State v Kembu [1996] PGLawRp 707; [1996] PNGLR 8 (10 January 1996)

PNG Law Reports 1996

[1996] PNGLR 8 - Ludwick Kembu, Leo Kabilo, John Yamboli, Raphael Huafolo, and Lincon Geraril

[1996] PNGLR 8

N1404

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

LUDWICK KEMBU, LEO KABILO, JOHN YAMBOLI, RAPHAEL HUAFOLO AND LINCON GERARI

Mount Hagen

Woods J

4 January 1996

5 January 1996

8-10 January 1996

CRIMINAL LAW - Conspiracy to pervert the course of justice - Nature of the original charge - Relevance of alternate dispute resolution - Role of police as parties - Circumstances of Papua New Guinea.

PRACTICE AND PROCEDURE - No case submission - Principles - Tribunal of law and fact.

COSTS - Successful defendants - Relevance of s 618. - Costs refused.

Facts

Defendant Kembu had an argument with a neighbour, Lina Kalos supposedly over the whereabouts of his misisng teenage daughter who was last seen by Kalos and may have known something about the missing girl’s whereabouts. Consequently an assault charge was laid against Kembu. All the other defendant were alleged to have played a part in hindering the efficient prosecution of the initial assault charge laid by Kalos against Kembu and hence were indicted for conspiring to pervert the course of justice. At the close of the prosecution case, defendant made a no case to answer submission.

Held

N1>1.       There is no evidence of a criminal conspiracy to defeat the course of justice under the circumstances of the case. Hence, no case to answer submission upheld. The State v Pep (No 2) [1983] PNGLR 287 and R v Prasad [1979] SASR 161 referred to.

N1>2.       Order for costs against the State in criminal proceedings pursuant to s 618 of the Criminal Code Act Ch 262 are only obtainable where the State proceed by an ex officio indictment.

Cases Cited

Papua New Guinea case cited

State v Pep (No 2) [1983] PNGLR 287.

Other cases cited

R. v Prasad [1979] 23 SASR 161.

Re Rogerson and Others [1992] 60 Australian Criminal Reports 429.

Re Sharpe and Stringer [1938] 26 Criminal Appeal Reports 122.

Re Galbraith [1981] 73 Criminal Appeal Reports 124.

Counsel

N Miviri, for the State.

J Kil, for defendants Kembu, Kabilo, Huafolo, Gerari.

J Yamboli, in person.

10 January 1996

WOODS J: The accused are each charged with conspiracy to pervert the course of justice. The facts of the charge are that between 21st March 1995 and 14th April 1995 they conspired to prevent a charge of assault made against the first defendant Ludwick Kembu from coming before the District Court.

The prosecution has finished their evidence on the charge and it is being submitted on behalf of the defendants that there is no case to answer. These submissions are made firstly on the basis that there can be no conspiracy because there was not at the relevant time a “course of justice”, and secondly on the basis that there is no or insufficient evidence to support the charge such that the Defendants should be required to answer the charge.

On the first point that there was no course of justice or no judicial proceeding it is submitted that whilst the incident that it is alleged was the grounding for a charge of assault against the first Defendant may have occurred on the 21st March 1995 there was no charge laid against the first Defendant until the 6th May and no investigation was commenced by the police until the 18th May and the facts brought to this court to support the allegation of a conspiracy occurred on or before the 5th May.

I have been referred to the case of Rogerson and Others [1992] 60 Australian Criminal Reports 429 which considers the question as to when the “course of justice” commences. The traditional view was that expressed in the case of Sharpe & Stringer [1938] 26 Criminal Appeal Reports 122 which stated that it is sufficient to constitute the crime of conspiracy to defeat the course of public justice if persons conspire to conceal a crime which has been committed although no proceedings are pending or have been commenced. Rogerson’s case clearly did not follow the above case when it stated that police investigations do not in themselves form part of the “course of justice” for the purposes of conspiracy to, or attempting to, pervert the course of justice. The course of justice does not commence unless and until the jurisdiction of a court is invoked. However the High Court of Australia in Rogerson’s case went on and said for example “The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are varied.” “At the time of such a conspiracy no prosecution for that yet to be committed crime could be pending and no prosecution for that crime would be contemplated by anyone other than the conspirators, yet the conspiracy to pervert the course of justice would be complete.” And “the course of justice does not begin until the jurisdiction of some court or competent judicial authority is invoked.” And later on page 436 the Court agreed that police investigations have themselves been treated as a part of the course of justice. The facts of Rogerson’s case must be considered carefully when looking at the principles enunciated by the Court. In that case there was no evidence that the purpose of the plan or alleged “conspiracy” was to foil a police investigation. The trial Judge had put it that the plan would have a tendency to foil a police inquiry, yet during the whole case the Crown never identified the alleged crime.

In the case before me now the alleged crime was an alleged assault by the first defendant. So I cannot find that the decision in Rogerson’s case can be applied in the case before me now. However that does not itself defeat the no case submission.

