Police v Mesambe [2022] PGDC 16; DC8021 (2 March 2022)

DC8021

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION

SUM: 83 of 2022

BETWEEN

POLICE
(Informant)

AND

PETER MESAMBE JUNIOR
(Defendant)

Vanimo: B. Fehi

2022: 02^nd March

CRIMINAL SUMMARY: Attempting to escape from lawful custody pursuant to Section 22 (1) Summary offences Act – Application to have the Police Information dismissed and defendant discharged – Consideration under Section 32 and Section 33 of the District Courts Act – Application properly made before this court – Section 32 of the District Courts Act does not Apply – Amendments pursuant to Section 33 of the District Courts Act not sufficient to rectify defect – Charge not supported by facts of the allegation – Dismissal of Information and discharge of defendant proper.

Cases Cited:

• State v. Ipai (No.2) [2010] N4167
• Brian Laki v. The State SC783
  

Legislation:

• District Courts Act Chapter 40
• Summary Offences Act
  

Representation:

• Sgt. Jonah Musai for the Prosecution
• Counsel Michael August of M. Smiley Lawyers for the Defendant
  

RULING ON APPLICATION

02^nd March 2022

1. FEHI. B DCM: The defendant stands charged before me for one count of attempting to escape from lawful custody pursuant to Section 22 (1) of the Summary Offences Act. Counsel August for the Defendant made an Application prior to arraignment and the application was heard and dealt with accordingly.
   

RECORD OF PROCEEDINGS

2. The defendant appeared today before me for his first mention from police custody. This is a fresh mention matter were Counsel August prior to arraignment made an application to have the Police Information dismissed and defendant discharged. Oral submissions received from both parties and matter was stood over to the afternoon part of the day whereupon I handed down an extempore ruling. This is now my full ruling on the application.
   

POLICE SUMMARY OF FACTS

3. The defendant appeared before Vanimo District Court on 25^th February 2022 answering to 3 separate summary charges were he pleaded guilty respectively to each charge. His matter was than adjourned to 04^th March 2022 for sentencing by His Worship Principal Magistrate Sasa Inkung. His police bail of K1000 was converted to Court Bail and extended to his next appearance date. It was alleged then that while out on bail the same day, the defendant attempted to travel to Wewak on an Air Niugini flight scheduled to leave Vanimo some hours after his hearing. This was brought to the attention of the Police here in Vanimo Town who attended to and apprehend defendant at the airport just as he was about to board the plane. He was later arrested and charged at Vanimo Police Station for attempting to escape.
   

THE OFFENCE AND ITS ELEMENTS

4. Defendant was charged pursuant to Section 22 (1) of the Summary offences Act, which the whole provision appropriately read as follows:
   

22. ESCAPING FROM LAWFUL CUSTODY.

(1) A person who, being in the lawful custody of a person under any law, escapes or attempts to escape from custody is guilty of an offence.

Penalty: A fine not exceeding K200.00 or imprisonment for a term not exceeding six months.

(2) A person who escapes from lawful custody is deemed to be continuing to commit an offence under Subsection (1) until he is arrested for that offence, any other offence, or under any other law.

5. Given that Counsel for the defendant has challenged the nature of the charge contained within the Police Information through his Application, it is only appropriate that I Identify and layout the necessary elements. The following is what I consider to be the elements:
   
   • A person must be under a form of lawful custody; and
   • While under lawful custody he attempts to or escapes.
     
6. As per the elements, what is considered to be a lawful custody? In my view, a lawful custody refers to confinement by court order or actual or constructive restraint by a police officer pursuant to an arrest. In the matter of State v. Ipai (No.2) [2010] N4167, Kawi J, (as he was then) in his judgment summary at point #4 made this observation which I find to be relevant description of a lawful custody:
   

“4. Implicit in element (c) is that the person who escapes must be a prisoner. “Prisoner”, includes those persons held legally in custody, whether by arrest, committal or sentence and who have not been released by due process of law.................”(extension not relevant)”

7. It is my humble view that the above provision applies to persons who escaped or attempts to escape while held under a form of lawful custody be it through apprehension, arrest, awaiting committal or sentencing without being released through due process of the law.
   

APPLICATION AND SUBMISSIONS

8. Counsel verbally moved his application before me seeking orders to have the Police Information dismissed and the defendant discharged on the basis that the facts did not support the charge contained therein. He submitted that the charge is one of attempting to escape from lawful custody when indeed his client was never under any form of lawful custody when he was alleged to have attempted to escape. He also submitted that all records show that his client was out on a bail of K1000 at the time of the allegation.
   
9. Counsel further made reference to the Supreme Court judgment in the matter of Brian Laki v. The State [] SC783, relying on their Honors’ observation he submitted that the defendant was wrongfully charge under Section 22 (1) of the Summary Offences Act, because he was not held under any form of lawful custody at the time of his apprehension and arrest. Therefore, the Police Information containing the charge against the defendant should be dismissed and he be discharged.
   
10. The prosecution in reply submitted that the defendant had an intention to escape when he attempted to board a plane out of Vanimo some hours after he appeared before the District Court pleading guilty to three summary offences. He knew his matter was adjourned for sentencing when he tried to escape. The prosecution concede to the fact that the defendant was allowed police bail of K1000 which he had paid and upon his first mention, that was converted to court bail. He was out on bail when he attempted to board the plane out of Vanimo.
    

