Police v Bone [2020] PGDC 35; DC5022 (29 September 2020)

DC5022

PAPUA NEW GUINEA

[IN THE WAIGANI DISTRICT COURT OF JUSTICE
SITTING IN ITS COMMITAL JURISDICTION]

Committal Nos. 993-994 of 2019

BETWEEN

POLICE
Informant

AND

WANPIS BONE

Defendant

Port Moresby: T. Ganaii
2020: 29^th September

COMMITTAL PROCEEDINGS – One count of Abuse of Office, contrary to section 92 (1) of the CCA- One count of Deprivation of Liberty, contrary to section 355 (a) of the CCA – Police Officer’s unlawful detention without arrest of suspect now victim– Police Officer’s use and keep of victim’s phone without a charge

COMMITTAL PROCEEDINGS – Legal requirements for prima facie case - Presence of the elements of the charges - Elements of charges are present in the Police case – Police officer’s Detention of a suspect without arrest amounts to unlawful detention - Evidence is prima facie sufficient to commit the defendant to stand trial in the National Court on one count of Abuse of Office, contrary to section 92 (1) of the CCA and one count of Deprivation of Liberty, contrary to section 355 (a) of the CCA

COMMITTAL PRPCESS – Phase two of committal process - Section 96 statement was explained and administered
Akia v. Francis PGNC 335, N6555
Maladina v Principle District Magistrate [2004] (25/06/04) Injia DCJ
Regina vs. McEachern [1967-68] PNGLR 48
State v Benny Buen Iga [1990] PNGLR 146, N839,
State v Miriam Hevelawa (No. 1) (2017) N6815
State v Songke Mai and Gai Avi [1988] PNGLR 56
Yarume v Euga [1996] PGNC 24, N1476

Overseas Case
Barca v The Queen [12] [1975] HCA 42; [1975] 50 ALJR 108 at p.117.

References
Hill E R Powles G; Magistrates Manual of Papua New Guinea, Lawbook Co. (2001). Sydney NSW 2009.

Legislation
Criminal Code Act Chapter 262
District Court Act, Chapter 40

Counsel
Police Prosecutor: Constable Shelian Pius For the Informant
Mr. David Kayok, Lawyer, Public Solicitors For Defendant:

RULING on SUFFICIENCY of EVIDENCE

29^th September 2020
Introduction
Ganaii, M. This is a ruling on whether there is a prima facie case made out within the meaning of s.95 (1) of the District Courts Act (DCA), after the receipt of all the evidence offered by the police prosecution in the form of the Police Hand-up Brief and after consideration of the defendant’s statement under section 96 of the DCA. The court is tasked to determine whether on the evidence as it stands at this stage of the proceedings, there is a prima facie case sufficient to commit the defendant to stand trial in the National Court.

2. The court had administered section 96 of the DCA and considered the defendant’s section 96 statement.

Charge
3. The defendant a Probationary Constable of Police Mr. Wanpis Bone is charged with one count of Abuse of Office under section 92 (1) of the CCA and one count of Unlawful Detention under section 355 (a) of the CCA.

Statement of Facts
4. Police allege that on the 28^th of January 2019 the defendant Mr. Bone was at Gordons, National Capital District. The victim, Francis Ranny, a school student seeking enrollment at Gordons Secondary School was also there with a school mate. The victim had a mobile phone he had bought from someone he knew. The defendant was on foot beat patrol with another police officer.

5. When the defendant saw the complainant with the phone he approached the victim, grabbed his right hand and ordered that the victim give him the phone. At the same time the defendant forcefully grabbed and pulled the phone off the victim’s hand and commanded him further to get onto the police dyna truck. The defendant took the complainant to the Gordons Police Station. At the Police Station the complainant was led into an interview room. When inside, the accused got the phone form the complainant. He didn’t make any formal Occurrence Book (OB) entry before he locked the complainant in the cell. He then went outside and started using the complainant’s phone to take snaps shots. As a result, his actions were considered a breach of the strict rule under the management of OIC Cells Dominic Benjamin. The complainant was detained overnight till the next day without a charge or without formal OB entries. He was released by the oncoming shift members due to illegal detention. After the complainant was released, he returned to the Gordons Police Station and enquired about his phone. His phone was retrieved from the defendant and returned to him.

