Alo v Mauwe [2016] PGDC 4 (17 August 2016)

PAPUA NEW GUINEA

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

DCr. No. 1153/2016

BETWEEN
SIMPSON ALO

Informant

AND

FELIX MAUWE and
First Defendant

STEVEN VANE and
Second Defendant

JIMMY GIMA
Third Defendant

BOROKO, Summary Offences Court: T. GANAII

2016: 17^th August 2016
CRIMINAL LAW- Summary Offence – Police Act, Chapter No. 37 of 1998 – Section 138 (a) – Unauthorised wearing of Police Uniform - Defence of being members of the Police Force namely “Police Reservists” – Whether the Defendants were Police Reservists – Process for recruitment, appointment and deployment of Police Reservists

Cases Cited

Police v. Scott Dylan, CB NO. 1572/2016

References

Police Act, No. 37 of 1998

Counsel
Prosecutor: Sergeant S. Hombiku

Defendants: In person

RULING ON VERDICT

05^th July 2016

Ganaii SM: The defendants Felix Mauwe, Steven Vane and Jimmy Gima all stand charged with one (1) count each of Unauthorised wearing of Police Uniform, pursuant to Section 138 (a) of the Police Act, Chapter No. 37 of 1998.

Background

2. All three (3) defendants pleaded not guilty to their charges that on the
26^th day of April 2016, at ZD Systems, Gordons in the NCD, each of them without lawful authority and excuse wore police uniforms.

Onus of Proof

3. The prosecution has the onus of proving that at all material times the defendants were not police officers and were not authorised to wear police uniforms.

Undisputed Facts

4. Matters not in dispute were that the defendants were in police uniforms when they were sighted by police officers who were instructors at the Bomana Police College.
   

Issues

5. The main issue at trial the court had to determine was whether or not the defendants had lawful authority to wear police uniforms.
   

The sub issues were:

5.1 Whether or not the defendants were police reservists on duty at the time they were sighted in Police uniforms and

5.2 Whether or not the processes for recruitment, appointment and deployment of the defendants as Police Reservists were dully followed.

The Evidence:

Prosecution Case

6. The Prosecution called five (5) witnesses namely James Runi, Charlie Sare, Gendi Teaiya, Peter Tedore and Slim Raufun. A summary of each of their evidence is as follows:

6.1 James Runi - This witness said he is a First Constable of Police attached to the Bomana Police Training College as an Instructor and had served in the RPNGC, Bomana Police Training College for eight (8) years.

6.2 He said he recalled he was the driver of the College bus loaded with trainees from the Police Training College. They were on an official trip into town and were parked next to the defendants. He saw the defendants come out of a Red Toyota 5^th element vehicle. He observed that the driver of the vehicle was a foreigner whom he later came to know as Richard Mamasang of Asian origin. He observed that as soon as the second and third defendants i.e. Steven Vane and Jimmy Gima saw them, they returned to the car and changed out of the Police uniforms they were wearing at that time. He said he found the uniforms in the private vehicle the defendants were in and learnt that there was another purported Police Reservist named Michael Aria, who was not arrested. He said Michael Haria was holding a firearm described as ‘not a Police Issue’ and was a 6 round Baretta pump action shot gun with the serial number T39106E. He said he became suspicious of their actions.

6.4 He said he understood that section 20 of the Police Act stipulates that no persons other than members of the Police Force are allowed to wear police uniforms. He did talk to the three (3) defendants at that point in time and asked them if they (the defendants) were Police officers and whether or not they were authorised to wear Police uniforms. They did not respond in a satisfactorily and so he confiscated their firearm and a firearm Licence and asked the defendants and the driver of their vehicle to attend to the Boroko Police Station for further questioning. At the Police Station the defendants were referred to the CID and he left the firearm and the Firearm licences with the CID for further investigations.

