is practically and reasonably necessary for the purposes set out in paragraph (4), supra."

4. The detention of one Janet David by the appellant was initially a lawful detention. The lawful detention however turned unlawful when the appellant failed to convey the suspect, Janet David immediately, to the nearby police station. The appellant himself could have simply taken her down to the police station in his car and handed her over to the police and laid a complaint. He failed to do so. The liberty of the victim took no priority in his order of business that morning and afternoon. The appellant went about his businesses and paid no regard to the urgency posed by the victim's liberty. Even though she did not resist arrest and posed no threat of escape, he directed her to be locked up for some eight (8) hours in a brick-wall storeroom. The victim was only a simple village housewife. Her detention in a high security brick-wall store-room was unnecessary and excessive and therefore unlawful. For these reasons, we concluded that the detention was clearly unlawful.
   
5. The sentence was excessive. The appellant was a first offender. He came into the scene after the woman was apprehended. His mistake was that he failed to cause delivery of the woman to the police when it was obvious the police were not going to come when the business part of the day was almost over.
   

Papua New Guinea cases cited

The State v Songke Mai [1988] PNGLR 56.

Counsels

I Molloy, for the appellant.
M Peter, for the respondent.

30 April 1998

BY THE COURT. On 30 April 1998, we handed down a short ruling on the result of this appeal and indicated that we would publish our full reasons later, particularly on the subject of the powers of an ordinary person, a person other than a policeman, to arrest and detain another person found committing or having committed an offence. For purposes of easy reference, we set out below the full text of our ruling. We said:

"The appellant was convicted on a charge that he unlawfully detained a woman, Janet David, at Goroka on 3 November, 1993. The charge was laid under s 355 of the Criminal Code Act. The section provides:

"A person who unlawfully —

(a) confines or detains another in any place against his will; or

(b) deprives another of his personal liberty, is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years."

"The appeal is against both conviction and sentence. The appeal raises a broad but serious issue in the country. Many persons purport to exercise some powers to apprehend and detain others. They include security personnel and others who purport to exercise some powers bestowed upon them by various municipal authorities. We consider it necessary to discuss the relevant laws and constitutional provisions relating to the powers of apprehension, arrest and detention. The time we have now is insufficient for that purpose. We will therefore just announce our decision affecting the appellant to day and reserve all reasons to deliver at a later date.

"Although the trial judge was extra gratuitous with his language, we find basically the detention was excessive even though it was originally meant to be short just to enable the woman to be taken to the police station. We therefore dismiss the appeal against conviction and confirm the conviction."

"In relation to the sentence, it is our view that the sentence was excessive. The appellant was a first offender. He came into the scene after the woman was apprehended. His mistake was that he failed to cause delivery of the woman to the police when it was obvious the police were not going to come when the business part of the day was almost over.

"We therefore grant leave to appeal against sentence and we uphold the appeal. We quash the sentence of six months and in its stead we impose two weeks imprisonment which the appellant has already served. In addition we impose a fine of K1,000 payable within two weeks in default three months imprisonment."

The appellant is an Australian citizen. At the material time, he was employed by Gonapuka Pty Ltd as the General Manager of its Satu Wholesale store (herein after referred to as the "Store") which is situated at West Goroka. On 3 November 1993, at about 8.00am, the victim, together with two other women and a small child entered the store when it opened for business. The appellant was not at work at this point in time. Whilst she was inside the store, she was accused of stealing a "Hubba-bubba bubble gum" by the store supervisor and a security guard. At this state, the appellant drove in. After conducting his own inquires on the matter, the appellant directed the store security men to lock her up in a brick-wall storeroom situated at the back of the store. She was kept there for some eight (8) hours until policemen, after receiving a complaint from the victim's relatives arrived at around 3.30pm and took her away.

At the trial the appellant argued that he acted lawfully in directing the victim's detention because:-

1. a policeman from the dog unit who attended at the scene in the morning did not return within 20 minutes to collect the victim, as earlier promised.
   
2. That he (the appellant) was busy attending to the business of the store because the store had just opened for business for only one month;
   
3. That there was no motor vehicle to take her to the police station because he used the only motor vehicle he had to gather eggs for the "kai bar" of the store.
   

