Siaoa v Mutengke [2021] PGDC 78; DC6035 (16 June 2021)

DC 6035

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]

SUM 1118 of 2021
BETWEEN

FIRST CONSTABLE EDWARD SIAOA

Informant

AND

PAUL MUTENGKE
Defendant

Lae: L Wawun-Kuvi

2021: 2, 9 &16 June

CRIMINAL LAW-CRIMINAL PRACTICE AND PROCEDURE-SUMMARY PROCEEDINGS-Admission at hearing- Possible Defence Available -Admission not plea of guilty-Procedure for taking plea from defendant who is unrepresented

CRIMINAL LAW-CRIMINAL PRACTICE AND PROCEDURE- SUMMARY TRIAL- No case to answer procedure in summary proceedings.

CRIMINAL LAW-SUMMARY TRIAL-Summary Offences Act-Offence of Assaulting a police officer in the execution of duty- meaning of “execution of duty”- removing children from parental custody-Whether it is lawful for police officers acting upon a letter from a Welfare Officer to remove children from a parent’s custody?

Cases Cited
Lawerence Wood v Wai [2020] PGDC 60; DC5051
William Sent v Cosmos Bidar (2017) SC 1582
State v Ogerem [2004] PGNC 10; N2780 (27 October 2004)
Pagawa v Mathew [1986] PGNC 45; [1986] PNGLR 154; N547 (4 July 1986)
Swann v Sul [1984] PGNC 11; N454(M) (5 March 1984)
Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PGSC 16; [1983] PNGLR 287 (14 September 1983)
Wui-Wapi v Ludwick Kembu [1980] PNGLR 7
Koimboti v Bibi [1978] PGNC 35; [1978] PNGLR 124 (1 May 1978)
Aieni v Tahain [1978] PGNC 13; [1978] PNGLR 37 (24 February 1978)
Kaspar Kumo v Raka Killian [1976] PNGLR 149
The State v Paul Kundi Rape [1976] PNGLR 96
Kakore v Sing [1975] PGSC 16; [1975] PNGLR 104 (26 June 1975)
Singere v Mugugai [1974] PGSC 46 (31 May 1974)
Mau'u v Pare [1973] PGSC 32; [1973] PNGLR 64 (1 June 1972)
Warite v Barrett [1967] PGSC 44; [1967-68] PNGLR 376 (31 July 1968)
Laeka Ivarabou v Nanau [1967-68] P&NGLR 12

Overseas Cases
DPP v Gribble [2004] NSWSC 926 (8 October 2004)
Nguyen v Elliott [1995] VicSC 28 (6 February 1995)
Director of Public Prosecutions Ref No 1 of 1993; R v K [1993] FCA 538; (1993) 118 ALR 596
Rice v Connelly [1966] 2 Q.B 414
Henderson v O’Connell [1937] VicLawRp 2; [1937] VLR 171

Legislation
Lukautim Pikinini Act 2015
Search Act 1977
Summary Offences Act

Reference
N.K.F O’neill and R.N Desailly ,The Criminal Jurisdiction of Magistrates in Papua New Guinea New South Wales Institute of Technology Sydney,1982

Counsel

Police Prosecutor First Constable Emma Waliu

Defendant Self Represented

16 June 2021

RULING ON NO CASE TO ANSWER

L Wawun-Kuvi, Magistrate:

1. The prosecution has closed its case. I now proceed to apply the no case process so as to make a determination whether the defendant has a case to answer. This is because Paul Mutengke is unrepresented.^[1]
2. Before proceeding onto my ruling, it is important for me to set out how this matter reached this stage. The reason being that the defendant admits that he assaulted the police officer.

