State v Bidogo (No.1) [2020] PGNC 224; N8443 (6 August 2020)

N8443

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1351 OF 2019

THE STATE

-v-

HENRY BIDOGO
(NO.1)
Accused

Madang: Geita J
2020: 17^th June; 3^rd, 6^th August

CRIMINAL LAW – Trial – Aiding prisoner to escape from lawful custody – No authority to take remandee outside the scope of the Schedule 7 leave of absence notice – Schedule 7 Correctional Service Act – Escorting prison officers have no discretion to deviate from what is stated in the Schedule 7 Notice.

CRIMINAL LAW – Trial – Guilty – Prison Officer knowingly escorted a high risk remandee outside the scope of Schedule 7 Notice thereby aiding prisoner to escape from lawful custody - Section 138 Criminal Code – Guilty verdict returned.

Cases Cited

Nil

Counsel:

Mr. Francis Popeu, for the State
Mr. John Zauya, for the Accused

DECISION ON VERDICT

6^th August, 2020

1. GEITA J: The accused pleaded not guilty to aiding a prisoner in escaping from lawful custody, thereby contravening section 138 Criminal Code Act. This offence carries a maximum punishment of 7 years imprisonment however s. 19 of the Criminal Code also gives courts discretionary powers to impose lesser sentences.

Evidence for prosecution

2. In addition to two oral testimonies, three sets of documents were received into court by consent. They include the Record of Interview dated 12/8/2019 - marked exhibit 1; Schedule 7 Authority from CS Commander – marked exhibit 2 and Photo of the prison escapee Francis Bomgai - exhibit 3.

3. Corporal Rodney Bereda of Correctional Service Beon Gaol gave testimony of escorting two prison remandees for medical treatment to Modilon General Hospital on 9 July 2019 by authority of schedule 7 leave of absence granted by the Gaol commander for that purpose. He was the appointed supervisor for the leave of absence. He was accompanied by prisoner officer, accused Henry Bodigo. Upon arrival at the hospital he took charge of remandee Michael Kaitas whilst the accused took charge of Francis Bomgai for medical consultations. As soon as Michael Kaita’s review was completed he was escorted out and sent up to Beon Gaol in their Correctional Service vehicle as he remained behind to wait for the second remandee and the accused. He waited until 11:45 am that morning when the accused fronted up and reported to him that the remandee Francis Bomgai had escaped. He then immediately alerted his superiors about the escape of Francis Bomgai. As soon as his vehicle arrived, he returned to Beon Gaol, whilst the accused remained behind and went into town instead. In examination in chief the witness said the accused was to escort Francis Bomgai to the surgical ward that day. He said Schedule 7 Notice only permits visits to the hospital only and does not authorise either one of us to take remandees to other areas.

4. In cross examination the witness remained adamant that it was unusual for prison officers to take remandees outside the scope of the reason for their absence contained in the Schedule 7 Notice. When put to him that Schedule 7 Authority was not always complied with by prison officers, the witness said only to an extent but only within the space of the designated areas as stipulated. Again when suggested to the witness that the accused was extending and kind of rehabilitation gesture by assisting the remandee to go to his house and get some change, outside the scope of Schedule 7 Notice, the witness replied: “No that does not happen”, Schedule 7 Notice is Authority for hospital visit only.”

5. In re-examination the witness said when the accused returned without the remandee and reported to him as being missing, he never gave any explanation as to how the remandee escaped from his custody.

6. Task Force Commander Senior Constable Solomon William also gave testimony on Oath. On 9 July 2019 he attended to a complaint of some criminal elements disturbing the neighbourhood at Yambol and New Town area. He was accompanied by two other police constables, Jerry and Manu. As they arrived at that area the boys had fled the scene, leaving behind their gas cylinder for brewing illicit drugs or “Yawa”, and 3 containers of home brew. After destroying the home brew and the cylinder he and Constable Jerry walked towards Balasikol market via a short cut road. Along the way he saw two men approaching them. One was the escapee Francis Bomgai and walking behind him was the accused. He immediately recognised the remandee as he was involved in his earlier arrest and he was wounded at the time. The witness said Francis Bomgai was carrying his walking sticks in his right hand and as he jumped over a drain, he did not appear to be in distress and looked alright to him. He said they appeared to be in a state of shock when he confronted them. He said he knew that Francis Bomgai was a high-risk prisoner and to see him with the accused at that time of day and place concerned him greatly. But he did not think too much of seeing him at that location as he was accompanied by a prison officer, Bodigo, otherwise he would have apprehended him then. They proceeded on to Balasikol, attended to the complaint and reported to their station at Jomba. Later in the evening, he learnt form his colleagues at Town Police Station that some prisoners had escaped and one of them was Francis Bomgai whom he saw earlier in the day at Balasikol area. He recognised the accused very well and usually refer to him by his pet name “Name”. Likewise, he recognised the photo shown to him as that of Francis Bomgai (Exhibit 3)

7. In cross examination when put to him why he did not ask further question when he encountered the remandee, the witness said because he was with a prison officer at the time.

