Memera v Bisang [1976] PGNC 43; [1976] PNGLR 419 (24 September 1976)

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[1976] PNGLR 419 - Yamore Memera, Waina Ariga, Raina Waburi, Aligi Wina, Siburu Vaita, and Idana Budova v Mathew Bisang

YAMORE MEMERA, WEINA ARIGA, RAINA WABURI, ALIGI WINA, SIBURU VAITA AND IDANA BUDOVA

INFERIOR COURTS - District courts - Sentencing - Riotous behaviour - Relevant considerations - All able-bodied villagers sentenced to imprisonment.

POLICE OFFENCES - Behaving in riotous manner - What constitutes - Aiding and abetting - Property damage to be specifically alleged - Police Offences Act s. 8 (e) - Criminal Code s. 7 - Interpretation (Interim Provisions) Act 1975 s. 23.

On appeal by six appellants, villagers from Gaunomu Village against their convictions and sentences (on pleas of guilty) by the District Court at Boroka on charges of behaving in a riotous manner contrary to s. 8(e) of the Police Offences Act, and arising out of a march which took place for the purpose of demonstrating against the Kwikila Council’s failure to build a road from Gaunomu Village to Kwikila, and during which there was considerable shouting and yelling and movement up and down the street by many demonstrators in the presence of the town dwellers, and directed towards the councillors.

N1>(1) To constitute the offence of behaving in a riotous manner contrary to s. 8 (e) of the Police Offences Act, proof is required that the defendant(s) disturbed the peace in a disorderly or noisy manner causing considerable commotion.

N1>(2) Section 23 of the Interpretation (Interim Provisions) Act 1975, and s. 7 of the Criminal Code apply to the offence, so that mere participation in such a march with knowledge of its purpose and likely rowdiness is sufficient to constitute responsibility for riotous behaviour on the part of others in the march.

N1>(3) Acts causing damage to property do not necessarily fall within the ambit of a common purpose to demonstrate, and accordingly a plea of guilty by mere participators in the march should not be taken to extend to such acts unless specifically alleged against them.

N1>(4) The pleas of guilty were properly entered, except in the case of one appellant who was not involved in the demonstration at all and could not in law have been convicted of the offence charged, and the appeals against conviction should be dismissed.

N1>(5) Matters which should have been taken into account on sentencing and which were not, included the fact that no personal violence was offered and that in sentencing all the offenders to jail no able-bodied villagers were left in the village of Gaunomu; matters which were taken into account on sentencing and which should not have been, included certain property damage, for which none of the appellants was allegedly responsible, and that any demonstration was unauthorized under the Public Order Act 1970, which had not been declared to be effective in relation to the area where the offences occurred.

N1>(6) Accordingly, the sentences of five months and three months imprisonment with hard labour imposed by the District Court were too severe and should be reduced in all cases to sentences of 6 weeks imprisonment with hard labour.

These were appeals, heard together by consent, by six appellants, against their conviction by the District Court at Boroko on the 30th August, 1976, under s. 8 (e) of the Police Offences Act, for behaving in a riotous manner. Each appellant pleaded guilty to the charge against him and, each was sentenced to five months imprisonment with hard labour except the appellant Idana Budova, who was sentenced to three months imprisonment with hard labour. The grounds of appeal were that a plea of guilty should not have been entered, and that the sentences were unduly severe.

FROST CJ: These are appeals, heard together by consent, by six appellants against their conviction by the District Court at Boroko on the 30th day of August 1976 under the Police Offences Act, s. 8 (e), for behaving in a riotous manner. Each was sentenced to five months’ imprisonment with hard labour except the appellant Idana Budova, who was sentenced to three months’ imprisonment with hard labour. All were unrepresented.

In each case the ground of the appeal against conviction is that a plea of guilty should not have been entered, and against sentence on the ground of undue severity.

