State v Polu [1995] PGNC 60; N1310 (27 March 1995)

N1310

PAPUA NEW GUINEA
NATIONAL COURT OF JUSTICE

CR NO. 1744 OF 1994

THE STATE

-V-

LOKES JAMES POLU

Waigani: Brown J.
1995: 22,23,24 & 27 March

Criminal Law - Sentence - Unlawful killing - Considerations when deceased a detainee in police custody.

The facts appear from the judgment.

Cases Cited:
No cases were cited.

Reasons for Decision on Sentence

Mr S. Mulina, for the Accused
Mr K. Manek, for the State

27 March 1995

BROWN J.: Lokes James Polu (the prisoner) has pleaded guilty to the unlawful killing of Emmanuel Ivoro a young man who died as a result of an assault at the Gordons Police Station on the 9 July 1994. He had originally being charged with the murder of this young man from the Goilala area of the Central Province but in the course of the trial Mr Mulina, Counsel for Lokes James Polu, indicated that his client would be prepared to plead guilty to the lesser offence of manslaughter. The State indicated that it would accept the plea in satisfaction of the indictment; consequently he was rearraigned and pleaded guilty to the lesser offence.

After hearing from Mr Polu on his allocutus, his Counsel and an address from Mr Manek for the State, I am required to sentence Mr Polu for this offence.

The short facts are that on 9 July 1994 Emmanuel Ivoro was being taken from the Gordons Market area to the Gordons Police Station at about 1.00 p.m. by a party of concerned citizens who had hold of him for they had reason to believe that he had pick-pocketed one man who was in the party. He had been accused of pick-pocketing a wallet from this man. That wallet contained K130.00 and an identification card. Reserve Constable Soikava Kari was on duty at the Gordons Police Station. Emmanuel Ivoro was brought to the complaints counter by the accused Lokes Polu who was with his wantok, the complainant who had lost his wallet. Lokes Polu was not on duty, was in civilian clothes, but had seen the party of people heading towards the Police Station with Emmanuel Ivoro and had recognised his wantok, the complainant. The wallet was not found on Emmanuel Ivoro.

The Reserve policeman was called into the General Duty Office to interview the suspect in relation to the theft. Emmanuel Ivoro was punched by Lokes Polu in the stomach and to the side of his body about his ribs. He was also lifted up and dumped onto the floor by the prisoner. The Reserve Constable attempted to continue his questioning but took no action in relation to the assaults until a Senior Constable arrived. Senior Constable Tokaneki was then asked to charge the suspect but declined for he was going off duty. Senior Constable Tokaneki did, in fact, take the suspect Emmanuel Ivoro into a cell.

Later the duty sergeant Sergeant Kairi brought the suspect back into the duty officers room. It was apparent that Emmanuel Ivoro was very weak and ill. At his request Emmanuel Ivoro was taken to a toilet. He vomited. The duty sergeant washed the vomit from his body and laid him on the floor. Some 30 minutes later Sergeant Kairi asked Constable Soikava to check on the suspect. The Constable found him on the ground. When asked if he was alright Emmanuel Ivoro replied "I have a bad pain in my stomach a very bad pain. I want to visit the toilet". The Reserve Constable helped him to sit on the toilet when some 15 minutes later he checked on the suspect he found him slumped in the corner against the toilet with vomitus on his shoulder. The Reserve Constable spoke to Sergeant Kairi who saw the suspect. He was then laid on the toilet floor. The suspect later apparently rolled himself to the toilet door and down to the footpath outside the toilet block. Sergeant Kairi called an ambulance, which on the Reserve Constable's estimation arrived at about 5.00 p.m., shortly after it had been called.

On the arrival of the ambulance officers, the suspect was found to be dead. He was pronounced dead on arrival at the Port Moresby General Hospital. A post mortem report was carried out. The cause of death was haemorretic shock from a ruptured spleen. The post mortem also touched on superficial injuries to the body and the face of Emmanuel Ivoro consistent with an assault.

