Regina v Erico Aufe [1974] PNGLR 331

• Jurisdiction: Papua New Guinea
• Judge: Prentice J:
• Judgment Date: 03 May 1974
• Citation: [1974] PNGLR 331
• Court: Supreme Court
• Year: 1974
• Judgement Number: FC58

Full Title: Regina v Erico Aufe [1974] PNGLR 331

Full Court: Frost ACJ, Clarkson J, Prentice J

Judgment Delivered: 3 May 1974

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

ERICO AUFE

Port Moresby

Frost ACJ Clarkson Prentice JJ

28 February 1974

25-27 March 1974

3 May 1974

CRIMINAL LAW AND PROCEDURE — Assaulting police officer in execution of duty — Illegality of force used by police officer — Relevant considerations — Criminal Code (Queensland adopted) ss. 340, 254, 256

Section 254 of the Criminal Code (Queensland adopted) provides:

"It is lawful for a person who is engaged in the lawful execution of any sentence, process, or warrant, or in making any arrest, and for any person lawfully assisting him, to use such force as may be reasonably necessary to overcome any force used in resisting such execution or arrest."

Section 256 of the Criminal Code (Queensland adopted) provides:

"When a police officer is proceeding lawfully to arrest, with or without warrant, a person for an offence which is such that the offender may be arrested without warrant, and the person sought to be arrested takes to flight in order to avoid arrest, it is lawful for the police officer, and for any person lawfully assisting him, to use such force as may be reasonably necessary to prevent the escape of the person sought to be arrested.

But this section does not authorize the use of force which is intended or is likely to cause death or grievous bodily harm, except in a case where the person sought to be arrested is reasonably suspected of having committed an offence punishable with ... imprisonment for life under this Code, nor until the person sought to be arrested has been called upon to surrender."3.

In relation to an offence under s. 340 of the Criminal Code (Queensland adopted) which provides inter alia, that any person who assaults, resists or wilfully obstructs a police officer while acting in the execution of his duty is guilty of a misdemeanour, and when considering the possible illegality of any force used by a police officer in arresting or preventing escape from arrest at the relevant time, regard must be had to the provisions of both s. 254 and s. 256 of the Code.

Sections 254 and 256 of the Criminal Code (Queensland adopted) are found within a group of sections intended to protect the person making the arrest, and that protection would be incomplete unless it covered not only the application of force but also any threat or attempt to use force.

Appeal.

The appellant Erico Aufe was convicted of assaulting a police officer in the execution of his duty and sentenced to three months' imprisonment with hard labour. He appealed against conviction and sentence on the ground that the trial judge had erred in a number of respects in law and at the hearing applied for leave to add the further grounds that the verdict was against the evidence and weight of evidence. The facts relevant to the offence are set out in the reasons for judgment of Clarkson J.

Counsel:

J. Bradshaw and P. A. Benson, for the appellant.

C. F. Wall, for the respondent (Crown).

Cur. adv. vult.

3 May 1974

FROST ACJ: I shall ask Clarkson J. to give judgment first.

CLARKSON J: On 8th October, 1973, in the Supreme Court at Port Moresby the appellant was convicted of assaulting a police officer in the execution of his duty. The offence was alleged to have occurred on 13th December, 1972. Upon conviction the appellant was sentenced to three months' imprisonment with hard labour. Notice of appeal was given on the grounds that the trial judge had erred in a number of respects in law and later the appellant was admitted to bail.

When the appeal came on for hearing before the Full Court, counsel for the appellant applied for leave to amend the notice of appeal by adding the further grounds that the verdict was against the evidence and the weight of evidence and particulars were supplied. The court decided to hear the whole of the argument before ruling on the application.

The offence of which the appellant is convicted is set out in s. 340 of the Criminal Code which provides, inter alia, that any person who assaults, resists or wilfully obstructs a police officer while acting in the execution of his duty is guilty of a misdemeanour and is liable to imprisonment with hard labour for three years.

It appears that the appellant was in custody serving a sentence for some simple offence, and that he escaped. Several attempts were made to recapture him, the last being on the occasion when this offence is said to have been committed. At that time the police officer, Sub-Inspector Symonds, had in his possession a valid warrant for the appellant's arrest.

The general sequence of events is not in dispute. A police party armed with batons and under the command of Symonds approached the appellant's house. The appellant, carrying a bush knife ran into the bush with the police party in pursuit, Symonds at the rear. As he ran, Symonds drew his pistol. When he came up to the appellant the appellant was partly surrounded by members of the police party and this combined with thick vegetation appears to have prevented further immediate flight.

In the ensuing period, Symonds fired one pistol shot and then fired a second shot at the same time as the appellant hit Symonds' hand with the bush knife. Members of the police party struggled with the accused and were driven off by fellow villagers of the appellant. Symonds was shot in the leg by his own pistol and the appellant suffered a wound, probably a bullet wound, to his leg.

In order to define more closely the issues involved four periods of time were identified by counsel for the appellants. Only the first three are now relevant; the first from when the appellant ran from his house until Symonds came up to him; the second from the time of Symonds' arrival until the first shot was fired, and the third the period thereafter.

We are primarily concerned with the second period. The case was fought on the basis that the resistance alleged occurred in the second and third periods. I think, in fairness to the appellant, that we should accept that limitation and I therefore do not consider the interesting question whether the appellant's flight from his house could be said to constitute resistance in the relevant sense.

As to the third period, the trial judge found that although Symonds intended to fire the first shot over the appellant's head and thought he had done so, probably he fired it into the appellant's leg and that the appellant's subsequent resistance was justified or excused, a conclusion which was not challenged before this court by the Crown.

We are concerned, then, with one period, that of the confrontation between Symonds and the appellant up to the point when the first shot was fired.

As to this period, counsel for the appellant conceded that the appellant was then resisting Symonds and this is a concession which I think was properly made.

Three defences were then raised. The first was that the appellant's resistance was lawful as being in self-defence. Secondly, and alternatively, it is said the appellant held an honest and reasonable but mistaken belief that Symonds intended to shoot him although Symonds did not so intend.

Thirdly, it was argued that Symonds was not acting in the execution of his duty because the pointing of the pistol constituted an unlawful assault by Symonds on the appellant.

I turn then, to the events of this period. The trial judge referring to Symonds as "S." said: "I believe S. when he says, "Erico was about five (5) paces away facing me. He had a bush knife in his right hand and at shoulder height, its blade was about eighteen (18) inches long. When I ran in the revolver was held down at my side pointing at the ground." (Sgt. Niribo says it was in S.'s pocket, as he arrived at the clearing, but when running towards them S. had it in his hand. Constable Wani says the accused was walking towards S. when Wani heard the first shot, and that he then rushed him. Constable Mauare said S. arrived with a gun in his hand.) "I said, 'Drop that knife, you're under arrest.' He started to walk slowly towards me and I raised my pistol and pointed it at him, at his body. He continued walking towards me and he said in a loud voice, 'Don't point that pistol at me'. My attention was directed at him, I could not see what the local police were doing. When he first started walking towards me I hada fear he was going to attack me with the bush knife. When he was about eight (8) feet away I raised the pistol, pointed it above his head, I cocked it and deliberately fired a warning shot over his head. He then rushed at me swinging the bush knife at me in a large arc. I raised my pistol, pointed it at his midriff, and started to squeeze the trigger", and S. then goes on to describe how the accused deflected the weapon, so that S. actually shot himself in the leg.

Later his Honour says: "I appreciate the fact that S. came up after the native police with a pistol in his hand, but up to the point that the accused was probably shot in the leg, I do not believe that the accused's attitude changed from what it had been since a day or so after he...