Each of the appellants comes from Gaunomu Village. The prosecutions arose out of the appellants’ alleged participation in a protest march or demonstration which was held in Kwikila town on Friday, 27th August, 1976, and directed towards the Kwikila Local Government Council Chambers. The march was organized by people because they had been paying Council tax for three years without any effort by the Council to build a road from Gaunomu Village to Kwikila.

The prosecution alleged that the villagers — more than 50 of them — held a meeting at which it was decided to demonstrate against the Council, and later got into two passenger vehicles and drove into Kwikila. There, in the presence of the town dwellers, they drove through the town shouting and yelling, from the Sub-Province Office to the hospital and then to the Council Chambers. Some men went into the Council Chambers and caused damage.

This disturbance, in which no physical violence was offered to any person, led to police action on a drastic and wholesale scale. On the following day the police riot squad arrived at the village, called out names from the village census book and put the men into police trucks. After being driven on the two-hour journey to Kwikila each of the men was questioned and, as it was alleged, admitted the offence. They were then taken to the National Capital District where they were held in custody. Not only was this long journey from their home calculated to cause alarm to the appellants’ families but it also had the tragic consequence that one man did not again see his native village. When the vehicle stopped on the road he climbed down from the police wagon to relieve himself, and was killed by an oncoming vehicle.

For the hearing to be held outside the Province in which the offence was committed and at Boroko was in apparent breach of s. 128 (1) of the District Courts Act. In my opinion it was also against the spirit of the Constitution, s. 37 (17), which provides that persons deprived of their liberty should be treated with humanity, that in the circumstances of this case the men should have been taken so far a distance for their trial without any advance warning to their families.

Presumably the movement was ordered because of the lack of facilities at Kwikila to detain in custody so many men. If that was the position consideration should have been given to the arrest only of the ringleaders or the men responsible for the property damage, and for the others to be proceeded against by summons, because all were first offenders and came from a long-settled and law-abiding area.

From the reasons for decision supplied by the magistrate the proceedings were conducted in an entirely regular manner. The consent of each appellant was given for the cases to be heard together. The prosecutor was then called on and he outlined what was complained of as riotous behaviour. The charge was then explained in both English and Motu and each appellant was asked if he understood the charge. Having been satisfied that the charge was clearly understood the magistrate put it to each appellant. Each of the appellants pleaded guilty, by which I assume that each admitted the truth of the information. District Courts Act, ss. 134 and 135.

The statement of facts was then read to the Court in Motu. It was again read by the magistrate, also in Motu, and each appellant gave his assent that the statement was understood and admitted as true. The statement of facts is as follows:

“On Friday, the 27th day of August, 1976 at about 12 midday the crowd of demonstrators who are now before the Court demonstrated at Kwikila town.

Police on duty at the time trying to control the crowd but after the demonstration around the Kwikila town demonstrators walked straight to the Rigo Council chambers trying to fight with councillors.

At that time the councillors were not in the chambers so the demonstrators broke and damaged the Rigo Council chambers.

After causing the damage at Rigo Council chambers the demonstrators returned to their transport, got on and returned to their village.

Next morning the police riot squad was sent to their villages and caught those people and conveyed them to the Kwikila police station.

At Kwikila police station the people involved in the demonstration were questioned.

In question all admitted the offence, all cautioned and arrested and conveyed to Boroko police station.”

Now the magistrate does not set out the explanation he gave the appellants of what was alleged as riotous behaviour. The definition accepted by this Court is that to constitute the offence of behaving in a riotous manner proof is required that the defendant disturbed the peace in a disorderly or noisy manner causing considerable commotion. Leonard Eliza and Others v. Mandina[cdlxxv]¹. I consider that this Court should assume from the magistrate’s report that he explained that what was alleged was the behaviour of the men in the town following the agreement to demonstrate; that is, the yelling and shouting by the large body of men as they moved up and down in the presence of the townspeople, and the causing of damage.