The State called evidence of the policeman on duty on that day at the Goroka Police Station to prove that the police did not receive any complaints on the matter from the appellant or his subordinates on that day, that they did not attend at the scene at the appellant's store that morning and that it was only at 3.30pm that day that they received complaint from the victim's relatives of her detention at the store and attended at the scene and collected her. The trial judge rejected the appellant's evidence and accepted the State witnesses' evidence and convicted the appellant.

In this appeal, the appellant has appealed against various findings of fact on the evidence in the disputed areas of the evidence. Mr Molloy has made extensive arguments in support of these grounds. Having considered his submissions and having evaluated the evidence on which the trial judge made his findings of fact, we find that the trial judge did not err in the basic findings of fact that the accused was responsible for directing the victim to be locked up in the brick-wall storeroom, which fact was not denied by the appellant at the trial, and that he made no effort to contact the police or take her to the police station promptly, and that the detention for some 8 hours in the brick wall store room of the store was excessive and therefore unlawful.

This case involves the "arrest" and subsequent "detention" by a person, other than a policeman, of another person allegedly found committing or having committed an offence. This is commonly referred to as "citizens’ arrest". This is different from the normal situation where a policeman, acting in the course of his duties, makes an "arrest" and "detains" a person. The duties incumbent on policemen upon arrest are prescribed by the Arrest Act Ch 339 and the Constitution, s 42 and the principles are well settled: see SCR No. 5 of 1987, The State v Songke Mai [1988] PNGLR 56.

An ordinary citizens’ power to "arrest" another person is founded on statute, namely the Arrest Act empowers an ordinary person to arrest another person, without warrant, if that person believes on reasonable grounds that such person is committing or has committed an offence for which the penalty is imprisonment. Section 14 of the Act requires the person arresting to inform the person arrested of the arrest and the reason(s) for the arrest and request the person arrested to accompany him to the police station or to a Court or place of confinement, as the case may be. Section 16 of the Act requires the person arresting to hand over the arrested person to a policeman or take the arrested person or cause him to be taken to a police station, as soon as possible" after making the arrest. Sections 14(2) and 16(2) requires the person arresting to use reasonable force or means to make the arrest or to prevent the person arrested from escaping.

The process of "arrest" under the Arrest Act ordinarily involves the deprivation of liberty of the person arrested: it involves some form of physical or non-physical "detention". As the Supreme Court, per Kapi Dep. CJ, stated in State v Songke Mai (supra) at p 69:

"It is clear from this Act (Arrest Act) that ‘arrest is the initial step of depriving a person of his liberty is continually deprives for a period’. To put the matter differently, ‘arrest’ and ‘detention’ are two distinct procedures under the law and deprivation of liberty, which is common to both, commences upon ‘arrest’ and ‘detention’. The moment a person is ‘arrested’, he is ‘detained’ from that point on. ‘Arrest’ is very closely followed in point of time by ‘detention’. That is the law relating to ‘arrest’ and ‘detention’ in relation to persons who are suspected of committing a crime".

The use of the word "unlawful" in s 355 of the Criminal Code, means a detention is unlawful unless it is authorised or excused by law. By virtue of s 32 of the Criminal Code in conjunction with s 355, it is a defence to a charge under s 355 that the person making a citizens’ arrest and subsequent detention under the Arrest Act was done "in execution of the law": A lawful "detention" following a lawful "arrest" under the Arrest Act comes within the meaning of s 32 of the Criminal Code, hence a defence to a charge of unlawful detention under s 355.

A citizen’s power to "arrest" and "detain" another person under the Arrest Act is however qualified by five (5) important conditions. They are:-

(1) The person arrested must be found committing or has committed a criminal offence for which the prescribed penalty is imprisonment: Arrest Act, s 5.

(2) The force used, if any, to make the arrest or to prevent the escape of an arrested person must be reasonable in the circumstances: Section 14(2) of Arrest Act.

(3) The means or method used to detain a person arrested must be appropriate or reasonable in the circumstances: Arrest Act, s 14(2), s 16(2). As to what is reasonable depends on the given facts of each case. Relevant factors include the seriousness of the offence, resistance to arrest and the imminent risk of escape.

(4) Detention must only be for the purpose of enabling the person arrested to be conveyed to a policeman, a police station, a Court or a proper place of confinement.

(5) The person arrested must not be detained for any period longer than is practically and reasonably necessary for the purposes set out in paragraph (4), supra."

