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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No. 593 OF 2008
THE STATE
V
KOIVI IPAI (No. 2)
Waigani: Kawi, J
2010: 2nd, 3rd, 4th & 19th March & 16th April
CRIMINAL LAW – Wilfully permitting prisoner to escape from lawful custody – Criminal Code s.140 – Circumstantial evidence – Principles – Accused willfully permitting prisoner to escape – To be inferred from the proven facts and conduct of the accused prior to, at the time of and subsequent to the commission of the offence – Most logical and rational inference to be drawn – Willfully Permitting escape -mental intent to be established by the proven facts. – wilfully permitting means deliberately and intentionally, and – competing Inferences to be drawn from proven facts- Inference must be logical and rational –It be the only rational inference- hypothesis of escaping through treacherous means, otherwise colloquially known as snake bail or through other means including escaping through the roof or other escape routs– mere conjectures with no evidentiary basis- Not supported by proven facts- hypothesis of wilfully permitting prisoner to escape from lawful custody consistent with proven facts- Accused is found guilty.
The accused is a policeman. He has served in the Police Force for more than thirty years. His primary duty as a policeman is to guard suspects and prisoners locked up in Police custody at the cells at the Boroko Police Station. On the 28th of December 2008 a suspect for Break and Enter and Stealing escaped from lawful custody. It is alleged that the accused wilfully permitted the prisoner to escape as he was the lone cell guard on duty. He was accordingly charged for wilfully permitting a prisoner to escape from lawful custody contrary to section 140 of the Criminal Code. On a plea of not guilty:
HELD:
(1) The offence of wilfully permitting a prisoner to escape prescribed under section 140 of the Criminal Code has three main components, namely:
(a) there must be person who is an officer of the prison or the Police Force.
(b) This Prison or Police officer must be charged with the custody of a person in lawful custody.
(c) That such an officer willfully permitted the prisoner to escape.
(2) As to element (a) the accused is a police officer who has served in the Police Force for more than thirty years. As to (b) the primary duty of the accused is to guard suspects and prisoners locked up in custody at the Boroko Police station cells. Under section 65 (1) (2) and Schedule 4 of the Corrective Institutions Act 1995, the Boroko Police Station lock up is a duly established and Gazetted Police lock up. It is used mainly as holding cells for suspects and prisoners. Accordingly the Boroko Police Station cells are a lawful custody for purposes of holding persons suspected of committing an offence for purposes of section 140 of the Criminal Code.
(3) As to (c) the word 'wilfully' when used in section 140 of the Criminal Code requires as an element of the offence, an intention to do the act forbidden by the statute. Wilfully means "intentionally" or "deliberately" or "recklessly" or "maliciously". Pukari Flabu –v- Hambakon Sma approved and applied.
(4) Implicit in element (C) is that the person who escapes must be a prisoner. "Prisoner" includes those persons held legally in custody, whether by arrest, committal or sentence and who have not been released by the due process of law. Accordingly an escapee as in this case who escapes from lawful custody while awaiting trial is a prisoner. The State –v- Alan Bekau approved and applied.
(5) The mental intent of an accused person can be determined and established by examining his conduct prior to, at the time of and subsequent to the commission of the alleged offence. Intention is also a matter which goes to the State of mind of the accused at the time he acted. It may also be proven by direct evidence of the accused's expression of his intention followed by the act itself or by circumstantial evidence. The State –v- Raphael Kuanande applied.
(6) There is no rule of law which says that the State can only prove its case by hard credible evidence or direct evidence. It is open to the State in any criminal case to prove its case by circumstantial evidence and in this case a conviction was dependent on the acceptance of the circumstantial evidence.
(7) On the strength of the proven facts can the existence of this element of mental intent of intentionally or wilfully or deliberately be inferred? This indicates looking at all the established facts and conduct of the accused person from the evidence available both direct and circumstantial. Here the State relied on circumstantial evidence, which meant that the court had to apply the principles about entering a conviction based on circumstantial evidence arising from Paulus Pawa –v- the State [1981] PNGLR 498: the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt; and to enable the court to be satisfied beyond reasonable doubt of the guilt of the accused, it is necessary not only that his guilt be a rational inference, but that it be the only rational inference that the circumstances would enable it to draw.
(8) On the basis of the proven facts it appears that there are a number of competing inferences or hypothesis emerging which must be carefully examined and analyzed to determine if one or more of them are consistent with the guilt of the accused. If one or more of the inferences are inconsistent with guilt then the court will have to acquit the accused.
(9) There are four inferences to be drawn from the facts established in this case. The first is that the prisoner escaped through the cell block roof or other escape routes created by the deteriorating conditions of the cell block. The second is that someone else with spare keys to the outer and inner cell gate keys as well as the cell block keys opened the gates and allowed the prisoner to escape. The third inference is that the suspect escaped through treacherous means or through the medium of what is colloquially known as snake bail. The fourth inference is that the accused was wilfully permitted to escape by the accused person. The first, second and third inferences are mere conjectures and have no evidentiary basis to establish. The fourth inference that the prisoner was wilfully permitted by the accused to escape is the only logical and rational inference that the circumstances would enable it to be drawn.