I should now turn to the case for the appellants. At the outset affidavits by each of them were tendered in evidence but were objected to by the Acting Police Prosecutor. Under the District Courts Act, s. 235, evidence other than the evidence of the proceedings before the lower Court is not to be received on the hearing of an appeal except by consent or order of this Court. The affidavits set out certain alleged facts relevant to the entry of the plea of guilty which, as is normal in this type of case, are not confined to the proceedings, and accordingly in my opinion should be admitted. The weight to be attached to the matters deposed to of course depends upon the whole of the case.

In their respective appeals the appellants Weina Ariga and Idana Budova each asserts that after being informed of the charge the magistrate did not speak to him nor afford him any opportunity to say anything. The appellant Aligi Wina deposed that he was not involved in the march and stayed behind because his wife was pregnant, and also that the magistrate did not speak to him. Both Yamore Memera and Siburu Vaita deposed that the magistrate read out the charge and asked if he had been in the march, to which each replied “Yes”, and further that the magistrate said that they had all come for a fight, to which each said nothing. Finally, Raina Waburi deposed that the magistrate said he was in the march and that he broke some louvres. This appellant did not know who broke the louvres, but he said “yes” because whoever broke the louvres was in the march with the rest of them. Each of the appellants except Aligi Wina denied that he carried anything or threw anything or fought with anyone.

Now insofar as there is a contest as to what took place in the Court below, the general rule is that the appellate Court should accept the statement of the magistrate — May v. Beeley[cdlxxvi]²; Leonard Eliza & Ors v. Mandina[cdlxxvii]³. I am quite unable to accept the allegations of the appellants Weina Ariga and Idana Budova that the magistrate did not speak to them at all. So far as the remaining appellants are concerned, two assert that they were asked did they participate in the march. There are passages in the magistrate’s reasons indicating that he took the view that mere participation in the march with knowledge of its purpose and likely rowdiness was sufficient to constitute responsibility for riotous behaviour on the part of others in the march. Counsel for the appellants relied on a passage in the judgment of Kelly J. in Leonard Eliza & Ors. v. Mandina[cdlxxviii]⁴ which appears to indicate that s. 8 (e) requires conduct by the individual concerned of a riotous nature (at p. 430). But as the Acting Public Prosecutor pointed out and counsel for the appellants later conceded, the learned judge was not concerned with a case of aiding and abetting, and it is clear that the statutory provisions are applicable that one who aids, abets, counsels or procures the commission of an offence is deemed to have committed the offence. Interpretation (Interim Provisions) Act 1975, s. 23, Criminal Code s. 7. Accordingly the magistrate’s view on this part of the case was correct.

The conclusion I have reached is that upon the magistrate’s report of the proceedings, which I accept, there was an admission by each of the appellants that a march took place for the purpose of demonstrating, that there was considerable shouting and yelling and movement up and down the street by many demonstrators in the presence of the town dwellers, and directed towards the councillors, which the magistrate was entitled to accept as constituting riotous behaviour on the part of the many demonstrators, that the mere participation in the march for the purpose of that demonstration was sufficient to constitute the offence itself or aiding by encouragement, and that in accordance with the usual practice of recording a plea in Papua New Guinea it was proper to enter a plea of guilty. However, acts causing property damage do not necessarily fall within the ambit of a common purpose to demonstrate. The truth of this allegation could be determined only upon the trial. Accordingly, the plea of guilty should not be taken to extend to those acts so far as mere participators in the march are concerned, against whom individual acts causing damage were not alleged.

Each of the appellants falls within this category. Appeals have not been lodged on behalf of the offenders who were responsible for property damage.

In reaching these conclusions I have taken into account that the magistrate himself came from this area, he was of course a Motu speaker, and he was either known personally to all the persons in the Court or certainly by sight. I agree with the magistrate that there is no reason to suppose in the circumstances that any offender was over-awed by his conduct of the Court proceedings.

