Aika v Uremany [1976] PGLawRp 678; [1976] PNGLR 607 (13 February 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 607 - Paul Aika v Caspar Uremany; Paul Aika v Thomas Manus 

[1976] PNGLR 607

N25

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PAUL AIKA AND 11 OTHERS

V

CASPAR UREMANY

AND

PAUL AIKA AND 11 OTHERS

V

THOMAS MANUS

Port Moresby

Prentice DCJ

10 February 1976

13 February 1976

CRIMINAL LAW - Particular offences - Carrying offensive weapons - Possible justification for carriage of weapons raised in statement of facts - Plea of guilty unsafely recorded.

CRIMINAL LAW - Particular offences - Behaving in riotous manner - No allegations of noise, tumult, alarm or uproar - Plea of guilty unsafely recorded.

The twelve appellants were each convicted of (1) carrying offensive weapons and (2) behaving in a riotous manner, as a result of happenings at Bereina on 14th October, 1975, in which there was some fighting over a land dispute. The statement of facts read out at the hearing in and upon which pleas of guilty were recorded did not disclose, in relation to the carrying of offensive weapons charge, whether in the fight which occurred weapons were used by both sides, whether the defendants were defending themselves upon their own territory against attack or otherwise, whether they were justified in having the weapons upon them or when the weapons were taken up: and did not disclose in relation to the riotous behaviour charge, any detail of any fighting, any allegation of noise, tumult, alarm or uproar. On appeal against conviction and sentences of four months’ imprisonment on each charge, such sentences being cumulative:

Held

N1>(1)      The statement of facts in relation to the charges of “carrying offensive weapons” left open the possible interpretation that the accused were acting reasonably (in self defence) in carrying the weapons, and in the absence of evidence on the issue of reasonableness of possession of the weapons, it was unsafe to allow the pleas of guilty on these charges to stand on the mere possibility that the magistrate had in his mind relevant information not recorded in the statement of facts.

N1>(2)      The statement of facts in relation to the charges of “behaving in a riotous manner” not alleging those elements, viz. noise, tumult, alarm or uproar, such as are usually required to constitute the riotous element in such a charge, it was unsafe to allow the pleas of guilty on these charges to stand on statements that did not support the convictions.

Leonard Eliza and Others v. Mandina [1971-72] P.N.G.L.R. 422 referred to.

N1>(3)      The appeals should be allowed and the matters transmitted to the local court at Bereina for rehearing.

Appeals

These were appeals, by twelve appellants, against convictions and sentences on charges of (1) carrying offensive weapons, and (2) behaving in a riotous manner. The grounds of appeal were:

N2>(a)      pleas of guilty should not have been recorded;

N2>(b)      the evidence (statement of facts) was not such as to sustain the offence alleged; and

N2>(c)      the sentences were excessive.

Counsel

J Montgomery for the appellants

KB Egan for the respondents

Cur. adv. vult.

13 February 1976

PRENTICE DCJ: The twelve appellants were each convicted of (1) carrying offensive weapons; and (2) behaving in a riotous manner; as a result of the day’s happenings at Bereina on 14th October, 1975. In each case, pleas of guilty were recorded against the twelve when they each acknowledged the correctness of a statement of facts read out. All were sentenced to four months’ imprisonment with hard labour on each charge — the sentences being cumulative.

Appeals are now brought on the grounds that:

N2>(a)      pleas of guilty should not have been recorded;

N2>(b)      the evidence (statement of facts) was not such as to sustain the offence alleged; and

N2>(c)      the sentences were excessive.

By consent, the appeals were heard together.

The learned magistrate himself in his reasons for judgment confessed that total sentences of eight months to each appellant were excessive; and he explains that he confused himself between the meanings of the words “concurrent” and “cumulative” — he intended only four months’ sentences in other words.

It is not easy to understand from the Local Court records just what happened at Bereina on the day in question. It is clear that there was some fighting over a land dispute and that the Riot Squad was called from Port Moresby and subsequently arrests were made.

The Acting Public Prosecutor who appeared to oppose the appeals pointed out that there must have been a good deal of excitement and notoriety about the happenings. He made a valiant attempt to piece out from the two statements of fact the picture as it might have presented itself to the magistrate and so to justify the Local Court’s findings. It is true that the learned magistrate most probably had local knowledge as to the time sequence and geographical location of the happenings on that day — knowledge which cannot be elucidated by me from a perusal of the court records. I find it impossible to say whether in the fight which occurred weapons were used by both sides. Some events took place at Inawabui village. The appellants come from Vanuamai village — their antagonists from Nakura. The record does not disclose the distances between these villages, nor does it enable one to decide the really crucial issue of a “carry offensive weapons” charge, whether the accused might have been defending themselves on their “own territory” against attack — whether they were justified in having the weapons on their persons. It does not explain whether (as Mr. Egan suggests might have been the position) the appellants were originally without weapons, went home to their village with the aid of a police escort, armed themselves and later sallied forth again, with illegal aggressive intent.

In my opinion the statement of facts in the “carry offensive weapons” charge does leave open the possible interpretation that the accused were acting reasonably (in self-defence) in carrying the weapons. I do not think it is safe to allow the pleas of guilty as recorded to stand on the mere possibility that the learned magistrate had in his own mind information not recorded in the statement of facts, which provided the missing pieces of the jig-saw puzzle and presented a complete picture of the offence charged having been duly committed. I consider evidence should have been called and the issue of reasonableness of possession of the the weapons adjudicated upon.

Similarly, in regard to the “behave in a riotous manner” charge, I find the statement of facts an unsafe basis on which to erect convictions. No detail of the alleged fighting is given therein and it is noticeable that there is no allegation of noise, tumult, alarm or uproar, such as is usually required to constitute the riotous element in such a charge. As Kelly J., pointed out in Leonard Eliza and Others v. Mandina[dclxxi]¹; it is possible to have a fight or series of fights which may not constitute riotous behaviour.

I am of the opinion that it would be unsafe to allow the convictions to stand — that a substantial miscarriage of justice could thereby be involved. I propose to allow the appeals both on the ground of excess of sentence and on the grounds that pleas of guilty should not on the agreed statements of facts, have been accepted and that the statements did not support the convictions.

I think I should say that if the offences were made out I would not consider a sentence of four months’ imprisonment for one or both of the offences excessive. I do not think cumulative sentences would be called for.

I allow the appeals, order that the matters be transmitted to the Local Court at Bereina for hearing before another magistrate.

I am somewhat exercised as to the question of bail. The accused served one month of the sentences imposed, were on bail for some twelve weeks and then re-arrested following the Supreme Court decision in Paul Aika and Others v. Caspar Uremany[dclxxii]². As a result of this my decision they are now in the position not of convicted persons seeking bail under s. 45 Local Courts Act, but of persons presumed innocent until convicted — persons awaiting trial. I appreciate that an explosive situation existed in October in the Mekeo. But I have no doubt that among such a sensible and responsible people, much of the heat has gone from the dispute. I allow each accused bail pending trial on his own recognizance in the amount of K300.

Appeals allowed. Matters to be transmitted to Local Court at Bereina for rehearing.

Solicitor for the appellants: N.H. Pratt, Acting Public Solicitor.

Solicitor for the respondents: L. W. Roberts-Smith.

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[dclxxi] [1971-72] P. & N.G.L.R. 422.

[dclxxii] [1976] P.N.G.L.R. 46.