Police v Lumae [2018] PGDC 26; DC3065 (27 April 2018)

DC3065
PAPUA NEW GUINEA
In the District Court of Justice
Sitting In its Criminal Jurisdiction

Cr. 104 of 2018

The Police
Informant.

And

GEORGE LUMAE.

Defendant

Goroka, P Kaumba, Magistrate

2018: February 7th, 21^st, 22^nd, March 20^th, 22^nd,27^th,
29^th, April3rd, 9^th,10^th,18^th&27^th.

Counsel:
Informant: Police Prosecutor Joe Pipi
Defendant: In person.

DECISION ON NO CASE.

1. Onthe 30^th of January 2018 the Defendant was taken into police custody by members of the Police Task Force based at Goroka and was charged for unlawfully demanding payment from travelling public under section 8(a) of the Protection of Transport Infrastructure Act(herein-after referred to as ‘the P.T.I.A’) and he was refused bail.The Defendant came before me on the 7^th day of February 2018 and pleaded not guilty to the charge and I set the case down for trial on the 21^st of February2018 and granted him K300.00 cash bail. The case did not proceed on the aforesaid date because the police prosecutor was not available and the case was deferred to the 22^nd of February 2018 for mention.On the 22^nd February 2018 the case was set for trial on the 20^th of March 2018.

2. On the 20^th of March 2018 the court room I was using for summary cases was taken up by Land Titles Commission for hearing of land matters so the trial date was vacated and I re-set the case for 22^nd of March 2018 at 130pm.

3. On the 22^nd of March 2018 the trial date was vacated because Police Prosecutor was escorting a deceased policeman to Watabung,E.H.P and he requested a new trial date and the case was set for the 27^th of March 2018.

4. On the 27^th of March 2018 there was no appearance of defendants and police prosecutor so the case was re-set for trial on the 30^th of March 2018. The 30^th of March 2018was a public holiday so case did not proceed and the case was stood over to 3^rd of April 2018 for mention.

5. On the 3^rd of April 2018 there was no appearance of defendants and the police prosecutor so case was stood over to the 9^th of April 2018 for mention.

TRIAL.
6. On the 9^th of April 2018 the police prosecutor was ready with his witnesses so the case proceeded to trial. The state called two witnesses and adjourned the case to 10^th of April 2018 to call its last witness. On the 10^th of April 2018 the State calledtwo more witnesses and tendered a sling shot and a bush knife as exhibit and closed its case. The case was adjourned to 18^th of April 2018 for court to decide on whether the defendant has a case to answer or not on its own volition because the defendants appeared in person. On the 18^th of April 2018 the court was not ready to hand down its decision so the decision was stood-over to the 27^th of April 2018.

RELEVANT LAW.
7. The defendant was charged under section 8(a) of the PROTECTION OF TRANSPORT INFRASTRUCTURE ACT 2010.

8. Section 8 of theaforesaid Act reads:
8. OBSTRUCTION OF TRANSPORT INFRASTRUCTURE.

(1) Any person who intentionally or recklessly and without lawful authority-

• (a) obstructs, hinders or otherwise prevents the lawful entry or departure of any person, vehicle or aircraft or vessel to or from any transport infrastructure, or
• (b) obstructs, hinders or otherwise prevents any person, vehicle, vessel or aircraft from lawfully using any transport infrastructure,

is guilty of an offence.
Penalty: A fine not exceeding K50,000.00 or imprisonment for a term not
exceeding 1 year or both.
(2). It is not a defence to an offence under Sub-section (1) that the
obstruction, hindering or prevention was done under a claim of right.
(3). A person who commits an offence under Subsection (1) may be forcibly
prevented from continuing to obstruct or hinder by a member of the
Police Force using such reasonable force as is required in the
circumstances.

9. CONSTITUTION.
37 PROTECTION OF LAW.
(4) A person charged with an offence-
(a) shall be presumed innocent until proven guilty by court of law, but a
law may place upon a person charged with an offence the burden of
proving particular facts which are or would be, peculiarly within his
knowledge...
(10) No person shall be compelled in a trial of an offence to be witness
against himself....
10. It is trite law that the onus of prove is on the State to prove beyond
reasonable doubt that the defendant has committed the offence he is
charged with, that includes negating any defence raised by the defendant
and/or any possible defence available to the defence.
11. In a case where issue of whether there is a case for the Defendant to
answeror not is before the court the issues to be considered are:

(i) whetherthe defendantcould be lawfully convicted on the state

evidence as it stands. This is a question of law to be decided by judge(Rape –v- The State(1976)PNGLR 96).
(ii).Is there a prima evidence on all the elements of the offencefor the
court to allow the defendants to answerthe charge(Rape-v-
State(1976) PNGLR 96).
12. In PNG we don’t have a jury and judges/magistrates decide on both issues
sothere is not much distinction and the superior courts have developed a
further discretion on the judgeto exercise that is to consider whether
(based on the evidence, conduct of state prosecutor,conduct of state
witnesses and conduct of the defendants)the case should be stopped
there and then to safe time and taxpayers money where the state
evidence is so discredited through cross-examination or itis so
insufficientand there is no utility in calling the defendant to answerthe
charge and this discretion must be exercised sparinglyand in hopeless
cases only(Rape –vs- The State(supra), The State –v- Roka Pep(1983)
PNGLR 19 State-v- Kuriday(1981) PGNC 28 & State -v- Michael(2014)
PGNC 122).

