Wembra, The State v [1977] PGNC 47; [1977] PNGLR 23 (16 February 1977)

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CRIMINAL LAW - Particular offences - Harbouring escaped prisoner - Elements of offence - Necessary to show accused did some act towards concealing escapee or assisting him in remaining at large - Criminal Code s. 144.

Section 144 of the Criminal Code provides: “Any person who harbours, maintains, or employs a prisoner who is to his knowledge, a prisoner who has escaped from custody, and illegally at large, is guilty of a misdemeanour ...”

N1>(1) To constitute the offence of harbouring under s. 144 of the Criminal Code, it is necessary to show that the accused did some act towards concealing the escapee or assisting him in remaining at large:

N1>(2) Accordingly, where the accused knew his brother was an escaped prisoner, but where it had not been proved that he did anything to assist his brother to remain at large, he could not be convicted of harbouring an escaped prisoner under s. 144 of the Criminal Code.

This was the trial of an accused on a charge under s. 144 of the Criminal Code of harbouring an escaped prisoner.

O’MEALLY AJ: The accused is charged under s. 144 of the Criminal Code Act in terms following:

“... that he on a date unknown between 29th day of October and 1st November, 1976 in Papua New Guinea harboured one William Maku who was then an offender under sentence involving deprivation of liberty and illegally at large, as the said Kuri Wembra then well knew.”

A plea of not guilty has been entered. During the course of the case for the State the indictment was amended to substitute the words “William Maki” for “William Maku” wherever they appeared.

On 30th July, 1976 William Maki was convicted of stealing before the Local Court in Mt. Hagen and sentenced to a term of imprisonment of three months. In the ordinary course of events his term would have expired on 31st October, 1976. However, impatience got the better of him and on 21st October, ten days before he was due to be released, he escaped by impersonating another prisoner who was due for release on 21st October from the Baisu Corrective Institute where both were detained. Not surprisingly William Maki was recaptured after a few days and was later convicted before a visiting justice and sentenced to a further five months imprisonment. Then on 29th October he was removed from Baisu to the Mt. Hagen Hospital from where, in the evening of that day, he again escaped. He was recaptured in the village of Kimininga on the 1st November. It is either proved or admitted that the accused, who is the true brother of the escapee, visited him in hospital on 29th October, that at all relevant times he knew his brother was a person under sentence of imprisonment and that at the time of his recapture the escapee was wearing a coat which belonged to the accused.

The State’s case, at its highest, is that the accused on 1st November was playing cards with the escapee in their mutual village near the escapee’s home and the escapee was wearing a coat which belonged to the accused. It is disputed that the accused was playing cards with the escapee but for present purposes it is unnecessary to consider the matters in dispute.

When the State closed its case Miss Taylor, who appears for the accused, submitted there was no case to answer. I indicated I did not wish to hear from her, but invited the Public Prosecutor to address me on whether, assuming I found the facts to be that the accused was playing cards with his brother while wearing his (the accused’s) coat, could he, as a matter of law, be guilty of the offence of harbouring under s. 144.

The law on harbouring is old. There seems to be a lack of recent authority or exposition on precisely what is required to be proved before one can be said to have harboured another. In 1840 the law was that to substantiate the charge of harbouring a felon it had to be shown that the party did some act to assist the felon personally. (R. v. Chapple).[xxiii]¹ This case has been referred to in subsequent cases involving charges of being an accessory before or after the fact to the commission of a crime. In R. v. Reeves[xxiv]² a Crown Case Reserved, the prisoner was charged with being an accessory after the fact to theft. The court, consisting of three judges, held that evidence that the prisoner received the property knowing it to have been stolen was sufficient to support the indictment; it was not necessary to show that the prisoner did some act to assist the thief personally. More recently in R. v. Tevendale[xxv]³ a decision of the Full Court of the Supreme Court of Victoria, where the appellant had been convicted of being an accessory after the fact to a felony, Reeves’ case[xxvi]⁴ was approved. Now, it is significant that each of those cases involved charges of being an accessory and in each case the person convicted had actively, though not personally, assisted the principal offender. Without examining exhaustively what is required to constitute one an accessory some act of assistance should be proved. But here, of course, we are not concerned to enquire whether the accused was an accessory after the escape, we must consider whether he harboured an escapee and while, in the two cases referred to above, the test in Chapple’s case[xxvii]⁵ was not applied the circumstances and the charges were different.