Following his plea to the unlawful killing Lokes Polu in his allocutus spoke of the events prior to the death of Emmanuel Ivoro. On the day in question he was on his way to the Bomana College to watch rugby. He had cause to go to the Gordons Police Station and noticed a group walking towards the station from the market. He said he observed the interview of the suspect and whilst he admitted assaulting the suspect there were other people who also took part in that assault. He left the police station at about 1.45 p.m. and continued on to watch the football game. Later he was informed that the suspect he said had died at the Gordons Police Station. Some 10 days after the death he was called to the Station when a record of interview was conducted.

The prisoner also said that other people may have assaulted the victim at the market or at the Police Station. He also blamed the duty sergeant, alleging that it was through his negligence in failing to obtain earlier medical assistance that the suspect had died. I should say straight away that the cause of death was the ruptured spleen arising out of the assault. If there was delay and I am not prepared to find delay on the circumstances enumerated in Court then any such delay does not mitigate the prisoner's serious acts. There is a direct causal connection between the assault and the eventual death of Emmanuel Ivoro.

When considering the plea to the killing I must be satisfied in accordance with the provisions of s 7 of the Code that the accused Polu was a party to the assault. Having regard to the nature of his plea and the material in the depositions as well as the sworn evidence of the Reserve Constable in Court yesterday I am so satisfied and consequently accepted the plea to manslaughter. Every person involved in an assault in equally responsible for his own actions, and cannot be absolved as it were, by the conduct of others. In fact, in this ease, Reserve Constable Soikava Kari expressly said that he felt constrained by the fact that Sergeant Lokes Polu was his senior and felt unable to intervene to prevent the continuing assault of Emmanuel Ivoro in the General Duties office. The hiearchy of police ranks has effectively prevented any intervention by the Constable on duty responsible for the welfare of the suspect, Ivoro.

The lawyer for the prisoner Mr Samuel Mulina was able to prepare written submissions relevant to the question of sentence. I am indebted to him for his submissions raise important issues. The first issue is that of the police behaviour towards the victim, which Mr Mulina justified in these terms -

"The police are also tired of having to deal with such crimes that never seemed to end and they get very frustrated with such prevalent petty crimes coupled with insufficient resources and lack of manpower. In such frustrating circumstances the policeman used tactics that will speed up their investigations. Many times the police have to be rough with the suspects to obtain any information at all. In this case the deceased being a suspect was very uncooperative and naturally the policeman together with the complainant had no option but to express their frustration which meant man handling the deceased. The Court must take into account the fact that there were others who took part in hitting the deceased in order to obtain information as to the occasion of the wallet and its content".

The defendant unfortunately was singled out amongst the others who have not owned up for fear of being charged or disciplined. The defendant therefore was not alone in this act that is before this Court".

"The deceased knew that the public including the police would not tolerate such stealing and that in the event that he was caught he would be man handled by the public and that of the police as it was becoming a practice to remind rascals that their actions are no longer tolerated and that they will not get away with it".

It is clear that the attitude expressed in the lawyer's submissions is that a rascal in these circumstances deserves what he gets and that the community exasperation calls for the police to use force to extract admissions and confessions. It must be remembered however that the evidence of this case disclosed no wallet, rather he had K20.68 in his pocket in the course of his questioning the Reserve Constable was adamant that the suspect denied any involvement in the loss of the prisoner's wantoks wallet. Be that as it may, the fact that the deceased was found to be without the stolen property should not cloud the issue of whether police in the circumstances, are entitled to extract confessions or admissions through assaults. The danger of course is that innocent people may be put to death whilst police attempt to extract confessions or admissions.

Nevertheless does Papua New Guinea society concede a right in the police to act in this fashion?. Counsel's arguments then raise philosophical questions. We know that Port Moresby has been stricken with violence, petty crime, and serious robberies of all description. Is it in response to a general decline in society's standards; a reflection of traditional violent mores or a reaction to the received perceived injustices of nepotism in a supposedly democratic political institution, the Parliament. It is not for this Court to pass judgment or take sides at a political or morale level but it must be recognised that these considerations exist. I am required to pass judgment on this offender. What account must I take of these considerations? Does Mr Mulina's statements that criminals should expect to be beaten by the police reflect traditional mores, or behaviour, and if so, should that be an excuse in this case.

