Songonae v Gamiha [2008] PGDC 109; DC802 (24 September 2008)

DC 802

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

DCCr 985, 986, & 987 of 2008

BETWEEN

SERGEANT CHARLES SONGONAE
Police Informant

AND

MARK GAMIHA
Defendant

Goroka: M. IPANG

2008: September 24

CRIMINAL LAW – Summary Offence Act, Chapter 264 – s. 12 (1) (b)
Carrying Offensive Weapon a Home-made shotgun – s.7 (b) Threatening behaviour – s. 6 (3) Unlawful assault – Aggravating factor/features – under influence of intoxicating liquor – Locally produced “Live-Lave”- with commercial trade mark “you love it, you live it.”

CONSTITUTIONAL LAW – s. 45 – Freedom of conscience, thought and
religion – SDA Worshippers under threats – Defendant under intoxicating liquor pointing home-made shotgun to the Sabbath Keepers – s. 52 Right to Freedom of Movement – s. 55 Equality of Citizens.

CANON RELIGIOUS LAW - Religion – man’s relation with God – Ethics concerned with man’s relation with man – elements of a religion – faith and worship – disturbance or interference with one’s right to worship or one’s faith is a cardinal breach of one’s guarantied constitutional right and religious right.

HELD:

1. DCR No. 985 OF 2008: s. 12 (1) (b) of Summary Offences Act, Chapter
264, you’re convicted and sentenced to three (3) months in hard labour.

2. DCR No. 986 OF 2008: s. 7 (b) of the Summary Offences Act, Chapter 264, you’re convicted and ordered to pay court fine of K100.00 forthwith in default you will be sentenced to two (2) months in hard labour; and

3. DCR No. 987 OF 2008: s. 6 (3) Summary Offences Act, Chapter 264, you’re convicted and ordered to pay court fine of K100.00 forthwith in default you will be sentenced to imprisonment for three (3) months in hard labour. You’re further ordered to pay compensation to the complainant pursuant to s. 6 (4) of the Summary Offences Act, Chapter 264 in the sum of K100.00 by 03rd of October 2008, in default you will be imprisoned for a term of three (3) months in hard labour.

In default of payment of both the court fines and compensation, various sentences imposed, Defendant to serve his sentences concurrently to the three (3) months imposed in DCR No. 985 OF 2008.

Cases Cited

4. Re South Place Ethical Society, Barralet –v- AG [1980] 3 All ER
3. R –v- Registrar General, Ex-parte Segordal (1970) 3 All ER 886
1. Commissioner of Income Tax –v- Pemsel [1819] AC 531
2. Keren Kayemouth Le Jisroel Ltd –v- IRC [1931] 2 KB 465

Legislation

1. Constitution of Independent State of Papua New Guinea
2. Summary Offences Act, Chapter No. 264

International Legal Instruments

1. European Convention for the Protection of Human Rights
& Fundamental Freedoms (ECHR)
2. UK Human Rights Act, 1998 (in comparison)

Counsels:

Prosecutor: Senior Constable Peter Asi
Defendant: In Person

24 September 2008

SENTENCE

M IPANG, Magistrate: Defendant Mark Gamiha, you stand before this court on three (3) separate charges under the Summary Offences Act, Chapter No. 264. These three (3) charges are as follows:

1. DCR No. 985 OF 2008
   

You without reasonable excuse did have in your possession an offensive weapon namely an home-made shotgun, contrary to section 12 (1) (b).

2. DCR No. 986 OF 2008
   

You used threatening behaviour by pointing a home-made shotgun towards another person namely, Sete Ikaikai, an elderly male person, whereby a breach of peace was likely to take place. An offence under section 7 (a).

3. DCR No. 987 OF 2008
   

You unlawfully assaulted another person namely, Erei Mugo, a national male person. A charge contrary to s. 6 (3) of the Summary Offences Act, chapter 264.

2. These offences took place on the 14th of September, 2008 at Arikayufa village, Unggai, Eastern Highlands Province. The brief facts surrounding the commission of these offences as presented by the Prosecutor stated:-

3. You were heavily intoxicated by an alcoholic drink “Live Lave” a locally produced alcohol. After you drank this alcoholic drinks, you went to your house, grabbed this home-made gun, came out of your house and stood on the main road.

4. The Sabbath Worshippers after Sabbath service were walking back to go to their houses, when you pointed the home-made gun towards them. There were small children and an elderly man was walking in front of them. There was a big tussle between you and one Erei Mugo, who after a long struggle removed this home-made gun from you. After that, he (Erei Mugo) turned around and walked away, when you followed him and hit him on the back of his head which rendered two cuts and bleedings.

5. When the court arraigned you on the above facts you pleaded guilty and you told the court in allocatus, you were so drunk when you did this. However, as I have noted on the facts as presented, you specifically targeted the Sabbath worshippers. I am more seriously concerned of your unlawful actions on that day. It is very clear, you have interfered with the constitutional rights of the Sabbath worshippers. Section 45 of the Constitution states “Freedom of conscience, thought and religion”

s. 45 (1) Every person has the right to freedom of conscience, thought and religion and the practice of his religion and beliefs, including freedom to manifest and propagate his religion and beliefs in such a way as not to interfere with the freedom of other, except to the extent that the exercise of that right is regulated or restricted by a law that complies with section 38 (general qualifications and qualified rights).

