Augwi v Wani [1981] PGNC 16; N341(M) (8 June 1981)

N341(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

BETWEEN

GERRY AUGWI
APPELLANT

AND

TIMOTHY WANI
RESPONDENT

Wewak: Quinlivan AJ
22 May 1981; 8 June 1981

CRIMINAL LAW - Appeals - Principles applying to appeals - Cranssen v. The King (1936) 55 C.L.R. - Appeal of Robertson Port Moresby, 1956 - Appeal of Tomi Orabi - N. 323 - Stepney Borough Council v. Joffee (1949) 1 K.B. 599 - Sagnata Ltd v. Norwich (1971) 1 Q.B. 614 - Appeal of Michael Dai Kaupa - N. 320

CRIMINAL LAW - Assaulting police officer - "fault" principle and absence of word "unlawful" in definition of assault in s. 61 Summary O.A. - Appeal of Timbu Kolian 1968 PNGLR 320 - Vallance v. The Queen [1961] HCA 42; (1961) 108 C.L.R. 56.

QUINLIVAN AJ: When this appeal was originally lodged, it had four grounds of appeal. Three have been withdrawn and Mr. Jerowai, learned Counsel for the Appellant, relies on "severity of sentence" only. Since I have so often spoken of the need for care to be exercised lest the appearance be given that the advice which Counsel has apparently given his client is being put in question - see State v. Kemi Bomai^[1], State v. Wesley Molgime^[2] etc. - I hope that I will not be misunderstood when I say that, although the appeal appears to be very simple, I "reserved" it so that I could give some thought to the question of whether or not I should direct that the withdrawn grounds of appear should be re-inserted. My reason for this has nothing to do with the case itself, or its merits, and it does not reflect, in any way, on the advice which Mr. Jalina has clearly given his client. It arises from the fact that there is, because of the peculiar facts of the case, a possibility that the difference between the wording of the charge under sections 61 (the charge laid here) and 6 of the Summary Offences Act ought to be studied. This possibility arises because of the duty (which, as I mentioned in State v. John Kaika Darius^[3] and Appeal of "F" (a schoolboy)^[4] has traditionally been very characteristic of this country) of raising any grounds of appeal which might possibly be raised, coupled with the fact that Mr. Jalina may not be aware of what I have said, in State v. Lasti Inom^[5] and in other cases (the Wewak one being State v. Magi Barton^[6]), about the necessity for there to be some element of "fault" on the part of the accused person.

I am sorry if I give the appearance of being egocentric in the references I have given. I have tried to find other cases in point but it appears that the matters which I have had to deal with have not arisen before. The one I am referring to here, certainly, has never arisen before. The fact is, however, that whereas section 6 of the Summary Offences Act says that:

"(1) A person who unlawfully assaults another person is guilty of an offence."

section 61 of the same Act says:

"(1) A person who assaults a member of the Police Force acting in the execution of his duty is guilty of an offence."

and the omission of the all-important word "unlawfully" in the second section must be deemed to have been deliberately made by Parliament. But, if a "lawful" assault could be said to be covered by the wording of section 6, this would offend against the basic principle of law of which Windeyer J. said, in Appeal of Timbu Kolian^[7], this:

"In general, criminal responsibility is today attached to moral blame. And according to deeply rooted beliefs blameworthiness does not depend simply on what a man did, or on the results his actions caused. It depends upon his knowledge and his intentions when he acted - or upon his advertence to the possible consequences of what he was doing or about to do, or his careless ignoring of them. That of course is trite. The doctrines of mens rea in the common law and of dole in the law of Scotland express this element in guilt. I see no reason for thinking that ... (the Criminal Code) demands any departure from is this basic concept or that it at all attenuates it."

The facts, with one exception, are not in dispute. They are that an argument broke out between two brothers when, on coming out of the evening session at the Garamut Cinema in Wewak, they found that their car was not where they expected it to be. One of them had, apparently, let their sister take it but this does not matter. The fact is that it was not where it should have been so an argument broke out and this quickly turned into a fight. Appellant, who was a friend of the family, says that, in order to keep the peace, he held one of the fighting brothers so that he could not fight while other bystanders held the other. In fact, he says that the combatants had actually been forced apart and were being held before the police intervened and that the police attempted to force a fighting brother from appellant’s grasp. The police version is the opposite. They say that, when Constable Kama came, the brothers were actually fighting and that it was Constable Kama who was doing the holding and it was appellant who came up and attempted to wrest the arrested man from his grasp.

The difference in the two versions is vitally important. If the appellant’s version is to be believed a question of interpretation is involved. He was clearly assaulting the policeman in the execution of that policeman’s duty (just as the policeman was, if the appellant’s story is to be believed, assaulting appellant - the word assault being used in its technical sense and no question of lawfulness or unlawfulness being involved) as they wrestled for control of the situation. The question is whether the words of section 61 mean what they appear to mean or whether, as Dixon C.J. said in Vallance v. The Queen^[8] that section is:

"to be read ... as doing no more by way of defining the (offence) than stating the external elements necessary to form the (offence) ... and ... relying upon the introductory Part (of the Criminal Code) or so much of it as deals with criminal responsibility to define and import the elements which go to ... (the) state of mind necessary or sufficient completely to constitute the offence."

