The State v James Tei Wena and Gend Yanisa Thomas (2000) N2304

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J
• Judgment Date: 21 September 2000
• Court: National Court
• Citation: (2000) N2304
• Year: 2000
• Judgement Number: N2304

Full Title: The State v James Tei Wena and Gend Yanisa Thomas (2000) N2304

National Court: Kirriwom J

Judgment Delivered: 21 September 2000

1 CRIMINAL LAW—Particular Offences—Escape—Escape from lawful custody—Escape by prisoner—Exercise of Police discretionary powers when charging suspects for escaping from lawful custody—Criminal Code s139 and Summary Offences Act s22.

2 Words and Phrases—"Prisoner"—Escape from lawful custody [by prisoner]—Escape from lawful custody by an accused awaiting trial—Prisoner as convicted criminal or offender as opposed to an accused held on remand awaiting trial

3 Practice and Procedure—Plea of guilty—Rejection of plea by the trial judge after reading the depositions—Plea of not guilty entered—Prosecution offered no additional evidence other than the depositions already tendered in court—Acquittal ordered—Proper exercise of judicial discretion—Interest of justice—PNG Constitution, s155(4).

4 The State v Alan Bekau [1982] PNGLR 119, SCR 1 of 1994; The State v Aruve Waiba (Unnumbered and unreported judgment of the Supreme Court (Los J and Salika J) delivered on 4 April 1996) and The State v Joe Ivoro [1980] PNGLR 1 referred to

The potential for abuse of police powers when choosing between summary process and proceeding by way of indictment discussed.

The inequity of the wider and literal meaning or definition of the term 'prisoner' as decided in The State v Alan Bekau [1982] PNGLR 119 was discussed.

Appropriateness of summary process under Summary Offences Act (Ch264) and by indictment under the Criminal Code (Ch262) alluded to.

Both accused were charged with escaping under s139 of the Criminal Code whilst awaiting trial at Barawagi jail outside Kundiawa. They were not convicted of any offence and were not serving any sentences to be categorized as prisoners. Both pleaded guilty to the charges which the Court rejected and entered pleas of not guilty in their behalf.

Issues:

(a) Whether the term 'prisoner' as used in s139 of the Criminal Code included accused person on remand awaiting trial in custody following committal?

Held, dismissing both cases, that the term 'prisoner' under s139 of the Criminal Code does not include an accused person on remand or in custody awaiting trial who is not serving sentence on a current warrant. Appropriate charge is s22 of the Summary Offences Act (Ch264).

The State v Alan Bekau [1982] PNGLR 119 not followed.

___________________________

N2304

PAPUA NEW GUINEA

[In the National Court of Justice]

CR No. 1132 of 2000

Between:

THE STATE

And:

JAMES TEI WENA

AND:

CR. No. 1133 of 2000

Between:

THE STATE

And:

GEND YANISA THOMAS

Kundiawa: Kirriwom, J.

2000 : 13, 19 & 21 September

CRIMINAL LAW – Particular Offences – Escape - Escape from lawful custody – Escape by prisoner - Exercise of Police discretionary powers when charging suspects for escaping from lawful custody – Criminal Code s.139 and Summary Offences Act s.22.

Words and Phrases – “Prisoner” – Escape from lawful custody [by prisoner] – Escape from lawful custody by an accused awaiting trial – Prisoner as convicted criminal or offender as opposed to an accused held on remand awaiting trial

Practice and Procedure – Plea of guilty – Rejection of plea by the trial judge after reading the depositions – Plea of not guilty entered – Prosecution offered no additional evidence other than the depositions already tendered in court – Acquittal ordered - Proper exercise of judicial discretion – Interest of justice – PNG Constitution, s.155 (4).

The potential for abuse of police powers when choosing between summary process and proceeding by way of indictment discussed.

The inequity of the wider and literal meaning or definition of the term ‘prisoner’ as decided in The State v Alan Bekau [1982] PNGLR 119 was discussed.

Appropriateness of summary process under Summary Offences Act Ch. 264 and by indictment under the Criminal Code Ch. 262 alluded to.

Both accused were charged with escaping under section 139 of the Criminal Code whilst awaiting trial at Barawagi jail outside Kundiawa. They were not convicted of any offence and were not serving any sentences to be categorized as prisoners. Both pleaded guilty to the charges which the Court rejected and entered pleas of not guilty in their behalf.

Issues:

(a) Whether the term ‘prisoner’ as used in section 139 of the Criminal Code included accused person on remand awaiting trial in custody following committal?

Held, dismissing both cases, that the term ‘prisoner’ under section 139 of the Criminal Code does not include an accused person on remand or in custody awaiting trial who is not serving sentence on a current warrant. Appropriate charge is section 22 of the Summary Offences Act Ch.264.

Cases cited:

1. The State v Alan Bekau [1982]PNGLR 119 not followed.

2. The State v Aruve Waiba – SCR 1 of 1994 Unreported Supreme Court Judgment (4 April 1996)

3. The State –v- Joe Ivoro and Gemora Yavura [1980]PNGLR 1

Counsel:

F. Kuvi for the State

M. Apiee for the Prisoners

REASONS FOR DECISION

21st September, 2000

KIRRIWOM, J. These two accused persons pleaded guilty to escaping from the lawful custody of the commander of the Barawagi Jail outside Kundiawa.

The brief facts of the case are that whilst awaiting trial on charges of robbery at Barawagi Prison James Tei Wena escaped from the lawful custody of the Commander of the Gaol on 16th June 1999, followed by co-accused Gend Thomas Yanisa who did likewise on 5th November, 1999. Both were remandees awaiting trial. They were apprehended on 17th July 1998 for robbery committed upon a policewoman on 16th July 1998 at Kerowagi station. However the Information sheet shows that both accused were charged for that offence on 29th July 1998 and if one were to accept the suggestion that the two accused surrendered themselves and substantial compensation has been paid to the policewoman concerned, it would probably be correct that they were handed over to the police by the relatives on or about 29th July 1998.

Both are charged under section 139 of the Criminal Code, which carries a mandatory minimum penalty of five years imprisonment. The section reads:

139. Escape by prisoner.

(1) A person who, being a prisoner in lawful custody, escapes from that custody is guilty of a crime.

Penalty: A term of imprisonment of not less than five years.

(2) An offender under Subsection (1) may be tried, convicted, and punished, notwithstanding that at the time of his apprehension or trial the term of his original sentence (if any) has expired.

By comparison the same offence created under section 22 of the Summary Offences Act reads as follows:

22. Escaping from lawful custody

(1) A person who, being in the lawful custody of a person under any law, escapes or attempts to escape from custody is guilty of an offence.

Penalty: A fine not exceeding K200.00 or imprisonment for a term not exceeding six months.

(2) A person who escapes from lawful custody is deemed to be continuing to commit an offence under Subsection (1) until he is arrested for that offence, any other offence, or under any other law.

Both charges are worded identically and read something like this:

“……….stands charged that he on the …… day of …. 1999 at Barawagi Correctional Institution Services (CIS) Kundiawa in Papua New Guinea being a remandee in lawful custody, escaped from such custody…”

The charge relates to escaping by a remandee in lawful custody, not a prisoner as is clearly stated in the section. This means that the charge was technically bad as there was no such offence under the Code or under...