Background

3. On arraignment, the defendant admitted that he assaulted the police officer. I then asked the defendant to give a short explanation of what he meant when he said “it’s true”.
4. The Defendant proceeded to explain that he was at home when police officers arrived. They told him that they were there to take his children. He told the officers that they would have to kill him before they took his children from him. He fought with his brother in law and then hit the police officer. I further asked whether he was shown a Court Order or a Child Search Warrant. He said he was not shown one. I proceeded to enter a Not Guilty plea.
5. The Not Guilty plea was entered based on the legal issue of whether the police officer was acting in the execution of his duty.
6. The law on this process in set out in detail in various cases. It is settled law that in cases where a defendant is unrepresented, it is incumbent on the Magistrate to determine whether the plea is unequivocal.^[2]
7. Kapi CJ (then), in Pagawa v Mathew [1986]^[3] held that “an unequivocal plea of guilty is not a plea of guilty at all.” In that case, when the defendant was arraigned he explained his reasons for entering Papua New Guinea illegally. The Court on appeal said that there were valid defences raised in his statement on arraignment and the Magistrate should have entered a Not Guilty plea and heard the evidence. His Honour in concluding referred to the case of Laeka Ivarabou v Nanau [1967-68]^[4] and urged magistrates to read the case and familiarise themselves with it when determining the plea of an unrepresented defendant.
8. In Koimboti v Bibi [1978]^[5] Kearney J stated that “The proper procedure for a magistrate (or a judge for that matter) to adopt when there is a plea of “Guilty”, has been laid down quite clearly by the court; see Laeka Ivarabou v. Nanau... He has to decide whether it is safe to accept the plea. So first he accepts it, provisionally. Then he learns about the facts of the case, normally, as here, by the police reading out a “statement of facts”. If that discloses nothing to throw doubt on the correctness of the plea of “Guilty” he accepts it, finally, and convicts the defendant.
9. In Kakore v Sing [1975] PGSC 16; [1975] PNGLR 104 (26 June 1975), the Supreme Court in relying on Laeka Ivarabou v. Nanau(supra) held that a plea of Not Guilty should be entered when there is doubt as to the admissions and that the defendant had no reasons for doing what he did. It was further held that the proper process especially in the case of an unrepresented defendant, is to put each element of the offence to the defendant and get his response.
10. Laeka Ivarabou v. Nanau(supra) is said to establish the process for obtaining a plea from an unrepresented Defendant. In that case, an elderly man appeared on a charge of assault. He was unrepresented. When the charge was put to him, he admitted but went on to give an explanation that raised the defence of provocation. The Magistrate went ahead and entered a guilty plea and sentenced him. On appeal it was held that the decision to convict was a nullity and the appeal was allowed. Frost J said that in cases of Papua New Guineans who were unrepresented:

“It is rare in Papua New Guinea for a defendant simply to plead “guilty” or “not guilty”. The defendant usually admits or denies the elements of the charge. In this case when the defendant admitted that he struck the complainant, the learned magistrate was not in possession of sufficient facts to determine whether the defendant had unequivocally pleaded guilty to the charge. He should have then heard the substance of the defendant’s version before entering a plea. When the defendant went on and gave his explanation, from which it appeared that the defence of provocation arose on the facts, it was not open to the learned Magistrate to enter a plea of “Guilty” and he should have proceeded to try the matter.”

11. It is unfortunate that the circumstances alluded to by Frost J in 1967 have not changed much. Our people are still very much confused by legal processes today as they were in 1967.
12. It is therefore evident from the preceding cases that the appropriate course for Magistrates when taking a plea from an unrepresented defendant is to:
    • Put each element of the offence to the defendant and obtain his response.
    • Enter a provisional plea and allow the prosecutor to read the facts.
    • Then allow the defendant to make a short response to the facts.
    • Not conduct an exhaustive enquiry but a short one by asking sufficient questions to determine whether the plea is unequivocal.
    • Enter a Not Guilty plea where there is still doubt and proceed to trial.
13. Having applied that process and proceeding to trial, I am now to decide at the close of the prosecution case, whether the prosecution has established a prima facie case.

What is the law in relation to a no case to answer in Summary Proceedings?