RELEVANT ISSUES AND DISCUSSIONS

11. I find relevant the following issues for my consideration:
    
    1. Whether the charge contained within the Police Information is relevant under the circumstances?; and
    2. Should the Police Information be dismissed and the defendant be discharged?
       
12. The first issue concerns the charge contained within the Police Information. It is trite law that the charge must be supported by the facts of the allegation. The defendant was charged under Section 22 (1) of the Summary Offences Act. This provision is meant to prevent persons who are held in lawful custody to attempt to or escape any form of custody authorized by law. I posed this question for my determination, i.e., was the defendant under any form of lawful custody at all material times of the allegation. The brief facts which supported the charge disclosed that he was under the lawful custody of the Court after his matter was adjourned for sentencing when he tried to escape. Nothing was mentioned about his bail status, however, during the course of this matter the prosecutor conceded that he was released on bail of K1000 when he attempted to board the plane out of Vanimo.
    
13. Given the above it is my view that the defendant was not under any form of lawful custody. The assertion that he was under the custody of the court is flawed and cannot be the reason upon which a charge is brought under Section 22 (1) of the Summary Offences Act. The court is not a person and cannot hold any person under its custody. It can only direct through due process of the law for persons to be either remanded, committed to prison or released on bail. As in this case, the court through due process of the law, converted defendant’s K1000 Police Bail to Court Bail and extended it to the next date set for sentencing. Therefore, the charge contained within the Police Information is not relevant under the circumstances of this matter.
    
14. The second issue concerns due process of the court when it comes to dealing with defects identified within Police Information, I again posed this question for my determination, i.e., is it appropriate to dismissed a Police Information through application made before the court? Section 32, Section 33 and Section 34 of the District Courts’ Act provides some clarification. In particular Section 32 and Section 33, which reads as follows:
    

32. Want of form or variance in information, etc.

No objection shall be taken or allowed to an information, or to a summons or warrant to apprehend a defendant issued on an information, for an alleged defect in the information in substance or in form, or for a variance between it and the evidence in support of the information, and any such variance may be amended by order of the Court at the hearing.

33. Amendment.

If a variance specified in Section 32 appears to the Court to be such that the defendant has been deceived or misled by it, the court may, and at the request of the defendant shall, adjourn the hearing of the case, on such terms as it thinks just, to some future day, and in the meantime may commit the defendant or discharge him on bail recognizance for his appearance at the time and place to which the hearing is adjourned.

15. Section 32 restricts any objections concerning the content of the information or any irregular practice issues apparent in it. However, Section 33 allows for the court to hear applications by defendant who feel that the variance in an information appears to be deceiving or misleading to him or her. In this matter counsel for the defendant made an application on the basis that the charge is inconsistent with the facts of the allegation. It is clear as per the first issue that the wrong charge was laid on the defendant. This in my view is misleading and deceiving to the defendant and therefore it is right that an application is made by the counsel. Given such, is it proper for the prosecution to be given an opportunity to rectify the defects through amendments? I will answer this in the negative because the facts are so remote from the charge, there is in my view no relevant charges that can be brought under such circumstances. What should have been done is for this matter to proceed under breach proceedings parallel to the sentencing hearing.
    
16. I am satisfied that the application by the defence is properly made before me. The restriction provided under Section 32 does not apply as the defects are substantial and cannot be corrected through amendments pursuant to Section 33. As such I will not adjourned the matter to some future date but rather have the matter dealt with as it now appear before me. Therefore, I will answer the second issue as yes, i.e., the information containing the charge should be dismissed and the defendant be discharged.
    

RULING ON APPLICATION

17. I am satisfied that the defendant was out on a court extended bail when he attempted to board an Air Niugini flight out of Vanimo to Wewak. Whatever his intentions were at that material time is unknown and irrelevant to this court, however, this in my view does not affect his bail status, for all purposes he was out on bail and not under any form of lawful custody.
    
18. The court is not a person and therefore cannot be included within the description of a person as it appears in the wording of Section 22 (1) of the Summary Offences Act. As such one cannot claim that the defendant was under the court’s custody because only a person authorized by law can keep another person under its custody, for instance, a police officer or a correctional service officer.
    
19. I find it to be an improper practice to charge the defendant under Section 22 (1) of the Summary Offences Act when he was out on bail issued through due process of the courts as opposed to be held in lawful custody. Section 32 of the District Courts Act does not apply because the variance between the charge and facts are so remote that no amendments pursuant to Section 33 can rectify. Counsel for the defence was right in applying for the Police Information to be dismissed and the defendant discharged. The correct approach in my view is to institute breach proceedings against the defendant.
    
20. Therefore, I am satisfied that the Police Information is defective and as such must be dismissed and the defendant will be discharged from this proceeding.
    
21. I issue the following orders to conclude this matter:
    

COURT ORDER:

1. Application for the Police Information to be dismissed and the defendant to be discharged is granted;
   
2. Police Information containing the charge is dismissed for having within it the wrong charge;
   

100. Defendant is discharged from this proceeding; and
     

4. Bail of K1000 is reinstated and the defendant is directed not to leave Vanimo Town pending the outcome of his outstanding summary matters.