Police v Kaman [2001] PGDC 35; DC319 (15 October 2001)

DC319

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 122 OF 2001

Police
Complainant

V

Fred Kaman
Defendant

Mt. Hagen: M. M. Pupaka
2001: 02nd, 10th, & 15 Oct

Criminal Law – Particular offence –– Adding prisoner in lawful custody to escape – Criminal Law – Burden of proof – State’s duty – Defence to properly negate State case once made out – Guilt of accused only logical conclusion

Counsel
Sgt. Piaku for the Prosecution
The Accused in person

08th November 2001

M. PUPAKA, PM: The accused Fred Kaman is a constable of police. He has been a policeman for some four years now. At the time of his arrest the accused was attached to the CID – Section at the Mt. Hagen Police Station. He is charged that on the 16th of August 2001 he, "did aid Joe Ari then a prisoner in lawful custody in escaping from such custody" (sic) thereby contravening section 138 of the Criminal Code Act chapter No. 262, (the Code). He pleaded not guilty to the charge and the matter proceeded to trial, in which trial the prosecution called 5 witnesses and closed case. The accused testified on oath and called 4 other witnesses.

The State Case

The State’s case is that the accused was the arresting officer of a detainee then in lawful custody. The detainee, one Joe Ari, was on remand after being charged with the offence of Armed Robbery [section 386 of the Code]. The State made out a case that on the 16th of August 2001 the detainee Joe Ari and one other serious crime suspect (a Mul Tomo) were brought up from Baisu CIS and locked up at the Mt. Hagen Police Station cells. They were locked up in cell No. 10. That was around 4.00PM to 5.00PM. The two detainees were left in cell No. 10 to eat their dinner, which they had brought up from Baisu. The two had not been in the cells long when the accused came back to take detainee Joe Ari out of the cell. That much is not in dispute. The following is evidence disputed by the accused but is the essence of the State’s case against him:

The accused took the detainee out and released him. He did not return the detainee back to the cells after he took him out the first time. The detainee Joe Ari is out at large and his Armed Robbery charge stands adjourned sine die.

State witness, Senior Constable Joseph Wapen, was on duty at the Mt. Hagen Police Station cells at all material times. He confirms that the accused brought detainees Joe Ari & Mul Tomo to the cells late afternoon on 16th August 2001 from Baisu CIS. He had them locked up in cell No. 10. In accordance with police standing orders regarding movement of detainees in and out of the police cells, Senior Constable Wapen and the accused recorded in the Cell Register Book the arrival of the two detainees from Baisu CIS. The accused then left the cells. A half an hour or so later the accused came back to the cells and asked for detainee Joe Ari to be released to him. Senior Constable Wapen reopened cell No. 10 and had Joe Ari released into the custody of the accused. He also noted it, (delivery of detainee from cells to accused), in the Cell Register Book.

Senior Constable Wapen waited for the detainee to be returned back to the cells by the accused. After what Senior Constable Wapen thought was a relatively long delay, he went looking for the accused. He looked in all the offices and rooms where the accused ought to have been in. He found neither the accused nor the detainee anywhere within the Mt. Hagen Police Station. At 12.00 midnight Senior Constable Wapen wrote remarks against the last record (of the detainee being released to the accused) that the detainee had not been returned back to the cells. He handed the cell keys to the incoming shift and went off duty.

Witness, Constable Anton Sinowai, was also on 4.00PM to 12.00 midnight shift on 16th August 2001. Sometime, during the course of their shift he visited Senior Constable Wapen at the cells. Constable Anton Sinowai recalls being informed by Senior Constable Wapen something about the accused not returning a detainee to the cells then. But it seems Senior Constable Wapen and Constable Sinowai did not provide any report of the matter to their supervisors immediately. About a week later Senior Constable Wapen, whilst in the course of his duties as cell guard, sighted a Remand Warrant for detainee Joe Ari. He was thereby reminded of the release and non-return of that detainee. He then reported the matter (of the release and non-return of the detainee) to the OIC – Cells.

Apparently the OIC – Cells reported the matter to the Metropolitan Police Superintendent for on the 23rd of August 2001 the latter rang the OIC – CID, Police Inspector Timothy Gitua, regarding the incident and directed the latter to enquire further into the matter.

Inspector Timothy Gitua immediately launched an investigation into the matter. He checked the Cell Register Book entries and questioned Senior Constable Wapen and the accused. Senior Constable Wapen told Inspector Timothy Gitua what he has told the Court. For his part the accused informed Inspector Timothy Gitua that he had indeed taken detainee Joe Ari from the cells however after obtaining the detainee’s antecedents and a signed confession statement he had handed the detainee to Constable Anton Sinowai.

