The State v Roy Nana [1986] PNGLR 83

• Jurisdiction: Papua New Guinea
• Judge: McDermott AJ
• Judgment Date: 14 March 1986
• Citation: [1986] PNGLR 83
• Court: National Court
• Year: 1986
• Judgement Number: N532

Full Title: The State v Roy Nana [1986] PNGLR 83

National Court: McDermott AJ

Judgment Delivered: 14 March 1986

1 Criminal law—accessory after the fact—s519 Criminal Code—offence defined by s10 Criminal Code—action of accused must enable offender to escape punishment

2 Statutory interpretation—common law development of offence discussed—relevant aid to interpretation of Code offence

3 Criminal law—practice and procedure—no motion to quash indictment or demurrer—intervention of trial judge—facts alleged in indictment not amount to the offence charged—ruling on basis on demurrer

CRIMINAL LAW—Degrees of criminality—Accessory after the fact—Definition of offence—Action must enable offender to escape detection or punishment—Criminal Code (Ch262), s10(1), s519.

CRIMINAL LAW—Particular offences—Accessory after the fact—Definition of offence exclusive—Action must enable offender to escape detection or punishment—Criminal Code (Ch262), s10(1), s519.

The Criminal Code (Ch262), s519, provides that a person who becomes an accessory after the fact to a crime is guilty of a crime.

S10(1) of the Criminal Code provides that "A person who receives or assists another who is, to his knowledge, guilty of an offence, in order to enable him to escape punishment, is an accessory after the fact to that offence".

An accused was charged with being an accessory after the fact to a crime of break enter and steal where he assisted the principal offenders at their behest to remove a large quantity of goods from the scene of the crime which otherwise could not have been removed.

Held:

(1) The Criminal Code (Ch262), s10(1), provides an exclusive definition for "accessory after the fact" for the purposes of s519.

(2) For the purposes of being charged as an accessory after the fact an accused must do some act in order to enable the principal offender to escape detection and punishment.

R v Angie–Ogun [1969–70] PNGLR 36; The State v Amoko–Amoko [1981] PNGLR 373 at 386; R v Pompey (1924) 18 QJPR 59, and R v Andrews and Craig [1962] 1 WLR 1474 at 1477, considered.

(3) In the circumstances, the accused could not be charged as accessory after the fact to break enter and steal.

Murray v R [1962] Tas SR 170, R v Andrews and Craig [1962] 1 WLR 1474, R v Angie–Ogun [1969–70] PNGLR 36, R v Fitzpatrick (1926) 19 Cr App R 91, R v Lee (1834) 6 Carrington & Payne 536; 172 ER 1353, R v Levy [1912] 1 KB 158; (1911) 7 Cr App R 61, R v Pompey (1924) 18 QJPR 59 and The State v Amoko–Amoko [1981] PNGLR 373 referred to

Trial

After presentation of an indictment charging the accused with being an accessory after the fact to a crime of break enter and steal the trial judge questioned the capacity of the facts outlined to support the charge of being an accessory after the fact.

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McDermott AJ: An indictment was presented charging the accused with being an accessory after the fact to a crime of break enter and steal. For the purposes of arraignment the State prosecutor advised me that on the evening of 3 June 1984 the accused was awakened at his home by friends who told him that they had broken into a house and taken a large quantity of goods. They asked the accused to help them in removing the goods. The accused then went with them to the scene. The goods at that time were hidden on the opposite side of the road to the house from which they came. The goods were then loaded into the homeowner's vehicle and driven by the accused to the home of one of the principals. After unloading, the accused drove the vehicle off and abandoned it.

Prior to arraigning the accused I asked under what section of the Criminal Code (Ch262) (the Criminal Code) had the accused been charged. The prosecutor relies upon s519:

"A person who becomes an accessory after the fact to a crime is guilty of a crime."

"Accessory after the fact" is not defined in that section or in the interpretation sections of the code. Rather, the phrase appears in "Division 2—Parties to Offences", s10:

"(1) A person who receives or assists another who is, to his knowledge, guilty of an offence, in order to enable him to escape punishment, is an accessory after the fact to that offence."

Exceptional provisions are then set out in relation to the husband or wife of an offender.

The question thus arises, if s10 provides an exclusive definition of "accessory after the fact" or whether there are other meanings encompassed by that phrase, ie does it extend to the actions done by the accused in this instance.

The authors of Criminal Law and Practice of Papua New Guinea (Andrew Chalmers and Weisbrot) (1979) appear to take the narrower view that s10 provides the definition of "accessory after the fact"—see footnote at 236. If that is so, can it be said that the accused's...