Private Nebare Dege & 23 Ors v The Independent State of Papua New Guinea (2009) SC1308

• Jurisdiction: Papua New Guinea
• Judge: Injia, CJ; Mogish & David JJ
• Judgment Date: 30 September 2009
• Court: Supreme Court
• Citation: (2009) SC1308
• Docket Number: SCA No. 5 of 2004
• Year: 2009
• Judgement Number: SC1308

Full Title: SCA No. 5 of 2004; Private Nebare Dege & 23 Ors v The Independent State of Papua New Guinea (2009) SC1308

Supreme Court: Injia, CJ; Mogish & David JJ

Judgment Delivered: 30 September 2009

SC1308

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA No. 5 of 2004

Between:

PRIVATE NEBARE DEGE & 23 Ors

Appellants

AND:

THE INDEPENDENT STATE

OF PAPUA NEW GUINEA

Respondent

Waigani: Injia, CJ; Mogish & David JJ

2009: 30th September

CRIMINAL LAW - Appeal – Particular offence- Mutiny- Appeal against conviction – Whether conviction safe and satisfactory- Whether facts sufficient to establish each element of offence to the required standard of proof in criminal cases –

PRACTICE AND PROCEDURE – Indictments – Validity - Indictments presented before Defence Force Judge by Defence Force Prosecutor under s48 of Defence Act – Whether Indictment should be brought in the name of the State or the Commander of the Defence Force- Whether Defence Force Prosecutor is obliged by law to sign the indictment before or at the time of its presentation- Defence Act 1974, ss 47 – 48.

STATUTORY INTERPRETATION - Defence Force Act – Powers and functions of a Defence Force Judge – Whether Defence Force Judge sits as a Military Court Martial or as a National Court or a Judge of the National Court- Defence Force Act 1974, s47

Facts:

In an appeal against conviction for the offence of mutiny under s 41of the Criminal Code, apart from challenging the conviction on the trial Judges findings of fact, the appellants raised various issues as to the jurisdiction of the Defence Force Judge to receive and deal with an indictment presented by the Defence Force Prosecutor appointed under s48 of the Defence Act.

Held:

(1) An indictment charging a member of the Defence Force with mutiny under 41 of the Criminal Code may be brought in the name of the State by a Defence Force Prosecutor appointed under s48 of the Defence Act and brought before a Defence Force Judge appointed under s 45of the Defence Act.

(2) The Defence Force Prosecutor appointed under s 48 of the Defence Force Act is not a State Prosecutor within the meaning of s 176 of the Constitution, s 2 of the Public Prosecutors Act. He is appointed under the Defence Act to prosecute criminal offences before the Defence Act and his prosecutorial authority comes under that Act.

(2) An indictment brought and presented before a Defence Force Judge under s47 of the Defence Act need not be signed by the Defence Force Prosecutor, however it must be reduced into writing and presented.

(3) In the absence specific procedure on presentation of indictments under the Defence Act, pursuant to s47 (3) of the Defence Act, the rules relating to indictments under the Criminal Code apply as far as practicable.

(4) By virtue of s45 (8) of the Defence Act, the Defence Force Judge sits as the National Court or a Judge of the National Court and not as a Judge of a Military Court Martial.

(5) The indictment in this case was properly brought in the name of the State and presented by the Defence Force Prosecutor. The Defence Force did not commit any procedural error in the circumstances in proceeding on the indictment. The Defence Force Judge also did not err in finding that all elements of the offence had been established to the required criminal standard of proof. Consequently the appeal against conviction is dismissed and the conviction and sentence imposed by the Defence Judge are confirmed.

Cases cited:

Papua New Guinea Cases

The State v John Beng [1977] PNGLR 115

The State v John Mogo Wonom of Jigi [1975] PNGLR 311

R v ToVarula [1973] PNGLR 140

R v Ongasi Wosis [1971-1972] PNGLR 476

State v John Badi Woli & Pengas Rakam [1978] PNGLR 51

Omowo and Yirihim v The State [1976] PNGLR 188

Karo Gamoga v The State [1981] PNGLR 443

The State v Amoko Amoko [1981] PNGLR 373

Keko Aparo & Others v The State SC (249 25th May, 1983)

Abraham Saka v The State SC 719

The State v Joseph Tapa [1978] PNGLR 134

John Jaminan v The State (No. 2)

Overseas Cases

Australian Coal and Shale Employee’s Federation v The Commonwealth (1953) 94 C.L.R 621

R v Chairman of London County Session, exp. Downes (1953) 37 Cr. App. R 148

Whitehouse v Jordan and Another [1981] 1 ALL.E.R 267

Counsel

D Koeget and L Siminji, for the appellants

J Kesan, for the respondent.