7. Charlie Sare - This witness said he is a Senior Inspector of Police attached to the Bomana Police Training College as an Instructor.
   • 7.1 He stated that he recalled that on the 26^th April 2016, after visiting the Police Headquarters, they arrived at and were parked at Gabaga Street in Gordons. They stopped close to the New Guinea Footwear (NGF) Ltd. In the college bus were the following persons: the driver of the bus F/C James Runi, Chief Inspector Gendi Teaiya, F/C S. Sam, three (3) Police Women and eight (8) recruits. He stated that the three (3) police women and F/C S. Sam went into NGF Ltd to get their police issue uniform shirts. After a while the he observed a double cabin vehicle, fully tinted, was driven up and parked about 4-5 metres away but in front of them. Within minutes he saw two gentlemen in full police gear bearing the RPNGC logo (the crest) coming out of the second cabin of the vehicle. He observed that after a few seconds, the two gentlemen then went back into the vehicle and when they got out, he observed that they were in civilian shirts. He also observed that the third person came out of the vehicle with full police field gear (uniform). As he was watching, he realised that everyone else in the bus was also watching the two gentlemen and were talking about their actions. After watching a while he could also see that the driver of the vehicle was a foreigner of Asian origin.
     
   • 7.2 He stated that when they drove up close to the vehicle, he saw that the person sitting in the offsider’s seat of that vehicle was armed with a pump action gun which was fully loaded. Mr Gendi Teaiya, the driver of their vehicle F/C James Runi, and himself then approached the driver and offsider of their vehicle and interrogated them. As that was happening, the two gentlemen who went into ZD Systems returned from there. The witness asked them if they were police officers and they replied saying that they were police reservists engaged on duty at the Choulai Trading. The witness said he further questioned the men enquiring about whom it as that they reported to in their line of duty. They responded stating that they would not say anything on that and that their records of employment as reservists were with the Southern Command. The witness further stated that when he enquired as to what they were doing at ZD Systems, he said they said they were there to obtain ID Cards for the firearm they had held. He stated that he further asked them for their regimental numbers and they could not provide them. He said when he asked them who it was that they reported to at Choulai Trading, they couldn’t answer in a sufficient manner and so he and the other police men had to refer them to the CID at Boroko Police Station. At the Boroko Police station the men were handed over to the 3-11pm shift duty personal.
     
   • 7.3 The witness identified the defendants as first and second from his left, or defendants Steven Vane and Jimmy Gima as the two gentlemen who changed out of their police uniforms. He said they were in full police gear (uniform) prior to changing.
     
   • 7.4 In cross examination, defendant Felix Mauwe put to the witness that they were on duty as reservists and were there to obtain firearm licences, the witness stated that this was not mentioned to him when he enquired so was suspicious and referred them to the CID.
     
   • 7.5 When asked by the courts about what he does at the Bomana Police Training College, he stated that he manages the training courses for recruits, trains them and does other normal policing duties. When asked about the process for recruitment and appointment of reservists, he stated that he understands that persons who want to become reservists, the Police Commissioner must approve of their appointments. He said the appointments are then gazetted and published. He said the training for recruits takes place at the Bomana Training College. He said after the disbanding or standing down of the reservists, the college has not seen any members of the Reserve Unit undergo any training at Bomana Police Training College.
     
8. Gendi Teaiya – This witness is a Chief Inspector of Police by rank. He is attached to the Bomana Police Training College. He has been with the Police Force for a period of 38 years.
   
   • 8.1 His evidence was similar to that of Charlie Sare’s evidence. He identified defendants two and three from his right i.e. Steven Vane and Jimmy Gima as the persons who were wearing police uniforms at Gordons and then changing into civilian shirts. He also said the first defendant was in police uniform as well.
     
9. Peter Tedore - This witness is a Senior Constable of Police attached to the Badili Police Station as officer in charge of Community Policing. He has served the Police Force for 40 years. He is in charge of deployment of police reservists to Cop shops in his area of control.
   

9.1 He stated that he is aware that the only two Cop shops in his area are the Koki and Sabama Cop shops. He does not deploy police reservists to private business houses except to these two Cop shops. When asked if he knew the defendants as reservist serving under his supervision, he said he did not know them and he does know all his reservists by name and face.