14. Summary proceedings by their nature are intended to be quick. It is upon police to prove their case. In Summary Proceedings, the Magistrate must at his or her on accord determine whether the defendant should be called to give a defence. This is vitally so in the case of unrepresented defendants.^[6]
15. A Magistrate must determine whether there is evidence which, if accepted, would provide evidence of the elements of the charge. And even if there is such evidence, it may be so lacking in weight and reliability, that it is open to the Court to dismiss the information, see The State v Paul Kundi Rape [1976] PNGLR 96.
16. The decision is founded on an exercise of judicial direction, as the judicial officer has already heard the evidence, and it upon him or her to allow the matter to continue or not, see Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PGSC 16; [1983] PNGLR 287 (14 September 1983).
17. Most refer to the no case as having two limbs, however in light of the decision of Re Pep (Supra), it is noted that there are three:
    1. Where there is no evidence
    2. Where there is very little evidence
    3. Where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.
18. The three are separate and should not be invoked at the same time as forming the basis of the submission nor should judicial time be wasted when the prosecution case does not fall into one of the three legs.

Does the present case fall into one of the three categories?

19. Yes. It falls into the second category.
20. There is no dispute in relation to the assault. However, it serves no purpose to call the defendant to give evidence when he does not dispute the factual basis of the charge. The issue is a legal issue that the prosecution must prove on their evidence on the required standard.

The Issue

21. Whether or not Constable Ross Hariki was executing a duty?

The Prosecution Evidence

22. The prosecution called First Constable Edward Siaoa. He is the arresting Officer and was also present on the day. He is attached with the Sector Response Unit. He says that he and his unit were given a letter by a Welfare Officer asking for police assistance to retrieve two minor children.
23. The mother of the children and her brother got in the police vehicle. They drove to the residence of the father, now identified as Paul Mutengke. As they approached the house, the mother directed the officers towards Paul Mutengke.
24. They stopped the vehicle and he called Paul Mutuengke over. Paul Mutuengke walked over to the police vehicle. First Constable Siaoa explained to him that the welfare officer had given a letter which says that he had to give the children to the mother. And that later he and his wife would resolve their family issues at the welfare office.
25. Paul Mutengke told him that they (the police officers) would have to kill him before they take his children from him. Constable Siaoa explained to him that they did not want to hurt anybody or cause any problems; they were there simply to collect the children and hand them over to their mother.
26. As Paul Mutengke was speaking, he sighted his brother in law in the back of the police vehicle. This agitated him and he went to the back and pulled his brother in law out of the police vehicle. He started fighting with his brother in law. While he was assaulting his brother in law, Constable Hariki intervened and attempted to stop the assault. Paul Mutengke then turned around and proceeded to throw a punch at Constable Hariki. Constable Hariki blocked the punch with his hand. When the father realised that he had struck Constable Hariki he stopped fighting.
27. That is the act in which police alleged forms the basis of the charge of assaulting a police officer.

What duty was Constable Hariki performing?

28. Factually I cannot ignore the circumstances which preceded the striking of Constable Hariki’s hand. From the evidence of First Constable Sioai, the defendant was not under suspicion of committing an offence nor was he being arrested or searched in connection of a suspected offence. As a father, he could not have been expected to sit ideally by and watch as his brother in law and his estranged wife aided by police officers, take his children without legal basis; it is evident that Paul Mutengke knew that his brother in law had no legal basis to take his children and defended his home.
29. This case must be considered in its totality. The question I find that needs to be answered is, were the officers lawfully permitted to take Paul Mutengke’s children?
30. Before I can answer that, I must define the term “acting in the execution of duty”.

What is execution of duty?

31. In Rice v Connelly [1966]^[7] Lord Parker CJ said:

“It is also in my judgement clear that it is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or from protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least those and they would further include the duty to detect crime and to bring an offender to justice.”

32. In Director of Public Prosecutions Ref No 1 of 1993; R v K (1993)^[8], the Full Court of the Federal Court of Australia dealt with the question, whether police officers were acting in the execution of their duty. The case of Rice v Connelly (supra) was reviewed. It was observed that that the section creating the offence of assaulting a member of the Federal Police in the execution of his duty should not be exhaustive. That section mirrors section 60 of the Summary Offences Act. The Full Court said at page 601-

“Section 64 should not be construed in any narrow or restrictive sense, but should be given a broad operation to protect the performance of all police duties and not just some. The section is general: “in the execution of his duty”. That means that the section applies whenever the police officer is doing something which can fairly and reasonably be regarded, giving the existing circumstances, as carrying out his duty. The generality of the section is further confirmed by the consideration that it attempts to cover a very wide range of possible interferences with the work of the police officer: assault, resistance, obstruction, or hindrance, or aid indictment or assistance in relation to any of those things.”

