State v Kalago [2019] PGNC 161; N7874 (16 May 2019)

N7874

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 967 OF 2018

THE STATE

V

DARYL JOHN KALAGO

Kimbe: Miviri J
2019 : 14^th May

CRIMINAL LAW – PRACTICE AND PROCEDURE –Escape from lawful custody– serving sentence escape – hospital for treatment – walked out – no authority in law – no court order – CIS Warder no authority to release prisoner – unlawful escape – guilty of escaping from custody S139 CCA.

Facts
Accused was serving sentence of escaping from lawful custody. He was brought to hospital and walked out. CIS and police apprehended after search at a settlement in town.

Held
No authority in law to be at large
Guilty of escaping

Cases Cited

Nil
Counsel:

M. Tamate & E. Kave, for the State
B. Takua, for Defence

VERDICT

16^th May, 2019

1. MIVIRI J: This is the Verdict after trial of the accused who allegedly escaped from the Kimbe General hospital when brought by CIS to get medical treatment.
   

Short facts

2. The Prisoner was serving sentence for escaping from lawful custody. He was brought down by CIS warders Julius Nind and Pala Moro on the12^th June, 2018 between 08.00am and 11.00am to be treated at the Kimbe General Hospital. He was left to wait in the waiting area of the hospital whilst the CIS officers attended to the other prisoners brought down. He walked out and was never seen until the CIS warder Pala Moro alerted Police who searched and found him at a settlement in Town.
   
3. He is charged pursuant to section 139 Escape by Prisoner:
   
   • (1) A person who, being a prisoner in lawful custody, escapes from that custody is guilty of a crime.

Penalty: A term of imprisonment of not less than five years.

4. He has denied that he escaped but he was permitted by a CIS officer by the name of George because the former two who escorted them down were not there. Both had gone into Town to buy the medicine of the other prisoners. He was merely out to get his own medicine not available at the dispensary but in the chemist in town and return. He had no intention to escape.
   

State case

5. The State called Pala Moro on oath who testified that accused was left at the waiting area of the hospital so that he could help the other CIS Officer Julius Nind with obtaining the medicine of the others. He trusted the accused and left him there to wait until he was done and then they would all return to CIS Lakiemata where accused was serving sentence for escaping from lawful custody. When this witness came back the accused was nowhere to be seen either immediately there or outside the hospital despite his search. He went to the police Station and laid a complaint that the accused had escaped and together with the police later with his colleague Julius Nind who had sent up the other prisoners, they conducted search leading to where the accused stayed up at the hill behind NBC but could not locate him. They finally located him in the afternoon around 4.00pm at section 42 settlement. They apprehended him and took him into custody where he was charged with the offence.
   
6. Tendered into evidence and marked as exhibits was Exhibit S1 Statement of Darryl Yakali investigator in the case. Exhibit S2 was the statement of Paul Gemis corroborating officer in the record of interview of the accused. Exhibit S3A was the pidgin original record of interview of the accused and S3B was the English translation of that record of interview. Exhibit S4A was the warrant of commitment signed and sealed issued by this court presided by Justice Batari where the prisoner was convicted and sentenced to 5 year imprisonment for escaping from lawful custody dated the 7^th April 2016. Exhibit S4B was the certificate of conviction issued under hand of the assistant registrar of the Kimbe National Court evidencing that the accused was convicted by this court imposing a sentence as set out in the warrant of commitment in the file CR 677 of 2013 sentence was imposed the 7^th April 2016 and was current as at the date when the accused walked out of the hospital presumably authorized as he contended. Last evidence was exhibit S5 statement of Simon Vari policeman of Kavugara mobile Squad who responded to report by Private Julius Nind and Pala Mora CIS officers of the escape of the accused. He went to section 42 after information received that the accused was there. He went on foot accompanied by 3 other police members uphill into the settlement and successfully recaptured the accused who was in the company of one Nick Baruku searched with cannabis in his possession. Both was escorted back and he was charged with the offence.
   

Defence case

7. On oath prisoner stated that he was authorized or given permission by one George a CIS officer who was in that uniform and who saw his papers for the need to get medicine from the chemist and authorized him to do as he did. He did not seek permission from his initial escort out from Lakiemata as both were not there. They had gone into Town to assist get the medicine of the other prisoners. He was not intending to escape but merely to get money to pay for his medicine at the chemist and return. That money was taken by the police and CIS when they apprehended him that day. They also assaulted him and he suffered injuries so did not call the name of the warder George who gave him permission to go out as he did. But remembered as he was giving his evidence that is why it was not in the record of interview conducted on the 13^th July 2018. In it he refused to answer except to say that he was given permission to go as he did and that he did not name that person.
   

Assessment of Evidence

8. The State evidence is overwhelming and when weighed alongside the evidence of the accused. There is no warder of that name George independently corroborated of the assertions that he makes that indeed this particular CIS officer was on duty at the hospital because of a prisoner admitted for medical treatment there. Neither admission documents of the prisoner admitted is before the court or a roster assigning this particular warder there on the 12^th June 2018 when accused was also there. Such important and fundamental evidence has not been disclosed to police in the record of interview that was conducted on the 13^th July 2018 a month after the allegation. He says he was beaten up by the police so badly and was unable to speak. He could not have been still sore after one month to be not able to speak. What he has done is told lies that have not helped his but strengthened prosecution case. He is a very unimpressive and untruthful witness who refuses to accept the truth that he was at large without the authority of this court. He does not accept that the CIS officers do not have authority to release him. Even if he went out as he contends he did not return of his own accord but police and CIS had to mount a search to recapture him. He is a very unimpressive witness. I reject his evidence in total and accept the evidence of the State witnesses and all evidence tendered.
   
9. This evidence is clear that this court imposed upon him the 5 years imprisonment for hard labour that was current as at the date of his incarceration and escort by CIS officers Officer Julius Nind and Pala Mora on the 12^th June 2018. He was therefore in lawful custody by the warrant and the certificate of conviction dated the 07^th April 2016 issued by this court. The only authority in law to release a prisoner let alone the accused from the custody imposed was the National Court or the Supreme Court on appeal. There is no order from both courts and the accused was unlawfully at large on the 12^th June 2018.
   
10. He breached section 139 of escaping from lawful custody. I find him guilty that on the 12^th June 2018 he was a convicted prisoner of the State serving 5 years imprisonment for escaping and he escaped from that lawful custody. I convict him accordingly.
    
11. Verdict of Guilty of escaping from lawful custody contrary to Section 139 of the Criminal Code Act is entered.
    

Ordered Accordingly

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant