Dominic Kanduo v The State

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 15 September 2014
• Citation: (2014) N5725
• Court: National Court
• Year: 2014
• Judgement Number: N5725

Full : CA NO 21 OF 2013; Dominic Kanduo, Vincent Iramu & Max Mingu v The State (2014) N5725

National Court: Cannings J

Judgment Delivered: 15 September 2014

N5725

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CA NO 21 OF 2013

DOMINIC KANDUO, VINCENT IRAMU & MAX MINGU

Appellants

V

THE STATE

Respondent

Madang: Cannings J

2014: 21 July, 15 September

CRIMINAL LAW – appeal to National Court against conviction and sentence by District Court – unlawful assault, Summary Offences Act, Section 6 – Firearms Act offences

CRIMINAL PROCEDURE – whether application for adjournment was unfairly refused – record of proceedings in District Court – need for appellants to establish facts as to procedures in District Court – presumption of regularity of court proceedings: omnia praesumuntor rite essa acta

FIREARMS ACT – orders for forfeiture of firearms and motor vehicles as a consequence of conviction for offences: Firearms Act, Sections 73, 73A.

The appellants were convicted in the District Court of unlawful assault and various offences under the Firearms Act. They appealed to the National Court against their convictions and sentences. As to conviction they argued that the trial Magistrate, after the close of the State’s case, unfairly refused an application for adjournment and coerced them into changing their pleas from not guilty to guilty. As to their sentences, they argued that the trial Magistrate erred in law by ordering compensation of K5,000.00 to each of the victims in the unlawful assault offences and by ordering the forfeiture to the State of a firearm and a motor vehicle owned by one of the appellants.

Held:

(1) An appellant alleging procedural error in a court (such as the District Court) which is not a court “of record”, in the sense that not all of its proceedings are recorded, must be careful to establish the factual basis of an alleged error of law. The appellant must show, by reference to the record of the court or by presenting evidence, what actually happened in the District Court.

(2) If there is a dispute or uncertainty about what actually happened in the District Court and it is necessary for the National Court to make a finding as to what, in fact, happened, the starting point is to apply the presumption of regularity regarding judicial proceedings, omnia praesumuntor rite essa acta: unless the contrary is proven, court proceedings are presumed to have been conducted properly and the court’s records are presumed to be accurate.

(3) Most grounds of appeal were based on allegations about what the trial Magistrate said or how his Worship conducted the proceedings but the allegations were not substantiated either by the record of the District Court or by evidence presented by the appellants. All grounds of appeal alleging procedural error failed.

(4) When a Court convicts a person of unlawful assault under Section 6(3) of the Summary Offences Act it may order him under Section 6(4) to pay such amount by way of compensation for bodily injury or damage to the property of the person occasioned by or in the course of the commission of the offence, as it considers just. No monetary limit is imposed and the procedural requirements of the Criminal Law (Compensation) Act do not apply. The appellants failed to establish error of law on the part of the trial Magistrate in ordering that K5,000.00 be paid to each victim of the unlawful assault offences.

(5) Section 73(1) of the Firearms Act provides that where an offence with a firearm etc has been proved, the firearm is unconditionally forfeited to the State. The forfeiture arises by operation of the Act and applies irrespective of whether the offender was licensed to use the firearm. No error was proven against the trial Magistrate in ordering forfeiture of an appellant’s firearm.

(6) Section 73A(2) of the Firearms Act provides for the forfeiture to the State of a vehicle if the court that convicts an offender is satisfied that the vehicle used in the commission of the offence was, amongst other things, owned by the person convicted. No error was proven against the trial Magistrate in ordering forfeiture of an appellant’s motor vehicle.

(7) All grounds of appeal failed, the appeal was entirely dismissed, and the orders of the District Court were affirmed.