(10)The facts proved in the evidence are inconsistent with any other reasonable hypothesis other then guilt and to enable the Court to be satisfied beyond reasonable doubt of the guilt of the accused, it is necessary not only that his guilt be a rational inference, but that it be the only rational inference that the circumstances would enable it to draw.
(11) The Court finds that the proven facts of this case did lead reasonably to only one logical and rational conclusion; that the prisoner was intentionally and wilfully permitted to escape by the accused. There is no other reasonable hypothesis available to explain the escape of the prisoner other than that he was wilfully and deliberately permitted to escape by the accused. The accused is accordingly found guilty.
Cases cited:
Papua New Guinea Cases
The following cases are cited in this judgment.
The State-v-Paul Kundi Rape [1976] PNGLR 96
The State v. Roka Pep (No.2) [1983] PNGLR 287
State v. Tom Morris [1980] PNGLR 493
Paulus Pawa v. The State [1981] PNGLR 498
The State v. Jupui Kapera [1986] N567
The State v. Iamge Waea [1990] N915
Flabu Pukari v. Hambakon-Sma [1965-1966] PNGLR 348
The State v. Devlin David [2006] SC881
The State v. Dr Moses Manwau, Unnumbered Judgment of Cannings J dated 4th December 2009.
The State –v- Raphael Kuanande [1994] PNGLR 512
Overseas Cases:
The following cases are referred to in this judgment.
Barca –v – The Queen [1975] HCA 42; (1975) 50 ALJR 108 at page 117:
Plomp –v- The Queen [1963] HCA 44; (1963) 110 CLR 234
Plomp –v- The Queen (1963) 110 CLR 234
Peacock –v- the King [1911] HCA 66; (1911) 13 CLR 619
References cited:
Third Edition of the Macquarie Dictionary
Elliot and Phipson Manual of Law of Evidence 12th Edition, D.W. Elliott and Phipson 1987 Sweet and Maxwell
Counsels:
Mr. T. Ai & Mr. A. Bray, for the State
Mr. D. Dusal & Mr. S. Sam, for the Accused
DECISION
16th April, 2010
1. KAWI, J: The accused Koivi Ipai pleaded not guilty on arraignment to one count of wilfully permitting a prisoner to escape from custody contrary to section 140 of the Criminal Code.
2. At the close of the State's case, the accused through his counsel opted to make a no case submission. The no case to answer submission was mounted on both limbs of the test in the State-v-Paul Kundi Rape [1976] PNGLR 96 case. The Court subsequently ruled that the accused had a case to answer thus dismissing the No Case to Answer Submission.
3. Section 140 is stated in the following terms: -
140. PERMITTING ESCAPE.
A person who, being an officer of a prison or police officer, and being charged with the custody of a prisoner in lawful custody, wilfully permits him to escape from custody is guilty of a misdemeanour.
Penalty: Imprisonment for a term not exceeding three years.
THE STATE'S EVIDENCE
4. The State alleges that the accused whilst on duty on the 28th December 2007 from 3:00pm to 11:00pm as a cell guard at the Boroko Police Station wilfully permitted a prisoner to escape from lawful custody. The issue is simply whether the accused wilfully permitted the prisoner to escape from lawful custody.
5. The State's evidence is made up of four (4) policemen all senior non-commissioned officers, being called to give sworn evidence. The four policemen are –
6. Other evidence included are the Record of Interview dated 12th February 2008 (Pidgin version) which was tendered through Chief Sergeant Alois Yakapu by consent and marked as Exhibit 1 and the Statement of Sergeant Mark Waruf dated 14th July 2008. Again this statement was tendered in by consent and marked as Exhibit 2. I assess the State's evidence as follows: -
First Constable Robert Ewail
7. First Constable Robert Ewail gave evidence of conducting a Record of Interview with a suspect for Break and Enter and Stealing, one Benson Pukari commencing at 3:20pm and concluding at 4:45pm on the 28th of December 2008. After that both First Constable Robert Ewail and his corroborator, Constable Nau Lailai escorted the suspect Benson Pukari back to the cells and had him locked up. The cell guard on duty that day was the accused Senior Constable, Koivi Ipai who opened the cell door and had the accused locked up in cell Block #1, which Senior Constable Ipai Koivi was requested to do by First Constable Ewail and his corroborator Constable Nau Lailai. First Constable Ewail did not know the whereabouts of the accused until the 3rd of January 2008 when he was alerted by Senior Sergeant James Wafiambu, who enquired with him as to where the suspect Benson Pukari was. According to Senior Sergeant Wafiambu, the suspect Benson Pukari was not returned to the cell block after the Record of Interview was conducted and concluded by First Constable Ewail and Constable Lailai on the 28th December, 2007. This news prompted First Constable Ewail to confront the accused who upon such confrontation confirmed that the suspect was indeed returned and locked up on the 28th December 2007. The accused was on duty on the 28th December 2007 from 3:00 pm to the 11:00 pm shift.
