State v Gaunede [2005] PGNC 15; N3049 (28 October 2005)

N3049

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1726 OF 2003

Between:

THE STATE

And:

TOVEY LUKESON GAUNEDE

WAIGANI: GAVARA-NANU, J
2005: 24th & 28th October

CRIMINAL LAW – Particular offence – Escaping from lawful custody – Escape by a "prisoner" – Criminal Code Act, Chapter No.262, s.139.

WORDS AND PHRASES Criminal Code Act, Chapter No.262, s.139 – "Prisoner" means a person convicted for an indictable offence as well as a person held in a lawful custody either upon arrest for an indictable offence or is on remand awaiting trial for an indictable offence.

JUDICIAL PRECEDENT – Binding Supreme Court decision – Two directly conflicting decisions by the Supreme Court on the same issue – Subsequent decision impliedly overruling the earlier decision – Subsequent decision binding.

JUDICIAL PRECEDENT – Supreme Court decision – Decision adopting and following a National Court decision which the Supreme Court had earlier overruled – Decision given per incuriam – Decision not binding – Doctrine of stare decisis.

Cases Cited:
The State v. Alan Bekau (1982) PNGLR 119.
Brian Laki v. The State (26th and 28th April, 2005).
Edmund Gima v. The State SC730.
The State v. James Tei Wena N2304.
Steven Makalmangi v. The State (1st and 3rd December, 2004).

Other cases cited:
Miliangos v. George Frank (Textiles) Ltd [1976] AC 443.
Ratcliffe v. Watters (1969) 89 WN (NSW) Part 1 497.

Counsel:
R. Luman for The State.
P. Othas for the Accused.

GAVARA-NANU, J: On 24th October, 2005, an indictment was presented against the accused charging him under s.139 of the Criminal Code Act, Chapter No. 262, ("the Criminal Code Act") for escaping from lawful custody.

Before arraignment, Mr. Othas applied for the indictment to be quashed arguing that the accused was wrongly charged under s.139 of the Criminal Code Act. Mr. Othas argued that, when the accused escaped, he was not a prisoner as envisaged by s.139 of the Criminal Code Act, because he was not yet convicted by the National Court. It was submitted that the accused was only a remandee because he was awaiting committal hearing when he escaped. Mr. Othas further argued that being only a remandee, the accused should have been charged under s. 22 of the Summary Offences Act, Chapter No. 264, ("the Summary Offences Act").

It is necessary to briefly set out the background facts to better appreciate the issue before the Court.

The accused was arrested on 05th June, 2004, here in Port Moresby over a robbery which took place at the Holiday Inn on 31st May, 2004. He was detained at a Boroko Police cell on that date. On 06th June, 2004, the day after his arrest, the accused escaped from the cell. He was at large until 01st January, 2005, when he was apprehended at Erima. He was subsequently charged for escaping from lawful custody under s. 139 of the Criminal Code Act. The accused went through the committal hearing and was committed to stand trial in the National Court on 19th May, 2005.

The issue before the Court is whether the accused was a prisoner when he escaped from the cell at the Boroko police station on 6th June, 2004 and whether he was correctly charged under s. 139 of the Criminal Code Act.

The issue therefore turns on the meaning of prisoner in s. 139 of the Criminal Code Act. As noted, Mr. Othas has argued that prisoner in that section means a person convicted by the National Court for an indictable offence.

This issue has attracted considerable judicial debate and the genesis of the debate can be traced back to the case of The State v. Alan Bekau [1982] PNGLR 119. There, his Honour McDermott A.J (as he then was), considered the issue, but in the context of s. 141 of the Criminal Code Act, because the person on trial before him was charged with harbouring a prisoner who had escaped from lawful custody. The accused there was alleged to have harboured a person who had escaped from custody after being committed to stand trial in the National Court.

His Honour held that prisoner in s.141 of the Criminal Code Act meant anyone who was detained or held legally in custody whether by arrest, committal or after conviction and who is not released by due process of law. The decision however, did not quite address the issue that is before this Court.