9.2 He stated that from experience, the current accepted practice is that the process of deploying police reservists is through the Commissioner’s authorisation, then to the Office of the Area Command for Reservists for the NCD and Central Command, in particular to Mr Slim Raufuns’s office. He says Mr Raufun then instructs him to deploy reservists and that’s when he deploys.

9. 3 He stated that Cop shops are sub police stations and are manned by members of the RPNGC. He stated that the Choulai security base is not a legal Cop shop and cannot be recognised as such. It is only a security base for the private business. He said he had no idea of the defendant’s deployment to Choulai Trading as Police Reservists. In cross examination the witness confirmed that the Choulai Security base was not a Cop shop. It is not formally recognised as one. He stated that the Badili Cop Shop was responsible for service to areas around and including Choulai Trading.

9.4 When the witness was asked about three police reservists who previously, about six years ago, had been deployed to Choulai Trading as reservists, he stated that those persons namely Daure Homosi, Michael Haria and Ove Hairi were not dully recognised as police reservists. He said Daure Homosi was terminated by the force some time ago and should not have been a reservist. He said the other two persons Michael Haria and Ove Hairi were not police reservists as their deployment was not sanctioned through the proper process. He stated that he does not know these names or persons.

10. Slim Raufun – This witness stated that he is an Inspector of Police by rank and is attached to the Office of the Area Command for Reservists for the NCD and Central Command at the Police Headquarters. He stated that he has been with the RPNGC and more particularly the Police Reservists Unit for 20 years.
    

10.1 He gave evidence on the process of recruitment and appointment of persons as Police Reservists. He stated that the process is simple. Firstly, for NCD and Central cases, the civilian has to show interest by applying to the Metropolitan Superintendent’s office or to himself as the area commander. He said if applicants applied to the Metropolitan Superintendent’s office, this office then forwards the applications to him for conduct of interviews. The applications are then sent to the Director for Community Policing, at the Police Headquarters for his approval. Once that is done, he said the Director for Community Policing short lists and approves members for final authorisation by the Police Commissioner. The Director prepares instruments and sends them to the Police Commissioner’s office for his final endorsement and appointment of persons as members of the Police Reserve Unit. The Police Commissioner then signs the necessary instruments for gazettal in the Police gazette. He stated that the member is then notified to attend to his office to sign and take the Oath and Affirmation of the Office of the Police Reservist. After this he said the member is given a regimental number and can then be deployed.

10.2 The witness further stated with regards to training of police reservists, that training is dependant very much on the availability of funds. He stated that if persons are appointed and there is no funds available for training, members are held back from deployment. In some situations where there arose a need for extra manpower and police presence, the members are deployed but are under the direct supervision of a Regular member of the Police.

10.3 He stated further that in so far as recruitment for reservists is concerned, he said that he was aware that the last recruitment for reservist occurred in 2002. He said thereafter there were orders issued by different Police Commissioners including that by Commissioner T. Kulunga in 2009 . He stated that he is aware that the latest of such orders was issued in 2014 to stop recruitment, appointment and deployment of reservists. He said the last order was uplifted by Commissioner Garry Baki in 2015. He stated that persons who were earlier recruited in 2002, and at the time when Commissioner Tom Kulunga and Jeffery Vaki issued orders to stop recruitment, appointment and deployment of reservists in 2009 and 20014, that definitely these recruitments, appointments and deployments are nullified and of no effect.

10.4 The witness stated that he had checked against the list of names of reservists on his data system at his office and finds that he does not have names of all three defendants as police reservists. He said because of that he has doubts about their appointment, endorsements and deployments and questions the process in which they have been so appointed, endorsed and deployed. He stated that after the stand down order of all reservists in 2015, these three defendants names were not submitted to his office for consideration and or for them to be sworn in as members of the Police Reserve Unit. He stated that at no time did he become aware of deployment of any Police Reservist to Choulai Trading in Badili since 2015 and up til the time of arrest of these three defendants. He stated that all deployments of Police Reservists were to be brought to his notice and for these three defendants, this was not done.

