Dale and Dale v Police [1992] PGNC 14; N1103 (15 June 1992)

Unreported National Court Decisions

N1103

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APP 217 OF 1991
DAVID JAME DALE AND MARIA DALE
V
THE POLICE

Lae

Sheehan J
15 June 1992

POSSESION OF PORNOGRAPHIC MATERIAL S 25A SUMMARY OFFENCE ACT - Not an offence of strict liability.

Cases Cited

Sherras v De Rutzen (1895) 1QB 918.

Warner v Metropolitan Police Commissioner 1968 2 All ER 356.

Sweet v Parsley [1969] UKHL 1; 1970 AC 132.

Counsel

Mr R. Barrell for the Appellant

Mr M. Peter for the Respondent

DECISION

SHEEHAN J: The appellant was convicted in the District Court at Lae of possession of a pornographic video tape contrary to provisions of s 25(a) of the Criminal Code.

This video tape was found by Police when carrying out a search of the appellants premises under search warrant. The Court was told that the Police, acting on information from an anonymous informant found the tape in the appellants living room amongst a group of fourteen other (harmless) tapes adjacent to the television set. The appellant had no notice of the intention of the Police to carry out the search and were present at their home when the search took place. They did not accompany the Police Officers as they search their premises was carried out.

Upon being charged with possession of the offending tape the appellants accepted the finding of the tape on their premises, but told the Court they had no knowledge of it being there. They gave evidence supported by witnesses that they had been the object of abusive and obscene phone calls from a person who obviously knew the appellants by name and evidence which supported their contention that there was in fact a person harboring a real grudge against them. Such a person might have been able to have “planted” the pornographic tape in their apartment and then make the anonymous call to the Police.

The learned magistrate did not believe the defence evidence. He said that the claim that there were other persons holding keys to their apartment was uncorroborated and the appellants had not mentioned any abusive phone calls during the course of their interview by the Police. The learned magistrate was satisfied that the appellants did know of the existence of the tape and they were convicted accordingly.

When a person is charged with a Criminal offence it is the task of the prosecution to prove that charge and all the elements of it beyond reasonable doubt. That is well known. It is equally well known that the defence does not have to prove innocence or anything at all, or indeed even give evidence.

But when the defence does give evidence, particularly evidence which contradicts vital elements of a charge, that evidence must be disproved by the prosecution, or the trial magistrate must show reason for not accepting it. It is not a matter of saying that the defence is uncorroborated. Or, that the defence didn’t call enough witnesses as was said in this decision. It may of course be simply an error in way the decision is expressed, but as it is expressed, it does seem that the learned magistrate felt the defence case did not go far enough to prove their innocence. This appeal could succeed on this ground alone.

But in any case, the prosecution evidence is insufficient. Notwithstanding the finding of the pornographic tape in the appellants apartment, there was before the District Court, simply no evidence of knowledge on the part of the appellants necessary to constitute physical or mental possession amounting to control in breach of the statute.

The sole issue then before the Court on this appeal was whether the offence created by s 25(a) of the Summary Offence Act is complete if possession only is proved. That is, is it an absolute offence, committed by mere possession without knowledge of that possession.

Section 25 A of the Summary Offence Act reads as follows:

“25A. POSSESSION,, OF INDECENT EENT ETC., ARTICLE

1) ҈ A person who:

a) &ـ h6s in s in his pois possession/p>

b) & m60;s; ke

r

c)&p>c) ҈ produces; or

d) &#&#16re mmhing king or pror productf; or

e) exhibits;bits/ or

f)&#>f) &160; &ـ sells

an ar orle or les t/p> <#160; &;& isasphemous mous or indr indecent; or

h)&#1h) < &1160;##160&#160  sly offendgrosslrossly offe offend agaicceptandar decencecency,

is guilty of an offence.

>

Penalty: A fine not exceeding K2,000.00 or imprisonment for a term not exceedin yearboth.

(2)&>(2) #160;&#160 ټ a defendefence to a chargcharge of an offence against Subsection (1)(d) that the person charged was not aware that he was performing in the making or production of an article or articles.