See also s. 52 of the Constitution on Right to freedom of Movement. This constitutional provision specifically state no citizen may be deprived of the right to move freely throughout the country. (s. 52 (1)). Emphases mine, see also s. 55 of On Equality of Citizens. S. 55 (1) all citizens have the same rights, privileges, obligations and duties, irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex.

6. Sections 45 (1) and 55 (1) mention the word “religion.” In Re South Place Ethical Society, Barralet –v- AG [1980] 3 All ER, Dillon, J gave this description, “Religion, as I see it, is concerned with man’s relations with God, and ethics are concerned with man’s relations with man. The two are not the same, and are not made by the same sincere inquiry in to the question, what is GOD. If reason leads people not to accept Christianity or any known religion, but they do believe in the excellence of qualities such as truth, beauty or love, or believe in the Platonic concept of the ideal, their beliefs may be to them the equivalent of a religion, but viewed objectively they are not religion.... [this is ‘religion’ in its natural and accustomed sense]. In the same case, Dillon, J further remarked: ‘It seems to me that two of the essential attributes of religion are faith and worship; faith in a god and worship of that god [.....]’. The two essential elements of a religion are faith and worship (in relation to the latter see R –v- Registrar General, Ex-parte Segerdal (1970) 3 All ER 886.

7. There are conventions and other international instruments dealing with Freedom of Religion. Of these are European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 9.1 states, “Everyone has the right to freedom of thought, conscience and religion”. This right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice or observance.

8. Art 9.2 Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedom of others?

9. Art 14: Prohibition of discrimination on religions grounds (amongst others).

10. The Freedom of Religion under the UK Human Rights Act 1998 seeks to incorporate into the British Law, as formal rights and duties, the following ECHR provisions:

1. The right of freedom of thought, conscience and religion (Art. 9);

2. The prohibition against religions discrimination (Art. 14);

3. The right to religious education (Protocol 1, Art. 2);

11. Until now the law combating religious discrimination had been rudimentary in Great Britain (Northen Ireland is already covered by separate and existing rules or religious discrimination) and in the light of recent events there have been pressures to tighten up against incitement to religious hatred.

12. In Papua new Guinea, there no doubt that religion play significant role in shaping lives of people to become good citizens. In modern law, trusts for the advancement of religion enjoy charity status, with the consequential tax benefits. The enjoyment of charitable status is subject to the limitation that the religious object must be for the public benefit. See the leading case of Commissioner of Income Tax –v- Peinsel [1891] AC 531, along with the relief of poverty, advancement of education and other purposes beneficial to the community.

13. Advancement of religion is about missionary or pastoral promotion of spiritual teaching in a wide sense, the maintenance of the doctrine upon which that teaching rests, and the maintenance of the observances, structures and property necessary for its promotion (see Keren Kayemouth Le Jisroel Ltd –v- IRC [1931] 2 KB 465).

14. You therefore have demonstrated by your actions on the 14th of September, 2008 that, you have no respect for the SDA Sabbath Worshippers and also the Seventh Day Adventist Church. The SDA Church has done a lot in your area where you come from since the early days up till now.

15. As I have alluded to earlier, I consider you, conduct or actions to be serious and bad example to the youths in your village community. The only mitigating I consider in your favour is that you have no prior conviction. The other factors such as you are married with six (6) children and a subsistence farmer do have any weight at all.

16. You have breached the constitutional rights of the Sabbath Worshippers and instilled fear in their lives. You have no remorse of what you have done. You’re not a good advocate of peace in your village. You’re a threat to your village community and as such, I will have to come up with a good penalty that will be a reflective of the serous nature of the offences you have committed.

17. In so doing, I have arrived with the following sentences for you.

1. DCR No. 985 OF 2008: s. 12 (1) (b) of Summary Offences Act, Chapter 264, you’re convicted and sentenced to three (3) months in hard labour.

2. DCR No. 986 OF 2008: s. 7 (b) of the Summary Offences Act, Chapter 264, you’re convicted and ordered to pay court fine of K100.00 forthwith in default you will be sentenced to two (2) months in hard labour; and

3. DCR No. 987 OF 2008: s. 6 (3) Summary Offences Act, Chapter 264, you’re convicted and ordered to pay court fine of K100.00 forthwith in default you will be sentenced to imprisonment for three (3) months in hard labour. You’re further ordered to pay compensation to the complainant pursuant to s. 6 (4) of the Summary Offences Act, Chapter 264 in the sum of K100.00 by 03rd of October2008, in default you will be imprisoned for a term of three (3) months in hard labour.

18. In default of payment of both the court fines and compensation, various sentences imposed, Defendant to serve his sentences concurrently to the three (3) months imposed in DCR No. 985 OF 2008.

Counsel:
Prosecutor: Senior Constable Peter Asi
Defendant: In Person