Lee Kuan Yew, the Prime Minister of Singapore, in an address delivered in Tokyo in November 1992 dealt with some of these considerations when he said -

"On the whole I think it is more difficult to achieve a working democracy then to make some progress in human rights. Greater respect to human rights is a worthwhile objective. The only practical way forward is the step by step incremental approach. Standards of what is civilised behaviour vary with the history and culture of the people and the level of deterrents or punishment to which people are accustomed.

Our common humanity requires us to persuade all peoples and their governments to move towards more humane, open, responsible and accountable government. Government should treat their own people, including prisoners, in a humane way.

One cannot ignore the history, culture and background of a society. Societies have developed separately for thousands of years at different speeds and in different ways. Their ideals and their norms are different. American or Europeans standards of the late 20th century cannot be universal. Attitudes are changing. Worldwide satellite television makes it increasingly difficult for any government to hide its cruelties to its own people".

The highlighted portion of this speech is the correct approach in Papua New Guinea as espoused by the Constitution. For defence counsel to so openly suppose a tacit acceptance of police cruelty against rascals, cannot reflect the expectations or standard mores of Port Moresby society. He may be attempting to explain the reaction of this prisoner in a tribal situation to a presumed insult by Emmanuel Avore in the attack of the prisoner's wantok. If that be the case, then the sergeant, putting aside his uniform and his position in the Police Force, can be seen as responding to an obligation to support his wantok in a conflict. The fact that there is a disparity of numbers on both sides is not relevant in such a tribal situation and as Counsel says the response by the sergeant is perfectly legitimate in a tribal sense, if we equate the tribe with laws abiding citizens and the victim, Ivoro as someone outside the protection of the tribe. This may explain what has happened in human terms but our social conscience should not accept it in an evolving society in the latter part of the 20th century in Papua New Guinea.

The prisoner, a sergeant in the Constabulary, has exhibited a persevering vice of men who aim to correct a perceived social disorder, impatience and arrogance. As his lawyer has expressed it, force is needed to extract a confession. That very impatience and arrogance, exhibiting a lack of discipline, is contrary to an orderly conduct of affairs which the police force is specifically empowered to pursue and trained to carry out. Because of this man's impatience for a result, he has condoned cruelty and injustice. His lawyer's address reflects an erroneous belief that the sergeant's position and power as representative of the State, is above the law.

I cannot accept the propositions of the prisoner through his lawyer. Were the Constabulary to adopt assaulting suspects as acceptable procedure, it would result in increasing alienation between the Constabulary as an instrumentality of the State and the citizens of Papua New Guinea. It is a fallacious notion or wrong, to believe that increasing use of force by Constables in authority will ease the burden of rascal activity in the capital. It can only exacerbate it.

"Government should treat their own people, including prisoners, in a humane way".

The prisoner's uncle has given character evidence. The second in charge of the Forensic Division of the Royal Papua New Guinea Constabulary has filed an affidavit in which he speaks highly of this man's professional competence in the Forensic field. The Inspector goes on to say that he will be short staffed if this man was to be incarcerated or sent to jail. The considerations of the Inspector are not relevant on sentence but I take account of his good work history and the professional respect given him by his supervisor. The prisoner's good character is of course relevant and I intend to take that into account. He is 28 years of age, a married man without any prior blemish on his record. The fact that he has pleaded guilty and his previous good character are in his favour. On the other side of the balance is his abuse of authority and the emergence of a tribalism which the disciplined forces cannot afford to condone. If members of the discipline forces abuse members of the general population in this fashion because of tribal loyalties the government of the people will be undermined. Such treatment becomes inhuman. In these circumstances a jail sentence is called for. Society should not allow its disciplined forces to arbitrarily use inhuman treatment of this kind, under the guise of authority.

Sentence

You are sentence to 5 years imprisonment in hard labour.
Bail moneys will be refunded.

_______________________________________

Lawyer for the Accused: Mr S. Mulina
Lawyer for the State: The Public Prosecutor