Chief Sergeant Alois Yakapu
8. He was the arresting officer who conducted a Record of Interview with the accused. During cross-examination he maintained that the suspect Mr. Benson Pukari escaped between 3pm and 11pm on 28th December 2007. He stated that this conclusion was based on reports he received from Sergeant Mark Waruf and Senior Constable Dominic Gim who were the cell guards on the 11:00 pm shift on the 28th December 2007 to 7:00 am on the 29th December, 2007
Senior Sergeant James Wafiambu
9. He is the officer in charge of Committal Court proceedings. He confirmed conducting a roll call on the 3rd January 2008 to confirm suspects who were held in custody and whose cases were being mentioned as fresh committals in the Committal Court that morning only to find that the suspect, Benson Pukari was missing from custody. He (Senior Sergeant James Wafiambu) enquired with Senior Constable Ipai Koivi who initially told him that the suspect Benson Pukari was never returned to the cell for lock up by First Constable Ewail and Constable Nau Lailai on the 28th December 2007 after completing the Record of Interview. This led to Sergeant Wafiambu enquiring with Constable Ewail who in turn confronted Senior Constable Koivi (the accused). It was only upon such confrontation that the accused Senior Constable Ipai Koivi changed his story again, to confirm that the suspect Benson Pukari was indeed returned to cells on the 28th December 2007.
Sergeant Mark Waruf
10. He gave evidence that he was the cell guard supervisor on the 11:00 pm (28th December 2007) to 7:00 am shift on the 29th December 2007 along with his NCO Supervisor, Senior Constable Gim.
11. The outgoing shift which he was relieving commenced at 3:00 pm that afternoon and ended at 11:00 pm that night. He stated that Senior Constable Ipai Koivi was the lone cell guard which himself and Senior Constable Gim were relieving that night. He gave evidence of not being briefed by Senior Constable Ipai Koivi during the handover. However he says that there are two ways of obtaining briefings from outgoing cell guard. The first is by an oral briefing from the outgoing guard and the second is by checking out the Occurrence Book Entries in the cell Occurrence Book (OB) and the cell Charge Book. He gave evidence that he was not briefed on the suspect Benson Pukari escaping, but stated that Senior Constable Gim did conduct a head count of the suspects in the cells by calling out their names three times, on the morning of December 29th 2008. The suspect Benson Pukari was not present in his cells when his name was called out three times in his cell block that morning. It was Constable Gim who told him (Sergeant Mark Waruf) of the suspect Benson Pukari escaping. An Occurrence Book entry was then made after discovering the escape that morning.
NO CASE TO ANSWER SUBMISSION
12. At the conclusion of the State's case, the defence made a No Case To Answer Submission which was mounted on both limbs of the test in Paul Kundi Rape's Case.
13. In my ruling on the No Case to Answer submission, I found that on the strength of the proven facts as they stand, the existence of the elements constituting the offence of wilfully permitting a prisoner to escape from lawful custody can be inferred as being the only rational and logical conclusion. Applying the test in Paulus Pawa and Devlin David's cases, I found that the proven facts reasonably led me to only one logical and rational conclusion and that is that the accused Senior Constable Ipai Koivi, did wilfully permit the suspect Benson Pukari to escape from lawful custody on the 28th December 2007 between 6:00 pm and 11:00 pm when he was the lone cell guard manning the 3:00 pm to 11: 00 pm shift on the 28th December 2007
14. After this ruling, I explained to the accused his options at this stage:
(a) To change his plea of not guilty to one of guilty;
(b) To make a no case submission;
(c) Give sworn evidence and be subjected to cross examination.
(d) To exercise his constitutional right to remain silent.
(e) To give an unsworn statement from the dock, in which case he will not be cross examined.
15. The accused, senior Constable Ipai Koivi elected to give sworn evidence.
Evidence of Ipai Koivi
16. The evidence of the accused is that he was rostered for duties on the 3:00 pm to 11:00 pm shift on the 28th of December 2009. He was the only cell guard on duty that day. His duties are to receive and lock up prisoners in the Police cells. After receiving and locking up prisoners in their cells the accused like other policemen on duty makes the necessary entries in the Occurrence Book(OB). The suspect Benson Pukari was picked up for his Record of Interview to be conducted that afternoon. The accused Ipai Koivi was not present at the time when Benson Pukari was picked up. In cross examination he was asked as to how he knew it was First Constable Ewail and Constable Nau Lailai who picked him up when he was not present to record who picked the suspect up. He appeared confused and did not really know what to say. He was however present when the suspect Benson Pukari was returned to the cells at about 5:00 pm that day by the arresting officer First Constable Robert Ewail and his corroborator Constable Nau Lailai. The accused in evidence also confirmed that he was the one who received and locked up the suspect Benson Pukari at the cell block No#1 at the request of First Constable Ewail and Constable Nau LaiLai. The accused maintained that whilst he was the one who locked up the suspect when he was returned he was not the one who opened the cell doors for him to be picked up. As the accused was the only cell Guard on duty that night he was very busy indeed. He maintained that Benson Pukari never escaped that night when he was on duty. There was also no Police bail given when he was on duty. He did say that the Boroko Police cells have deteriorated to such an extent that on previous occasions some prisoners have escaped through the roof. On that night as the accused was the only cell guard on duty and he had to deal with some 50 to 70 prisoners, males, females, and even juveniles and this kept him very busy all throughout that night. The accused gave further evidence that there was no likelihood of any suspects escaping through treacherous means or through the medium of what is colloquially known as snake bail. Because of the busy state he was in he could not answer Senior Sgt Wafiambu's question properly as to the where about of Benson Pukari on the 3rd of January 2009.