33. In DPP v Gribble [2004]^[9], the Court upheld the appeal and found that two police constables were acting in the execution of their duty when they removed a man who was wearing dark clothes and standing in the middle of the road. The duty involved the preservation of the man’s wellbeing as well as other road users. The Court adopted the definition in Director of Public Prosecutions Ref No 1 of 1993; R v K (supra) to give a wide interpretation to the term “acting in the execution of duty”. The Court further referred to R v K where the Full Court said at page 601:

“...a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act for as long as he is engaged in perusing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein.”[Emphasis mine]

34. In is clear from the principles that for an officer to be said to acting in the execution of his duty he must be performing a lawful task.

Was there lawful basis to take the children from parental custody?

35. No.
36. In considering the definitions given in the preceding paragraphs, I am of the view that Constable Ross Hariki, First Constable Siaoa and other police officers present on the relevant day were acting outside their duty. Whilst a wide interpretation is given it is clear from reading the statements in R v K that the police officers must embark on a lawful task connected with the functions of the police officer.
37. To fully appreciate this one must break down the separate roles of the police officers and the welfare officer as it relates to child custody.
38. The relevant law is the Lukautim Pikinini Act 2015. Under the Act:

• a child is entitled to live with his parents unless the Act deems otherwise^[10];
• The parental responsibility rests with the parents. This is mandatory in law^[11];
• Where parents are deceased or physically incapable of exercising parental responsibility, it passes to a relative subject to that relative obtaining responsibility through custom, deed or will, direction from the Director of Child and Family Services or by a Court Order obtained in accordance with the Act^[12];
• A child protection officer is a gazetted officer within the Office of Child and Family Services whose responsibility is to prevent and respond to violence, abuse, neglect, exploitation and discrimination against all children^[13];
• Police Officers amongst others are required to notify the Office of Child and Family Services where they have a reasonable belief that a child is in need of protection.^[14] In addition to reporting, they are required to take steps necessary to assist the child^[15];
• On receipt of information that a child is in danger, the Office may conduct an investigation which must include a Child Protection Safety Assessment and a Safety Placement Decision^[16];
• The Director is the person who is responsible for applying for Search Warrants under the Act^[17]
• The Application for a Search Warrant is made pursuant to the provisions of the Search Act 1977^[18];
• The Search Warrant process is part of criminal investigations.^[19]Hence, a Search is only issued when a person offends against a criminal sanction imposed by the Act.^[20]
• The Director may delegate by instrument to a person or authority all or any of his powers, functions and authority under this Act and any other related Act except the power of delegation^[21];
• In any Search conducted by police pursuant to a search warrant under the Act, a Child Protection Officer must be present^[22];
• Upon execution of the search warrant and it is uncovered that an offence has occurred against the child, the child shall be removed and placed in a place of safety determined by the Director^[23]
• A Child Protection Officer or Police Officer takes charge of a child if the officer is of a reasonable belief that the health and safety of the child is in immediate danger^[24];
• The Police Officer or a Child Protection Officer may enter without a warrant, in any place where the Officer is of the reasonable belief that the health or safety of the child is in immediate danger and the person who has control and custody denies access to the child or there is no one around^[25];
• When the Police Officer or Child Protection Officer removes the child they must either take the child to a place nominated by the Director or with the approval of the Director return the child to the parents or a person designated by the parents^[28]
• In Order for another parent to remove a child from the legal custody of another parent, that parent must apply for sole legal custody under section 101.

39. Considering the law in line with the evidence that day, the following is noted:
    • The letter from the Welfare Office was not tendered as part of the prosecution case. The Court is left to assume what the contents were.
    • It can be inferred that the mother reported to the Welfare Office however, if indeed that was the case and had the children been in mortal danger, the procedures in the Act were not compiled with.
    • The Officers did not form a view that the children were in immediate danger, rather they were requested by a welfare officer to assist a mother retrieve her children.
    • The Officers did not have a warrant or Court Order to remove the children.
    • The father of the children whose parental custody was not removed, told officers that they would not take his children.
    • There is no evidence that the children’s health or safety were in immediate danger;
    • There was no Child Protection Officer present or even an officer from the Office of Child and Family Services.
40. It is clear that the officers had no lawful purpose approaching Mr Paul Mutengke that day and they had no lawful authority to order him to give up his parental responsibility.
41. When Mr Mutengke told officers that they would have to kill him before they take his children that should have been the que for officers to leave his premises.
42. This then raises the next issue which I now deal with.