This is a very important (and interesting) question but, although I did at first feel that I might have to deal with it, I am now satisfied that it would be wrong for me to do so. The principle of raising every possible ground of appeal must give way to the more basic principle that an appeal court cannot go behind the propositions of fact which the Court appealed from must be taken to have accepted as proved unless to quote Lord Goddard’s statement in Stepney Borough Council v. Joffe^[9] (which I adopted in Appeal of Michael Dai Kaupa^[10] after it had been approved in Sagnata Ltd. v. Norwich Corporation^[11] and adopted elsewhere)^[12] the Appeal Court:

"is satisfied that the judgment below is wrong, not merely because it is not satisfied that the judgment was right."^[13]

I cannot see any way in which, in law, I could say that I was "satisfied" that the magistrate was wrong unless I accept the Appellant’s version and, having used that as the basis of my analysis of the law, then make a determination that the words of section 61 do not bear their apparent meaning. But I cannot even start that process because I am forbidden, in law, to accept the Appellant’s version unless I can say that the Magistrate was wrong in accepting the prosecution version. This I clearly can, not do so that is the end of the matter.

The question before me, therefore, is the one which Mr. Jerowai left me with. The question of severity of the sentence of three months imprisonment which the magistrate imposed for the "assault" charge. This was ordered to be served concurrently with a sentence of one month imposed for "hindering" the police but the autrefois defences need not concern us here. The Magistrate dealt with it in his REASONS and the matter was not argued before me. The biting of the Constable’s thumb took place long after the hindering episode had ended - see R. James Korea-Menene and others^[14].

The question is the simple one of whether a three months sentence is excessive for the offence of assaulting a police officer when he is acting in the execution of his duty.

The legislature has seen fit to make a special case of this type of offence. It has created two quite separate offences; the unlawful assault of an ordinary person and, fifty-five sections later, the special offence of assaulting a police officer in the execution of his duty. I am unable to discover why the maximum penalty is the same in both cases but I feel that it is reasonable to suppose that the creation of the second offence is an indication that the police are, both because of the nature of their work, because of the ease with which their uniform is identified and because of what is an unfortunate development of modern times, that is, the tendency of ordinary people to attack the police on occasions, in special need of protection. I say that this is an indication because the Act is the product of modern thought and one must assume that the most outstanding example of modern thought on the subject, para. 156 of the James Committee on the Distribution of Criminal Business (Cmnd 6323 of November, 1975) was taken into account, as I take it into account here and adopt its words:

"Assault on the police ... There is a case for abolishing this offence ... on the ground that the general assault offences would be adequate to deal with assaults on the police, the fact that the victim was a policeman being an aggravating feature which can properly be taken into account in considering the appropriate sentence. On the other hand, it is argued that the police are entitled to the protection afforded by a special offence carrying severe penalties; and that outright abolition would not be acceptable to public opinion."

In this case the Magistrate accepted the prosecution story and I can see no reason, in law, why he should not have accepted it. He was therefore imposing a sentence where a police officer had not only been assaulted in the general struggle for supremacy - a fact which he specifically says he did NOT take into account in fixing the term of the sentence - but who was, AFTER that issue for supremacy had been won and the "brother" had been put into the police vehicle, bitten on the thumb, kicked in the stomach and hit or punched on the shoulder. And he had his shirt torn.

In my opinion it could not be said that there is, here,

"some reason for regarding the discretion confided to the court of first instance as improperly exercised"

and that is the test which, in Appeal of Robertson^[15] was adopted, from the judgment of the majority in the High Court in Cranssen v. R^[16] (which was an appeal from this country before the Second World War) by Phillips C.J. and has never been departed from.^[17]

Appeal DISMISSED
Sentences CONFIRMED.

Solicitors for Appellant: East Sepik Provincial Legal Aid Office.
Counsel: A. Jerowai Esq.
Solicitors for Respondent: L. Gavara-Nanu Esq. The Public Prosecutor.
Counsel: M. Jalina Esq.

---

^[1] Unreported judgment, WAIGANI, 27th January, 1981 ... N327.
^[2] Unreported judgment, GOROKA, 9th February, 1981 ... N328.
^[3] Unreported ruling, WAIGANI, 26th January, 1981.
^[4] Unreported judgment, GOROKA, 9th February, 1981 ... N.
^[5] Unreported judgment, GOROKA, 24th February, 1981 .. N329.
^[6] [1968] PNGLR 320 at p. 337.
^[7] Unreported judgments, WEWAK, 8th May (n. 327) and 22 May.
^[8] [1961] HCA 42; (1961) 108 C.L.R. 56 at p. 59.
^[9] (1949) 1 K.B. 599 at
^[10] (1971) 1 Q.B. 614 at p. 637
^[11] Unreported judgment, WAIGANI, 20th January, 1981 .. N320 p.8.
^[12] (1949) 1 K.B. 599 at p. 603.
^[13] Unreported judgment, PORT MORESBY, 26 June, 1968 .. 479 p. 13
^[14] Unreported judgment, 25th September, 1956. PORT MORESBY. The passage appears at page 5 of the judgment which is bound in Volume 2 of the Supreme Court Judgments, at pages 57 to 67.
^[15] specifically, R. v. Cummings 1978 Qd. R. 49 at p. 51.
^[16] [1936] HCA 42; (1936) 55 C.L.R. 509 at pages 519, 520.
^[17] See Appeal of Tomi Orabi, unreported judgment, KAINANTU, 9th February, 1981 ... N323, page 2.