Sareaka v Papi [1983] PGNC 17; N448(M) (15 December 1983)

N448(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL NO. 207 OF 1983

BETWEEN:

LAKEA SAREAKA
APPELLANT

AND:

SIMON PAPI
RESPONDENT

Waigani: Pratt J
13 December 1983, 15 December 1983

JUDGMENT

PRATT J: In this matter there are one or two preliminary matters I wish to comment upon. First of all, the notice of appeal was filed on 10th October this year and the Registrar requested from the senior magistrate, (I think under the Act that should really have been the Clerk of Court at the District Court) depositions and reasons for judgment. This request was dated 11th October. The defendant, Lakea Sareaka had been convicted on his plea under s.20 of the Summary Offences Act, of being unlawfully on premises. Both at the time of the commission of the offence and of dealing with the matter by the court, the offence carried a minimum penalty of not less than one year and not exceeding two years, a penalty considerably in excess of that which applied prior to the passing of the Minimum Penalty Legislation. However, the decision of Mr. Justice Amet, No. N432(M), ruled that the Minimum Penalty Legislation did not prevent a magistrate from applying a fine rather than a term of imprisonment in the appropriate circumstances. In the present circumstances it is not necessary for me to go into that area of the law further.

There has been some delay since filing the notice of appeal and hearing the matter in the National Court. There is no doubt that the responsibility for that delay rests fairly and squarely on the senior magistrate at the District Court, Boroko, for in response to the Registrar’s letter requesting a copy of the depositions so that the appeal may be dealt with according to law, the following was received under the Senior Magistrate’s signature:

"I wish to advise that the lawyer for the appellant be instructed to specify his grounds of appeal so that the magistrate concerned doesn’t waste his time unnecessarily."

It is obvious that the magistrate who heard the case was not the writer of the letter. There is nothing contained in the District Courts Act which authorises or even suggests that a member of the court, be he magistrate or clerk, can decline to forward depositions to the Registrar of the National Court where an appeal has been lodged on the basis that he considers the grounds in the notice of appeal are deficient in some way or other. I suppose if it were clearly and obviously defective, insofar as it stated no ground of appeal at all, it could be argued that it did not really constitute a notice of appeal, but in my view there is again no necessity to go into such academic areas for the notice of appeal in this case was quite well drawn. The constant harangue from the bench, particularly to the Public Solicitors’ Office, that in preparing and filing notices of appeal proper particulars be set forth, has obviously been heeded. In the present case it was quite clear exactly what the appellant and his lawyer were driving at. The grounds of appeal were stated with precision and clarity. It saddens me that the senior magistrate has not only written a letter which must be described as arrogant, officious and in the circumstances of the case, quite impertinent, but that he has not even bothered to look up the papers to see what must have appeared to anyone with any legal training whatsoever, as a matter which had clearly gone off the rails; namely, that a plea of guilty should not have been accepted and that a verdict of guilty should not have been entered. There are facts set out in the papers which undoubtedly support the charges laid by the police. Then I go to the statements of the defendant. First of all in answer to the charge that he was unlawfully on premises he said, "That is true" - a not uncommon reaction from defendants, in this country, as anyone who has had any sort of experience at all on the bench or at the bar for that matter, knows only too well. He was on the premises, and the occupier did not like it. After the facts were read this is the reply given by the appellant:

"Story is correct. I went inside the house because the rascals chased me. The owner sent me out so the rascals came and belted me. The owner of the house did not like me to go inside."

If ever a magistrate had before him a claim for lawful excuse to be in a place where normally he should not be, this is it. It may be, of course, that what the appellant said to the learned magistrate is a load of nonsense, but one cannot determine that aspect until the matter is put to trial. I am completely unable to understand how the magistrate in this matter continued to deal with the case as a plea of guilty, particularly now the legislation has imposed minimum penalties, unless the matter is appropriate for the imposition of a fine, following the decision of Mr. Justice Amet in Laho Kerekere v. Robin Miria N432(M).

I am aware that there are times when difficulty is occasioned for magistrates because notices of appeal are not adequately particularised. Some magistrates have a heavy workload to contend with and little time to waste, especially in the main centres. The courts have, from time to time, criticised such notices of appeal and have adjourned cases until proper grounds of appeal are set out. The lack of particularity makes it even more difficult for the counsel appearing for the respondent to know what sort of arguments he is going to have to meet, let alone the Court of Appeal. So the magistrates are not alone, but the situation is improving.