Was the police officers presence on the premises lawful?

43. No.
44. It appears to be settled law, when a police officer enters private premises –
    1. A policed officer has no right to enter premises except in strict compliance with authority or power given pursuant to a warrant or legislation.
    2. A police officer cannot enter premises without a warrant for the purpose of conducting an inquiry.
    3. A police officer who is a trespasser is not acting in the execution of it duty.
4. Once a licence is withdraw, by implication or express, by the occupier and the visitor insists to stay, he is deemed a trespasser.^[29]
45. In Bailey v Wilson (supra), it was found that if a police officer enters a premise to investigate an alleged domestic disturbance and is asked to leave and refuses and is subsequently assaulted, that would not be an assault in the execution of his duty.
46. Nguyen v Elliott [1995]^[30]is case on appeal in the Supreme Court of Victoria, involving the same provisions for assaulting an officer in the execution of his duty. In that case Hedigan J found that the Magistrate fell into error when he found that the officers were acting in the execution of their duty. He said::

"... it cannot be said that a police officer is acting in the execution of his duty to facilitate an unlawful search and arrest. The right of citizens to resist unlawful search and arrest is as old as their inclination to do so. The role of the courts in balancing the exercise of police powers conferred by the State and the rights of citizens to be free from unlawful search and seizure may be traced through centuries of cases."

47. In Nguyen v Elliott(supra) two police officers in civilian attire where monitoring an area known for drug dealing. They observed different people taking to the defendant but no exchange occurring. The defendant appeared to be nervous and acting suspicious. Both officers approached him and identified themselves. One of the officers pulled the defendant to the side and asked him whether he had drugs. The officer took him across the street to a lane. The defendant used coarse language and told the officer that he was tired of being searched by police. He took a martial arts stance and told the officer to search him and proceeded to kick the officer twice. The Officer punched him in the face and put him in a head lock. The second officer heard the commotion and went across and assisted his partner. They each grabbed the defendant’s hand and took him across to the police vehicle. He was placed in the police vehicle was being agitated. The officers went out to put handcuffs on him. During which, he bit the second officer’s finger. At the police station, no drugs were found on the defendant.
48. Hedigan J, in addressing instances where attempts are made by police officers to search without arresting, referred to the case of Henderson v O’Connell [1937] VicLawRp 2; [1937] VLR 171, where Mann CJ said:

At Common law, it is clear that there is no right to search a suspected person until he was been arrested and taken into custody of the law. He may then be searched for evidence (amongst other things)of the offence which he has been specifically charged and the argument here is that exactly the same rule applies under this section....In my opinion that contention is correct. It is quite true that all powers of the police in arresting and searching and bringing before a justice are powers specifically conferred upon them for the purpose of obtaining evidence in respect of charges not yet laid, and it is said in those circumstances the rule against searching persons not under arrest has no application. But there is great necessity in my opinion for construing strictly the powers conferred upon the police in this respect. The power at large to search persons not in custody is one which calls for the clearest authority. It is one which almost inevitably tends to provoke breaches of the peace and is one which on the construction of this section I think the Legislature has not authorised.” [Emphasis mine]

49. The Application of these principles leads to the conclusion that the police officers were not lawfully on Paul Mutengke premises. They were not there to arrest him and they were not entitled to search his premises. This was a civil dispute regarding custody. The only power that would enable them to act in a civil case, is a Court Order directing them to remove the children. They did not have one.
50. The defendant is entitled to an acquittal on the charge of assaulting a police officer in the execution of his duty pursuant to section 60 of the Summary Offences Act. There being no right to enter upon Mr Mutengke premises and search for his children and to subsequently remove his children either at common law or under statue, the instruction for police to search for the children and the attempts to do so was unlawful. As said by Mann CJ in Henderson v O’Connell(supra) when a person is searched without proper basis inevitably it is likely to provoke a breach of the peace. And this is precisely what happened in the present case.