Inspector Timothy Gitua was suspicious. He asked for written statements from Constable Anton Sinowai, Senior Constable Wapen, and the accused. Inspector Timothy Gitua has testified in court. The accused cross-examined him. The accused put to him that it was to Senior Constable Wapen that he had handed the prisoner to and not Constable Anton Sinowai. Inspector Timothy Gitua stood firm. He said he had asked Constable Anton Sinowai to provide a written statement only because the accused had mentioned Constable Anton Sinowai. If Constable Anton Sinowai’s name had not been mentioned by the accused he (Constable Sinowai) would not have been directed to provide any statement.

Inspector Timothy Gitua also noted from the Cell Register Book entries that detainee Joe Ari had been brought up together with one other detainee, Mul Tomo, so he obtained Mul Tomo’s statement as well. The latter’s story was that the accused took his fellow detainee Joe Ari away but he did not return him back to cell No. 10 where they had been put in. Mul Tomo is now out of the cells. He provided a statement when he was still in the cells. He has been called to testify. Mul Tomo is still confused as to why he was brought up from Baisu CIS with detainee Joe Ari. He was never taken back to Baisu CIS again for a long time, until he was granted bail. His case has been struck out since. He refuted a suggestion put to him by the accused that he (Mul Tomo) was advised that he was being brought up from Baisu CIS for a record of interview.

Inspector Timothy Gitua charged the accused for this offence on the 29th of August 2001. The accused was brought to court on the same day. Upon a plea of not guilty the trial was fixed for 2nd of October 2001. While the trial was pending the State witness Adam Nikints’ statement was obtained. Inspector Timothy Gitua says Adam Nikints came to him with his story on the 3rd of September 2001. After obtaining his statement the witness was advised to appear on the 2nd of October 2001 to testify against the accused.

Adam Ninkints’ is the brother of detainee Joe Ari. His evidence is that he paid K300.00 to the accused for the release of Joe Ari. He said though he never personally talked with the accused there was a ‘middleman’ called Tengo who informed him that something was being ‘arranged’. Adam Nikints said Tengo had asked for K500.00 but K300.00 was all he could scrap together. The only time Adam Nikints came close to the accused was when he handed over the K300.00 near the AGC building in Mt. Hagen when Tengo and the accused were together. No words were exchanged. Adam Nikints handed the K300.00 to Tengo and went his way. A week later Joe Ari came home. No questions were asked.

The Defence Case

The accused denied releasing the detainee Joe Ari from the cells. His story is that he brought detainees Joe Ari and Mul Tomo from Baisu CIS on the 16th of August 2001for them to sign a confessional statement and provide details of his antecedents, and for a record of interview respectively. Upon arrival at the Mt. Hagen Police Cells he and the cell guard, Senior Constable Joseph Wapen, put the detainees in cell No. 10. It was not said and is not clear if there was any one else in that cell then.

Some half an hour or so later the accused returned to the cells to remove detainee Joe Ari. The accused says he wanted to obtain the detainee’s antecedents and have the detainee sign a confessional statement. The accused said he obtained the antecedent details from the detainee and had him sign his confessional statement and promptly returned him to the cells. He then went his way with two others who were waiting for him.

These two other individuals testified for the accused. They are one Jack Mare and a Joe Kumuga. Their evidence generally is that they had gone to see the accused at the police station around 5.00PM. For reasons that are crucial in the credibility of these defence witnesses’ evidence their sworn evidence need to be stated fully.

Jack Mare had arrived in Mt. Hagen from the SHP to sell handmade baskets. He was living with an in-law who was staying at the Kimininga Police Barracks in Mt. Hagen. On or around the 10/08/01he sold baskets to buyers at the barracks, one of them was the accused. He said the accused asked to get one basket from him on credit. The witness said he initially refused because he had no idea who the person (accused) was. However when the accused convinced him that he was a policeman by taking him over and showing him his barracks room, the witness allowed the accused to get a K20.00 basket on credit. The accused advised him to come and get his money (K20.00) on 16/08/01. The witness slept at his in-law’s house at the barracks and left for Mendi the next day. He came back on the 16/08/01 as advised. He went to the accused’s room at the barracks. The accused was out but another man who identified himself as a brother of the accused, [Joe Kumuga], was in the room. So at the suggestion of Joe Kumuga they came to the Mt. Hagen Police Station to look for the accused.