Having spoken of the delay it now remains to decide what am I going to do with this young appellant because it is obvious that the appeal must be upheld and the conviction quashed. The accused had put forward a lawful excuse. I am troubled as to what I should do in this case for three reasons: (1) Minimum Penalties Legislation is involved; (2) the senior magistrate at Boroko has seen fit, without any legal authority whatsoever, to delay the hearing of this appeal by refusing to send the papers to the court, and (3) the magistrate who dealt with the matter made a gross error which is difficult to understand any trained person making, when applying his mind properly to the task in hand. The appellant has already served over three months in gaol. If I send the matter back for re-hearing there is the question of what he is going to do in the interim period. It will probably be at least another two months (particularly bearing in mind the Christmas/New Year period intervening) before the witnesses are organised and the matter comes on for a full hearing at court. The fact that he is not out on bail pending this appeal, leads me to assume that he may well have some difficulty in raising bail money. Certainly his background would indicate that should he make a bail application a cash recognizance would have to be imposed. So the necessary delay in organising a trial is a further problem. However an insuperable difficulty stems from the Minimum Penalties Legislation itself. If the appellant has his case re-heard and he is lawfully convicted of this offence, it seem to me at present that there is no way in which the magistrate can then take into account the three, or four, or five months which he has already served in respect of this offence when he proceeds to sentence him for the conviction brought in by him at the hearing in 1984. In other words what I am being faced with is the possibility that this young man may well be facing a minimum sentence, not of 12 months because of the errors which have been occasioned in his case, but perhaps 17 months. Of course, this type of situation is not the only blatant injustice which can be perpetuated by the ill-conceived, ill-advised, ill-considered, inherently illogical and Draconian burst of legislation passed in Parliament in May and November of this year under the general title of Minimum Penalties. Let me put one other example which will no doubt arise in the near future. Take a case of break and enter of a dwelling house at nighttime. It is necessary to understand that under the present law "nighttime" is defined as that period which occurs between 9.00 p.m. and 6.00 a.m. and that the breaking of a house may occur as a result of moving any opening in such a way as to increase its size so that all or part of the criminal’s body may gain access to the inside section of the house. Two young lads, both about 16 years of age, indeed I’ll make one 16 and the other 14, 12, or 10 years of age, are walking along the road one evening about 9.00 o’clock at night. The first lad, the 16 year old, observes through a window of a house close to the footpath that there are two bottles standing on a table just inside the window - one a bottle of Coke and the other a bottle of Fanta. The window is about two inches open. He leaves his friend standing by the roadside without saying anything to him and proceeds to cross the path to the window, pushes it open, puts his arm through the open space and removes the bottle of Coke and then commences to consume it, after having returned the window to its previous position. The time is half a minute to 9.00 in the evening. He is guilty of breaking and entering a dwelling with intent, but before 9.00 p.m. and thus to a minimum sentence of five years. He then goes across to his friend and offers some of the Coke to him. His friend, preferring Fanta to Coke, then proceeds to the window and goes through exactly the same process thereby constituting both the breaking and entering and stealing, for having removed the Fanta he also commences to consume it. However, he did not start pushing open the window until half a minute past 9. Under the present legislation, whatever else the court does, both lads are subject to minimum penalties; the first to a minimum of five years because his offence occurred before the official start of night, and the second, the 14 or 10 year old, to a minimum of 8 years’ gaol. The law has been made quite foolish to say the least and he gets 8 years’ gaol because (a) of a difference in time of one minute and (b) there is still no amendment to s.32(2) of the Child Welfare Act which prevents a Children’s Court from dealing with a child charged with an offence carrying a maximum of life imprisonment (the maximum set for breaking and entering a dwelling house at night). There are other offences, of course, which obviously come to mind, rape, murder and so forth. No doubt many more absurdities could be detected with some intellectual effort.

Well, this mish-mash of hopeless legislation presents me with a real difficulty because the appellant has suffered considerable injustice already. If I do not send back the matter for re-hearing it could be said that I am following an unjust course, insofar as I am not allowing the statutory law to take its course, namely that the matter should be investigated and a proper decision made by a court. On the other hand, as I have made quite clear, if I do send him back and he is properly convicted then he could be looking at a minimum of 17 or 18 months’ gaol, depending of course, on when the police get their witnesses together. He is in his present position as a result of a blatant error by one of the magistrates of the land. Now, putting those two wrongs in the balance, it seems to me that in the ultimate my task is really quite clear. Both under the law and under the Constitution, it is my duty, so far as it is possible for me to do so, to ensure that justice is done and, of course, to assure it is done in accordance with the law, with a proper interpretation thereof, and applying the principles which underlie the law. It would seem to me that in all the circumstances it would be most unjust, if I were to send this matter back for re-hearing and, accordingly, not only do I quash the conviction, I make no further order as to a re-hearing.

ORDER

Appeal upheld. Conviction quashed. No order as to re-hearing.

Lawyer for the Appellant: N. Kirriwom, Public Solicitor
Counsel: S. Lupalrea
Lawyer for the Respondent: L. Gavara-Nanu, Public Prosecutor
Counsel: V. Noka