State v Wagre [2007] PGDC 47; DC560 (15 February 2007)

DC560

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE SITTING
IN ITS GRADE FIVE CRIMINAL JURISDICTION]

GFCr 559 – 866 OF 2006

BETWEEN

STATE
Informant

AND

DAVID WAGRE
Defendant

Wewak: D Susame
2007: 15 January, 15 February

CRIMINAL LAW – Charge, False Report – s 58 (a) Summary Offence Act.
Charge, Possession of a Firearm without a valid licence – S 7 (a) Firearms Act.

Issues:

1. Whether complaint at the Police Station false?

2. Whether defendant was in possession of a firearm.

Held:

1. With respect to s. 58 offence, defendant had no intention to con Police with his complaints.

2. Evidence has been adduced and accepted by the Court suggestive of the fact that defendant had a genuine complaint that needed Police attention.

3. With respect to offence under s 7 (a) Firearms Act, the defendant was in possession of the illegal firearm as evidence to prepare his defence and to assist police in their investigations. Consequently, his possession of the firearm was in good faith for a lawful purpose. Hence he cannot be held criminally liable.
   

Cases Cited
No cases cited

References

Counsel
Chief Sergeant Sela, For The State
Defendant, In Person

15 January, 15 February 2007

D Susame: The Defendant is charged with two separate and distinct charges. The first charge reads;

“On the 7th of March 2006, at Wewak Police Station, David Wagre did an act namely lodged a false and misleading report to the Police with the intention of creating a belief in a person namely S/Const kikoli – the Public Complaints Officer that an offence has been committed, knowing that the circumstances with respect which he intended to create the belief had not occurred.” Thereby contravening section 58 (a) of the Summary Offences Act, Chapter 264.

2. While the defendant was being tried for the first charge he was again charged with possession of a shotgun without a licence on 12 October 2006. The charge was laid under s 7 (a) of the Firearms Act, Chapter 310.

FACTS

3. The defendant is the Ward Councillor of Kusaun Village. He had registered two complaints with the Officer In Charge of the Public Complaints at Police Station, Wewak against Constable Simon Koligu, who also hails from Kusuan Village and who is attached to the Task Force Unit at Wewak. The complaints were registered on 7 March, 2006. The actual report or nature of the complaints is at issue and shall be determined in due cause. But what is being alleged is that the defendant had alleged that Simon Koligu had use guns to threaten Kusaun villagers and that such a report is untrue.

4. Simon Koligu became aware of the complaint through the OIC Public Complaints. Simon was told complaints were being investigated and that defendant had been directed to file a written report. There was a lapse of about two months, with no written statement from the defendant with the Public Complaints. Simon Koligu turns around and sues the defendant on 13 May 2006 for spreading false report. Subsequently, he was arrested and charged with an offence under s 58 (a).

5. However, while the defendant was being tried for the charge under s 58 (a) the case takes a different twist. Constable Simon Koligu after obtaining a Search Warrant from District Court, Wewak, launches a search with other members of the Task Force of the defendant’s dwelling house at Kusaun Village in search of a certain firearm which Simon claims defendant was illegally keeping. That search was conducted on 9 October 2006. No other firearm was found and taken except the defendant’s licensed shotgun.

6. On 12 October 2006, the defendant reported to the Wewak Police Station with the unlicensed shotgun (refer to Exhibit) which Simon Koligu went in search for and which the defendant claims as one of the guns Simon Koligu had removed from Wewak Police Station. Instead of conducting investigations following defendants complaints against Simon Koligu with respect to removal of firearms from the Police Station the police arrested and charge the defendant for possession of an unlicensed shotgun under s 7 (a) of the Firearms Act.

SECTION 58 OFFENCES

7. The offence reads;- “A person who does any act with the intention of creating a belief or (a) an offence has been committed, or (b) a life has or may be lost or is or may be endangered, or (c) property is, has been, or may be endangered, or knowing that circumstances with respect to which he intends to create the belief of suspicion have not occurred , is guilty of an offence”.

8. The prosecution must prove that the defendant intended to mislead people when he laid the complaint with the police when it was quite obvious to him and others that such circumstances as defined under the provision creating the offence did not occur or never existed. And the law places a very high standard of prove on the prosecutions to prove beyond doubt all the elements of the charge or any facts that are at issue.