8. Beon Goal Commander Superintendent Andrew Polis gave testimony as follows: An officer with 37 years as a prison officer, two of which were spent in Madang as the Commander. He said between 7.00 am to 7.30 am on 9^th July 2019 the accused approached him and requested for permission to escort some remandees to hospital. After consulting his roster for the day, he signed the Schedule 7 Notice for the accused to escort Francis Bomgai to Modilon hospital and back for his medical review and treatment. He identified the accused in court as a former prison officer associated with the escape of a notorious criminal Francis Bomgai. During the cause of the day some of his officers informed him that remandee Francis Bomgai and the accused were seen at the back of Balasiko Market by some policemen. He said he did not sign for the visit to Balasiko Tais, save for the medical visit to the hospital. He identified the Schedule 7 Notice (exhibit 3) as the one signed and authorised by him for the hospital visit only. He said he authorised for remandees Francis Bomgai and Michael Kaitas to be taken down to Modilon hospital, escorted by prison officers Corporal Rodney Bereda and Henry Bidogo. Since they were of equal ranks, he nominated Corporal Rodney Bereda to be in charge of the team. He said Francis Bomgai never returned to the hospital after his authorised visit. He added that prison officers have no powers to deviate from the areas stipulated in Schedule 7 Notice. He said in consultation with the PPC for Madang the accused was referred to the Police relating to the escape of Francis Bomgai.

9. In cross examination when asked if he knew of any prison officers who may have abused the Schedule 7 Notice the witness said he does not know of any instance. He said if they did, it was wrong. When suggested to him about his knowledge of the Correctional Service Act the witness said he was familiar with the Act. As to suggestions of any protocols that may not have been followed, the witness said s. 37 of Correction Service Act may be used to charge officers for breaches of disciplinary conduct. The witness said he elected to refer this matter to Police because this was the second instance of escape from custody involving the accused and the remandee/escapee Francis Bomgai. He admitted that remandees and prisoner’s welfare was of concern to him but they must apply for leave to be granted in each case. Adding that in this case Francis Bomgai was not granted leave to visit his relatives or family.

10. Constable Jerry Mawengu testified of accompanying his Commander Solomon Williamson attend to a complaint at Balasiko market area on 9 July 2019. As they followed the old Jant compound back road towards the swampy area leading to Balasiko market, they disturbed a group of young boys consuming home brew who fled upon seeing them approach and leaving their wares behind. After destroying the home brew cooking wares, they continued on walking towards Balasiko. He said along the way they met up with the accused and prison escapee Francis Bomgai. Francis Bomgai told them that they were returning from visiting his family and would go back to Beon. Upon their return to the Police Station they learnt that some prisoners had escaped, and Francis Bomgai was one of them. In examination in chief the witness said Francis Bomgai was known to him from previous criminal encounters. As for the accused he said the accused was also known to him as they were together in several joint operations in Madang.

11. In cross examination he maintained that he was familiar with most prison officers and know the accused by name as Henry Bidogo. He said he did not talk to the accused because his commander was the one doing the talking. When asked if the accused said anything to them when they met, he said the accused did not say anything. As to the question relating to what the escapee told his boss, the witness said he only said he was here to see his family and will return to Beon.

Defence evidence

12. The accused gave testimony that during his 40 years of service in several Correctional Service Goals in Bihute, Buimo and Beon he has served as a general duties clerk. He is a trained photographic and finger printing expert. Other duties performed during his career include assisting in detainee reception and discharge. He said he had no close contact with detainees. He said he was familiar with detainee escort duties and said such authority must be in the form of a schedule 7 instrument. Where there is no instrument there is no escort. He said there is a culture within Correctional Service where prison officers do not always comply with the schedule 7 instruments and may bend the rules to assist detainees on humanitarian grounds. He said on that day two prison officers were assigned to escort two detainees to hospital. He was tasked to escort prison escapee Francis Bomgai to the surgical clinic at ward 3, however when they turned up at the clinic it was temporarily closed as the doctor in charge was on ward rounds that day. He said the remandee was becoming impatient after waiting for 40 minutes and asked if he could be escorted to Newtown to collect his clothes. He felt pity upon the remandee and agreed to his requests to be taken to Newtown with a loving heart as he was a human being.

13. He escorted the remandee out to the bus stop opposite the Modilon Eye Clinic and waited for a PMV bus. He said the remandee jumped into a pmv bus, taking him by surprise and so he also jumped into the same bus to be with him. Along the way the remandee told him that they were on the wrong bus. He said he immediately signalled the bus to stop at Balasiko market near New Town.