Cases cited

The following cases are cited in the judgment:

Bolvin Paikara v Rima Nau [1971-72] PNGLR 354

Brian Michael Costello v The Controller of Civil Aviation (No 2) [1977] PNGLR 476

Bungo v Robin (2011) N4195

Francis Tarei v The State (2008) N3539

Garry Kulau v Kevin Alile (1990) N869

John Beng v The State [1977] PNGLR 115

John Francis Ihari v MVIL (2006) SC1341

Jubilee Hambru v Michael Baur (2007) N3193

Manub Edom v Wanor Agun (2013) N5225

NCDIC v Crusoe Pty Ltd [1993] PNGLR 139

Ok Tedi Mining Ltd v Niugini Insurance Corporation and Others (No 1) [1988-89] PNGLR 355

Papua Club Inc v Nusaum Holdings Ltd (2005) SC812

Public Prosecutor v Barry Holloway [1981] PNGLR 482

Rahonamo v Enai (re Hitau) [1971-72] PNGLR 58

Re Nali and Manigut [1984] PNGLR 55

SCR No 3 of 1980; Re Joseph Mavuk [1980] PNGLR 507

Tamara Player Tomscoll v The State (2012) SC1208

The State v Toroken, Ex Parte Perera (1981) N281

William Norris v The State [1979] PNGLR 605

APPEAL

This was an appeal from the District Court against convictions entered against the appellants for offences under the Summary Offences Act and the Firearms Act, and against their sentences, including orders for compensation to victims and forfeiture of a firearm and a motor vehicle.

Counsel

S Tenige, for the appellants

F K Popeu, for the respondent

15th September, 2014

1. CANNINGS J: Dominic Kanduo, Vincent Iramu and Max Mingu appeal against their conviction and sentence by the Madang District Court. They were involved in an incident at Rempi village, Madang Province, on 28 March 2012 which led to them being charged with various offences. They were prosecuted in a joint trial. They originally pleaded not guilty, but after the close of the State’s case they pleaded guilty to and were convicted of all charges. The trial Magistrate in the proceedings, described as DCR Nos 469, 470, 471, 472, 474, 476, 477, 478 & 479 of 2012, was Mr M Samala. His Worship delivered a written judgment dated 18 April 2013.

2. His Worship concluded that the appellants, two of whom (Kanduo and Mingu) were employed as private security personnel in Lae and one (Iramu) who was a member of the Reserve Constabulary Branch of the Police Force at Lae, travelled from Lae, armed with weapons, and entered Rempi village in search of a person who was the prime suspect in an armed robbery of the Papindo Supermarket at Madang. The appellants had earlier travelled with Lae-based members of the Police Force on a special operation but they and the Lae-based members were sent back by Madang-based members of the Police Force. The appellants later returned without any Police support or approval and raided Rempi village without a search warrant and in the process committed the offences.

CONVICTIONS AND SENTENCES

3. The appellants were convicted and sentenced as shown in the following tables. It should be noted that the formal orders made in respect of each information that was prosecuted (each has a separate file reference, “DCR”) do not correspond exactly with the summary of the orders in the written judgment of the District Court. The sentences that are set out in the formal orders have been used for the purpose of this summary.

DOMINIC KANDUO

DCR No	Offence	Law	Sentence
469/2012	Unlawful assault	Summary Offences Act, s 6(3)	(a) K500.00 fine, in default 6 months imprisonment in hard labour (IHL); plus (b) K5,000.00 compensation to victim Peter Albert for injuries caused by assault and gun-butting, payable within 14 days, in default 12 months imprisonment IHL; (c) cumulative sentence.
470/2012	Defacing firearm	Firearms Act, s 56	(a) K1,500.00 fine, in default 6 months imprisonment IHL; (b) Fine payable forthwith; (c) Cumulative sentence.

VINCENT IRAMU

DCR No	Offence	Law	Sentence
475/2012	Unlawful assault	Summary Offences Act, s 6(3)	(a) K500.00 fine, in default 6 months imprisonment IHL; plus (b) K5,000.00 compensation to victim George Sivut for injuries caused by assault and gun-butting, within 14 days, in default 6 months imprisonment IHL; (c) Cumulative sentence.
476/2012	Unlawful assault	Summary Offences Act, s 6(3)	(a) K500.00 fine in default 6 months imprisonment IHL; plus (b) K5,000.00 compensation to victim Bansik Anis for injuries caused by assault and gun-butting, within 14 days, in default 6 months imprisonment IHL; (c) cumulative sentence.
477/2012	Discharging firearm on occupied land without owner’s consent	Firearms Act, s 59(2)	(a) K1,000.00 fine, in default 6 months imprisonment IHL; (b) Concurrent sentence.
478/2012	Possession of high-powered firearm without licence	Firearms Act, s 27(1)(b)	(a) K1,500.00 fine, in default 4 months imprisonment IHL; (b) fine payable forthwith; (c) cumulative sentence.
479/2012	Possession of firearm whilst under influence of alcohol	Firearms Act, s 57	(a) ...