In 2002, the issue in respect of the meaning of prisoner in s. 139 of the Criminal Code Act, arose before Kirriwom J, in The State v. James Tei Wena and The State v. Gend Yanisa Thomas N2304, ("The State v. James Tei Wena"). Both accused in that case escaped from Barawagi jail in Simbu Province while awaiting trial for armed robbery. His Honour held that prisoner in s. 139 of the Criminal Code Act, meant a convicted criminal or offender. His Honour said that a prisoner in s.139 did not include an accused person who is under arrest or is in custody awaiting trial. His Honour went on to say that the accused before him should have been charged under s. 22 of the Summary Offences Act. Both accused were discharged from the indictment.

Then, in 2003, the same issue arose before the Supreme Court in Edmund Gima v. The State and Suine Arnold v. The State SC730, ("Edmund Gima v. The State"). The Supreme Court decided that prisoner in s. 139 of the Criminal Code Act, meant a person convicted for an indictable offence as well as a person who is held in a lawful custody either upon arrest or is on remand awaiting trial for an indictable offence. The Supreme Court also held that a person who escaped after being detained or convicted for a summary offence should be charged under s. 22 of the Summary Offences Act, and a person who escaped after being detained or convicted for an indictable offence should likewise be charged under s.139 of the Criminal Code Act.

So the Supreme Court in Edmund Gima-v. The State gave a broader meaning to prisoner in s.139 of the Criminal Code Act. The Supreme Court also considered the decision in The State v. James Tei Wena and was expressly overruled. The Court said:

"A careful consideration of the provisions of s.139 and s.141 of the code and s.22 of the SOA reveals that they all talk about a prisoner being held in custody".

It should be noted that his Honour Kirriwom J. was a member of the Supreme Court bench in Edmund Gima v. The State. Thus, his Honour essentially reversed his decision in The State v- James Tei Wena.

Then in the subsequent case of Steven Makalmangi v.The State, (1st and 3rd December, 2004), the same issue arose before the Supreme Court during its sittings in Mt. Hagen. The appellant there was remanded in Baisu jail in Mt. Hagen, Western Highlands Province, while awaiting trial on a charge of wilful murder. He was taken to Wabag National Court for a Call Over and after the Call Over he and other inmates were being transported back to Baisu jail when they escaped.

A week later, the appellant surrendered voluntarily to the police. He was later charged under s.139 of the Criminal Code Act, for escaping from lawful custody. He pleaded guilty and was sentenced to 5 years imprisonment but 3 years were suspended thus leaving 2 years for him to serve. He appeared in person before the Supreme Court. Because he was out of time with his appeal, his application was heard under s. 155 (2) (b) of the Constitution as a review matter. The Supreme Court by majority of 2 to 1 held that the trial judge had erred in dealing with his case under s.139 of the Criminal Code Act, because at the time of his escape, the appellant was a remandee, not a convicted prisoner. The majority held that a prisoner in s. 139 of the Criminal Code Act, meant a person convicted for an indictable offence and adopted and followed the National Court decision in The State v. James Tei Wena, which the Supreme Court had earlier overruled in Edmund Gima v- The State. The majority concluded its judgment with the following remarks:

"We accept the ruling in Tei Weina’s case and the reasons stated therein by his Honour. The applicants, being remandees should never have been charged under s.139 of the Act. The correct charge should have been laid under s.22 of the Summary Offences Act".

Thus, after the decision in Steven Makalmangi v The State, there were two directly conflicting Supreme Court decisions on the same issue; viz. the decision in Steven Makalmangi v- The State and the decision in Edmund Gima v. The State.

Then, in the more recent case of Brian Laki v. The State, (26th and 28th April, 2005), the same issue arose again before the Supreme Court. The appellant in that case was charged and convicted under s.139 of the Criminal Code Act, for escaping from lawful custody. At the time of his escape on 06th January, 2002, he was being held at Lakiemba jail in Kimbe, West New Britain Province, while awaiting trial on two charges of armed robbery. He was sentenced to 5 years imprisonment but 3 years were suspended thus leaving 2 years for him to serve. He appealed his sentence claiming that others who escaped with him were dealt with under s. 22 of the Summary Offences Act, and got lighter sentences. The Supreme Court, inter alia, held that he was properly charged under s.139 of the Criminal Code Act and affirmed its decision in Edmund Gima v. The State.