10.5 He also stated that Choulai security base is not a gazetted Cop shop. He stated that Cop shops are small pieces of land given to the Police to house police personnel, especially in hot spots or crime infested areas for 24 hour police presence and are known as Sub stations to the main Police Stations. He says establishments of Cop shops are done by the Metropolitan’s Office upon approval by the Police Commissioner.

10.6 When the witness was asked in cross examination about the deployment of police reservists in 2014- 2015 to Choulai Trading, he responded saying that the Choulai Security base was not a gazetted Cop Shop and as far as he was concerned there were no Police Reservists deployed to Choulai Trading. He said that persons who were deployed there were not sanctioned by his office. He also denied in cross examination any knowledge of Michael Haria as a Police Reservist in 2010 up to the time of arrest of the defendants. He said again that the Choulai Trading had a security base but was not a gazetted Cop Shop.

10.7 The Court asked about the process of getting regimental numbers and the witness stated that regimental numbers are given when the Commissioner signs the gazettal Notice for Publication in the Police Gazettes.

10.8 The witness stated that he asked his Admin Sergeant to assist him locate the Master Name List for all Reservists. He stated that the Master Name List for all Reservists may have names of persons as Police Reservists however he stated that he still doubts that these persons were properly appointed, endorsed and deployed. He said he knows of instances in the past where he identified that certain persons’ appointments breached the legal process of appointment, recruitment and deployment. When asked about the three defendant’s record if any on their appointment and gazettal as police reservists, he stated that he did check and there was none. He stated that if they did have regimental numbers then he would question how they obtained those regimental numbers. He said as far as the process for recruitment is concerned, the final stage before confirmation of employment is concerned when individual members attend to his office to take and sign the oath and affirmation of office. He keeps proper records of these documents and said that his office does not have records of the three defendant’s oath and affirmation of office and gazettal notices.

10.9 When asked about the process involved in recalling reservists who have been stood down after the Commissioner’s orders, the witness stated that the issuance of such an order is only for standing down of reservists. He said after the uplifting of such an order, the reservists are recalled by the commissioner. This is done when the Commissioner issues a circular instruction, uplifting the order for stand down, and recalling all reservists by name. The Commissioner is the only person that gives this authority for recalling.

10.10 In cross examination the defence asked if the witness knew all defendants by face and name, and could identify each one. The witness stated that he may not know all reservists by face and name, however, his office does keep records of all dully appointed and gazetted police reservists in NCD and from the Southern command. He further said that for reservists transferring from the Southern Command into NCD, there must be formal documentation confirming the transfer from the previous jurisdiction into NCD. He said a letter of transfer from the PPC who is the immediate supervisor of the reservists must be made to the Metropolitan Superintendent’s office in NCD. He said reservists should not take out deployment without such in place.

10.11 The witness was cross examined on whether or not he would have knowledge of persons wanting to seek employment with RPNGC as reservists. The witness responded saying that people who want to register their interest can do so through the normal process. He further elaborated on the different kinds of Police Reservists which included: Police funded Reservists, who are directly under the supervision of the Police Department, the Volunteer Reservists which consist of business, and well off persons; public servants, and organisational volunteers who volunteer their time and efforts and are not paid by the Police Department; and the third category are those that involve the signing of Memorandums of Understandings (MOUs) where reservists are specifically assigned to certain organisations to provide police assistance and the organisation funds for this. The MOU in this case is signed by the Police Commissioner and respective organisations. After the termination of or completion of the arrangement in the MOU, the reservists cease to be police reservists.

10.12 When the witness was asked by the defendant Felix Mauwe on behalf of the other defendants in cross examination that they were unemployed and sought employment as reservists as a means of survival, the witness responded stating that being a reservist is not a full time job employment. The main idea behind having reservists is not to main employment but to assist where necessary in the maintenance of law and order. Hence, whenever, reservists are ordered to step down, they step down. Orders as such do not affect employment status. And Reservists are only posted to assist the regular members of the Police Force.