(3) ther urpopes of this sectioection - “article” means any description of article containing or embodying matter to be or loat or, anyd recnd any film or other record or a picture or picturectures;

>

̶“fil0;film” means:

(a) ـ a cinemcinematograph film, and includes a positive or negative of a cinematograph film; or

(b) ; ao tape or video disc.R.”

Counsel for the prosecution pointedinted out that under s 1(1)(a), possession was all tequir conse thence while under subs 2, provision is made that knowledge may may exoneexonerate rate a pera person under subs 1 subs (d) if that person did not have guilty knowledge of the offence.

The Common Law which is part of the law of Papua New Guinea has long held a person is not guilty of an offence unless he had the guilty intention or the knowledge that what was being done was wrong according to law.

The Latin Maxim Actus Non Facit Reum Nise Mens Sit Rea summaries the Common Law position an act is not criminal unless done with a criminal intent. In Archbold Criminal Pleading, Evidence & Practice it is stated:

“this maxim of the Common Law, applied (though not invariably) to statutory as well as to Common Law offences, is of fundamental importance in upholding the rule of law. To make a man liable to imprisonment for an offence which he does not know that he is committing and is unable to prevent is contrary to the ordinary man’s conception of justice and brings the law into contempt”.

Simply put, before the Courts will find a person guilty and liable to the consequences of a criminal act it must be satisfied that there has been conscious, deliberate intention to break the law.

In Halsbury’s Laws of England (4th edition vol. 11 para 4) under the heading of the element of crime it is stated:

“a person is not to be convicted of a crime unless he has, by voluntary conduct, brought about those elements which by Common Law or statute constitute that crime. In general a person does not incur criminal liability unless he intended to bring about, or recklessly brought about, those element which constitute the crime. The concepts are traditionally express in the making Actus Non Facit Reum Nise Mens Sit Rea.

In some instances a person may be convicted of a crime if he has negligently brought about its constituent element.

In certain crimes, nearly all of which are created by statutes a person may incur criminal liability even though he has acted without intention, recklessness or negligent ..... Such crimes are known as crimes of strict liability”.

Such offences are rare however, and offences of strict liability will only be recognised by the Court as such, where the wording of a statute is very plain and direct.

Halsbury goes on to state:

“notwithstanding that the statute creating an offence contains no expression indicating that an mental element is a necessary constituent, there is a presumption in favour of the requirement of Mens Rea and before criminal liability without fault can be imposed, this presumption must be displaced.”

The authority for that proposition goes back to as far as 1895 in “Sherras v De Rutzen (1895) 1QB 918.

These principles have received more recent affirmation in many decisions arising out of dangerous drugs legislation, and indeed, indecent publications legislation. A modern example is Warner v Metropolitan Police Commissioner 1968 2 All ER 356 where the head notes reads as follows:

“where the words enactment creating a statutory offence, meaning the offence of possession of a prohibited article or substance, do not expressly predicate or exclude Mens Rea as a element of the offence, it is wrong impute to Parliament, even if the enactment is directed against a grave social evil, an intention to deprive an innocent accused of all the right to show by way of defence that he have no knowledge, or reason to suspect, that the prohibited article or substance was in his possession or in a container that was in is possession”.

This view was upheld in the leading decision of the English House of Lord in Sweet v Parsley [1969] UKHL 1; 1970 AC 132 the Lord reads:

“it is firmly established by a host of authorities that Mens Rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary. It is also firmly established that the fact that other sections of the Act expressly require Mens Rea for example because they contain the word “knowingly”, is not in itself sufficient to justify a decision that a section which is silent as to Mens Rea creates an absolute offence. In the absence of a clear indication in the Act that an offence is intended to be an absolute offence, it is necessary to go outside of the Act and examined all relevant circumstances in order to establish that this must have been the intention of Parliament. I say “must have been” because it is an universal principle that if an penal provision is reasonably capable of true interpretation, that interpretation which is most favorable to the accused must be adopted”.

Those are of some the decision in Common Law which by the schedule of the Constitution also form part of the law of Papua New Guinea. It is clear therefore that Mens Rae, knowledge, must form part of the offence of possession under s 25A of the Summary Offences Act.

It has been conceded that there was in fact no such evidence. The conviction therefore can not stand. It is therefore set aside and the appellants are both acquitted.

Lawyer for the Appellant - Henao Priestly

Lawyer for the Respondent - Public Prosecutor