9. The essence of the offence is to prosecute persons or individuals who intentionally cause police to undertake unnecessary investigations or mislead other people to believe that a particular event or wrong had been committed when it had not actually happened.

EVIDENCE

10. The court has no problem in accepting evidence that the defendant had lodged a complaint with the OIC Public Complaints on 7 March 2006 against Simon Koligu. The fact of reporting is not at issue here, but what is in dispute is the nature of complaint. The prosecution alleges through Simon Koligu that the complaint defendant had lodge was that Simon Koligu had threatened to fight him and threatened Kusaun villagers with a shot gun. Simon Koligu relied on the reports he received from OIC Public Complaints. The OIC Public Complaint was never called by the prosecution to confirm the defendant’s complaints to him.

11. The defendant testified otherwise. He stated Simon Koligu had threatened to fight him and accused him as a bad village Councillor who do things which are unlawful in the community. These threats were made on 6 November 2006. Simon Koligu had not apologised to him although defendant had ask him to reconcile with him.

12. The defendant had also been told by his son that Simon Koligu had removed two shotguns from Wewak Police Station during 1997 General Elections. These two guns had passed through several hands and were with certain individuals which he named.

13. So he came into Wewak on 7 March 2006 and laid his complaints with OIC Public Complaints at Wewak Police Station for police investigations. Evidence was heard from witnesses, Benjamin Wagre, Joseph Bangus and Otto Parpi with respect to the shotgun which was as tendered evidence.

14. Having heard the evidence I find that there is evidence which remains uncontested that alleges Simon Koligu had threatened to fight the defendant on 06 November 2005.

15. The Court also accepts evidence that which seems to implicate Simon Koligu concerning the gun tendered in Court. The complaints were not about Simon Koligu threatening Kusaun villagers with shotguns. Simon Koligu misapprehended the report. Simon merely relied on reports he received. Prosecution failed to call OIC Public Complaints to testify and confirm what was reported to him. His evidence was very crucial to the prosecutors’ case.

16. The Court rules that the defendant’s complaints to the OIC Public Complaints were genuine, which needed police attention. The complaints were pending police investigation. As such it was unnecessary and unreasonable for Simon Koligu who was being implicated to turn around and sue the defendant for spreading false or misleading report particularly when the matters were under inquiry.

17. I fail to see that it was defendant’s sole intention to con, or misled the police to carry out unnecessary investigation when he lodged his complaints. Simon Koligu had been implicated for certain unlawful actions which required police action. Whether he will have a case to answer is a matter to be established by evidence through the normal legal process of police investigation.

SECTION 7 (a) OFFENCE

18. The defendant has not denied being in possession of the shotgun (Exhibit in Court) from 22 July 2006 to 12 October 2006. He stated he got the shotgun off from Otto Parpi who had kept it in his house on behalf of Joseph Bongos, who claims to be the owner. There is no evidence from the prosecution that defendant was in possession of the gun any time before 22 July 2006.

19. In considering the circumstances of this case the Court finds that defendant cannot be criminally liable for possession of the firearm. I say this because of these reasons:-

20. The defendant had laid a complaint alleging that Simon Koligu had removed two shotguns back in 1997 from Wewak Police Station. Obviously police would want evidence from the defendant and others who may have some knowledge of this to substantiate their allegations.

21. The defendant being the Ward Councillor and political leader went out of his own way and conducted his own investigations to trace down where the guns were kept to assist police in their investigations. However, the case took a different twist when he was arrested and charged with the present charges.

22. Because he was now the defendant he had to locate the guns at all cost to establish his defence. His efforts paid off when he took hold of one of the gun believed to have been removed by Simon Koligu from Wewak Police Station in 1997 from Otto Parpi. The defendant took that shotgun to Wewak Police Station on 12 October 2006 only to be arrested and charged again under s 7(a).

23. In my view the charge was unnecessary. Because a complaint has already been laid with the Public Complaints Unit, the Police should have mounted further investigations concerning the guns and arrested and prosecuted the persons who had actual possession and control of that illegal firearm.

24. It follows from the discussions above that the charges against the defendant have not been proved. Therefore, I must acquit him of both charges. I order that his cash bail is refunded to him. The shotgun to remain with police for further investigations.

Chief Sergeant Sela, For the State
Defendant, In Person