Defence Case:

11. The three options of giving evidence were explained to the defendants. They all decided not to give evidence and chose to remain silent.

The applicable Law

12. The following sections of the Police Act are applicable:-

Police Act, Chapter No. 37 of 1998

Section 138. Unauthorized wearing of police uniforms, etc.

A person, not being a member of the Force, who—

(a) wears a uniform of the Force; or

(b) unlawfully wears a colourable imitation of a uniform of the Force,

is guilty of an offence.

Penalty: A fine not exceeding K500.00, or imprisonment for a term not exceeding three months.

Section 4. Appointment of members of Force

(1) A person may be appointed to be a member of the Force in accordance with this Act.

(2) No person shall be appointed to be a member of the Force until that person makes and subscribes, in the prescribed manner, the appropriate oath or affirmation in the Schedule to this Act.

Section 6. Training of prospective members of the Force

(1) Subject to this section, the Commissioner, instead of requiring a person to become a member of the Force before he is accepted for training, has the discretion to accept for such training a person who is not a member of the Force.

(2) Where a person who is not a member of the Force is accepted for

training under this section, the Commissioner may defer his entry into the force until the training is completed to the satisfaction of the Commissioner.

Part II.—Composition and Administration of the Force

Section 7. Composition, etc., of Force

(1) The Force, which shall continue to be known as the Royal Papua New Guinea Constabulary, and which is the same force as that established by the former Act shall continue to consist, subject to this Act, of the Commandant, the Commissioner of Police, and such other commissioned officers, cadet officers, non-commissioned officers, constables, Reservists, Special Constables and members of the Community Auxiliary Police as have been appointed under the former Act or are appointed under this Act.

(2) The Force is divided into the following branches:—

(a) the Regular Constabulary Branch; and

(b) the Reserve Constabulary Branch; and

(c) the Community Auxiliary Police; and

(d) Special Constables.

(3) The Force is a State Service under Section 188 of the Constitution.

(3) In respect of every person in training under this section, at the expiry of the period referred to in Subsection (2), the Commissioner shall either—

(a) terminate the training of that person; or

(b) appoint that person as a member of the Force.

(4) No person who is training under this section shall undertake operational service until he is appointed as a member of the Force.

(5) A person in training under this section may be paid such allowance as the Commissioner determines.

(6) Sections 20 to 27 inclusive apply to a person in training as if he were a member of the Regular Constabulary.

(7) The Commissioner may at any time terminate the training of a person who is not a member of the Force.

Section 16. Vesting of powers of members of the Force

(1) Where the Commissioner thinks it for any special reason desirable, the Commissioner may, by written notice, vest in a person, or in members of a class of persons, some or all of the powers, functions, duties and responsibilities of a member of the Force under any law.

(2) A person to whom Subsection (1) applies is deemed, in relation to the powers, functions, duties and responsibilities vested in that person under that subsection, to be a member of the Force.

Part VI.—Reserve Constabulary

Section 115. Strength of Reserve Constabulary

The Reserve Constabulary shall consist of such number of reservists as is fixed by the Minister by notice in an Official Police Publication.

Section 116. Ranks of the Reserve Constabulary

The ranks of reservists and their order to precedence in the Force are as prescribed.

Section 117. Appointment and promotion

The Commissioner may appoint or promote a person to such rank in the Reserve Constabulary as the Commissioner thinks proper.

Section 118. Conditions of service

The conditions of service of a reservist are as the Commissioner directs or as are prescribed.

Section 119. Pay and allowances

(1) Subject to any general directions of the Head of State, acting on advice, the pay and allowances (if any) of reservists are as determined by the Commissioner, after consultation with the Salaries and Conditions Monitoring Committee.

(2) A determination under Subsection (1) may provide for pay and allowances at different rates for different classes of reservists.

(3) A determination under this section shall be published in an Official Police Publication as soon as practicable after it has been made and does not come into effect before it has been so published.