The facts behind the charge seem to start with a confrontation between two families who live near each other over a problem with the daughter of one of the families. Whilst I have not been given the full details of the background to the confrontation there appears to have been a concerned father, namely the first defendant, worrying about his missing teenage daughter. This led to the confrontation between the father and a woman where the daughter had been supposedly last seen with and who may have known something about the daughter’s whereabouts. There was a suggestion of some serious offence having occurred against that daughter. So we have an overwrought father, and an apparent over reaction which led to an assault charge. This occurred on 21st March 1995. The assault appears to have been a threat with a pistol to the woman, she says she received injuries to the left side of her head however there is no medical evidence to support that and no reference to her seeking medical treatment.

Then what happened to the assault charge. Was it pressed immediately with appropriate authorities. It was “reported” or mentioned to a senior C.I.D. Officer, one of the defendants, the same day. She also states that she spoke to Mr Wakon about the assault on the 22nd March. But there is no record of it being taken any further then. Later other police came to the victim of the assault, Mrs Lina Kalos, and she gave her story on 18th May. In her story Mrs Kalos suggests that Mr Kembu sent her to Baisu. It has however not been put to me how she ended up in Baisu C.I.S. some time later, the 11th April, there appears to have been another assault charge between her and another woman.

There is evidence of three of the defendants being involved in some papers which were an agreement not to press the charges. These two papers were signed by Mrs Kalos on 5th May although they are dated the 6th April. These documents are not sworn affidavits therefore there is nothing about the confusions of the dates which render them null and void or illegal, they are purely documents which purport to support an intention between the parties.

Apart from the dates there are other evidence about these documents which conflict. Mrs Kalos gave evidence that she did not know what she was signing when she signed them, however another State witness, Mr Waipo, affirms strongly that he did explain to her what the documents were and their contents. Further there is evidence which suggests that Mrs Kalos had some High School education so would have had sufficient knowledge of the English language.

Then Mrs Kalos says that she went to Mr Samson Mapi at some later date and told him that she wanted to withdraw the matter. It is suggested that she was pressured into this. But was she? Mr Mapi said she just told him she wanted to withdraw the charge and Mr Mapi told her that she had to do that in the Court as he could not interfere. There was no suggestion from Mr Mapi that she appeared to be under any pressure or that her request was involuntary.

It may be suggested that there was pressure on Mrs Kalos. But if so, this could be pressure from both ways. It could be said there was pressure on Mrs Kalos to withdraw, but it could equally be said there was pressure not to withdraw the case.

So what was the case. Clearly still a neighbourly domestic dispute which went too far.

In the case of minor assaults in a village environment or between neighbours over what is a neighbourly problem, it is often the case in Papua New Guinea and even elsewhere that the matter is settled between the parties. Bernard Narakobi refers to such situations in his book, Lo Bilong Yumi Yet, in the chapters “The State and Its Sovereignty” and “Punishment for Wrongs or Offences not defined by written law” in his discussion on what is a criminal offence which should involve the full resources of the State and what is an argument or problem between parties which can be resolved by negotiation and talk and perhaps compensation. The formal legal system does not want to be burdened by what are in effect neighbourly arguments.

So what is the situation here? Is there evidence of a criminal conspiracy to defeat the course of justice, or is there an arrangement to settle a neighbourly dispute which has got out of hand. Clearly there are aspects of this case that I am not really aware of, for example, the details of the alleged rape of Brigitte, and the details of the other assault and dispute between Mrs Kalos and someone else. It seems that they did have a bearing on what happened however they still cannot take away from the main factor, a neighbourly domestic dispute.

So senior police officers help with arrangements to settle a matter that is often the type that is settled and never brought to or taken out of the formal court system.

Of course I must distinguish this from the type of case where a police officer may be paid to drop charges or lose files or otherwise thwart a case against people not connected to him or where a victim of a serious crime is forced to not turn up which we often fear happens in rape cases.

This case was a domestic neighbourly assault under tension. Unfortunately it involved senior police officers who have a duty to stay at arms length from disputes but surely where the dispute involves them, they have the rights of any ordinary citizen to seek alternate resolution.

This is not a case of police interfering in the course of justice in a matter involving strangers where victims are left without recourse. This is a case of a police officer getting involved in a domestic neighbourly dispute which cried out for settlement by village or customary means. And so this is what happened.

There is a conflict in the State evidence. Did Mrs Kalos want to settle? She suggests not but a State witness, Mr Waipo, seems to agree she knows what she was doing and wanted to, and so did Mr Mapi. So I must accept that version of the State’s evidence in favour of the accused.

I must remember that I have only heard the State’s side of the case.

The principles of no case submissions have been well stated at various times. I refer in particular to the case, State v Pep (No 2) [1983] PNGLR 287 where the following principles were enunciated: “that the matter is a question of law for the judge as a tribunal of law; the test is whether the evidence supports the essential elements of the offence.” “Where the tribunal decides there is a case to answer it nevertheless has a discretion to stop the case at the close of all the evidence in appropriate circumstances; this discretion is exercisable where there is a mere scintilla of evidence and where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.”