At the police station Jack Mare waited near the back gate while Joe Kumuga went to the accused’s office. Joe Kumuga entered the accused’s office when the accused was inside with detainee Joe Ari. The accused advised Joe Kumuga to wait outside while he completed dealing with the detainee. Joe Kumuga joined Jack Mare at the police station back gate. Not long the accused came out of his office with the detainee. The accused told the witnesses to again wait while he went in to lock up the detainee in the cells. The witnesses saw another policeman open the cell door. That policeman and the accused then entered with the detainee. Soon after the accused came out and joined Joe Kumuga joined Jack Mare. Then all three of them went out of the station together. Near Hagen Theatre the accused gave witness Jack Mare his K20.00 and they departed for their respective destinations separately.

Witness Jack Mare is not a credible witness. He was shifty and quite defensive in answering questions put to him in court. In fact he contradicted and changed his story quite dramatically during the course of his evidence. It is worth repeating his story. He started giving his evidence by saying he was staying with an in-law at the Kimininga Police Barracks and selling handmade baskets when he first met the accused. The accused asked to take a basket on credit. He convinced him (Jack Mare) of his identity as a policeman by taking him to his barracks room. However when asked whom he was staying with at Kimininga Police Barracks Jack Mare said he never stayed there. He stayed with someone at the ‘settlement’. He said he never been to or lived at the Kimininga Police Barracks before. He only went there to get his money, presumably on the 16/08/01. At this juncture in his story the witness went on the defensive and was shifty in his answers. Clearly Jack Mare has lied. His lies affect Joe Kumuga’s evidence. Their evidence of going together to the Mt. Hagen Police Station and observing the accused taking the detainee back to the cells is affected. In the circumstances I cannot possibly treat Joe Kumuga’s evidence differently and place credence upon it and reject Jack Mare’s evidence. Their evidence can only stand, or fall, together. Needless to say their evidence has fallen as one.

In the light of this credibility crisis in these defence witnesses’ evidence, other pertinent questions beg to be asked. For instance;

- Did Jack Mare truly come all the way from Mendi on the 16/08/01 for a mere sum of K20.00? It must have cost him about that or more to come to Mt. Hagen and go back to Mendi.

- The accused and Jack Mare are strangers to each other. How was Jack Mare subsequently located or contacted to be readily available to testify for the accused?

- Were Jack Mare and Joe Kumuga really at the Mt. Hagen Police Station car park and cell area, (a restricted area), to observe what went on, or were they waiting for the accused near the gate?

- How could Jack Mare and Joe Kumuga see the cell guard open the cell doors? Do they mean the cell reception /counter door or the (inner) cell doors proper?

All these unanswered questions add to and highlight the two witnesses’ credibility gap.

The accused called Tengo Billy. He was the one who was alleged by the State to have approached the accused for the accused to release detainee Joe Ari. Tengo Billy seems to be some sort of a relation of the detainee Joe Ari. Tengo Billy was guarded in his evidence. He said he made attempts to have detainee Joe Ari released through his own boss (his boss seems to be the one who caused Joe Ari to be apprehended), and help collect K300.00 for the cause. However he denied having covertly met the accused to ‘influence’ the accused and secure the detainee’s release.

The last defence witness was one Samuel Kelgai. He said he was in the cells with detainee Joe Aris in cell No.11 from around 6.00PM on 16/08/01, to around 12.00PM the next day. Joe Aris was taken out of cell No. 11 by three policemen at around 12.00PM next day. The witness said he knows Joe Aris because he had seen him before, hanging around at the Togoba Service, which is where Joe Aris is from.

When questioned to that effect the witness said there were some 20 or so detainees packed tight into cell No. 11 and people could not sleep or move inside. Joe Aris was the only detainee released the next day. The overcrowding in that cell did not lessen an inch for the two weeks he was in that cell and it remained so when he was taken out himself.

This last defence witness’s evidence stands in stark contrast to the undisputed evidence that detainees Joe Ari and Mul Tomo were first locked into cell No. 10. Mul Tomo gave the impression that he spent the night in cell No. 10 alone after Joe Ari was taken away. Police witness Adam Nikints, the brother of the Joe Ari, said he was from Gabina Village just outside Mt. Hagen City. He said Joe Ari is now at that village. That clearly suggests Adam Nikints and Joe Ari are from Gabina, which is inside the Mogei Tribe’s tribal land, and not from Togoba.

The evidence of defence witness Samuel Kelgai raises some unanswered questions too. For instance;

- Why was detainee Joe Ari relocated, if he was relocated as the accused says, into cell No. 11, which was already overcrowded, from a relatively empty cell No. 10 next door? Is it reasonable to accept that this (relocation) is logical under the circumstances?

