Moka v Xavier [2010] PGDC 46; DC1044 (15 December 2010)

DC1044

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (GRADE FIVE) JURISDICTION]
GFCr 60 Of 2010

BETWEEN

CHEETAH MOKA
Informant

AND

GAMO XAVIER
DAVID LUANA
HENRY KUPEPE
RONALD KUKUAI
Defendants

LIHIR: B.Tasikul, a/PM
2010: December, 15th

CRIMINAL:

CASES CITED:

REFRENCES:

COUNSEL:
Name of Lawyer, for the Informant: Senior Constable Elsie Tenenga
Name of Lawyer, for the Defendant: In person

RULING ON VOIRE DIRE

1. B.TASIKUL, a/PM: The four defendants were charge with having in their possession illicit spirit namely, jungle juice or yawa.They were charge under section 45(d) of Distillation Act.
   
2. When the charge was read and explained to them, in respond they told the Court that they were never been formally arrested and placed in the cell. This raises a breach of their Constitutional rights. Before I proceed further with the matter I decided to conduct a voir dire.
   
3. The four defendants gave evidence that on Friday 3rd December 2010 they were detained by the police ,after they were found drinking homebrew at the back of the police station. They were taken to the Police Station, where they were told to provide their particulars and address and later place in the cell. On the 9th December 2010 they were taken out of the cell and the same was done. They contended that they were never formally arrested by placing hands on them and informing them their constitutional rights.
   
4. The arresting officer testified that when the defendants were brought into the station he took them to the processing room, where he obtained their particulars. He informs them their rights and explained the charge to them in English and Pidgin several times. They were later placed in the cell. This was supported by another officer who was present that time.
   
5. Section 42 (2) (a)(b)(c) of the Constitution provides that:
   

2) A person who is arrested or detained–

(a) shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and

(b) shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and

(c) shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained,

and shall be informed immediately on his arrest or detention of his rights under this subsection.

6. Section 14 of the Arrest Act also provides the manner in which an arrest can be affected.
   

1) Where an authorized person intends to make an <arrest> and the person to be <arrested>–

(a) does not resist the <arrest> and the authorized person is aware that they speak a common language, the authorized person shall at the time of <arrest>–

(i) advise the person he is under <arrest>; and

(ii) advise the person <arrested> of the reason for his <arrest>; and

(iii) request the person <arrested> to accompany him to a police station, to a court or place of confinement, as the case may be; or

(b) does not resist the <arrest> and the authorized person is aware or ascertain–

(i) that they do not speak a common language; or

(ii) that he is unable to speak to the person <arrested> because the person <arrested> suffers from some mental or physical defect,

the authorized person shall indicate by reasonable means to the person <arrested> that–

(iii) he is under <arrest>, and

(iv) he is to accompany the authorized person; or

(c) resists the <arrest>, whether by force or by refusing to move, or seeks to evade <arrest>, whether by running away or by other means, the authorized person may, subject to Subsection (2), use all reasonable means to make the <arrest>.

(2) Subsection (1) (c) does not justify the use of greater force than is reasonable in the circumstances.

7. In the SCR No 5 of 1987, The State V Songke Mai [1988]PNGLR 56,the Court held that:
   

A police officer is obliged to inform a person who is "arrested" of all his rights guaranteed by s 42(2).

It went further stating:

For any arrest to be lawful it must be done according to the procedures laid down under s 14 of the Act. Any person deprived of his liberty in breach of s 14 is not arrested — he is illegally detained and must be released. Any admissions made by the person illegally held in custody will of course be scrutinised by the Court critically: ...............................................

"that arrest, in the context of the criminal law, is more than a deprivation of liberty. It is a step in the criminal process; the apprehending or restraining of a person in order that he may be forthcoming to answer an alleged or suspected crime, made in the lawful exercise of an asserted authority with an intention to bring the person within the criminal process, this intention being communicated to the person by words or conduct together with the reason for the arrest."

A person is arrested when he is deprived of his personal liberty by the seizure and touching of his person or by words in circumstances calculated to bring and which do bring to that person's notice that he is under compulsion and thereafter submits to the compulsion in order to be forthcoming to answer an alleged or suspected crime.

8. The question now needs to be answered is whether the defendants were formally informs of the rights and formally arrested?
   
9. According to the arresting Officer when the defendants were taken to the police station. He took them to the processing room where he processes them by taking their particulars and later explaining to them the reason of their arrest. He then places them in the cell. That was on the 3rd of December 2010. However, he never mentions of re-charging them on the 9th December 2010.
   
10. According to the defendants they were taken out after 5 days and were process again by taking their particulars. I find the evidence by the arresting officer to be inaccurate, as to when actually the defendants were formally charge. Was it on the 3rd or 9th of december1010.
    
11. If the charge was formally laid on the 9th December 2010, what was the reason to delay of laying the charge during the time they were arrested? If they were drunk that time then the next available day was the next day.
    
12. Section 42(3)(b ) of the Constitution provides that; A person who is arrested or detained–
    

(b) upon reasonable suspicion of his having committed, or being about to commit, an offence, shall, unless he is released, be brought without delay before a court or a judicial officer and, in a case referred to in paragraph (b), shall not be further held in custody in connection with the offence except by order of a court or judicial officer.

13. It is my view that the offence the defendants committed was not that serious where it needs them to be held that long in custody. Unless of course it there was other charges pending further investigation by the police. I am also of the view that the manner in which the defendants were arrested was not in compliance with the Constitution.
    
14. With the above reason I am satisfied that the defendants were never been properly been inform their Constitutional rights under section 42 of the Constitution and their rights have been breach. I therefore have the matter before me be dismissed and each is discharge forthwith.