30th September, 2009

1. BY THE COURT: This is an appeal against conviction. The appellants are serving members of the Papua New Guinea Defence Force. They pleaded not guilty to a charge of mutiny laid pursuant to s. 55(1) of the Defence Act Chapter 74 (the Defence Act). A trial was conducted in accordance with the provisions of the Defence Act. The indictment alleged that the appellants being persons subject to the Code of Military Discipline and members of 2RPIR at Moem Barracks in Wewak jointly and severally took part in a mutiny.

2. The offence was alleged to have been committed on 8th March 2002 and was to last for 3 weeks. During this period, there was no legitimate command and authority at the barracks. The commander had been forced out of the barracks. Unauthorized officers assumed authority and put into place an illegal command structure. These men issued threats to other soldiers considered to be threats. Service men and their families fled the barracks and sought refuge in nearby villages and the town. Vehicles were removed from the transport pool without proper authorization. Unauthorized service men were seen driving those vehicles. The barracks armory was broken into and rounds of ammunitions and high powered automatic military weapons were distributed to service men by unauthorized officers. The weapons included SLR and AR15’s. Buildings were set alight. The barracks was under siege. It had to take another military operation to put down this mutiny. That was on the 23rd March 2002.

3. The appellants appeared before Justice Salika (as he then was) sitting as defence force judge. The prosecution called a total of 30 witnesses comprising of soldiers and civilians. The appellants all gave evidence. There were two issues before the trial judge: firstly whether there was a mutiny and secondly whether they participated in the mutiny. The facts as found by the trial judge were these:

“1. All 27 accused named in the indictment are current serving members of the PNG Defence Force and as such are all persons subject to the Code of Military Discipline.

2. The Military Instruction Building and the Communication Centre building were burnt down on the early hours of the 9 March 2002.

3. The armory was broken into between the late hours of 8 March and early hours of the 9 March 2002 and a large amount of weapons stolen.

4. The magazine was broken into on the morning of the 9 March 2002 and a large quantity of ammunition was stolen.

5. There was a gathering under the rain tree in front of the C company building on the morning of 9 March 2002. Another gathering was called for at about 1.00 pm that same day at the same place.

6. Another meeting was held at the Aussie Rules Oval at about 5.00 pm where Private Paul Holonga presented a petition to Sir Michael Somare on behalf of the Soldiers.

7. The petition demanded the government of the day and the Defence Force commander to resign immediately.

8. On 11 March 2002 there was a gathering under the rain tree in front of C Company building.

9. On 13 March 2002 there was another gathering under the rain tree in the presence of Lt Colonel Janguan.

10. The crisis management team led by Colonel Ben Norrie came on 13 March to Moem Barracks and returned on 15 March.

11. On 14 March there was a gathering at the other ranks clubs with the crisis management team.

12. The barracks was taken back on 23 March, 2002.”

4. Following a lengthy trial, the trial judge on 20th December, 2003 convicted the appellants of mutiny. The reasons for conviction are contained in a written judgment delivered by the trial Judge. The Judge found that all the appellants, except for Private Jimmy Iwira and Corporal Kila Lalai who were subsequently acquitted, jointly and severally took part in the mutiny. They were sentenced as follows:

Name of Appellants	Term of imprisonment	Pre remand period
1. Private Nebare Dege:	15 years imprisonment with hard labour.	Less 9 months (14 years 3 months to serve)
2. Private Francis Mantenepoa	12 months imprisonment with hard labour.	Less 9 months (3 months to serve)
3. Corporal Suke Luka	9 months imprisonment with hard labour.	Less 9 months (rising of the court)
4. Corporal Patrick Singeri	9 months imprisonment with hard labour	Less 9 months (rising of the court)
5. Lance Corporal William Gube	9 months imprisonment with hard labour	Less 9 months (rising of the court)
6. Lance Corporal Liston Naged	5 years	Less 9 months (4 years 3 months to serve)
7. Lance Corporal Anton Kawas	12 months imprisonment with hard labour	Less 9 months (3 months to...