- Witness Samuel Kelgai gave the impression that Joe Aris [note the witness referred to the former detainee Joe Ari as Joe Aris] is from Togoba Village. That is not factually correct. The witness’s knowledge of Joe Ari is based solely on his previous observation of Joe Aris at Togoba Service Station. In the circumstances his recollection of seeing Joe Ari again in Cell No. 11 on 16/08/01 is suspect. Witness Samuel Kelgai could be mistaken. He does not seem to know the detainee Joe Ari well enough. Besides cell No. 11 was overcrowded such that none of the inmates could sleep or move around inside. It is an open possibility that a case of mistaken identity could occur within such prevailing circumstances.

Discussion on the Evidence

The evidence of the State and the accused share some common ground. Those are that on the 16/08/01 in the late afternoon, the detainees Joe Ari and Mul Tomo were brought up to the Mt. Hagen Police Station cells from Baisu CIS by the accused. Only minutes later Joe Ari was taken out of the cell No. 10 by the accused. The cell guard on duty noted the detainee’s arrival from Baisu CIS, and his removal from cell No. 10 in the Cell Register Book. The detainee was confirmed to be no longer in the cells a week later. However little this evidence is, it is in fact crucial evidence. This therefore narrows the issue down to whether or not the accused returned the detainee after he took him out from cell No. 10. Ultimately it is a question of the credibility of the two sides’ witnesses.

The prosecution and the defence evidence have been adequately discussed above. I need not revisit the evidence and those same discussions again. However a summary of them and the appropriate implications raised may now be in order, to resolve the issue posed.

The State’s case is clear. Its witnesses’ evidence implicates the accused. Its case is that the accused released Armed Robbery suspect detainee Joe Ari from the Mt. Hagen Police Station cells, on the 16th of August 2001, after having accepted a ‘gift’ of K300.00 from the detainee’s relatives.

The evidence of paying off the accused is, on its own, condemning evidence against the accused. However the various meetings between Adam Nikints and Tengo, between Tengo and the accused, and the final act of payment near AGC building are not corroborated. If the finding of guilt of this accused depended solely upon the evidence of payment made, I would have no hesitation in returning a verdict of not guilty.

Be that as it may the State’s evidence against the accused is two pronged and the two story lines compliment each other. The accused removed the detainee from the cells and he did not return him back after that. That therefore makes the ‘pay off’ story credible and acceptable.

On the other hand the defence witnesses’ evidence has been severely tested against known and common facts and has been left wanting in many respects. The contradictions and inconsistencies in the defence evidence including the outright lies of two witnesses, and accused’s own odd behaviour and failure to do what he ought to have done in certain instances have one ultimate effect: The combined weight of the defence evidence is not enough to negate the State’s case against the accused.

It is particularly interesting to note some rather irregular and odd behaviour of the accused. For instance;

- The accused brought two detainees up from Baisu CIS. He completely neglected detainee Mul Tomo who was left in the cells for a long time. That was unlawful and at best negligent conduct on the part of the accused. One cannot help but speculate that perhaps Mul Tomo was brought up as ‘cover’?

- The accused brought former detainee Joe Ari up admittedly to obtain his antecedents and to have him sign a confession. The accused says he did obtain those details and the confession. Why did he then not make attempts to return the detainee to Baisu CIS the next day? It was unlawful to keep him in the police cells when the remand warrant was for Baisu CIS. More to the point, if the accused had tried to return the detainee next day, he would at least have been given the benefit of the doubt. It may not have been so easy to accuse him a week later.

- If the accused was obtaining a confessional from the detainee as he says, he should have had a corroborator (another police officer) present with him in the office. That is basic and standard practice for detectives. As a detective who has been in charge of many serious cases like Joe Ari’s the accused ought to have known that questions of coercion, voluntariness, and other issues of fairness may arise in court over the use of confessions obtained under suspicious circumstances.

There is one other issue of relative importance left not adequately addressed by the accused too.

- Just why would Inspector Gitua and cell guard Senior Constable Wapen, who have given damaging evidence against the accused, conspire to prosecute him over an offence they know the accused did not commit? Is there any ‘bad blood’ between the accused and these two policemen? It is not normal for colleagues to accuse another and give such potent evidence against him without justification.

Conclusion

In the end I find that the accused did not return detainee Joe Ari to the cells after he took him out of cell No. 10 in the late afternoon of the 16th of August 2001. I do not accept his and his whiteness’s evidence that he did return the detainee to the cells. His controversial assertions do not adequately negate the force and effect of the State’s evidence. Consequently I conclude that the accused aided detainee Joe Ari, who is currently at large, to escape from lawful custody.

Ergo I find the accused guilty as charged.

Sergeant Piaku: Complainant
In Person: Defendant