STATE CASE.
13. Police called four (4) witnessesand closed their case. Police evidence briefly was that the Defendant was seen at the roadblock set up by youths at
Esauka,Nagamiufa road, Eastern Highlands Province to threaten and collect money from passengers and/or vehicles passing through it. When police came on the scene,the youths responsible for the roadblock ran away and the defendant ran away too and police gave chase and caught the defendant and two others in the bush nearby. Others escaped through the coffee garden and into the bushes. The defendant and two others were trapped by legume plant(which is usually referred to as Kom grass because one can use it to comb one’s air) and were struggling to release themselves and escape when they were caught. Police who gave chase were also trapped by the legume plant but they managed to get through and catch the defendant and two others. A sling shot and a knife which were found at the location of the alleged roadblock was tendered into court as exhibit.

14. The information and/or charge against the Defendant reads (and I quote):
PAPUA NEW GUINEA.
District Courts Act Chapter 40

INFORMATION.C/B Below
THE INFORMATION of Dickson Pitoi Police Station, Goroka Papua New Guinea a constable laid this 7^th day of February 2018, before the undersigned Magistrate of a District Court(upon oath) says that on the 30^th day of January 2018 at ------------------- in Papua New Guinea --------------- aged ---------of ---------village ------------------ sub-Province Eastern Highland Province

Name CB Age Village Sub-District Province.
George Lumae 192/18 23yrs Nagamiufa Goroka Eastern
Highlands Province,
‘’Did intentionally and without lawful authority with intent to demand the payment from Travelling Public to cause or threaten to cause injury to any person’’

Thereby contravening to section 8(a) of the Protection of Transport Infrastructure Act.
Signed
Laid/Sworn before me day and year first above mentioned at Goroka in Papua New Guinea. (signed by Mr Kaumba)
-----------------------
Magistrate.

Note: The charge is defective in that it did not mention road block and its
location.

15. The elements of the charge against the defendant are:
1. A person
2. who intentionally, recklessly or without lawful authority,
3. obstructs, hinders or otherwise prevents the lawful entry and departure
of
4. any person, vehicle, vessel or aircraft
5. to and fromany transport infrastructure.

16.At this stage evidence cannot be weighed, that is left until all the evidence
is in so I had a birds eye view of the state evidence and the following are
myfindings are: (i)There is no evidence of the person and/or vehicles that
wereobstructed, hindered or prevented fromentering and departing from
Nagamiufa road in court. In other words the vehicle and/or persons that
were alleged to have been obstructed or hindered or otherwise prevented
from entering and departing fromNagamiufa road were notproperly
identifiedby the state witnesses.The third witness for the State who was
called to give evidence on the second day of trial, gave a detailed evidence
on the road blocks, the apprehension of the defendant e.tcand tried to
identify some vehicles that were subjected to the illegalactionsof those
who put up roadblocks to get money from members of the travelling public
byuse of threats, intimidation and harassmentbut his evidence is not
corroboratedby the first, second and fourth witnesses.He did notproperly
identifythe vehicles by its colour, type , registration number and the
owners name. Hence the court is left in the dark as to the identity of the
complainant(s)or the victim(s) in this case. If it is the road users at the
materialdate and time then no one has come forward to give evidence
against the defendant.
Police say they receivedcomplaintsfrom members of the public including
aPMV bus but they have not produced those people in court to give
evidence against the defendant.
The stateas acorporate body representing the citizens of Papua New
Guinea is a victim too but no one representing the state like the Manager
National Works Department Goroka and/or Manager Provincial Works
Unit Goroka were called to give evidence for the statein relation to the
collapse of the bridge between Okiufa and Auto Market and the status of
theNagamiufa road etc.
(ii). There is no evidence produced by the state to show that the
defendantintentionally or recklesslyput up the alleged road block.
A person from the location of the alleged roadblockwas not called to
prove that the defendant was involved in puttingit up.It may hard to get
the Defendants tribesman to give evidence against him but police have
noexcuse because of the advancement in modern technology which has
made it possible for any person passing through Nagamiufa roadto take
a photo of the defendant on his mobile phone etcand give it to the
police. The police can also capture the events through their mobile
phonesetcand produce them in court but there is no evidence of such
before this court.
(iii) Intention may be inferred from the defendant’s conduct of
running awaybut that is still inconclusive because he may have been
running away for other reasons.(iv).The exhibits tendered into court
were not obtained from the Defendants custody andpossession.
Therefore this court could not lawfully convict on the evidence produced
by the State as it stands.
17. The second issueis whether the evidence produced by the State
establishes a prima facie case against the defendant.I have discussed that
under issue 1 above and it is not necessary to consider this issueagain
here but to restate my finding that there is noprima facie evidence on
element4 of the charge that is in other words there is no
complainant(s) and/or victim(s) in this case to let the case go to trial.
18. One may argue that this court can take judicial notice of the fact
thatthe Gouloka river washed awaythe foundations of the bridge
betweenOkiufa and Auto Market Goroka EHP causing the same to fall
thereby cutting off the Okuk Highway and road users resorted to use the
Nagamiufa road and youths from the Nagamiufa and Asariufa villages
took advantage ofthe situation to put up illegal roadblocks to demand
payments from the travelling public before allowing them to pass
throughbut this court cannot generally convict the defendant basedon
hearsay andnews reports. Thiscasemust be determined on its merits
and evidence of the defendants involvement in the commission of the
offence.
Circumstantial evidence like news report can be looked at but the state
has not produced those circumstantial evidence to the courtand make
submission to the court to look atthose circumstantialevidence too.
19. In summary the law places the onus onthe stateto prove all elements of
the offenceagainst the defendant beyond reasonable doubt and the
evidence of the state as it stands at this stage is insufficient to establish a
prima facie case for the Defendant to be calledupon to answer the charge

