Koniel Alar and Hosea Biu v The State

• Jurisdiction: Papua New Guinea
• Judge: Andrew J:
• Judgment Date: 10 August 1979
• Citation: [1979] PNGLR 300
• Court: Supreme Court
• Year: 1979
• Judgement Number: SC159

Supreme Court: Prentice CJ, Wilson J, Andrew J

Judgment Delivered: 10 August 1979

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

KONIEL ALAR AND HOSEA BIU

V

THE STATE

Waigani

Prentice CJ Wilson Andrew JJ

3 August 1979

6-7 August 1979

10 August 1979

CRIMINAL LAW — Appeal against sentence — Raising of unauthorized forces — First use of provision — Ignorance of law — Premier and Deputy Speaker of Provincial Assembly — Need for public deterrent — Custodial sentence appropriate — Sentences of twelve months' imprisonment upheld — Criminal Code, s. 50A.Infra p. 316.1

CRIMINAL LAW — Practice and procedure — Plea of guilty — Version of facts upon which court to act — Dispute of fact — Matter of aggravation disputed — Opportunity to contest on oath desirable — Relevant procedures and principles.

Two appellants, being the Premier and Deputy Speaker of the Provincial Assembly of East New Britain pleaded guilty to charges contrary to s. 50A of the Criminal Code of "having established a force known as the `Security' being a force similar in nature to a police force, except as provided by law," and were each sentenced to imprisonment with hard labour for one year. The charges were the first laid under the section which was introduced in 1975.

On the plea of guilty the trial judge had before him a dispute of facts, one being inculpatory and the other exculpatory (as to the degree of deliberation and extent of knowledge of the law of the appellants) and indicated to counsel for the appellants that evidence might be called to resolve the matter. No such evidence was called.

On appeal against sentences on the ground that the sentences imposed were manifestly excessive,

Held

(1) (Andrew J., dissenting) In view of the seriousness of the offence, and the need for a public deterrent in the interests of national unity and security, a custodial sentence was appropriate and the sentences imposed could not be said to be manifestly excessive.

(2) (Per Wilson J.) There are offences where the notions of deterrence and retribution must take priority and where sentences of imprisonment may properly be imposed on men "in high public positions" to mark the disapproval by the law of the conduct in question and in the hope that other people will be deterred from like behaviour. This offence with its implications for national unity public safety, and the authority of the national police force, legitimately falls into this category.

(3) (Per Wilson J.) For the purpose of imposing sentence and in mitigation thereof, after a plea of guilty and where unsworn material only is available it is the duty of the trial judge to act upon the version of the facts which within the bounds of reasonable possibility is most favourable to the accused but the trial judge can reject an explanation if it exceeds the bounds of reasonable possibility provided he gives the accused an opportunity to support his story or have it supported on oath.

(4) (Per Wilson J.) In the circumstances, it could not be said that the trial judge had fallen into error in acting on a version of the disputed facts unfavourable to the accused.

(5) (Andrew J., dissenting) The appeals should be dismissed and the convictions and sentences confirmed.

Appeals

These were two appeals against sentence on the ground that the sentences imposed were manifestly excessive. Both appellants were convicted of charges contrary to s. 50A of the Criminal Code and each sentenced to twelve months' imprisonment with hard labour, the maximum term being fourteen years.

Counsel

M. Kapi, for the appellants.

K. B. Egan, for the respondent.

Cur. adv. vult.

10 August 1979

PRENTICE CJ: The two appellants were each convicted on 17th July, 1979, following pleas of guilty to a charge under s. 50A of the Criminal Code of having established a force known as the "Security" being a force similar in nature to a police force, except as provided for by law. They were each sentenced to imprisonment with hard labour for one year. They have appealed against these sentences on the stated ground of excessive severity. The charge was the first to arise under this section; though twenty-nine members of the "Security" had then already been dealt with under s. 51 (2A) of the Criminal Code for unlawful drilling. The appellants were the Premier and Deputy Speaker respectively of the Provincial Assembly of East New Britain.

A number of matters had been noted in support of the appeal; but it is convenient in order to discover their ambit, that one first deals with the question arising from the tender at the trial of a record of interview (to be referred to as the "first" such) which had not been forthcoming in the committal proceedings.

Mr. Egan who prosecuted in Rabaul at the trial explained in this Court that in the course of preparation for the trial, he became aware that (a) a record of interview with Mr. Alar held on 24th April (the "first") which he had in possession in Pidgin form, had not been tendered before the magistrate, (b) interpretation of the second record of interview with Mr. Alar of 4th May, appeared to be defective, and (c) that there was no English translation of the record of interview in Pidgin with Mr. Biu.

He informs that he translated each of the three records and sent carbon copies of the original "first" record, and of the three new translations, a week before the trial, to Mr. Kapi whom he knew to intend to appear for the then accused men, and explained the details to Mr. Kapi on the phone. He then asked the individual police officers in Rabaul who were concerned, to authenticate the accuracy of his translations. As I say he spoke to Mr. Kapi before going to Rabaul and specifically asked him if he disagreed with any of the contents. No such disagreement was mentioned either in Port Moresby or in Rabaul.

Upon pleas of guilty being entered, Mr. Egan placed both the first and the second record of interview with Mr. Alar, among the exhibits, both having been taken in the presence of Mr. Alar's legal adviser. He was naturally concerned to have both before the judge as there were inconsistencies between them, the second being inculpatory, the first exculpatory. He did not draw the trial judge's attention to the tender as an exhibit, of the first record.

Apparently by some lack of attention, or oversight, Mr. Kapi did not realise the existence or presence of the first record among the exhibits, and he did not address the trial judge on the subject. (Nor was any point taken as to its inclusion in the appeal book.) This oversight may be explicable because Mr. Egan did not address on sentence. But it is evident that the trial judge regarded some material in the first record as important, because it went to the veracity of Mr. Alar. And in this connexion, his Honour found that Mr. Alar, despite what his counsel might have said to the contrary, must have known of the illegality of the establishment of the force concerned. No point was taken before the trial judge by Mr. Kapi when his judgment was read out, though therein the judge specifically referred to the two records of interview having been taken from Alar.

We accept what each counsel says about this happening, unfortunate as it was.

Mr. Kapi asks that this Court exclude from its consideration the contents of the first record, as it did not form part of the depositions on which Mr. Alar pleaded guilty. Though challenged to do so by Mr. Egan, and tentatively invited by the court to consider whether he should think of the desirability of doing so, Mr. Kapi specifically declines to request the court to remit the issue of guilt for a re-trial.

No point seems open as to the admissibility of the first record had it been tendered at the trial. Had it been disputed, it seems the prosecution could have tendered it. And it would appear that it could have been tendered also on sentence under s. 608 of the Criminal Code, so far as it could be thought to negative ignorance of the law and hence to tell against mitigation. As the matter transpired before the trial judge, he was on the face of it entitled to look at the first record. Counsel for the appellants has now addressed on the subject and this Court has had the benefit of his submissions, to a more forceful extent we imagine, than was available to his Honour. I am of the opinion that the matter of adequacy of sentence should be looked at now, with the first record in the frame of the picture; and that thereby no injustice will be done the appellants. It is not I think without significance that Mr. Alar when in the witness box was asked no questions as to his knowledge or ignorance of the offence.

Mr. Kapi submits that the sentences are excessive for a number of reasons. The legislative provision he says is a new one, and a breach of it should not have met with severity. The appellants, he submits in mitigation, should on the record of proceedings have been regarded as in ignorance of the law. The trial judge in coming to sentence should have disregarded the former existence...