14. He said they got off the bus and walked through the old jant compound track. Along the way they met some armed policemen with rifles, and he told the remandee to stand aside and allow them to pass. He said he did not talk to the policemen. They continued on and came to a family house at Finsch Road junction. He said the remandee put his walking stick on the table and introduced two women and a man in the house to the accused. As the remandee told the family to entertain me with betel nut etc, he went off to get some clothes. The witness said he became uneasy when the escapee failed to return with his change and so decided to go looking for the remandee but was cautioned by Andrew not to go into the settlement as it was dangerous. He said he became frustrated with Andrew and his family for lying to him. The witness said he returned to Modilon Hospital around 10 am or 10.30 am that day.

Cross Examination

15. In cross examination the accused agreed that schedule 7 form issued that day was for the prisoners to be escorted form Beon to Modilon and back again that day. He said the prison officers escorting has some discretion to deviate in the absence of the Commander in certain instances. When put to him that prison officers have no discretion to deviate according to the Gaol Commander the accused said prison officer have some discretion. He agreed that Francis Bomgai was escorted to hospital due to gunshot wounds on his legs. Cross examination continues: ...

Q. Corporal Bereda was the officer in charge of the detainees?
A. Yes.
Q. When you left hospital with the detainee you did not inform Bereda?
A. Yes, I never informed him although he was in the hospital.
Q. When you got on PMV, you said it was the wrong bus?
A. When we came to a junction, I realised that we got on the wrong bus.
Q. Did you think about going to the hospital?
A. I need to assist him.
Q. So you knew what you did was wrong?
A. After serving the State for 40 years, I have a heart to serve him.
Q. You knew what you did was wrong?
A. No I can’t answer that.
Q. Did schedule 7 authorise you to take the detainee to Balasiko?
A. Yes as the immediate supervisor at the time I assisted him.
Q. When you took Francis Bomgai to Balasiko, you knew that you were taking a risk?

16. As to prosecution suggestion that he knew Francis Bomgai status as high-risk person he said he didn’t know his status as high risk when he took him out. When a copy of schedule 7 notice (exhibit #2) was shown to the accused to identify, he vehemently denied its authenticity, and said that was not the one signed by the Commander. He maintained that he had another schedule 7 form with him. When suggested to the witness why the falsified schedule 7 was not put to the Commander, he said he was not given the opportunity to question the Commander. When further put to the accused that schedule 7 notice (exhibit # 2) was now evidence before the Court, he said what’s before the court was a fraudulent copy. He said all witnesses have been lying to the court.

17. Edward Gilinde gave testimony of the accused and the remandee fronting up at his family home. He said one of the men introduced the other as his boss and asked her mother and sister to make him comfortable. He said his family were confused. He said the man went out to get some change and went away for good. He said after about 3 to 4 minutes the accused became suspicious and attempted to go after the remandee but was cautioned against going into the settlement, as it was very dangerous.

Defence submissions

18. Counsel Zauya submitted that it was an ongoing norm and practise within Correctional Service members not to strictly abide by Schedule 7 Orders. Escorting prison officers have on occasions taken prisoners outside the scope of the orders. For instance, taken them to nearby shops etc. He argued that in this case the accused assisted the prison escapee visit his home at Newtown to get some clothes on humanitarian grounds. Mr Zauya submitted that the accused exercised his discretion and assisted the accused. He submitted that escorting prison officers on Schedule 7 errands do assist prisoners and this was an ongoing practise with Correctional Service. He was not able to show court which particular section of Correctional Service Act gives powers to escorting prison officers to exercise their discretion.

State submissions

19. Counsel Popeu submitted that Schedule 7 Notice was conclusive, and no discretion is given to escorting prison officers to deviate from its dictates. Any activities outside what is contained in Schedule 7 is either foolish or a deliberate act of disobedience of the Commanders orders. In this case the accused, with well over 40 years of service ought to know that Schedule 7 Notice issued on that date states clearly that the two detainees were to be escorted from Beon to Modilon Hospital and back between 9 am and 1 00pm. By taking the prisoner away from Modilon Hospital to Newtown, some several kilometres, which resulted in his escape amounted to him aiding the prisoner. He had no discretion or authority. Beon Correctional Service Commander did not authorise the escapee to be taken outside the scope of Schedule 7 Notice. Mr Popeu submitted that what the accused did was unlawful and illegal. Although the accused knew that he was taking a risk knowing full well what both him and the prisoner were involved in a similar incident. Furthermore, his actions were foolish in that he allowed a high-risk prisoner to be taken out from Modilon Hospital. He argued that the accused be found guilty accordingly.