CREDIBILITY OF WITNESSES:
17. I find that the demeanor of all the four policemen who gave evidence for the State are quite satisfactory. They were not shifty or evasive. I found all of them to be quite frank and truthful in the evidence they gave. On the other hand the accused was not particularly impressive or unimpressive in his testimony.
18. On the strength of both the prosecution evidence and the defence on the evidence as it is, can the accused be convicted? The State evidence must show that there is some evidence whether direct or circumstantial of the existence of each of the element of the offence which if accepted would establish the element directly or enable its existence to be inferred.
ELEMENTS OF THE OFFENCE UNDER SECTION 140 CRIMINAL CODE
19. Under section 140 the following elements must be established by evidence at the close of the State's case or allow its existence to be inferred.
Elements (a) and (b)
20. There can be no doubt the accused is a Police Officer. He holds the rank of Senior Constable and has been a member of the Royal Papua New Guinea Constabulary without a break since joining the Police Force in 1969. He has been in the Police force for some 38 years now.
Element (c)
21. The primary duty of the accused is that he is charged with the responsibility of guarding and looking after persons who have been suspected of having committed a crime or an offence and are locked up or taken into Police custody. The accused is one of a number of policemen who guard the Boroko cells on rotational or shift duties. In this case there is no dispute by the prosecution and Defence Counsels, that the accused was rostered for duties on the 28th December 2007 and covering the 3: 00 pm shift to 11: 00 pm. The Boroko Police Station has a number of cell blocks which are normally used to hold suspects who are suspected of having committed an offence or those awaiting their trials or committals. After their trials when they are given a custodial sentence, or when their Committal proceedings are completed the prisoners are then conveyed to the Bomana Correctional Institution for lock up to serve their sentences.
22. Under section 65 (1) (2) and Schedule 4 of the Corrective Institutions Act 1995, the Boroko Police lock up is a duly established and Gazetted Police lock up. As such it is used mainly as holding cells for suspects and prisoners. I therefore find that the Boroko Police Station cells are a lawful custody for holding persons suspected of committing an offence.
Element (d)
23. The last element of this offence is that the Prison or Police officer willfully permitted the prisoner to escape from lawful custody. Implicit in element (d) is a further element that the person who was willfully permitted to escape must be a prisoner. If the person who escaped is not a prisoner, then no offence can be committed. So I ask, is Benson Pukari a prisoner for purposes of fulfilling section 140 of the Code? Neither the Prosecution nor the Defence counsels addressed me on this issue.
24. In the State v. Alan Bekau [1982] PNGLR 119, McDermott J, stated that "prisoner" includes those persons held legally in custody, whether by arrest, committal or sentence and who have not been released by due process of law. Accordingly he held that an escapee who escaped from custody while awaiting trial in that case was a prisoner.
25. In this case Benson Pukari was suspected of having committed the crime of Break and Enter and Stealing. He was arrested and then locked up in Police custody at the Boroko Police Station cells. He was then taken out of the cells and a Record of Interview was conducted. He was then charged for break and enter and stealing and then locked up again and while being held in custody, he escaped. Following Alan Bekau's case, I find that Benson Pukari was legally taken into custody, by a lawful arrest but not released by the due process of the law. I therefore find that Benson Pukari is a prisoner, the moment he was taken into custody after his arrest, thus satisfying one part of element (d).
26. Both the Prosecution and Defence counsels agree and I accept that a suspect for Break and Enter and Stealing, one Benson Pukari was locked up in custody at the Boroko Police station holding cells about 6:00 pm on the 28th December 2008. Both further agree and I so find that the accused Senior Constable Ipai Koivi was the lone cell guard on duty that day, ie 28th December 2007 manning the 3:00 pm to the 11:00 pm shift. It is however hotly disputed by the Defence that the accused wilfully permitted the suspect Benson Pukari to escape from lawful custody. It is further disputed that the suspect Benson Pukari escaped between 3:00 pm and 11:00 pm that night. In fact the Defence submitted that the State evidence as it stands is not sufficient to prove beyond reasonable doubt that the accused wilfully permitted Benson Pukari to escape from lawful custody. In other words it is argued that the state evidence as it stands is not sufficient to establish the mental element of "Wilful".
27. I am of the view that the word 'wilfully' when used in section 140 of the Criminal Code requires as an element of the offence, an intention to do the act forbidden by the statute. The act forbidden by statute is not the act of escaping per se, but the act of a prison or police officer wilfully permitting such an escape.
28. The 3rd Edition of the Macquarie Dictionary at page 2428 defines the term wilfully as a "wish or desire" or a "purpose or a determination."
29. The case discussed below discusses the word "wilfull" in the context of a charge for willful damage to property under section 444(1) of the Criminal Code.
