Wallace v Poki [2010] PGDC 26; DC1039 (22 January 2010)

1039

PAPUA NEW GUINEA
[IN THE CRIMINAL SITTING OF DISTRICT COURT OF JUSTICE]
Com 130 of 2009

BETWEEN

PATRICK WALLACE
Informant

AND

RON POKI
Defendant

WEWAK: D. SUSAME

2009: 19th October, 2nd &17th November, 1st &15th December

CRIMINAL LAW – Offences- Attempting to defeat course of justice-s.136 Criminal Code Conspire to injure reputation of another and conspire to raise false accusations against another person ss. 517(b) & (g) Criminal Code - Committal Proceedings its purpose- Evidence is considered having Regard to all circumstances from which charges arose.

Cases Cited

Kiliki v the State [1990] PNGLR216
Kembu v The State [1996] PNGLR 8
References

Counsel
Chief Sergeant Nicholas Mwasolei police prosecutor
Defendant representing himself

22nd January 2010

DECISION

Susame;-The defendant is charges with three charges, one charge for offence under s. 136 of the criminal code and two other charges for offence under s. 517 (b) & (g)

2. The charge under s.136 reads, between 3rd day of September 2008 and 20th day of August 2009 the defendant did attempt to defeat the course of justice by interfering with court witnesses in the case of Papindo robbery.

3. The charge under s. 517 (b) is that between 6th June 2008 and 3rd September 2009 the defendant did conspire with a Lillian Vincent and others to cause any injury to the reputation of Inspector Joseph Salle and others.

4. And the charge under s. 517 (g) is that between 6th June 2008 and 3rd of September 2009 the defendant did conspire with Lillian Vincent and others to raise a false accusation of Robbery and murder against Inspector Joseph Salle and others to effect an unlawful purpose namely knowingly providing a false statement.

FACTS IN BRIEF LEADING UP TO THE CHARGES

5. Facts from which the charges arose are a bit complex. Let me state out in brief the basic facts as I understand. There was a series of armed hold ups at various business locations in Wewak Town between the months of February and November 2008 in which property and substantial amounts of money were stolen. Amongst those was the Papindo Trading robbery which was under police investigation.

6. The investigation team comprised of certain members of the CID unit at Wewak which included the OIC CID then, Inspector Joseph Salle, Chief Sergeant Patrick Wallace (the arresting office in this case), constable Peter Tupaia, constable Lawrence Tapis and others.

7. The investigation uncovered and implicated involvement of certain members of the police force with criminal elements and use of a police issue firearm in the commission of the crime. One of the policemen implicated was constable Lawrence Tapis, a CID member. The investigation team decided not to arrest and charge the member. Instead the team decided to use the member as one of their principal witnesses in the case of Francis Kurufher and Lucas Yovura who executed the robbery. The two have been arrested and charged and are now waiting trial in the National Court.

8. However, while that was going on another investigating team was also task following concerns from the public and the Ombudsman Commission and the Police Commissioner to conduct internal investigations of policemen who were implicated. The team comprised of the defendant and other members of the Internal Investigation Unit.

9. The result of this internal investigation led to the arrest and charge of constable Lawrence Tapis. Constable Tapis has now been committed to face trial in the National Court for his involvement in the Papindo robbery. Inspector Salle was implicated in supplying of the police issue firearm that was used in the robbery. Apparently, no criminal charges were laid against him. But, he was disciplinarily charged with Sgt. Wallace (Informant in this case) and constable Tapis by the Police Commissioner. All three of them were found guilty with constable Tapis dismissed from the force and Inspector Salle and Sgt. Wallace demoted in rank and reduced in salary.

10. Sgt. Wallace after his suspension was lifted and resumed duties turned around and arrested and charged the defendant with the current charges. This basically is the background facts the charges emanated.

SUBMISSIONS

11. I had some difficulty trying to understand or capture the defendant’s arguments. As I understand defendant’s arguement on the charges is this in a nut shell. Generally he argued that facts do not disclose or support the charge under s. 136 and that the charge was prematurely laid by the police. The charge under s. 136 can only be recommended by a judge during a trail and only then the police may proceed to press a charge against the person who commits the offence under s. 136. Not earlier. The defendant argued further that the arrest procedures were not properly followed and the record of interview was improper and should be disregard. He also argued there seems to be a conflict of interest situation here which resulted in his subsequent arrest and charge.

12. The police prosecutor has also filed his response. He has done a bit of research and has very much assisted this court with his discussions on the law in relation to committal proceedings. I note his arguements on every point or issue the defendant has raised and asked the court to make an order for committal.

COMMITTAL PROCEEDINGS

13. The law is clear on the whole process of committal proceedings or hand up brief proceedings as it is at times called. The police prosecutor has succinctly explained the law with reference to the relevant case laws.

14. To state it briefly the whole purpose of the committal proceedings to consider sufficiency of the evidence and decide whether or not to commit the accused person to face trial or sentence in the National Court on the Charge(s) he is charged with or any other charge that is supported by evidence police hand up brief files filed in court. I may add also that consideration of evidence is done in due regard to the whole circumstances from which the charge(s) arose.