Issue (s)
6. The issue is whether a prima facie case is made out. This requires the court to determine whether the evidence received from the Police Hand-up Brief is sufficient to warrant the committal of Mr. Bone to the National Court for trial.

7. The sub-issue is whether there is sufficient prima facie evidence on each of the elements of the offence of Abuse of Office under section 92 and Unlawful Detention under section 355 (a) of the CCA?

The Law:

The Law on Committal Proceedings

8. Part VI of the DCA provides the legal basis for committal proceedings specifically under sections 94 -100 of the DCA.

9. The Committal process whilst it requires the court to make a finding on the evidence presented by the police, this process is administrative in nature in that the court need only to form a view that there is a bona fide prima facie case against the defendant as per the case law of Akia v. Francis PGNC 335, N6555 and R v Mc Eachern [1967-68] PNGLR 48

10. In the matter of Maladina v Principle District Magistrate¹ Injia DCJ (as he then was) expressed his opinion that the Committal process involves two phases: the first is when the Magistrate "receives" or "hears" evidence offered by the prosecution only, considers the evidence, and decides whether the evidence "is sufficient to put the defendant on trial." If the Court is of the opinion that there is insufficient evidence, the Court discharges the defendant on the information. That is the end of the matter. If the Court is of the opinion that the evidence is sufficient to put the defendant on trial, then the Court proceeds with the examination of the defendant under s.96.

11. Phase two is the examination of the defendant by the Magistrate under s.96. The prescribed wording of s.96 statement, which the Magistrate puts to the defendant, is part of that provision. The statement implies that the defendant has "heard" the evidence for the prosecution, which the Magistrate has considered, and made his decision under s.95. The Magistrate gives the defendant an opportunity to give evidence and to say anything in relation to the charge, if he so wishes to.

12. Furthermore, in the case of Yarume v Euga [1996] PGNC 24, N1476 the National Court said in respect to committal hearings that the process of committal requires proper and reasonable assessment of the evidence with a view to seeing whether all the elements or ingredients of the offence is present before the defendant can be committed, sections 94B, 94C, 95 and 100 to be read together.

The Law on the Offending Provisions:
13. The law on the offending provisions read:

92. ABUSE OF OFFICE.
(1) A person employed in the Public Service who, in abuse of the authority of his office does, or directs to be done, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanour.

Penalty: Subject to subsection (2), imprisonment for a term not exceeding two years.

(2) If an act prohibited by subsection (1) is done, or directed to be done, as the case may be, for purposes of gain, the offender is liable to imprisonment for a term not exceeding three years.

355. Deprivation of liberty.

A person who unlawfully—

(a) confines or detains another in any place against his will; or

(b) deprives another of his personal liberty,

is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

Elements of the Offence
14. The elements of the offences are:

Abuse of Office

Case Law: The State v Miriam Hevelawa (No. 1) (2017) N6815:

1. A person
2. On a date
3. At a place
4. Employed in the public service
5. In abuse of authority of his office
6. Does or directs to be done
7. Any arbitrary act and
8. Pre-judicial to the rights of another.
   

Unlawful Detention

1. A person
2. who unlawfully
3. confines or detains in any place and
4. another in against his will
   

Police Case
15. The Police case comprises the following witnesses' statements:

1. Francis Ranny – This witness is the complainant. He stated that on the 28^th of January 2019 at Gordons Market, the defendant approached him and ordered him to surrender his phone. It was not a stolen phone and he had bought it from a friend. He was taken to the police station by the defendant and detained overnight without a formal arrest and charge. The defendant used the complainant’s phone to take photos.
   
2. William Maku – This witness was the victim’s school friend. He was with the victim when the police approached them and took the victim away. He alerted the victim’s parents.
   

100. Makaenge Jerry– This witness is the person who sold his phone to the victim. He states that the phone was his and did not indicate that it was stolen.
     

4. Pia Anderson – This witness is a police officer. He was on duty at the Gordons Police Station when a relative of the victim went to the Police station to check on the victim. That prompted him to check on the case history of the victim. He discovered that there was no Occurrence Book (OB) entry and formal arrest made on the victim. Consequently, he was advised by the OIC Cells Benjamin Dominic to release the victim because there were no OB entries and formal arrest made before lock up.
   
