Police v Plamb [2003] PGDC 8; DC90 (28 November 2003)

DC90

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 167 OF 2002

BETWEEN

POLICE

Informant

AND

MALT PLAMB
Defendant

Mt. Hagen

S W Seneka

20 June 2003
5, 21 August 2003
11 September 2003
29, 31 October 2003
28 November 2003

SENEKA: Defendant is charged that on 23/08/03 at Mt. Hagen he aided a prisoner namely Joseph Rumints to escape from lawful custody against section 138 of the Criminal Code Act.

Defendant had pleaded not guilty of the charge and so witnesses were called. Police called four (4) witnesses while defendant has only himself.

Prosecutor's evidence is that on the 23rd of August, 2001, Senior Constable Kerry Duma brought a list of seven (7) names for court appearances, later the same list was brought in by Senior Constable Garo with Jacob Rumint's name added making it eight (8) men from the second list. Only Jacob Rumints was present and he was taken to Court House.

On the previous day 22nd of August, 2001, Senior Constable Joseph Wapen was on duty at the cells. Sergeant Micheal Segua took custody of Jacob Rumints for an investigation into an Armed Robbery and returns him later. Next day he received a list of seven (7) men for court appearance. Soon after Joseph Rumint's name was added and was released to Senior Constable Garu Tawelo, he was not returned in the afternoon.

Senior Constable Garu Tawelo was the Court Orderly and so took the eight (8) men to Court House. As each case was called out Senior Constable Tawelo released them and soon after were returned. When Joseph Rumints was called by Sergeant Malt Plamb he was released. He waited for Joseph Rumints's return but never came so believed that he was released, so return all to Police Cell. In the afternoon when CID looked for him, Senior Constable Garo Tawelo realized that Joseph Rumints was a suspect in an Armed Robbery. He told them that he took him to Court House and was never return.

The releasing of Joseph Rumints was referred by Sergeant Micheal Suka to Sergeant James Niagu for investigation. This investigation was consistent with evidence given by Senior Constable Kerry Duma, Garo Tawelo and Joseph Wapin.

Record of interview was conducted and defendant denied the claim, saying he will explain his part to the Court. Following the record of interview, he was arrested and charged.

Defendant at closing of prosecution, case submitted for no case submission. Apart from pointing out that the evidence must show who have not been released by the process of law.

(1) Prosecution's evidence supported the essential element of the charge, and

(2) That it would be lawful to convict defendant.

He submit that prosecution has failed as the element of prisoner does not cover Joseph Rumints was held pending investigation, therefore he was not a prisoner.

Evidence of prosecution is quite clear that Defendant with the assistance of Senior Constable Garu Tawelo took Joseph Rumints from Police Cells to Court House Cell. He was called out by Defendant out of the Court House cell. Joseph Rumints never returned. Joseph Rumints was held pending investigation on an Armed Robbery.

Court decided to refuse the no case submission and proceed to hear Defendant's evidence.

Defendant has no witnesses to call but in his defence he gave his statement saying he was on duty from 8:00 am to 4:00 pm. On 23/08/01 there was only one list. He had only (5) five adjourned cases and finalized them and then went home. Next day he was blamed for the release of Joseph Rumints.

Defendant relied on his submission on the no case submission. His only defence is on the word "Prisoner". In the Webster Dictionary

"Prisoner" is defined as a person kept under involuntary restrain, confinement of custody".

Has a wider meaning Mcdermott A J in State v Allan Bekau [1932] PNGLR 119 was defining the word 'Prisoner' where the prisoner while in lawful custody escaped. He was committed to stand trial and escaped. One of the questions he was trying to define is

"does the word means only those detained as a result of a criminal sentence or include awaiting trial or sentence?"

He concluded by saying;-

"I conclude "Prisoner" include those persons held legally in custody whether by arrest, committed or sentenced who have not been released by due process of law."

In the case before me, Joseph Rumints was held under suspicious and under investigation. If the suspicious is confirmed, he will then be charged. The due process of law begins in relation to a prisoner when he is held in custody for investigation. The due process of law is the case before this court is in accordance with section 42 (2) of the Constitution. Joseph Rumints was a prisoner in this sense.

Defendant therefore had assisted to get the Prisoner out of the Police Cell. The first list was amended to include Joseph Rumints as the second list; the prisoner was brought to Mt. Hagen House Cell with the assistance of Senior Constable Garu Tawelo. Defendant called him out of Court House Cell and was never return to the Court House Cell nor to the Police Station Cells. Joseph Rumints was under lawful custody pending investigation on an Armed Robbery and with the aid of Defendant escaped. Defendant is found guilty.

Defendant is a Police Sergeant and a long serving Policeman. That in itself mitigate the punishment I'm to impose. He is a working father and to disrupt his work will be a blow to him and his family.

But what he has done is both stupid and uncalled for such a faithful Policeman.

I believe the stigma of long suspension for a year is enough but a punishment after a courts finding of guilt read to be metered out. Section 138 of the Criminal Code provide a sentence of 7 years and under section 19 a fine of K1000.00 in default three (3) years in hard labour is sufficient.

Prosecutor Inspector

Defendant In Person