And of course one must remember that much of the principles applied in the no case submission situation refer to the view that may be taken of the evidence by a jury and a Judge should not pre-empt the province of a jury, see Re Galbraith [1981] 73 Criminal Appeal Reports 124. But here in Papua New Guinea, the Judge is both the Judge of the law and fact. In the Australian case R. v Prasad [1979] 23 SASR 161 Chief Justice King stated,

“I have no doubt that a tribunal which is the Judge of both law and fact may dismiss a charge at any time after the close of the case for the prosecution notwithstanding that there is evidence upon which the defendant could lawfully be convicted if that tribunal considers that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it. This discretion should be exercised sparingly and only in clear cases.”

In many cases the weighing of the evidence will require an analysis of the evidence on identification, or lighting, or credibility of witnesses and therefore it is necessary that the trial judge waits until he has all the evidence in before he does that weighing or analysis. This situation was highlighted by Kapi DCJ in the Roka Pep’s case. However in this case before me now, these elements of evidence are not material. The evidence in this case is undisputed evidence of a neighbourly domestic dispute, and evidence of some agreement evidenced by certain documents. I cannot see how anything that the defendants will say can alter the effect of these. I have been listening to and sifting and considering the evidence as it came before me. Whilst there is some conflict in the evidence, it is all conflict on the side of the prosecution and I must as suggested above, apply the evidence of Mr Waipo and Mr Mapi in favour of the defendants. I am in a position now to fully consider all the evidence as presented by the prosecution and I find that there is no evidence to convict the defendants of the crime of conspiracy to pervert the course of justice.

I uphold the submission by all defendants that there is no case to answer and I find all defendants not guilty as charged.

RULING ON COSTS

The defendants have applied pursuant to s 618 of the Criminal Code for an order for the State to pay the costs of their defence.

However, s 618 as amended by the Criminal Code (Costs) Act 1986, together with new s 618A only applies in cases of ex officio indictments, note the wording, “Subject to Section 618A, if in a case to which this Division applies” and Section 618 comes with Division 11. “Information by Private Persons for Indictable Offences: Ex Officio Indictments” which is within Part VIII of the Criminal Code. Clearly this matter did not come by Ex Officio Indictment, it came the normal way by committal from the District Court. Therefore Section 618 cannot apply to this case.

There is no other provision within the Criminal Code which allows for costs to be awarded to a successful defendant. Presumably therefore the defendants are seeking an exercise of an overriding discretion that a Judge has. Costs for a successful defendant are not therefore specifically provided for. There must therefore be exceptional reasons for the award of costs and perhaps matters raised in section 618A are guides for consideration.

Whilst it has been suggested that there could have been elements of bad faith or unnecessary hounding of the defendants in this case, I have not been satisfied on that. The fact is that there were steps taken to settle what I did find in the end was a matter that could have been settled by alternate dispute resolution. And I did note in my judgement that police may have a duty to stay at arms length from such disputes, so perhaps when they themselves get involved in such a dispute, it is all the more important that they handle any alternate resolution very carefully and perhaps here they could have done it better or more carefully and openly.

The above points can be referred to when asking whether the prosecution had sufficient evidence. There was a confrontation which led to an assault, there were attempts to settle it by alternate means but these steps may not have been taken with appropriate tact considering the profile of police, especially senior police. And I have noted before when police appear to step over the bounds of acceptable behaviour, the matter may have to go to the higher courts even if at the end the matter is found not proved. Here the steps taken to resolve the matter did seem to some people excessive or unusual and I have found that the suggested principle as stated in Rogerson’s case does not necessarily apply in this case here. There was evidence of something and the manner in which it was done by quite senior police was unusual and raised questions in some people such that the investigation was made.

It is just that I have ruled that in the circumstances of Papua New Guinea such matters may often be and could be settled by alternate means, however unfortunately for the defendants here the law has not examined and ruled sufficiently on this. Even in the case of Roika v The State and Others, unreported (1995) I only found that the second failed prosecution incurred costs against the State on the basis of an unreasonable hounding of the plaintiff in that case.

As I ruled against the application of Rogerson’s case here, I must say that there were acts which could have been construed by a tribunal of fact as a conspiracy, it was just that I as the tribunal of fact as well as law have found that in the circumstance of Papua New Guinea, alternate dispute resolution was an appropriate way of dealing with this matter. However this was not something that the committing magistrate could pre-empt me on. This was not therefore a case that should have been taken away from the consideration of a tribunal of fact, there was a prima facie case to be put.

I find that the considerations as set out in s 618A of the Criminal Code do not fall in favour of the defendants. There is no express provision for the defendants costs and there are no exceptional circumstances for the exercise of any discretion. I refuse the application for costs.

Lawyer for the State: Public Prosecutor.

Lawyer for defendant Kembu, Kabilo, Huafolo & Gerari: J K Kil.