30. The word "willfully" as used in section 444(1) of the Criminal Code means "intentionally" or "deliberately" or "recklessly" or "maliciously". In Pukari Flabu v. Hambakon-sma [1965-1966] PNGLR 348. Justice Frost made the following pertinent comments:
"Wilfully in its natural meaning means "intentionally"...... Wilfully" in the present context bears the meaning of deliberately and intentionally and not accidentally and this mental element is construed as an intention to do the act forbidden by statute. Indeed the problem with which the cases are generally concerned is whether the mental element thus imported by the word "wilfully" goes further than its application to the act forbidden and also indicates a knowledge of wrong doing. But I consider that s.480 should be read with s. 468 and s.469 so as to avoid any inconsistency, by attributing to the word "wilfully" a wider meaning than "intentionally" and including "recklessness" ....... The word "wilfully" in a statute has been held to embrace recklessness. Given this meaning which is both of "intentionally" and "recklessly" as stated by Maule J "wilfully" has the overall established meaning of "malicious'.
31. The above case was concerned with the accused person being charged for willfully damaging property. Hence the word wilfull was given a wider meaning to include the elements of "recklessness" and malicious". In this case I am dealing with wilfully permitting a prisoner to escape. I must therefore satisfy myself as to the mental intent of the accused to determine whether his actions can be said to have been "deliberate or intentional". To determine exactly what was going on in the mind of an accused person at the relevant time is pretty difficult as these are matters peculiar within his own knowledge. It is impossible to look directly into his state of mind to know whether he is speaking the truth. Usually the question has to be solved by examining the conduct of the accused person and his opportunities of knowledge. This being so I must try my best and determine his mental intention or the state of his mind by his actions and by drawing inferences from the proven facts in this case with the relevant question being asked is, do the proven facts lead reasonably to one question – that the accused did all the things constituting the elements of the offense?
32. In the case of the State –v- Raphael Kuanande [1994] PNGLR 512 @ page 514 Injia AJ (as he then was made the following comments) which I adopt:
"Intention is a matter which goes to the State of mind of the accused at the time he acted. It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior, at the time and subsequent to the act constituting the offence".
33. The State's evidence as it stands is largely circumstantial and does not point directly to the accused wilfully or deliberately or intentionally permitting the said Benson Pukari to escape. I must therefore be satisfied beyond reasonable doubt on evidence available as to whether the mental intent of the accused was such that he intentionally or deliberately permitted the suspect Benson Pukari to escape from lawful custody. To establish the mental intent I will examine the conduct of the accused prior to, at the time and subsequent to the commission of the alleged offence.
34. As there is no direct evidence on this point, I will look at the proven facts and determine whether on the strength of the proven facts, can the existence of this element of the mental intent of intentionally or deliberately or wilfully be inferred? This indicates looking at all the established facts from the evidence available both direct and circumstantial. There is no rule of law which says that the State can only prove its case by hard credible evidence or direct evidence. It is open to the State in any criminal case to prove its case by circumstantial evidence and in this case conviction was dependent on the acceptance of the circumstantial evidence.
PRINCIPLES ABOUT ENTERING A CONVICTION BASED ON CIRCUMSTANTIAL EVIDENCE
35. In Manual of the Law on Evidence 12th Edition, the learned authors D.W. Elliott and Phipson at page 11 make the following observation on circumstantial evidence: -
"Circumstantial evidence of a fact to be proved, is the testimony of a witness who perceived, not the fact to be proved, but another fact from which the existence or non-existence of the fact can be deduced, or the production of a document or thing from which the fact to be proved can be deduced. The fact to be proved can be either a fact in issue or a fact relevant to the issue."
36. These principles on acceptance of circumstantial evidence have been stated in this jurisdiction in a number of case authorities both in the National and Supreme Courts.
37. In the State v. Tom Morris [1980] PNGLR 493 Miles J made the following pertinent comments on the reception of the principles governing circumstantial evidence.
"I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca –v – The Queen [1975] HCA 42; (1975) 50 ALJR 108 at page 117:
"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than guilt of the accused:' Peacock –v- the King [1911] HCA 66; (1911) 13 CLR 619 at page 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference, but that it should be the only rational inference that the circumstances would enable them to draw. Plomp –v- The Queen [1963] HCA 44; (1963) 110 CLR. 234 @ p. 252. See also Thomas –v- The Queen [1960] HCA 2; 102 CLR 584 at pp 605-606. However an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon consideration of all the facts in evidence." Peacock v. The Queen pp 661.
"Where there are a number of competing inferences it is a question of fact for the court to decide which inferences should be drawn, which rejected, which are reasonable, which are mere conjectures, and which party, if any, they favor and at the end of the prosecution case there are inferences inconsistent with the guilt of the accused, there is a discretion to acquit."
38. These principles have been applied in cases such as Paulus Pawa v. The State [1981] PNGLR 498, The State v. Jupui Kapera [1986] N567 and The State v. Iamge Waea [1990] N915.
39. These local authorities say that failure by a trial judge who sits as a jury to warn himself of the dangers of convicting an accused on circumstantial evidence could be fatal and quite dangerous.
40. In the Paulus Pawa case, the Supreme Court summarized the principles on convicting on circumstantial evidence as follows:
(a) The accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt; and
(b) to enable the Court to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt be a rational inference, but that it be the only rational inference that the circumstances would enable it to draw.
41. In Devlyn David –v- the State [2006] SC881 the Supreme Court re-stated the Paulus Pawa principles by saying that the question to be asked is;
FINDINGS OF FACTS CRITICAL TO THIS CASE?
42. On the basis of the proven facts, I find that the following evidence, has been established and they are critical to the finding of the guilt or the innocence of the accused.