OTHER FACTORS.
20.The defendant is presumed innocent until proven guilty in a court of law
(Section 37(4)(a) of the Constitution)and he cannot be called upon to
help the state prove it’s cases once he has pleaded not guilty and
maintains his plea of not guilty throughout.
21.TheDefendant has constitutional right not to give evidence against
himself(see section 37(10) of the Constitution (supra)) and if he decides
not to give evidence then we cannot force him to give evidence and it will
be a waste of the courts time and taxpayers money to allow the
defendant to answer the charge.
22. One other factor that the court is also mindful of in deciding whether
to call the defendant to answer the charge against him or notis the fact
thatsection 8 (a) of PTIA relates to a situation, circumstanceor scenario
where a person,vehicle, aircraftor vessel is obstructed, hindered or
otherwiseprevented from entering a transport infrastructure and
departing from the same in pursuance of a claim of right.
23. This section will apply to a situation where landowners block off a
wharf or airport intentionally to obstruct, hinder or otherwise
preventpersonsor vehicles, aircraft or vessels entering it anddeparting
from the same to claim compensation for the land on which the
transport infrastructure is located. This view is reinforced by
Subsections (2) and (3) of section 8 of the PTIA(supra).
24. Here the defendant is alleged tohave obstructed, hindered or
otherwise prevented persons from passing through a public transport
infrastructurethat is the Nagamiufaroad but it was not done
by landowners to claim compensation for the land on which the road
is located. The roadblocks were set up by youths to obtain money from
road users by use of threats, intimidation and harassment for their own
use. The blockade was not a complete blockade of the Nagamiufa road
fromMarasin bridge toOkiufa.Hence the facts donot support the
charge.
25.The defendant should have being charged under section 8(b)
of the PTIA(supra) or be charged for extortion under sections 389,390,
390A and 391 of the Criminal Code(whichever is appropriate) and not
under section 8(a) of the PTIA.
26. I have power to amend the information and the charge under sections
32 and 33 of the DistrictCourt Act but Icannot do it now because of the
reason advancedherein-above and others I intend to go through
herein-after.
27. The Defendant was taken into police custody on the 30^th of January
2018 but he was not charged immediately.
28. Hewas charged 2 days or several days later by Criminal Investigation
Divisioninvestigation officer Dickson Pitu and was brought to court on
the 7^th of February 2018 that is about 6 days and the charge he was
charged with is defective in that the location of the roadblock and
information on the roadblockis missing from the charge.
29. He was held in custody without charges for some time and that is in
violation of his right to freedom under sections 32 and 42 of the
Constitution.
30. On the 30^th of January 2018 six individuals were arrested and in the
processof taking them to court by police, three(3) defendants(one a
juvenile) escaped from police custody under suspicious circumstances
andpolice have noreasonable explanation for it.
31. The Prosecution has failed to tender the defendant’s record of
interview to the court for consideration.
32. In the final analysis the Police have shown a lazy and don’t care
attitude to the prosecution of this case and the delay is in breach of the
defendants constitutional rights, waste of courts time and it is
prejudicial to the defencecase.Hence I could have dismissed this case
when prosecution failed to turn up to prosecute the case on two
occasions earlier when thedefendant were supposed to be tried but I
did not do it because the defendant was charged with a serious offence
andI wanted him to be tried and face the full force of the law if
convicted.
33. However the state evidence as it stands is insufficient and the defects
in the information and charge are obvious.
34. Due to the foregoing considerations the defendant has no case to
answer and the charge against him be dismissed and he should be
acquitted forthwith.

ORDER.
36. The formal orders of the court are:

1. The charge is dismissed.
2. The Defendant isacquitted.
3. The defendant’s bail monies be refunded to him forthwith.
4. All the court exhibits shall be returned to owners after the expiry of
30 daysfrom the date of this order.
Lawyer:
Informant :Nil.
Defendant :Nil.