We give three examples. First, a person is seen by a security guard removing a pair of shorts from a self-service trade store and hiding it under his armpit. The security personnel approaches him, removes the shorts and without saying a word grabs hold of the person’s hand and tells him: "What’s this. You have stolen the pair of shorts. Come with me and let us go to the police station". He holds onto the person’s hand firmly and rings the police station. The police turn up ten (10) minutes later to collect the person. In the meantime, the security guard holds onto the person’s hand and both of them remain standing inside the store for the ten (10) minutes. When the police arrive, the person is taken to the police station and locked up in the cells. At the police station, the policeman writes down the complaint and a formal arrest and detention follows.

There is no doubt that the security guard made a "citizens’ arrest" and "detained" the person inside the store. In all these circumstances, it is a lawful arrest because the five (5) conditions set out above have been observed.

Compare the above example with the facts of the present case. It can be said that the "arrest" and "detention" of the victim by the store supervisor and the security guard, for a little while inside the shop and outside the shop for the purpose of taking her to the police station or for contacting the police to come and collect her, was for all intention purposes lawful. The victim had been caught stealing the bubble gum. Stealing is a criminal offence for which an imprisonment penalty, in default of a fine, is prescribed under s 48C(2) of the Summary Offences Act Ch 264. The victim knew she had been caught committing the offence and the store supervisor and the security man told her so. Reasonable force was applied to apprehend her.

From this point on, what was a lawful "detention" turned out to be excessive and therefore unlawful. No attempt was made by the appellant to contact the police immediately or to take her to the police station nearby. The appellant himself could have simply taken her down to the police station in his car and handed her over to the police and laid a complaint. He failed to do so. The liberty of the victim took no priority in his order of business that morning and afternoon. The appellant went about his businesses and paid no regard to the urgency posed by the victim's liberty. Even though she did not resist arrest and posed no threat of escape, he directed her to be locked up for some eight (8) hours in a brick-wall storeroom. The victim was only a simple village housewife. Her detention in a high security brick-wall store-room was unnecessary and excessive and therefore unlawful. For these reasons, we concluded that the detention was clearly unlawful.

The third example involves the "search" of a person’s body, clothes or belongings as a prelude to "arrest" and "detention". Trade store customers, both males and females, are subjected to routine or random searches of their body and clothes by security guards upon their entry and/or exit from self-service trade stores. This is then immediately followed by a citizens’ arrest and detention if the person is found in possession of property suspected to be stolen. If nothing is found, the person is allowed to pass through. Such practices are common in Papua New Guinea today, particularly in the Highlands region.

The Constitution guarantees a citizen freedom from arbitrary search and seizure of the person or property (s 44) and right to privacy (s 49). These rights are however regulated by the Search Act Ch 341. The Search Act exclusively provides for searches of persons and properties in this country. The common law powers of search and seizure have been extinguished by s 19 of the Search Act. The powers and duties of those persons authorised to search another person are explicitly set out in ss 3-5 of the Arrest Act. Ordinary citizens who intend to assume "police" powers of search should take time to read these provisions carefully. A careful reading of these provisions show that ordinary citizens including security guards of trade stores have no power to conduct searches of trade store customers. Sections 3 and 5 specially empower only policeman, Correctional Officer, or an owner or a person in command of a craft or a person authorised by him, to conduct searches. Section 4 sets out the method or manner of conducting searches by those persons authorised to conduct searches under s 3 and s 5. Ordinary citizens are not given any power by the Search Act to search the person and properties, with or without a search warrant of trade store customers. We are not aware of any other statutes or regulations which empower ordinary citizens, particularly trade store owners, operators or their security guards, to conduct routine or random searches of customers.

This means that an ordinary citizen, (including security guards) other than policemen, a Correctional Officer or an owner, commander of a craft or person authorised by a commander of craft, has no power to search another person under any circumstances whatsoever. If an ordinary citizen, suspects another person of concealing implements or proceeds of a crime, he must exercise his powers of "citizen arrest" and "detention" under the Arrest Act, subject to the five conditions set out at page 8 hereof, and take the person to a policeman or a police station to be searched and formally arrested and detained.

Lawyer for the appellant: Fiocco Possman & Kua.
Lawyer for the respondent: Public Prosecutor.