Was Constable Ross Hariki acting in the execution of his duty?

51. No.
52. It may be a contended that I should view it as a separate and independent event. That the presence of police officers to remove the children and the subsequent assault on Paul Mutengke’s brother in law and Contable Hariki’s intervention to prevent an assault are separate and distinct.
53. It is true that the police officers presence at the scene and the assault on Constable Hariki are independent in a limited sense. The difference is more to do with the separate facts leading to the events. The latter events, however, during which Constable Hariki had his hand struck, are not juristically distinct because at the relevant time Paul Mutengke was being questioned without basis and the police officers and his brother in law, were on his premises and attempting to remove his children without legal basis. He was defending his home and his children against intruders into his private domain. It was during this course that Constable Hariki was struck. At that point of time leading up to his assault on his brother in law he had not committed an offence nor was he was suspected of committing an offence.
54. For these reasons, I have formed the view that the element of execution of duty has not been proven on the prosecution evidence.

Conclusion

55. For those reasons I find that Constable Ross Hariki was not executing a police duty because he and other officers were not embarking upon a lawful task and were unlawfully on Paul Mutengke premises.
56. Paul Mutengke does not have a case to answer.
57. In passing, I must say the police officers acted in good faith and believed that they were doing their duty. They were not. The police officers were misguided, but the same cannot be said for the conduct of the welfare officer in sending police officers with a letter to remove children inconsistent with the governing legislation. The Officer’s action resulted in a serious breach of the rights of the children and caused them unnecessary trauma. One can only assume what sort of lasting emotional and psychological damage this may have on the children.

Orders

58. The Orders of the Court are as follows:
    1. The Information is dismissed.
    2. The Defendant is acquitted.
    3. The Defendant’s bail is refunded.
       

Lawyer for the Informant, Police Prosecution

Defendant Self Represented

---

^[1] Paragraph 2.71 Criminal Practice for Magistrates
^[2] State v Ogerem [2004] PGNC 10; N2780 (27 October 2004); Swann v Sul [1984] PGNC 11; N454(M) (5 March 1984); Wui-Wapi v Ludwick Kembu [1980] PNGLR 7; Aieni v Tahain [1978] PGNC 13; [1978] PNGLR 37 (24 February 1978); Kaspar Kumo v Raka Killian [1976] PNGLR 149; Singere v Mugugai [1974] PGSC 46 (31 May 1974); Mau'u v Pare [1973] PGSC 32; [1973] PNGLR 64 (1 June 1972); Warite v Barrett [1967] PGSC 44; [1967-68] PNGLR 376 (31 July 1968)
^[3] PGNC 45; [1986] PNGLR 154; N547 (4 July 1986)
^[4] P&NGLR 12
^[5] PGNC 35; [1978] PNGLR 124 (1 May 1978)
^[6] See Criminal Jurisdiction of Magistrates in Papua New Guinea, paragraph 2.71
^[7] 2 Q.B 414 at 419. See also Criminal Jurisdiction of Magistrates in Papua New Guinea, paragraph 4.490
^[8] 118 ALR 596.
^[9] NSWSC 926 (8 October 2004)
^[10] Section 7
^[11] Section 9(1)
^[12] Section 9 (2)
^[13] Section 36(1)
^[14] Section 38 (1) & 38 (4)
^[15] Section 38 (2)
^[16] Section 42(1)(2)
^[17] Section 43(1)
^[18] Section 43(1)
^[19] William Sent v Cosmos Bidar (2017) SC 1582 at paragraph 25-27 and Lawerence Wood v Wai [2020] PGDC 60; DC5051
^[20] Section 43(1)
^[21] Section 33
^[22] Section 43 (2)
^[23] Section 44 (1) (2)
^[24] Section 46(1)
^[25]2627 Section 46(2)(a)(b)
^[28] Section 46(3) (a)(b)
^[29] Bailey v Wilson [1968] Crim, L R 617
^[30] VicSC 28 (6 February 1995)