WHAT INFERENCES CAN I DRAW FROM THESE FACTS?
43. On the basis of the proven facts it appears that there are a number of competing inferences or hypothesis emerging which I must carefully examine and analyze to determine if one or more of them are consistent with the guilt of the accused. If I find that one or more of them are inconsistent with guilt then I will have to acquit the accused. The National Court has done this in many cases where because of the two or more competing but rational inferences it has acquitted the accused person.
44. One such case is the case of The State v. Dr. Moses Manwau. Unreported and Unnumbered Judgment of Cannings J dated 4th December 2009. The accused, a private medical practitioner in Wewak was indicted on one count of preventing an unborn child from being born alive contrary to section 312 of the Criminal Code. The accused is alleged to have induced a 14 year old girl in giving birth to a fresh still born baby girl. The inducement was done by administering a drug called Misoprostol which in turn artificially ruptured the membrane leading to the still born birth.
45. Cannings, J relying on circumstantial evidence held that the accused must be acquitted unless the facts proved in the evidence are inconsistent with any reasonable hypothesis other then guilt and to enable the Court to be satisfied beyond reasonable doubt of the guilt of the accused, it is necessary not only that his guilt be a rational inference, but that it be the only rational inference that the circumstances would enable it to draw.
46. There the Court found that the proven facts did not lead reasonably to only one conclusion; there was another reasonable hypothesis available to explain the death of the child, the untreated syphilis infection of the young mother. This was also proven by medical evidence. The accused was therefore found not guilty.
47. In the case before me if the inferences I am about to draw here are inconsistent with any reasonable hypothesis other than guilt of the accused beyond reasonable doubt, then I will have to follow the decision in the Dr Moses Manwau case and acquit the accused.
48. The Dr. Moses Manwau case makes it clear that where there are two or more logical and rational but competing inferences, supported by proven facts, the accused is entitled to an acquittal. In that case the proven fact of the untreated syphilis, causing the death of the still born child, was found to be inconsistent with the guilt of the accused. Hence, the acquittal of the accused. Unlike the situation in the Dr. Moses Manwau case, where the inference of the baby being stillborn was also due to the untreated syphilis condition of the mother, which was established also by medical evidence, here the opportunity of escaping through treacherous means or snake bail is not an inference that is well grounded in evidence. At its highest it is a mere conjecture, which lacks reliability.
49. The first inference I must draw and carefully assess is that the accused escaped through the roof or other escape routes created by the deteriorating State of the cell conditions. This inference if proven to exist would be inconsistent with the guilt of the accused. The accused gave evidence that previously suspects have escaped through broken roofs or broken walls of the cell. Could the suspect escape through the roof or other broken wall created by the deteriorating conditions of the cells?
50. Apart from stating that it has happened previously, no other evidence either from the prosecution or defence was led to establish this as a fact. I therefore rule out the prospect of the prisoner Benson Pukari escaping through the cell roof or other escape routes created by the deteriorating conditions of the cell blocks. This hypothesis lacks evidentiary foundation and therefore lacks cogency to rely upon it. This inference is ruled out.
51. The second inference is that some other policeman or someone else got the cell keys, opened up the cell doors and allowed the accused to escape. Again this inference would be inconsistent with guilt and so I must return a verdict of not guilty if it is proved. This inference may find some support in the evidence of the accused who said that when the suspect Benson Pukari was picked up by First Constable Robert Ewail and Constable Nau Lailai he (Senior Constable Ipai Koivi) was not present. How they managed to open the cell block to pick up the suspect he does not know. Where did Robert Ewail and Nau Lailai get the keys to open the cell block to get Benson Pukari out for the interview? Do they have other spare keys which they keep? Could the suspect escape while in the custody of Robert Ewail and Nau Lailai? Surely someone with authority must have opened both the outer and inner cell gates as well as cell block gate to bring out the suspect Benson Pukari. That someone with authority must be a cell guard and no other person. I do not find any other credible evidence at all to support the hypothesis that the suspect escaped at the hands of and while in the custody of First Constable Robert Ewail and Constable Nau Lailai during the Record of Interview. I find that this inference lacks sufficient evidentiary basis to establish. The evidence also shows that Robert Ewail and Nau Lailai returned the suspect to be locked up in cell block No. 1 by the accused, Senior Constable Ipai Koivi, who locked him in cell block # 1 at the request of Robert Ewail and Nau Lailai. This evidence negatives any proposition that the accused escaped through the cell roof or other broken wall opening. It also negatives any proposition that the suspect escaped while in the custody of First Constable Ewail and Constable Lailai. Again this Court finds that, this inference remains a mere conjecture at its highest and is therefore ruled out.
52. The third inference to be drawn is that the suspect Benson Pukari escaped through the medium of what is colloquially referred to as "snake bail." Like the other two earlier inferences, if I find that the suspect escaped through treacherous means, then this would be inconsistent with the guilt of the accused and so I must acquit him. Snake bail is the idiomatic expression used to describe a suspect or a prisoner escaping through treacherous means. It can happen in many different ways. But two common situations which have previously occurred at the Boroko Police cells are where there are many suspects moving in between cell blocks, while Police are giving bail to some others, there is an opportunity created where no cell guard is really monitoring the movements of the rest of the other suspects. In this kind of situation cell guards often mistake a suspect for someone else, and the suspect or the prisoner walks out of custody unmonitored and undetected by cell guards.