5. Benjamin Dominic– This witness is the OIC Cells Gordons Police Station. He states that he is aware of rogue policemen who detain persons unlawfully for personal gain. As such and as OIC Cells, he arrived on the morning of the 29^th of January 2019 (a day after the victim was detained) to check the cells and ensure persons were lawfully detained and to be transferred to Boroko or for processing of formal arrest and charge. He states that it is a strict guideline that in his line of duty as OIC Cells that any suspects held without a formal OB entry is deemed unlawfully detained and under suspicious circumstances. Hence, after discovering that the victim was unlawfully detained without an OB entry, he instructed witness Pia Anderson to make a formal OB Entry and release the victim which Pia did. He suspected that the defendant may have robbed the victim of his personal property and also that the defendant expected that he being the OIC Cell would release the victim the next day (which was the 29^th January 2020) as he normally would do.
   
6. Silas Kuaino (police officer) – Witness was a Police Cadet Officer on training and attached to the Gordons Police Station. He obtained the statement from the victim after learning from other officers of what had happened to the victim and also upon learning that the defendant usually and unlawfully would detain suspects and steal from them. He then reported the matter to the Police Station Commander SIP John Tanur. PSC Tanur then directed a minute to the defendant. The witness asked the defendant to return the phone belonging to the victim when he (defendant) stated that the phone was at his house and he would bring it later which he did. Witness then handed all statements he had obtained to the Admin Sergeant Simon Kuruma and returned to Bomana Training College.
   
7. Samuel Turi – Witness is a police officer who received the phone from the defendant and returned it to the victim.
   
8. Camilus Degemba – This witness police corroborator in the police interview with the defendant.
   
9. Kerry Kaman – This witness is the police case investigator who investigated the case and conducted the police interview on the defendant.
   

Document evidence:
16. The Police case relied on the following documentary evidence:

a) Record of Interview (ROI) in English language (Pidgin version is not attached).

The ROI is relevant for showing that process involved in the interview is fair and proper and that Constitutional Rights were administered. . It also shows whether or not the admissions were made and if made that they were made voluntarily. In this present case, the defendant does not deny apprehending the victim, locking him and taking his phone. He denied the allegations that he detained the victim unlawfully in order to take and use his phone.

2. Photographs depicting
   
   • Complainant in cell and
     
   • Police truck that took the complainant to the Police station where he was detained
     

100. Antecedent Report - The report is irrelevant at this time and is not considered by this court in its present function.
     

Defence Submission
17. Defence submitted as follows:

1. The victim’s account of what transpired on that day is not true. When the defendant approached the victim and his friend his friend ran away. That made the defendant and his colleagues suspicious and so they apprehended the victim. The defendant and his colleagues were doing their normal police foot beat patrol when they came across the victim;
   
2. The defendant detained the victim so that he would later formally arrest and charge him;
   

100. Statement of William Maku is inconclusive as he was not there and didn’t see what happened to the victim after he was apprehended;
     

4. Statement of Makenge Jerry is not reliable and not true. This witness is likely to have stolen the phone that he then sold to the victim for K200;
   
5. Witness Anderson Pia who is a police officer and according to the defendant is a relative of the victim who released the victim even before the defendant returned to make the formal arrest.
   

18. On the exhibits, defence submitted that:

6. It is standard investigations procedure that the police file should include photographs of the crime scene. There is none in this case and so the police case lacks merits. The photographs taken of the victim in the police cells were done after the case was being reported and investigated and not at the time of commission of the alleged offences. The photographs are inconclusive and do not show evidence that supports the police case that the defendant committed the alleged offences.
   
7. The defendant maintained his innocence by stating that he was to return to lay formal charges but he discovered that the victim was released.
   

Prosecution Submission
19. The prosecutions did not make any submissions but asked the court to consider the evidence in Police Hand Up Brief and rule.

Assessment of the Evidence in the light of the Law
20. The issue is whether a prima facie case is made out. This requires the court under section 95 (1) of the DCA to determine whether the evidence received from the Police Hand-up Brief is sufficient prima facie to warrant the committal of Mr. Abone to the National Court for trial. That is whether there is sufficient prima facie evidence contained in the Police Hand-up Brief on each of the elements of the offences of Abuse of Office under section 92 and Unlawful Detention under section 355 (a) of the CCA respectively.