Section 121. Powers, etc., of reservists

A reservist, when acting as such, has all the powers and functions of a member of the Regular Constabulary Branch.

Section 122. Uniforms, etc.

A reservist may be issued with such arms, accoutrements, badges and uniforms, and in such quantities, as the Commissioner may determine.

Schedule 1.

Oath and Affirmation of Office of Reservists

Oath.

I, . . . , do swear that I will well and truly serve the Independent State of Papua New Guinea and its people in the office of Reservist of the Royal Papua New Guinea Constabulary, and that I will seek and cause the peace to be kept and preserved, and that I will prevent, to the best of my power, all offences against the peace whilst I am acting in that office, and that, while I continue to hold that office, I will to the best of my skill and knowledge, discharge all the duties of it faithfully according to law.

So help me God!

Affirmation.

I, . . . , do solemnly and sincerely promise and declare that I will well and truly serve the Independent State of Papua New Guinea and its People in the office of Reservist of the Royal Papua New Guinea Constabulary without favour or affection, malice or ill-will, from this day until I am discharged from that office, and that I will seek and cause the peace to be kept and preserved, and that I will prevent to the best of my power all offences against the peace whilst I am acting in that office and that, while I continue to hold that office, I will, to the best of my skill and knowledge, discharge all the duties of it faithfully according to law.

Application of Law to Facts

Finding of Facts:

13. The Police witnesses were all police officers who testified seeing all three defendants in police issue uniforms. This was not contested. The Court finds that the defendants were in police uniforms at Gordons, NCD when Police witnesses from Bomana Police Training College came across them.

14. Police witnesses i.e. police officer from the Badili Police Station and the Office of the Area Command for Reservists for the NCD and Central Command both stated that as far as they were concerned, the Choulai Security base is not a gazetted Cop Shop, and reservists were never deployed to provide security there. They both further stated in the sum of their evidence that these three defendants’ names are not on the General Police Reservist Master List and they were never deployed by the Badili Policing Unit or the Office of the Area Command for Reservists for the National and Central Command.

15. These police witnesses are full time serving members of RPNGC. Most of them have very long years of experience working in the force. Their evidence was consistent, and they did not falter in cross examination but maintained their story throughout. Further to that, police witnesses from Police College showed their loyalty and dedication to the Force when they were on alert and decided to do the right thing to make enquiries with the defendants when they saw two of them, Steven Vane and Jimmy Gima change out of their police uniforms and into their civilian clothes. Their reactions were instant and they decided to enquire. All defendants claim to be police officers, on duty but it does not make sense that they would be in civilian clothes to obtain firearm licences. This court accepts that the defendants changed out of the police uniform to avoid detection from the other police men. This shows the defendants’ guilt. All police witnesses are credible and their evidence is believable.

16. Court accepts and finds that all three defendants were never formally recruited through the recruitment, endorsement and gazettal process as described by Inspector Slim Raufun, who is in charge of the Office of the Area Command for Reservists for the NCD and Central Command. In his evidence he describes in detail the steps involved in such a process. Although he did not refer to the specific law under the Police Act, his evidence was based on his experience. He had 20 years of experience working in the Office of the Area Command for Reservists for the NCD and Central Command at the Police Headquarters. He stated that according to his check with the master list of reservists, there are no records of Oath and Affirmation into Office, nor any letter of transfer from the Southern Command or a PPC from the Central Province where defendants said they came from.

17. The defendants stated in arraignment that they were Police Reservists, their names were on the list of Police Reservists and they had regimental numbers. They stated that had they known that they were not reservists they would not have worn police uniforms and provided security services. During trial the defendant Felix Mauwe asked questions in cross examination on behalf of the other two defendants. In his questions, he put his case that they were police reservists from Southern Command and they were deployed to the Choulai ‘Police Post’. All defendants however did not give evidence. They also did not call evidence to support their not guilty plea and they did not call evidence to support their case put to the state witnesses in cross examination.

