Ronald Alexander McKenzie v The State

• Jurisdiction: Papua New Guinea
• Judge: Los J, Hinchliffe J, Injia J
• Judgment Date: 30 April 1998
• Year: 1998
• Court: Supreme Court
• Citation: [1999] PNGLR 526
• Judgement Number: SC596

Supreme Court: Los J, Hinchliffe J, Injia J

Judgment Delivered: 30 April 1998

SC 596

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCRA No. 51 of 1994

BETWEEN

RONALD ALEXANDER

McKENZIE

Appellant

AND

THE STATE

Respondent

Waigani : Los, Hinchliffe & Injia, JJ.

1998 : 27, 30 April

Criminal Law Unlawful detention Ordinary citizens' power to "arrest" and "detain" Wholesale store manager directed security guards to lock up woman caught suspected of stealing bubble gum, in brick wall store room, for eight (8) hours — Whether detention unlawful Criminal Code Ch. 262, s 355, Arrest Act, Ss5, 14(2), 16(2).

Criminal Law Search Ordinary citizens' power (security guards included) to conduct routine or random search of trade store customers discussed Search Act, (Ch. No. 341) Ss.3-5.

Cases Cited in the judgment:

The State -v- Songke Mai [1988] PNGLR 56.

I. Molloy for the Appellant

M. Peter for the Respondent

30th April, 1998

BY THE COURT: On 30 April 1998, we handed down a short ruling on the result of this appeal and indicated that we would publish our full reasons later, particularly on the subject of the powers of an ordinary person, a person other than a policeman, to arrest and detain another person found committing or having committed an offence. For purposes of easy reference, we set out below the full text of our ruling. We said:

"The appellant was convicted on a charge that he unlawfully detained a woman, Janet David, at Goroka on 3 November, 1993. The charge was laid under s.355 of the Criminal Code Act. The section provides:

"A person who unlawfully —

(a) confines or detains another in any place against his will; or

(b) deprives another of his personal liberty, is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years."

"The appeal is against both conviction and sentence. The appeal raises a broad but serious issue in the country. Many persons purport to exercise some powers to apprehend and detain others. They include security personnel and others who purport to exercise some powers bestowed upon them by various municipal authorities. We consider it necessary to discuss the relevant laws and constitutional provisions relating to the powers of apprehension, arrest and detention. The time we have now is insufficient for that purpose. We will therefore just announce our decision affecting the appellant to day and reserve all reasons to deliver at a later date.

"Although the trial judge was extra gratuitous with his language, we find basically the detention was excessive even though it was originally meant to be short just to enable the woman to be taken to the police station. We therefore dismiss the appeal against conviction and confirm the conviction."

"In relation to the sentence, it is our view that the sentence was excessive. The appellant was a first offender. He came into the scene after the woman was apprehended. His mistake was that he failed to cause delivery of the woman to the police when it was obvious the police were not going to come when the business part of the day was almost over.

"We therefore grant leave to appeal against sentence and we uphold the appeal. We quash the sentence of six months and in its stead we impose two weeks imprisonment which the appellant has already served. In addition we impose a fine of K1,000 payable within two weeks in default three months imprisonment."

The appellant is an Australian citizen. At the material time, he was employed by Gonapuka Pty Ltd as the General Manager of its Satu Wholesale store (herein after referred to as the "Store") which is situated at West Goroka. On 3 November 1993, at about 8.00am, the victim, together with two other women and a small child entered the store when it opened for business. The appellant was not at work at this point in time. Whilst she was inside the store, she was accused of stealing a "hubba-bubba bubble gum" by the store supervisor and a security guard. At this state, the appellant drove in. After conducting his own inquires on the matter, the appellant directed the store security men to lock her up in a brick-wall storeroom situated at the back of the store. She was kept there for some eight (8) hours until policemen, after receiving a complaint from the victim's relatives arrived at around 3.30pm and took her away.

At the trial the appellant argued that he acted lawfully in directing the victim's detention because:-

(1) a policeman from the dog unit who attended at the scene in the morning did not return within 20 minutes to collect the victim, as earlier promised.

(2) That he (the appellant) was busy attending to the business of the store because the store had just opened for business for only one month;

(3) That there was no motor vehicle to take her to the police station because he used the only motor vehicle he had to gather eggs for the "kai bar" of the store.

The State called evidence of the policeman on duty on that day at the Goroka Police Station to prove that the police did not receive any complaints on the matter from the appellant or his subordinates on that day, that they did not attend at the scene at the appellant's store that morning and that it was only at 3.30pm that day that they received complaint from the victim's relatives of her detention at the store and attended at the scene and collected her. The...