McKenzie v The State

• Jurisdiction: Papua New Guinea
• Citation: [1999] PNGLR 526
• Date: 30 April 1998
• Court: Supreme Court
• Year: 1999

Full Title Ronald Alexander McKenzie v The State (1998) SC596

Supreme Court: Los J, Hinchliffe J, Injia J

Judgment Delivered: 30 April 1998

1 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 (Ch262) s355, Arrest Act s5, s14(2), s16(2).

2 Criminal Law—Search—Ordinary citizens' power (security guards included) to conduct routine or random search of trade store customers discussed—Search Act (Ch341) s3, s4, s5

3 The State v Songke Mai and Gai Avi [1988] PNGLR 56 referred to

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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 s355 of the Criminal Code. The section provides:

'355. Deprivation of liberty.

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...