21. This is the Court’s response to the defence case. Where the Defence submitted that:

1. The victim’s account of what transpired on that day is not true, the court’s response is that these are matters for trial proper on the issue of credibility of witnesses. The trial court is the appropriate court to decide whose version is credible and admissible. It is not the function of this court to do so. For now, this witness gave prima facie sufficient evidence that he was apprehended, detained without a charge and that his phone was used by the defendant;
   
2. The statement of police witness William Maku is inconclusive as he was not there at the time when the victim was apprehended and didn’t see what happened to the victim after he was apprehended. The court’s response is that anything he says that happened after he went away would be hearsay and can be rejected by the trial court. For now, his evidence on what happened when he was with the victim up until the moment he left the scene is acceptable and corroborates the victim’s story in that regard;
   

100. The statement of police witness Makenge Jerry is not reliable and true because this witness is likely to have stolen the phone that he then sold to the victim for K200, the court’s response is similar to above where the court said that the truth or otherwise of a witness’s story is a matter for trial proper. For current purposes, this court accepts that this witness’s story prima facie makes out the Police case that the phone was not stolen property, that the defendant without reasonable excuse unlawfully detained the victim;
     

4. The police witness statement of Anderson Pia who is a police officer should be rejected as he is a relative of the victim and he released the victim even before the defendant returned to make the formal arrest, the courts response again is that these are matters for trial proper on the truth or otherwise of his story.

22. On the exhibits, where the defence submitted that:

1. it is standard investigations procedure that the police file should include photographs of the crime scene. Since, there is none in this case the police case lacks merits and
   
2. where the photographs taken by of the victim in the cells were done after the case was being investigated. The photographs are inconclusive and do not show evidence that the supports the police case that the defendant committed the alleged offences
   

the court responds by saying that the photographs were taken during investigations and can be explained further at trial proper. For now it is accepted prima facie that the photos depict the crime scene where the alleged detention and abuse of office offences occurred.

100. In the ROI, the defendant maintained his innocence by stating that he was to return to lay formal charges but he discovered that the victim (suspect) was released, the court’s response is that this a matter for trial proper and for the trial court to decide on whose story to believe based on credibility. For now, the court accepts that the ROI contains the defendant’s defence of general denial against all other police evidence that points to a prima facie case against him.
     

Analysis of evidence and consideration of defence submissions

23. The evidence collated and presented to court by the Police against the defendant in the form of 09 witnesses’ statements and 02 x documentary evidence are in support of their assertion that the defendant did commit the offences alleged.

24. On prima facie assessment of the elements of the charges, the following is said, that:

1. There is no issue on identification. The Police still have the onus of proving all the elements of a charge including identification. The defendant was positively identified by the victim and police officers;
   
2. The defendant denied the allegations of unlawful deprivation. In his defence, he states that he was to return to lay the formal charges when he found out that the victim was released. There is prima facie sufficient evidence of him detaining the victim unlawfully which is without a formal charge.
   

25. In the case of The State v Benny Buen Iga [1990] PNGLR 146, N839, the court (Doherty, AJ) adopted the statement I summarised to say that ‘any detention without an arrest is unlawful’. The court stated that:

“The provisions of s 42 (2) of the Constitution in relation to detention were considered at great length in SCR No 5 of 1987; The State v Songke Mai and Gai Avi [1988] PNGLR 56. In that case, Kidu CJ stated (at 60-61):

"... the terms 'arrested' and 'detained' (or 'arrest' and 'detain') in ss 42 (2) (3) (5) and (6) mean total deprivation of personal liberty - they are two different forms of deprivation of personal liberty. And the deprivation must be legal. There cannot be any legal deprivation of personal liberty outside s 42 (1)."

And further (at 61):

"It is apparent, in my view that s 42 (2) allows the police to detain a person without arresting him if the police suspect he has committed an offence or is about to do so. The condition of this right to detain without arrest is that an Act of Parliament ... must provide for it ... At present I am not aware of any statute, which permits a police to detain a person suspected of having committed an offence or being about to commit an offence without arresting him."

