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Terry v Bluett [2013] PGDC 15; DC2069 (6 November 2013)

DC2069

PAPUA NEW GUINEA

[In the Criminal Jurisdiction of the District Court at Lae]

CRS #1798/2013

Between:

APPOLLOS TERRY
(Police Informant)

And:

SEAN BLUETT
Defendant)

Lae: C Inkisopo

2013: 23rd September
& 6th November

Criminal Practice & Procedure at District Courts: procedure set out by Act – powers defined & demarcated by Act – particular offence under Civil Aviation Regulations Act, 1975 –

Civil Aviation Regulations Act, 1975; interfering with cabin crew of aircraft in flight allegedly by behaving in disorderly manner that compromised the safety of aircraft & passengers –

Practice & Procedure – Civil Aviation Regulation, 1975 – charge under s 313(2) of Act – three separately defined offences compounded into single charge upon Information –

Practice & Procedure – wordings of charge compound separate alternating offences in provisions of Act – whether such compound charge offends against s 29 of District Courts Act –

Practice & Procedure – amendment under s 33 of District Courts Act - defect in charge going to substance as opposed to slight variance –

Legislations/Rules & Regulations

1: Civil Aviation Regulations Act, 1975
2: District Courts Act, Chapter 40

No cases cited in this judgment

Appearances:

1: Chief Sergeant Leo Sale
2: Mr David Poka

6th November, 2013

JUDGMENT

C Inkisopo: The Defendant Sean Bluett of Lae, Morobe Province stands charged with an offence under s 313(2) (a) of the Civil Aviation Regulations Act, 1975. It is alleged that the Defendant whilst in an airborne aircraft, did interfere with a crew member and behaved in a manner that compromised the safety of the aircraft and passengers.

2: The provisions of s 313(2) (a) of the Civil Aviation Regulations Act, 1975 under which the Defendant was charged under are in these terms;-

"A person who while in an aircraft-

(a) interferes with a crew member; or

(b) behaves in a disorderly or offensive manner; or

(c) does any act that threatens the safety of the aircraft or of persons on board the aircraft

Is guilty of an offence."

3: The matter initially was attended to upon a written complaint by Air Niugini in the Australian city of Brisbane by the Australian Federal Police. The Defendant was charged and appeared in the Brisbane Magistrate's Court. The matter was then withdrawn from the Brisbane Court and transferred to PNG to be dealt with here in PNG by the Courts of this country.

4: The matter made its first appearance in PNG at the Boroko District Court before his Worship, Mr Jeff Katenge on 26th June, 2013 who then ordered the matter to be transferred to Lae as the Defendant is Lae based, The matter appeared in Lae at the Lae District Court for its first mention on 6th August, 2013 before his Worship, Mr Posain P Polloh, the Morobe Senior Provincial Magistrate who referred the matter to my Court to be dealt with before me.

5: The matter subsequently came before me for mention on 14th August, 2013 where Chief Sergeant Leo Sale of Boroko Police Station appeared for the Police (State) whilst Mr David Poka of Niugini Lawyers of Lae did for the Defendant.

6: During the course of the preliminary exchanges in Court on 14th August, 2013, Mr Poka raised a legal point and urged this Court to deal with same before the matter is set down for actual hearing. Seeing merits in Mr Poka's point, the Court directed him (Mr Poka) to reduce his point into writing with an extract of submissions filed and served on the Prosecution for its response before the next Court return date.

7: The Court specifically fixed the hearing of the Defendant's application to 28th August, 2013. However, by some turn of events within the District Court Registry unbeknownst to me, the matter did not come before the Court until 23rd September, 2013 wherein both Messrs Sale and Poka presented their respective oral submissions in addition to their respective written extracts of submissions. During oral argument, Mr Poka advised the Court that he was not pursuing with his Notice of Motion reliefs (a) and (c) but to proceed only with relief (b) of the Notice of Motion.

8: Mr Poka argued that the charge pressed against his client was bad for 'duplicity' and 'uncertainty' and must therefore be struck out. He took issue and argued that the wordings of the Information captured all the provisions of Section 313(2) (a) interferes with a cabin crew member namely Mrs Mary Kala (b) [behaves in a disorderly manner] and (c) [that threatens/compromise (sic) the safety of the aircraft and the travelling passengers] as the charge preferred against the Defendant".

9: Mr Poka, as I understood him, argued that the wordings of the charge in the Information laid against his client compounded more than one matter; as the alternating and separate offences under sub-sections (a), (b) and (c) of s 313(2) of the Civil Aviation Regulations Act, 1975 are all lumped up into that single charge as preferred against his client. He therefore submitted that the charge as framed in its present form contravened s 29 of the District Courts Act which provides for charge upon Information before the District Court to be for one matter only; with exceptions.

