Pagawa v Mathew [1986] PGNC 45; [1986] PNGLR 154; N547 (4 July 1986)

N547

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

ABEL PAGAWA

V

FREDERICK MATHEW

Vanimo
Kidu CJ
4 July 1986

IMMIGRATION AND ALIENS - Offences - Entering country without entry permit - "Refugee" from Irian Jaya - Defences of extraordinary emergency and compulsion available - Migration Act (Ch No 16), s 16(1)(a) - Criminal Code (Ch No 262), ss 26, 32.

CRIMINAL LAW - Criminal liability - Defences - Extraordinary emergency - Compulsion - Defences available to charge of entering country without entry permit - Migration Act (Ch No 16), s 16(1)(a) - Criminal Code (Ch No 262), ss 26, 32.

Held

(1) On a charge of entering Papua New Guinea without an entry permit in contravention of the Migration Act (Ch No 16), s 16(1)(a), both the defence of sudden or extraordinary emergency under the Criminal Code (Ch No 262), s 26, and the defence of compulsion under the Criminal Code (Ch No 262), s 32, are available.

(2) Accordingly, in circumstances where a person from Irian Jaya stated that he had entered Papua New Guinea "... because the Indonesians have killed all of us ... I was in prison so I was frightened and ran away ..." both defences had been made out.

Cases Cited

Laeka Ivarabou v Nanau [1967-68] P&NGLR 12.

Appeal

This was an appeal against conviction on a charge of entering Papua New Guinea without an entry permit in contravention of the Migration Act (Ch No 16), s 16(1)(a).

Counsel

B Narakobi, for the appellant.
G Salika, for the respondent.
Cur adv vult

4 July 1986

KIDU CJ: On 7 July I allowed the appeal and quashed the conviction and ordered that the appellant be held in custody of the Foreign Affairs Officers at Blackwater Refugee camp. I now give my reasons.

The appellant from West Irian or Irian Jaya was convicted by the District Court at Vanimo on 16 May 1986 and sentenced to two months imprisonment. He was also ordered to leave Papua New Guinea "within one month to Jayapura". The charge was that he entered Papua New Guinea without an entry permit in contravention of s 16(1)(a) of the Migration Act (Ch No 16).

It appears that the appellant crossed the border into Papua New Guinea on 14 May 1986 and went to Wutung. From there he walked to Vanimo arriving the next day. He met a friend at Vanimo and they walked to the Blackwater Refugee Camp where he surrendered himself to the Foreign Affairs officials who banded him over to the Police. At the Vanimo Police Station he was interviewed, arrested and charged, after which he was informed of his rights under s 42(2) of the Constitution and placed in the cells.

In the notice of appeal there were three grounds of appeal but only the first was pursued and a further ground based on breach of s 42(2) of the Constitution was argued. Counsel for the respondent conceded the appeal on the first ground and it is as follows:

"That the entry of a plea of guilty was wrong in law in that the appellant’s statement on his defence did not make any unequivocal admission to all elements of the offence as charged."

It is very clear from the District Court records of the case that the appellant made an unequivocal plea of guilty:

"Charge read and explained. On plea deft. says — the Wamena people and the Indonesians soldiers had a fight at Amso. And also as I was in prison I was tortured and nearly killed. I had nowhere to go, so I ran away.

Finding — Guilty

A/R — Single

P/C — Vanimo O/C 11.6.85 in possession of unlicenced firearm. Five K100 I/D one month IHL.

Allocutus — as in statement of defence.

Court Order — Deft. to be imprisoned for 2 months in IHL but on condition that he leave the country within one month to Jayapura."

When the summary of facts was read to him the appellant stated as follows:

"I know Papua New Guinea laws but because the Indonesians have killed all of us I ran away. Many of us Wamena have been killed for nothing. I was in prison so I was frightened and ran away. The church building was also burnt down by the Indonesians."

We in Papua New Guinea are aware of the struggle by some Irian Jayans of the Melanesian stock and we know of the recent movement of thousands of these people into our country. I am not certain as to what we call these people. It seems to me that the uncertainties felt by us in Papua New Guinea have caused so much confusion that we do not know whether to classify these people as refugees or whatever. Whatever we choose to call these people the fact is that they are victims of their people’s struggle for freedom. Whether such a struggle is right or wrong depends on one’s political viewpoint on the matter but a struggle for freedom it is without doubt. And it is this point that I am concerned with here.

I cannot see that the Migration Act (Ch No 16) in making it an offence for a non-citizen to enter Papua New Guinea without an entry permit meant to penalise those who enter the country as a result of being forced into doing so either by being chased into the country or by fleeing another country as a result of military conflict in their country. In fact in this country it is a defence to any charge that a person is not criminally responsible for an act or omission done under sudden or extraordinary emergency. This defence is contained in s 26 of the Criminal Code (Ch No 262):

"Subject to the express provisions of this Code relating to acts done on compulsion or provocation, or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not be expected to act otherwise."

Any person who finds himself under threat of being shot is justified in coming into Papua New Guinea to evade being killed. There cannot be any doubt that such a threat would amount to an extraordinary emergency and no ordinary person would do otherwise than flee into Papua New Guinea from Irian Jaya — there is no other country an Irian Jayan can go to except Papua New Guinea.

Section 32 of the Criminal Code also provides another defence on the facts of this case. The relevant part of this provision states:

"(1) A person is not criminally responsible for an act or omission done or made:

(a) ...

(b) ...

(c) ...

(d) when he does or omits to do the act:

(i) in order to save himself from immediate death or grievous bodily harm threatened to be inflicted on him by some person actually present and in a position to execute the threats; and

(ii) believing himself to be unable otherwise to escape the carrying of the threats into execution,

but this protection does not extend to an act or omission that would constitute an offence, punishable with death, or an offence of which grievous bodily harm done to the person of another, or an intention to cause such harm, is an element, nor to a person who has by entering into an unlawful association or conspiracy rendered himself liable to have such threats made to him."

Now these defences were clearly raised by the appellant and the learned magistrate should have then entered a plea of not guilty and enquired into them. It has already been stated in several reported decisions that an unequivocal plea of guilty is not a plea of guilty at all: See Laeka Ivarabou v Nanau [1967-68] P&NGLR 12. I urge magistrates to read this case and familiarise themselves with it.

Appeal allowed Conviction quashed

__________________

Lawyer for the appellant: Narakobi & Company.
Lawyer for the respondent: State Prosecutor’s Office.