26. Doherty AJ further stated that:

“The Supreme Court clearly states there is no Act of Parliament, which permits detention and there is no right to detain, short of arrest. I referred counsel to the few jurisdictions where such detention is legal (eg South Africa or Northern Ireland in the Prevention from Terrorism Act of that country).

Since there is no right to detain and since there is no evidence before me that the defendant or any of his fellow villagers were actually arrested and charged with a criminal offence, I consider that the detention and separation of the defendant and his fellow villagers was illegal and wrong. I consider that this constitutes a breach of his and his fellow villagers' constitutional rights. I say this even though the evidence before me was that the defendant and his fellow villagers agreed to accompany the police and (as Wali said) "hopped on the vehicle". This may have been from an ignorance of the law or respect for authority”.

27. Since there is no law that permits detention without arrest, the practice that has been happening whereby the Police are detaining suspects without charges , there has been a lot of abuse and police impropriety. The courts have a role to play to ensure that persons whom evidence warrants must face the full force of the law. In this present matter, there is prima facie sufficient evidence that the defendant acted unlawfully under the circumstances.

28. The defendant denied abusing the authority of his office as a police man. He denies doing an arbitrary act which is detaining the victim and taking his phone for his personal use therefore his actions are prejudicial to the rights of the victim. The court accepts that there is prima facie sufficient evidence that he did use his authority as a police officer to get the victim’s phone, use it as his own, take it away and keep it at his home before he was told to return it. Further, the court also accepts that there is prima facie evidence that the defendant locked up the victim in the Police cells without a formal charge per case of State v Benny Buen Iga (supra) and parted with his phone without registering a formal OB entry or making a formal arrest.
29. Consequently, there is prima facie sufficient evidence on the elements of the charges of Abuse of Office under section 92 and Unlawful Detention under section 355 (a) of the CCA respectively.

Determination/Findings
30. On the relevant issue of whether or not the evidence presented in the Police Hand up Brief discloses sufficient prima facie evidence to put the defendant on trial for the offences for which he has been charged with and on the basis of the above considerations, this court as a result of the performance of its committal function as an investigator into the strength of the case being mounted by prosecution and not as an adjudicator, has assessed the evidence in totality and makes the final finding that there is prima facie sufficient evidence on the essential elements of charges of Abuse of Office under section 92 and Unlawful Detention under section 355 (a) of the CCA respectively.

Conclusion

31. I find sufficient prima facie evidence that Mr. Wanpis Bone did commit the alleged offences of Abuse of Office under section 92 and Unlawful Detention under section 355 (a) of the CCA respectively. Consequently, I form a bona fide opinion that there is sufficient prima facie evidence against the defendant in order to commit him to stand trial on both charges.

32. I make the following order:
There is prima facie sufficient evidence to commit Mr. Wanpis Bone to trial, on one count of charges of Abuse of Office under section 92 and Unlawful Detention under section 355 (a) of the CCA respectively.

Administration of Section 96
33. After the requirements of section 96 were explained to the defendant which he understood, he opted through his lawyer to write a statement. The matter was adjourned for a section 96 statement. After consideration of the defendant’s section 96 statement which was filed on the 08^th of September 2020, I consider that the defendant has raised and maintained his defence of performing police duties. My view remains the same that this is a matter for trial proper. The ruling on prima facie sufficiency of evidence is intact. The defendant’s section 96 statement is transmitted to the National Court.

Final Orders

34. The court’s final orders after section 96 statement were filed are:

1. There is sufficient prima facie evidence to c committed the defendant to stand trial in the National Court on one count of Abuse of Office under section 92 (1) and one count of Unlawful Detention under section 355 (a) of the CCA respectively;
   
2. The defendant is committed to stand trial in the National Court on one count of Abuse of Office under section 92 (1) and one count of Unlawful Detention under section 355 (a) of the CCA respectively;
   
3. The defendant is to appear at the Waigani National Court, Criminal Listings on 12^th October 2020 at 9:30 am; and
   
4. The defendant’s District Court Bail is extended on the same conditions.
   

Police Prosecution For the Informant
Public Solicitors For the Defendant