53. Another situation that has occurred in the past is that suspects charged with committing serious indictable offences, often get details and other particulars of those charged with minor offences. They would then pass on such details including the names of those charged with minor offences to their friends and relatives who in turn would come in and then bail them out using the false descriptions of the alleged offence committed. Sergeant Mark Waruf was cross-examined on this aspect. He was asked whether there exists the possibility of the suspect Benson Pukari escaping through "snake bail" and his emphatic response was that although he has heard of snake bail occurring, it had never happened to him whilst he was on duty. Furthermore, he mentioned that while he was on duty, there was no police bail given, and so there was no opportunity for suspects walking away on "snake bail." Similarly the accused himself Senior Constable Ipai Koivi gave evidence that no opportunity existed for snake bail to occur when he was on duty from 3: 00 pm to 11:00 pm that night.
54. I find and accept the evidence from both Sergeant Mark Waruf and senior Constable Ipai Koivi that no snake bail occurred or an opportunity for snake bail existed either from the 3:00 pm to 11:00 pm shift on the 28th December 2007 or from the 11:00 pm to the 7:00 am shift on the 29th December 2007. I therefore completely rule out any inference to be drawn based on the suspect escaping through treacherous means or through the medium of snake bail. Again at its highest this inference of escaping through snake bail is a mere conjecture which lacks cogency and sufficient evidentiary foundation to establish. I therefore rule out any inferences that the suspect Benson Pukari may have escaped through treacherous means or through snake bail.
55. The final hypothesis is that the suspect Benson Pukari was deliberately and intentionally permitted to escape by someone with authority. Who could be that someone? It is a proven fact established by evidence from both the Prosecution and Defence that the suspect Benson Pukari was last seen in lawful custody when he was handed over to be locked up in custody by the accused by First Constable Robert Ewail and Constable Nau Lailai after his Record of Interview was completed at about 5:00 pm on the 28th December 2007. The cell guards that changed the shift with the accused that night, Sergeant Mark Waruf and Senior Constable Gim conducted a head count of suspects that morning by calling out their names three times and discovered that Benson Pukari was not present in his cells in the morning of the 29th December 2007. When Sergeant Mark Waruf and Senior Constable Dominic Gim checked the cell charge book they found that no police bail was ever given to Benson Pukari. An Occurrence Book (OB) entry was then accordingly made.
56. The Defence submits strongly that Benson Pukari may have escaped sometime between the 29th December 2007 and the 3rd January 2008 and not on the 28th December 2007 as contended for by the State. It further submits that the evidence of Sergeant Mark Waruf should not be relied upon but rejected as it is all hearsay and based upon what he was told to him by Senior Constable Dominic Gim about the time of the escape. The Defence further submitted the only person who could give cogent and credible evidence for the State was Senior Constable Dominic Gim who unfortunately was not called by the State to give evidence. The absence of Senior Constable Gim's evidence is a fatal blow to the State's case.
57. The Court rejects this contention simply because the evidence shows that the fact of the escape was discovered by Sergeant Mark Waruf and Senior Constable Dominic Gim on the morning of the 29th December 2007when both were on cell guard duties and not on the 3rd of January 2008. This being so how can it be then said that the escape occurred between the 29th of December 2007 and 3rd of January 2008. This is simply illogical and irrational. The Court finds that Sergeant Mark Waruf was the cell supervisor on duty that night along with Senior Constable Dominic Gim who was his NCO supervisor. I find that Sergeant Mark Waruf participated in the head count of the suspects together with Senior Constable Dominic Gim but it was the latter who called out the names of the suspects three times. When there was no response from Benson Pukari he simply mentioned that fact to his supervisor Sergeant Mark Waruf who was within ear shot of the names of the suspects being called out.
58. In those circumstances I cannot see how it can be said that Sergeant Mark Waruf's evidence can be said to be hearsay. Neither can it be said that the non calling of Dominic Gim to give evidence for the State is a blow to the State's case. I reject the Defence submission in this respect.
59. Having assessed the evidence as it stands the Court can draw only one rational and logical conclusion - The suspect Benson Pukari escaped from lawful custody between 6:00 pm and 11:00 pm on the 28th December 2007. And I ask the question. How did this happen? The Court finds that his escape was done deliberately and intentionally by the only person who was authorized to hold onto the keys for the outer and inner cell gates as well as the keys to the gates of the cell blocks. And who is this person? The court finds that the escape was wilfully permitted by the cell guard on duty from the 3:00 pm to 11:00 pm shift. And this person is none other than the accused himself Senior Constable Ipai Koivi who was the lone cell guard on duty manning that shift.
60. The Court asks itself this question; Do the proven facts lead reasonably to only one conclusion- that the accused did all the things constituting the elements of the offence. I would answer Yes - I find that the most logical and rational inference to be drawn is that the accused wilfully permitted Benson Pukari to escape between 6:00 pm and 11:00 pm on the 28th of December 2007.