Issues raised by the evidence

20. Does Schedule 7 Authority allow for exercise of discretion by prison escorting officers?

21. According to gaol Commander Andrew Polis, prison officers have no authority or discretion to deviate from the dictates of what is proscribed in the Schedule 7. The accused who is a seasoned officer with 40 years of service/experience with Correctional Service took a high risk remandee outside the scope of Schedule 7 i.e. From Beon to Modilon and back, resulting in the remandee escaping from his watch. The accused’s reason for bending the rule was based on humanitarian ground and for the love of the prisoner’s welfare. However noble his intentions might be, prisoner’s welfare is treated by the welfare process available to them upon application. The use of Schedule 7 process to assist the prisoner was wrong in law and a serious breach.

22. As to why the accused was not subjected to the normal disciplinary process, evidence before court shows that this was the second instance of escape involving the accused and the same prisoner. Hence the need for the referral of his case to police to prosecute. The accused’s vehement denial of the authenticity of the Schedule 7 Notice without producing his copy of the true one in his possession was cause for concern for his honesty and truthfulness. He knowingly lied to court and his credibility questionable. I find that he was not a witness of truth. The accused blatantly lied to court that prison officers have some discretion to “bend” the rule as prescribed in the Schedule 7 Notice. Ironically, we have here a prison officer who boasts of 40 years of service telling lies in court in his defence. No, Schedule 7 Notice does not give any licence or discretion to escorting prison officers from operating outside what is stated. In this case to escort detainee Francis Bongai from Beon Gaol to Modilon Hospital and back within the set hour of 9.30 am to 1.00pm on 9 July 2019. Instead he escorted the detainee Francis Bomgai out of Modilon Hospital to Balasiko Market, New Town area thereby aided the remandee in escaping from lawful custody.

Did the accused aid the prisoner to escape?

23. Having considered the competing evidence and the submissions of both counsels I am satisfied that the State has proven beyond reasonable doubt that the accused aided the remandee/prisoner to escape for the following reasons:

(a) He was the prison officer tasked with the responsibility of escorting remandee Francis Bomgai to Modilon Hospital for his medical review on 9 July 2019.
(b) Remandee Francis Bomgai and Michael Kaitas were granted leave of absence from Beon Correctional Institution on 9 July 2019 to receive medical attention between the hours of 9 am to 1.00 pm. Prison Officers Henry Bidogo and Rodney Bereda, with Rodney in charge of the team, pursuant to Schedule 7 Correctional Service Act.
(c) He was the prison officer last seen with remandee Francis Bomgai at a secluded bush track along Balasiko area.
(d) Remandee Francis Bomgai was under the immediate escort and custody of the accused when he escaped.
(e) When he tried to assist the remandee visit his family, such visit was not authorised by Schedule 7 Notice of leave of absence from Beon Gaol, save for his hospital visit and review. As such the accused has breached Schedule 7 conditions.
(f) His exercise of discretion to assist the remandee, a discretion which he did not have nor was allowed under Schedule 7 Notice was illegal and detrimental to the smooth operation of such provisions, therefore wrong in law.
(g) His 40 years of service as a prison officer does not qualify him to exercise powers outside the Schedule 7 Notice, even if such discretion were based on humanitarian grounds.
(h) The general welfare and rehabilitation of prisoners is adequately taken care of by the Welfare Division within each Command upon proper application from prisoners. It is therefore wrong for the accused to argue that he was assisting the remandee with love and out of humanitarian grounds.

The relevant law

S. 138. AIDING PRISONERS TO ESCAPE.
A person who–

(a) aids a prisoner in escaping or attempting to escape from lawful custody; or
(b) ...,
is guilty of a crime.
Penalty: Imprisonment for a term not exceeding seven years.

Schedule 7 Correctional Service Act.

ABSENCE FROM A CORRECTIONAL INSTITUTION.

Name of Detainee:

No:

The abovenamed detainee is authorised to be absent from

.................................................................................... (name of Institution)

on ........................................................................................ (date)

from ........................................... (time) to ........................................ (time)

for the purpose of:...................................................................................................................

Whilst absent from ..................................................... (name of institution)

the above-named detainee shall be escorted by ..........................................

and under the supervision of ............................................ until returned to the institution named above.

Findings

24. The accused was the person who aided the prisoner Francis Bomgai escape from lawful custody. The accused had no authority to take the remandee away from the precincts of Modilon Hospital for any other purpose, other than those specified in the notice. As a prison officer his actions were callous as he knew at the time that he was escorting a high risk remandee to seek medical treatment for an earlier crime of robbery and murder. He was negligent when he escorted the remandee away from the confines of Modilon Hospital.

Verdict:

25. Due to the foregoing reasons I find the accused guilty and convict him accordingly.

Orders accordingly.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for Accused