State v Salosa [1985] PGNC 3; N519 (4 November 1985)

Unreported National Court Decisions

N519

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V.
MECKY SALOSA

Waigani

McDermott AJ
4 November 1985

CRIMINAL LAW - PARTICULAR OFFENCES - FOREIGN POLITICAL ACTIVIST - CRIME IN PAPUA NEW GUINEA CONNECTED WITH THOSE ACTIVITIES - DEPRIVATION OF PAPUA NEW GUINEA CITIZEN OF HIS PERSONAL LIBERTY - CRIMINAL CODE S. 355.

Counsel:

G. Salika, for the State.

M. Enda, for the accused.

SENTENCE

MCDERMOTT AJ: You have pl guilty to unla unlawfully depriving Damien Aiyew of his personal liberty. You with another person, took him from his home at gut and held him at a bush camp for four days.

Your victim, a school teacher, is a cita citizen of this country who was lawfully going about his business when you, a foreigner for your own political motives abducted him. I say at once that apart from frightening him with the gun, you did him no harm. I do not consider you either wished or wanted to do him harm and indeed you reassured his wife in this regard. Nevertheless, you deprived him of his liberty.

You have told me of your reasons for taking this man. You told the police in your Record of Interview the same reasons:-

“Q.13 What has these two people got to do with the teacher when he was kidnapped?

A. ـ T60; The main reason being, police hadsted two top leaders of the OPM, and Fred Duwit was a very senior man, and when police had had arrested him we were not happy, both men leade OPM. Second thing we were on our way to atto attackedacked a ca a camp, near Sengi, but there were family at the camp, and we have to wait for them to move out before we would attacked, however when we were returning we were 170 of us, as we were waking back a young man age about 15 years died and we burried him, by seeing this, we gave an information to Geoffrey Matirani to relay this information to P.N.G. Government, but somehow the PNG police arrested him and he had never brought the information to it’s destination, which had made us more worse. The 170 were only refugees, and we had not counted the OPM fighters as not included.

Q.14 Is this the reason, and yond you people kidnapped the teacher as a revenge of those of you two top leaders were arrested by police?

A. &##160; W60; We had ndt kiedappe tthe teacher as payback, for those two top leaders, we had kidnapped the teacher because the teacher had given information leading to the arrested of Geoffrey Matirani, and we want keptso th may asay ask thek the PNG PNG Government to meet our demand of negotiation and come to a certain agreement on the problems of the border, we were also continually arrested by police when we come across the border and we held the teacher just to meet PNG Government and settle our differences.”

You have also told me that your boss in the OPM, after a meeting with you, ordered you to take this man. As I have said earlier the ‘acting under orders’ defence has long been discredited, if at all you are within the category to which it applies. You could have said no. However as you have told me, and earlier, the police there are serious political reasons behind your activities. They do provide a background but is just a background only, not an excuse or justification for the offence under the laws of this country.

The past political and historical reasons for the partition of this island, will, I assure you, not be solved or eased, or your own felt burdens, lessened in any way by unlawful acts against innocent bystanders. Most, if not all, the politicians responsible for the present international boundaries of this island are gone from the world political stage and whether they have gone to an eternal reward for these actions, is not for me to say.

But I can say to you the present boundaries are the internationally recognised boundaries of two sovereign independent nations. It is they and the international community which will ultimately decide whether there will be adjustments in the future. I do understand what you have told me, my own ancestors fought for centuries in their own land for their own independence. But in all that time there was violence, bloodshed and fear. Thank God that is not the current situation here and that is something in your favour. But your aims and ideals do not necessarily make you right or above the law. You have committed a crime in this country, which is not your own. Your action was directed against a citizen of this country, not of your own. He was, if the reason for his abduction is correct i.e. the reporting of an OPM leader presently in this country, just doing his duty as a citizen of this country, not of your own country.

You must understand that it is for these reasons you are punished. You are not punished for your political beliefs or activities elsewhere.

I consider deprivation of liberty at gunpoint a serious offence. I realise that your conviction may in the future jeopardise your right to come into or remain within this country. But it is clear to me that you gave up your permissive residency (and employment) to return home to help your people in the way which you thought best. That decision was yours alone.

In the absence of any evidence I do not know the circumstances of your much earlier conviction of unlawful entry. I do not consider I need to take it into account. I do note however that you are not in the category of a traditional border crosser being caught by a boundary imposed by colonialists.

You have pleaded guilty, you have co-operated with the authorities and you did not harm your victim. You have spent 5 months in custody awaiting trial. You are a mature man, 40 and single. You are sentenced to 12 months I.H.L.

Lawyer for the State: The Public Prosecutor

Lawyer for the accused: Narakobi and Company