61. I am fortified in reaching this as the only rational and logical conclusion based on the proven facts and the inferences drawn. More importantly is the course of the conduct of the accused, prior to, at the time and subsequent to the offence that convinced the Court that the accused deliberately and intentionally permitted the prisoner Benson Pukari to escape.
EVIDENCE OF THE CONDUCT OF THE ACCUSED
62. The question of the accused wilfully permitting the prisoner Benson Pukari to escape can be also solved by examining some aspects of the evidence dealing with his conduct and the opportunities of his knowledge of the escape.
(a) Conduct prior to the escape.
- Benson Pukari was locked up by the accused himself at about 5:00 pm on the 28th December 2007.
(b) Conduct at the time
- The accused was the lone cell guard on duty manning the 3:00 pm to 11:00 pm shift that night;
- As the lone cell guard on duty he was the only authorized person to hold onto the keys for both the inner and outer cell gates keys as well as the cell block keys.
(c) Conduct subsequent to the crime
- The accused said that he handed over the all cell keys to the oncoming shift of Sergeant Mark Waruf and Senior Constable Dominic Gim for the 11:00 pm to 7: 00 am shift.
- Sergeant Mark Waruf and Senior Constable Dominic Gim discovered the escape on the morning of 29th December 2007. Because of the risk of cell guards being attacked by prisoners, the head count was done in the morning and not at night. While there is evidence that the prisoner was returned to the accused and was locked up after the interview, the head count in the morning revealed that he was missing from custody.
- The accused on his part told two different versions of the escape on the 3rd January 2008 to two different policemen when the escape was discovered in the morning of the 29th December 2007. To Chief Sergeant James Wafiambu, the accused said the prisoner Benson Pukari was not returned to the cells for lock up on the 28th December 2007 by First Constable Robert Ewail and Constable Nau Lailai. When this was brought to the attention of First Constable Robert Ewail, he confronted the accused. The second version of the escape is that the accused admitted locking up the prisoner when he was returned by First Constable Robert Ewail and Constable Nau Lailai after concluding the Record of Interview on the 28th December 2007.
When the accused was asked to explain these two versions, he said that he was very busy and could not think properly. I find this explanation to be very unsatisfactory as the two different versions of the situation was given on the 3rd of January 2008 and not on the 29th December 2007. I accept that the accused was very busy on the 28th December 2007, but there is no evidence of him being very busy on the 3rd January 2008. With respect I don't think the accused is telling the truth here.
I therefore find that the accused simply concocted a deliberate and blatant lie to conceal the fact of him intentionally allowing the prisoner to escape.
Another of the accused's conduct subsequent to the crime and from which the element of wilfully, intentional or deliberateness can be inferred is the fact surrounding the release of Benson Pukari to his arresting officer First Constable Robert Ewail and Constable Nau Lailai for the Record of Interview to be conducted.
The accused's version is that he was not the one who let the prisoner Benson Pukari out of the cells to be interviewed by the arresting officer, First Constable Robert Ewail and Constable Nau Lailai. He only opened the cells to lock up the suspect after the interview concluded.
The State contends that the accused opened the cells for the prisoner to be taken for the Record of Interview to be conducted. After the interview was concluded and the prisoner returned, it was the accused who opened the cell gates to lock him up.
Going by the accused's version, he told Senior Sergeant Wafiambu that Robert Ewail and Nau Lailai never returned the suspect for lock up after completing the interview. How did Ipai Koivi know that it was Robert Ewail and not someone else who took out the prisoner if he was not present to open up the cell gates on the 28th December 2007? Later on that day when confronted, he admitted that the prisoner was indeed returned by Robert Ewail and Nau Lailai.
63. The Court finds that it was the accused Senior Constable Ipai Koivi who opened the cell gates to release the prisoner Benson Pukari to First Constable Robert Ewail and Constable Nau Lailai for the interview. The evidence of First Constable Robert Ewail makes this absolutely clear in no uncertain terms. I find that the accused blatantly lied to concoct a tale which was suited to exonerate him. The Court finds that his conduct is all aimed at concealing his criminal intention that he wilfully, deliberately and intentionally permitted Benson Pukari to escape.
64. I then apply the test stated by the Supreme Court in the Paulus Pawa case and which was as reiterated in the Devlyn David case: Do the proven facts lead reasonably to only one conclusion- that the accused did all the things constituting the elements of the offence? If yes the accused is guilty. If no the accused is entitled to an acquittal. I again answer the case in the affirmative.
65. The hypothesis that the accused Senior Constable Ipai Koivi wilfully permitted the suspect one Benson Pukari to escape from lawful custody is therefore the only logical and rational inference that could be drawn from the proven facts. The test in the Paulus Pawa case has been satisfied and applying the test in Devlyn David's case the proven facts lead me reasonably to only one conclusion unlike the situation in the Dr. Moses Manwau case – the accused Senior Constable Ipai Koivi, did willfully permit the suspect Benson Pukari to escape from lawful custody on the 28th December 2007 between 6:00 pm and 11:00 pm when he was the lone cell guard manning the 3:00pm to 11: 00 pm shift.
VERDICT
66. Senior Constable Ipai Koivi having been indicted on a charge of wilfully permitting a person to escape from lawful custody contrary to section 140 of the Criminal Code is therefore found guilty and convicted accordingly.
______________________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Prisoner
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