RULING

15. Except for the arguement on ‘conflict of interest’ situation I dismiss defendant’s all other arguements as having no legal basis.

16. The charge of attempting to defeat course of justice can be laid before a court hearing when police are investigating an alleged crime and compiling witnesses’ statements for purposes of court proceedings or during a court hearing. Reference is made to the case of Kiliki v the State [1990] PNGLR216 in which Brunton J succinctly explains and I quote

” The essence then of the offence, whether its facts are rooted in time before a trial, that is, in the police investigation, or are part of the trial-process such as interfering with witnesses, or trying to persuade a judge or magistrate to do something, or not to do something, is that the conduct might lead to a miscarriage of <justice>, whether or not a miscarriage actually occurred. There must be an act which attempts to “turn aside” the <course> of <justice>, and the act must also have that tendency.”

17. I also make reference to the case of Kembu v The State [1996] PNGLR 8 with Wood J presiding in which His honour made reference to two cases in England and Australia.

“The traditional view was that expressed in the case of Sharpe & Stringer [1938] 26 Criminal Appeal Reports 122 which stated that it is sufficient to constitute the crime of conspiracy to defeat the <course> of public <justice> if persons conspire to conceal a crime which has been committed although no proceedings are pending or have been commenced. Rogerson’s case clearly did not follow the above case when it stated that police investigations do not in themselves form part of the “<course> of <justice>” for the purposes of conspiracy to, or attempting to, <pervert the course of justice. The course of justice> does not commence unless and until the jurisdiction of a court is invoked. However the High Court of Australia in Rogerson’s case went on and said for example “The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do <justice> are varied.” “At the time of such a conspiracy no prosecution for that yet to be committed crime could be pending and no prosecution for that crime would be contemplated by anyone other than the conspirators, yet the conspiracy to <pervert the course of justice would be complete.” And “the course> of <justice> does not begin until the jurisdiction of some court or competent judicial authority is invoked.” And later on page 436 the Court agreed that police investigations have themselves been treated as a part of the <course> of <justice"

18. With respect to the arguements on record of interview and arrest procedures I endorse the police prosecutor's arguements as more to the point. The defendant was properly arrested and charged. Record of interview was properly conducted. I cannot see any illegality or unconstitutionality of the procedure that was adopted and followed by the arresting officer in the whole process. The defendant is a CID member himself. I am sure in the many years of his service he has followed and observed the same procedures as adopted by the arresting officer. I
am rather surprised at the defendant's arguement which in my view was an unnecessary one and without merit.

19. The more pressing question is whether evidence is sufficient to support the charges?

20. The court has considered all of the circumstances from which the charges arose. At the outset I want to say this. The charges as it seems to me arose out of ill fighting within police personal up at Wewak Police Station by one disgruntled faction of policemen against another faction.

21. The initial police investigation headed by Sgt. Wallace and later by Constable Peter Tupaia revealed certain members of the police force in Wewak had allegedly collaborated with thugs in the commission of a series of arm robberies including the Papindo robbery in which substantial amount of money were stolen. Statements obtained from various witnesses revealed constable Lawrence Tapis working in association with the thugs. It was also revealed that a police issue firearm which was purportedly in possession of the then acting Provincial Police Commander was used in the commission of the robbery. This particular investigation team decided against arresting constable Tapis and opted instead to use him as one of the principle witness in the case of Francis Kurufher and Lucas Yovura who had been earlier arrested and charged.

22. Simultaneously, another investigation was sanctioned by the Police Internal Investigation Unit with specific terms of reference concerning allegations involvement of policemen and the use of police issue firearm. The defendant was one of the members of the investigating team. The team obtained statements from various witnesses including Constable Tapis, Lucas Yovura and others who had earlier given statements to police.

23. This team alleged it was Inspector Salle who gave the firearm to constable Tapis who in turn delivered it to the thugs to use in the planned robberies. It was further alleged for the role they played both constables were rewarded with certain percentage of money that was stolen. As it turned out only constable Tapis was arrested and charged. No criminal charges were laid against Inspector Salle perhaps due to insufficiency of evidence. Both members including Sgt. Wallace (Informant) and others named were later charged disciplinarily by the Police Commissioner.

24. From these set of facts I find that evidence falls short of supporting the charges. Both investigations as a matter of public policy and importance were properly sanctioned by the Police Hierarchy. In my view I cannot see existence of any criminality in the defendant's conduct in the whole process.

25. I would have thought a neutral team of police investigators preferably from outside of the Province should have initiated the investigation if the defendant's actions amount to criminal behaviour and have him brought to court. Inspector Salle and Sgt. Wallace were the very persons investigated by the defendant and they should have refrained from investigating these cases from the very beginning. It seems to me there is a conflict of situation here.

26. It follows from the above discussions that there is no case for the defendant to answer on all the three charges. This court refuses to make an order for committal. Accordingly, the charges are struck out and defendant shall have his cash bail refunded forthwith.