State v Kenny [2022] PGNC 279; N9762 (23 June 2022)

N9762

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 4 OF 2021

BETWEEN:
THE STATE

AND:
MAISON KENNY

Maprik: Rei, AJ
2022: 23^rd June

CRIMINAL LAW – Practice and Procedure – Verdict of guilty – sentenced to 1 year each for two counts of forgery and uttering – sentence of 1 year for each count to be concurrently served as 1 year imprisonment – suspension of sentence with conditions – breach of condition not to interfere with customary land – construction of house on customary land – land dispute pending resolution – no contempt of court – application dismissed.

Cases Cited:
Papua New Guinean Cases

The State -v- Maison Kenny (2022) N9532
The State -v- Maison Kenny (2022) N9540
The State -v- John Rumet Kaputin [1979] PNGLR 554

Overseas Cases

Woolmington -v- DPP [1935] AC 462

Legislation:

Sec. 462(1)(3)(c) & 463 (1)(2)(b) of the Criminal Code
Order 11 Rule 21(1) of the Criminal Practice Rules
Land Disputes Settlement Act

Counsels:

Mr Francis Popeu, for the State
Mr Alex Kana, for the Defence

DECISION ON BREACH OF PROBATION ORDER

23^rd June, 2022

1. REI AJ: The prisoner here was initially charged with two counts of forging and uttering official documents of the Local Land Court of Maprik, East Sepik Province being Form 7 and Form 10 of the Land Disputes Settlement Act to secure ownership of a piece or parcel of land known in Kwatgu Village of Maprik District, East Sepik Province as Wangum Customary Land. The two counts were laid under Section 462(1)(3)(c) and Section 463(1)(2)(b) of the Criminal Code.
   

2. A decision on verdict was handed down on the 18^th March 2022 – N9532 and a decision on sentence was handed down on 25^th March 2022 – N9540.

3. In the decision I handed down on sentence in the matter referenced N9540 I said at paragraph 36 and 38 as follows:

“In consideration of these factors as well as the fact that the prisoner expressed genuine remorse, I impose the following sentences:

(i) 1 year for forgery;
(ii) 1 year for uttering; and
(iii) the sentences be served concurrently as the offences were committed in the same transaction.”

“I order that the term of 2 years be concurrently served as 1 year imprisonment and is suspended upon the following terms:

(i) pursuant to Section 19(1)(b) of the Criminal Code, the prisoner shall pay a fine of K2,000.00 within 14 days from the date of this Order;
(ii) upon payment of the fine of K2,000.00 the prisoner shall be released from Boram CIS;
(iii) he is to enter into a good behaviour bond for the period of suspension;
(iv) during the term of the suspended sentence, the prisoner shall not interfere with the proceedings involving the ownership of Wangum Customary Land; and
(v) bail money shall be forfeited to the State.”

4. During the recent Court Circuit at Maprik in June 2022, Counsel for the State Mr. Kaipu made an oral application on 16^th June 2022 seeking an order that the prisoner be arrested and brought before the Court to give reasons why he disobeyed and acted contemptuously as regards terms (iii) and (iv) of the above Court Order.

5. An Order was made for the issuance of a warrant of arrest for the arrest of the prisoner. He was arrested and brought to Court on 17^th June 2022.

6. On 17^th June 2022 at Maprik Mr. Kaipu submitted that the prisoner had constructed a bush material house on the customary land that is currently under dispute and subject to court proceedings in the Local Land Court, Maprik District, East Sepik Province.

7. He submitted further that the actions of the prisoner are in direct contempt and disobedience of Order (iii) and (iv) above and that the prisoner is in breach of same. No formal application by way of originating process provided under Order 14 of the Criminal Practice Rules was then filed.

8. As Mr. Siki had not yet received instructions by 16^th June 2022 he sought for an adjournment for that purpose to the next day 17^th June 2022.

9. On 17^th June 2022, Mr. Siki submitted that the construction of the house by the prisoner was not done within the land boundaries of Wangum Customary Land and that it was outside that area of land. As such the prisoner was not in breach of the Order of the Court of 25^th March 2022.

10. An affidavit was subsequently filed by Mr. Siki to substantiate his submission. He then submitted that as the State had not filed any affidavit to support its allegations, the application by the State be dismissed.

11. I however made a ruling that under Order 11 Rule 21(1) of the Criminal Practice Rules, the State is not required to file any affidavit to show there is a defiance, disobedience, contempt or breach of an Order of the Court in circumstances of this nature as a complaint has been made out and ruled that a warrant of arrest be issued forthwith. It was so issued.

12. I, however, adjourned the matter to Wewak to be formally heard when the Court Room is available as His Honour Miviri, J. is in Wewak on Circuit or when the Supreme Court makes time available for me to hear the matter during the last week of June 2022.

13. His Honour Miviri, J. allowed me to sit and heard this matter during the lunch hour on Thursday 23^rd June 2022.

14. My reason for imposing a non-custodial sentence of 2 years to be served concurrently as a 1 year imprisonment term and then suspended the sentence was because the prisoner pleaded for it as he has a big family to fend for, he had shown genuine remorse and was, most importantly, willing to unreservedly comply with any conditions the Court would impose.

15. Further, it is better to rehabilitate this prisoner.

16. I have read the affidavit of the prisoner filed herein in which he deposes that the house he built was in fact built outside of the boundaries of Wangum Customary Land. He deposed that his house has broken down and he was building a house on the spot where his old house stood erect. He therefore says that his actions do not constitute any breach of the Orders of 25^th March 2022 nor a violation of such Orders.

17. Thus, he says that he did not breach those Orders and is therefore not in contempt or violation of those Orders.

18. The State did not call any witness to testify on the complaints it raised nor was there any affidavit filed in support. The law as stated in, Woolmington -v- DPP [1935] AC 462 requires that the State must prove beyond reasonable doubt that the prisoner breached the Orders while in The State -v- John Rumet Kaputin [1979] PNGLR 554 the accused, who is the prisoner in this case, is required to establish a defence only on the balance of possibilities, the ordinary civil burden of proof.

19. Based on the evidence before the Court, I cannot see how the prisoner could have breached the Order of 25^th March 2022 as he deposed in his affidavit that his old house was a run down house and that he was building his own house on the same spot. He did not build the house on; what the complainant claims, Wagum Customary Land, which is currently subject to the proceedings of the Maprik Local Land Court.

20. Furthermore, the State did not invoke the provision of Order 11 Rule 20 by issuing separate proceedings commenced by way of originating summons.

21. There being no breaches of the Order of 25^th March 2022, the prisoner be forthwith released on his own recognisance from Boram CIS.

22. The Court rules that:

(i) the Order of 15^th and 17^th June 2022 are revoked;

(ii) the prisoner is discharged from Boram CIS; and

(iii) Orders of 25^th March remain in force until the suspended period of 12 months probation lapses.

Ordered accordingly.
____________________________________________________________
Public Prosecutor: Lawyer for The State
Public Solicitor: Lawyer for The Defendant