18. Pursuant to s16 of the Police Act, the Commissioner of Police upon recommendation of individuals then where he thinks desirable and after required training will by written notice vest in a person, such powers, functions, duties, and responsibilities of a member of the Force. The appointments consequently take effect after taking oath and affirmation of office of a police reservist and that these appointments are published in an official Police Gazette known as the PNG Police Gazette fulfilling legal requirements of section 152 of the same Act.

19. Pursuant to sections 116, 118, 119, 121 and 122 of the Police Act, the Commissioner directs as prescribed by this Act, conditions of service of reservists, their pay and allowances, after consultation with the Salaries and Conditions Monitoring Committee and publishes this in the Official Police Publication. Subsection (3) of section 119 stipulates that payment and allowances does not come into effect before the publication. In this instance, based on and accepting what the Police witnesses have stated, this court finds that the above described legally required processes of recruitment, appointment and deployment did not as a matter of fact take place. The Court finds that the practice as described by Inspector Slim Raufun on the various stages of recruitment and appointment pursuant to the legal requirements as prescribed by law were not dully followed.

20. Court finds that what had happened shows that the defendants had not dully taken the oath and affirmation of the Office of Reservist and not been given their RPNGC Regimental numbers. The evidence showed that the defendants had been engaged to do police duties in the past however, again there was no evidence to find or suggest that the proper process of recruitment, appointment and deployment of the defendant as a Police Reservist either through the normal practice as described by and provided by law under the Police Act had been dully observed.

21. To date, the defendants do not have Regimental numbers. The regimental number has to be obtained in order for any one person to be recognised lawfully as a member of the RPNGC. Also, the defendant’s name does not feature on the current and updated Police Reserve List as per the evidence of Inspector Slim Raufun.

22. Further, ignorance of the law by the defendants on what the due processes of appointment for reservists are is no defence in law. Section 23 of the Criminal Code Act applies.

23. Under Part VI of the Police Act, section 115 stipulates that the Reserve Constabulary consists of reservists as fixed by the Minister in an Official Police Publication. It is further stated in subsection (3) of section 119 that this determination is published in an official Police Publication and does not come into effect before it has been published. Sections 121 and 122 states that a Reservist resumes the powers and functions of a member of the Regular Constabulary Branch and may be issued uniforms as the commissioner determines.

24. Finally, a Reservist is required to take the Oath and Affirmation of the Office of the Reservist which stipulates that he or she swears to well and truly serve the Independent State of PNG, its people and the office of Reservist of RPNGC. It is this court’s finding that the defendants’ appointments were never finalised and gazetted and the defendants never took oath and affirmation of office to perform functions as such.

Decision/Conclusion

25. Based on the above findings, and applications of these findings to the above law as discussed, the Court finds in answer to the issues raised above as follows:

Main Issue

26. Whether or not the defendants had lawful authority to wear police uniforms.
Answer: No.

The sub issues were:

27. Whether or not the defendants were police reservists at the time they were sighted in Police uniforms?

Answer: No.

28. Whether or not the processes for recruitment, appointment and deployment of the defendants as Police Reservists were dully followed.

Answer: No.

29. The court is satisfied that the prosecutions has proven its case against all three defendants beyond all reasonable doubt on the charge of one count each of Unauthorised wearing of Police Uniform, pursuant to Section 138 (a) of the Police Act.

30. The Court rules that the defendants had not been dully appointed as a Police Reservists and therefore Court finds accordingly that they were not members of the Police Force at the time they were engaged to provide security at Choulai Trading.

31. Consequently, the Court therefore finds the defendants Felix Mauwe, Steven Vane and Jimmy Gima guilty on one count each of Unauthorised wearing of Police Uniform, pursuant to Section 138 (a) of the Police Act.

32. The defendants Felix Mauwe, Steven Vane and Jimmy Gima are convicted accordingly on one count each of Unauthorised wearing of Police Uniform, pursuant to Section 138 (a) of the Police Act.

Police Prosecutions: Sergeant Simon Hombiku

Defendant: Scott Dylan