I have given consideration to another argument by appellants’ counsel, that the magistrate erred in taking into account the possibility that the demonstration was contrary in any event to the provisions of the Public Order Act 1970. Not only was the information not laid under the Public Order Act but also, as was conceded by the Acting Public Prosecutor, that Act is clearly inapplicable, as no declaration of the Act in relation to this area was ever made. However, the magistrate’s decision to enter a plea of guilty is supported independently by the considerations to which I have referred, and accordingly this argument fails.

I have therefore come to the conclusion that the attack on the conviction cannot be sustained and the pleas of guilty were properly entered, except in the case of Aligi Wina. As upon the facts contained in the latter’s affidavit, which have not been contested, the appellant was not involved in the demonstration at all, he could not in law have been convicted of the offence charged, and accordingly the plea of guilty cannot stand. R. v. Forde[cdlxxix]⁵; Reg v. Murphy[cdlxxx]⁶. Both cases are cited in Leonard Eliza & Ors v. Mandina[cdlxxxi]⁷.

The remaining ground of appeal relates to sentence. In view of his knowledge of the people and the circumstances of the Sub-Province the magistrate’s decision to impose a sentence of imprisonment in my opinion should not be disturbed. He gave weight to the good character of the accused but, on the other hand, took into account, quite properly, the alarm that arose from the riotous behaviour of the large crowd of men and its effect on the townspeople. Sentences of 5 months or 3 months were imposed according to the family responsibilities of the appellants, but no attempt was made to assess the degree of participation of each individual offender.

Although I have upheld the decision of the magistrate to enter a plea of guilty I must say that in view of the meagre information put before the Court the magistrate would have had a more sure feel of the case for the purposes of sentence if some evidence had been called as to the offence itself.

There is another matter also to be taken into account as the magistrate later realized. In his report he very properly drew attention to the fact that he did not take into account, as he later discovered, the fact that “in sentencing the whole lot of them to jail, I was taking every able-bodied villager from the village of Gaunomu”. This is a consideration which the judges have on several occasions indicated should be taken into account on sentence.

The magistrate now considers that the sentences are too severe. If this information had been present to his mind he would have imposed sentences of three months and one month in lieu of sentences of five months and three months respectively.

The Acting Public Prosecutor concedes that the sentences are too severe and should be reduced.

The sentences are however open to criticism on a number of additional grounds. First, it follows from this judgment that the magistrate was not justified in taking into account, as he said he did, the property damage in sentencing the present appellants, none of whom was alleged to be individually responsible for it. Secondly, no allowance seems to have been made for the fact that no personal violence was offered. Thirdly, the magistrate again took into account on sentence that any demonstration was unauthorized apparently under the Public Order Act.

I should add that on the affidavit of Aligi Wina, which I admit on the issue of sentence, and which was not challenged in any way, the only property damage done was the breaking of some cups, saucers and plates and the breaking of several louvres.

On the whole I have decided that in the circumstances of this case all offenders should be treated alike, and that sentences of sufficient deterrence will have been imposed if in the case of each the sentences are reduced to six weeks.

I would therefore order that in the appeal of Aligi Wina, the appeal will be allowed, conviction and sentence set aside.

I note that no application has been made by the Acting Public Prosecutor that that case be remitted for rehearing.

In the case of the five other appellants the appeals against convictions will be dismissed, convictions affirmed, and the sentences reduced to 6 weeks’ imprisonment with hard labour.

By consent the same order will be made in the case of the remaining 27 appellants.

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

[cdlxxvi][1910] 2 K.B. 722.

[cdlxxvii][1971-72] P. & N.G.L.R. 422 at p. 424.

[cdlxxviii][1971-72] P. & N.G.L.R. 422 at p. 430.

[cdlxxix] [1923] 2 K.B. 400 at p. 403.

[cdlxxx][1965] V.R. 187.

[cdlxxxi][1971-72] P. & N.G.L.R. 422 at p. 425.

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National Court of Papua New Guinea

Memera v Bisang [1976] PGNC 43; [1976] PNGLR 419 (24 September 1976)

Papua New Guinea Law Reports - 1976