Section 144 makes it an offence to harbour, maintain or employ a prisoner known to have escaped. Maintaining and employing each clearly involve some act, or something positive as distinct from something passive. But Mr. Egan submits that harbouring, as used in this section, in the circumstances of this country, includes the giving of moral support, assisting in a moral sense or performing an act of identification with an escapee. He has been unable to refer me to any authority in support of his submission[xxviii]⁶. In my view, his construction of the section is too broad. What must be shown is that the accused did some act towards concealing the escapee or assisting him in remaining at large. If, for example, it were proved that a person allowed a known escapee to occupy his house so as to avoid detection of the latter’s whereabouts, or provided him with clothing and food to support him while at large he would be guilty of the offence. But if, knowing that another were an escapee, he merely did nothing or did something which did not assist the escapee to remain at large he could not be convicted of harbouring an escapee. In this respect I have come to a narrower view than did the Criminal Law Revision Committee of the United Kingdom which drafted the Bill for the Criminal Law Act of 1976. Section 4 of that Act provides that where a person has committed an arrestable offence, any other person, who knowing or believing him to be guilty of the offence or of some other arrestable offence, does without lawful authority or reasonable excuse any act with intent to impede apprehension or prosecution, shall be guilty of an offence. The Committee was of the view that a person would not be guilty of an offence under s. 4 if knowing that X had committed an arrestable offence, harboured him merely by providing or continuing to provide X with accommodation at ordinary rates or in the ordinary way.

Accordingly, I am of the view that even if I accepted the State’s case at its highest the accused can not, as a matter of law, be said to have harboured the escapee.

If I am wrong in that view it remains to consider whether there is still a case to answer and whether even if there is, should I consider the State has satisfied me beyond reasonable doubt of the guilt of the accused. I think that if I were wrong in law and if I did find the accused was playing cards with his brother who was wearing the coat of the accused, there would be a case to answer.

I have said some facts are in dispute. It is in dispute that the accused was playing cards. The only evidence as to how the escapee came to be wearing his brother’s coat comes from the escapee who said he took it from the house of his ‘last father’. The colour of the coat is variously described by an officer of the Corrective Service, who apprehended the escapee, as being at once, when before the magistrate, brown, and before me, red. If the witness cannot be accurate about the colour of the coat (which was said to be one of three he was wearing) I would find it difficult to accept his evidence of identification of the accused. There are other matters in the evidence, to not all of which I have referred, which do not justify me in finding that it was the accused who was playing cards with the escapee. It is also significant that the senior corrective officer said in evidence that initially he did not intend to arrest the accused, but upon having taken the escapee into custody the accused demanded on several occasions the return of his coat then on his brother’s back. He said when the accused made a nuisance of himself he arrested him. For these reasons I am not satisfied beyond reasonable doubt that the accused was playing cards with his brother.

Applying the principle in Reg. v. Dodd[xxix]⁷ I would acquit the accused now. I return a verdict of not guilty. The accused is discharged.

[xxiii](1840) 9 C. & P. 355.

[xxiv](1892) XIII N.S.W.R. 220.

[xxv][1954] VicLawRp 90; [1955] V.L.R. 95.

[xxvi](1892) XIII N.S.W.R. 220.

[xxvii](1840) 9 C. & P. 355.

[xxviii]Since returning to Port Moresby I have read the reasons of the Privy Council in Majara v. the Queen ([1954] A.C. 235). This also was a case involving an accessory after the fact. It was held sufficient to constitute the prisoner an accessory that he “associated” himself with (in the broad sense of that word) the crime committed. However, the Board was there considering Roman-Dutch law and not the Common Law. The circumstances were also different, in that the prisoner failed to perform a legal duty and thereby assisted murderers by giving them an opportunity to escape from justice. My reading of this case confirms me in the view I have formed.

[xxix][1971-72] P. & N.G.L.R. 255.

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National Court of Papua New Guinea

Wembra, The State v [1977] PGNC 47; [1977] PNGLR 23 (16 February 1977)

Papua New Guinea Law Reports - 1977