10: Chief Sergeant Leo Sale for the Prosecution countered that submission by advancing what I understood him as saying; whilst he accepted that charges containing more than one offence on an Information is bad for duplicity, in the instant case he argued that the Information before this Court did not contain two allegations but only one; as he says "police alleged that the Defendant did interfere with a cabin crew namely Mrs Mary Kala and behaves(sic) in a disorderly manner that compromise(sic) the safety of the aircraft and the travelling passengers". (See paragraph 2 of C/Sgt Sale's Prosecution's Brief Submission on Legal Issues filed and dated 18/09/2013).

11: Contrasting and weighing these two countervailing arguments of both sides and upon a closer reading of the texts and terms of the charge as framed and preferred against the Defendant, in particular the wordings of the charge under s 313 (2) of the Civil Aviation Regulations Act, it appears obvious to me that the wordings of the charge in the Information wholly captured and compounded or lumped up what appears to me to be all three (3) separate and alternating offences; namely sub-sections (a), (b) and (c) of s 313 (2) of the Civil Aviation Regulations Act, 1975 all into this one single charge in using the words of those separate offences purportedly as a single offence under s 313(2)(a) of the Act.

12: Section 313 (2) provides;-

"A person who, while in an aircraft-

(a) Interferes with a crew member; or
(b) Behaves in a disorderly manner; or
(c) Does any act that threatens the safety of the aircraft or of persons on board the aircraft,

Is guilty of an offence."

13: The wordings of the charge framed against the Defendant are that; on the 22nd day of April, 2012, Sean Bluett of Lae;-

"Did while in an aircraft to wit Air Niugini Boeing 767 Flight PX 015 from Port Moresby to Sydney interfere with a cabin crew member namely Mrs Mary Kala and behaves in a disorderly manner that compromise the safety of the aircraft and the travelling passengers".

14: It seems to me that the Information in issue that charges the Defendant with wordings of three separately defined alternating offences purporting to be only one charge appears to me to effectively compound all three (3) different offences into a single one namely; interferes with (a), behaves in a disorderly manner (b) and threatens (compromises) (sic) the safety of the aircraft or of persons on board the aircraft (c). On the face of it, it is apparently clear to me that these three (3) separate alternating offences are all lumped into a single charge that in my humble view offends against the provision of s 29 of the District Courts Act, Chapter No 40 which says Information To Be For One Matter Only.

15: Here in our instant case, I am satisfied that the charge as preferred against the Defendant is bad for duplicity as it offends against s 29 of the District Courts Act, Chapter No 40 and this case should thereby terminate forthwith by being struck out.

16: But before concluding this matter in this manner, I'd wish to make an observation here on a matter of relevance that C/Sgt Sale raised by way of an alternative or a fall-back submission raised in his written extract of submission. He submitted that if the Court is to find that the charge in issue is bad for duplicity, he posed an alternative submission pleading for the Court to exercise its discretionary powers under ss 32 - 34 of the District Courts Act to cause an amendment to be effected on and to the offending parts of the charge and to allow same to proceed to trial before this Court.

17: I have considered this plea and have assessed and weighed the merit of it but unfortunately, I do not consider it to warrant an amendment as urged on me by the Prosecution; for the reason that the offending aspect of the subject Information sought to be amended seems to me to go to the substance of the matter and is substantial in nature such that an amendment will not cure the defect but will in fact substantially alter the preferred charge as it is not a slight variance nor is it of a peripheral nature to admit of an amendment,

18: I therefore refuse to effect an amendment to cure the offending aspect of the wordings of the charge as laid in the Information in this case,

19: Findings:

(a) The Information framed against Defendant Sean Bluett dated 16th May, 2013 offends against s 29 of the District Courts Act, Chapter No 40.

(b) The defect of the charge as preferred is not a slight variance but one of substance and that amendment as such is not legally permissible under s 33 of the Act.

20: Formal Orders Of Court

1: The Information laid against Defendant Sean Bluett is defective and bad as contravening s 29 of the District Courts Act, Chapter No 40.

2: The defects so identified go to substance and is substantial as opposed to being only a slight variance and that an amendment under s 33 of the Act is not permissible.

3: The Charge framed against Defendant Sean Bluett upon Police Information dated 16th May, 2013 is hereby struck out as contravening s 29 of the Act.

4; The Defendant is discharged forthwith of this charge and his K300.00 bail refunded,

Lawyers:

Prosecution: Prosecution Section of Boroko Police Station, NCD.

Defense: Niugini Lawyers of Wantok Haus, Lae, MP