So the two directly conflicting decisions of the Supreme Court on the issue currently are the decision in Brian Laki v. The State which affirmed Edmund Gima v. The State and the decision in Makalmangi v. The State.

Thus the situation before me is that the Supreme Court has on the one hand in Brian Laki v. The State and Edmund Gima v. The State, given a broader meaning to prisoner in s.139 of the Criminal Code Act. Whilst on the other hand, it in Makalmangi v. The State gave a narrower meaning to prisoner in s.139 of the Criminal Code Act, by adopting and following the National Court decision in The State v- James Tei Wena.

In this regard, I have decided against referring the issue to the Supreme Court for its ruling because in my respectful opinion, the facts giving rise to the apparent conflict between the two decisions quite clearly establish that there is a binding decision which I am bound to follow.

I take this approach for two reasons, firstly, in my respectful opinion, the latest Supreme Court decision in Brian Laki v. The State had the overruling effect on its earlier decision in Makalmangi v. The State. The reason being, the two decisions had discussed and decided the same issue. The Supreme Court had therefore by its deliberate decision in Brian Laki v. The State impliedly overruled its earlier decision in Makalmangi v. The State. Although Brian Laki v. The State made no express mention of Makalmangi v. The State, that is of no consequence. This point was made by Street J, (as he then was) in Ratcliffe v. Watters (1969) 89 WN (NSW) Part 1 497. At 505, his Honour said:

"It is part of the ordinary judicial process to examine and consider the effect of precedents. If, in substance, an earlier decision is overruled by a subsequent directly - conflicting decision then it is the subsequent decision that must be applied, not withstanding that it does not in terms mention the earlier decision..." (my underlining).

I respectfully adopt this utterance of the law.

Secondly, it is quite plain that the decision in Makalmangi v. The State was given per incuriam because the decision by the National Court in The State v. James Tei Wena which was adopted and followed by the majority was expressly overruled by the Supreme Court in Edmund Gima v. The State which was later affirmed by Brian Laki v. The State. The court in Makalmangi v. The State therefore could not adopt a National Court decision which it had earlier overruled and which was therefore no longer a law. It is therefore plain that the decision in Makalmangi v. The State was given inadvertently to the decision in Edmund Gima v. The State. The upshot is that the decision in Makalmangi v. The State is destitute of having any legal and binding effect. It follows therefore that Brian Laki v. The State is the binding authority.

It would appear that Edmund Gima v. The State was not brought to the attention of the court in Makalmangi v. The State and it may well be that, had Edmund Gima v. The State been brought to the attention of the court in Makalmangi v. The State, the court might have decided differently.

A word of caution should be made here that, the approach taken here should be taken with great care and adopted only in clearest of cases where per incuriam is clearly manifested in the judgment being decided. In this regard, it should be noted that a judgment is not given per incuriam simply because the arguments advanced by counsel are weak or are poorly formulated or that the reasoning in the judgment is faulty. See, Miliangos v. George Frank (Textiles) Ltd [1976] AC 443. At 477, Lord Simon of Glaisdale expressed the same word of caution:

"...A court should only hold a judgment to have been given per incuriam if it is satisfied, first, that such judgment was given in inadvertence to some authority (judge – made, statutory or regulatory) apparently binding on the court giving such judgment and, secondly, that, if the court giving such judgment had been advertent to such authority, it would have decided otherwise than it did – would, in fact, have applied the authority".

It should be said that the approach adopted here does not in any way offend against the doctrine of stare decisis. It in fact gives effect to it.

The law therefore is as stated in Brian Laki v. The State and it is the binding authority, which I am bound to follow.

It follows that the accused was correctly charged under s.139 of the Criminal Code Act.

The application by the accused to quash the indictment is therefore is dismissed.
_____________________________________________________________________
Lawyer for the State : Public Prosecutor.
Lawyer for the Accused : Paraka Lawyers.