DC300

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 1194, 97, 439 OF 2000

POLICE
Complainant

V

Daing Minji
Defendant

Mt. Hagen: M. Pupaka, Pm
2000 & 2001: 08th, 11th, 29th & 04 Jan.

15th January 2001

M. M. PUPAKA: The accused Daing Minji was charged with five different counts under the Summary Offences Act chapter No. 264 & the Fire Arms Act chapter No. 310. Under the former he was charged with two counts of having stolen property in his possession and one count of escaping from lawful custody, all of which are said to be contrary to sections 16 & 22(1) respectively. Under the latter he was charged with one count that he had possession of 20 rounds of ammunition without licence and one count of converting an article similar to a toy gun, those being contrary to sections 65A & 55 of that Act respectively. The accused pleaded not guilty to all five charges and the matter proceeded to trial. It was considerably convenient for all concerned that the charges were tried together. The offences had allegedly been committed in close proximity to one another and the 5 charges were laid as a result of the one police search. Further the Prosecution evidence, relative to all charges, were collected at the same time.

The State evidence is generally this: Senior Sergeant Mas Tanda of the Criminal Intelligent Unit at the Mt. Hagen Police Station obtained a search warrant. This search warrant is in evidence. It is evident from this that the same was issued by Senior Principal Magistrate Marcus Bayam of the Mt. Hagen District Court. The search warrant was obtained specifically to search for and seize anything that related to "unlicensed firearms, ammunitions, drugs, and anything suspected of being stolen". The search was to be conducted at the "…houses of Daing Minji, Simon Pikip Nombri, Simon Poke all from Taimil Village, and Pastor John from Minba Village, all from Minj District".

There has been some controversy in the trial over the alleged non-service of the search warrant upon the accused by the police and the validity of the whole search that resulted in the seizure of property and incriminating evidence at the accused premises. The police witnesses, particularly the sergeant in charge of the search party – Senior Sergeant Mas Tanda, was adamant that he served on the accused the search warrant. The latter denied that he was so served. 

However, for the purposes of these proceedings it is not necessary to resolve that issue – as to whether the accused was actually physically served with the search warrant. The accused has said he was told that the police were on an authorised search. If he (accused) wanted to see and inspect the search warrant, he could have demanded to do so. He did not. The fact that there was such a search warrant at the time of the search is clearly established. One of the original copies of the search warrant is in evidence as alluded to above. It is not necessary to establish that the warrant was or was not served on the accused. I have no doubts whatsoever of the search warrant’s validity. I can only be satisfied that the search itself was properly authorised and valid. That should then resolve the controversy over its validity,

In the early hours of the morning of the 04th of October 2000 the search party lead by Senior Sergeant Mas Tanda made its way to the accused place at Taimel, Minj. Upon arrival the police found the accused and his wife asleep with their two children. The policemen woke them up and informed the accused that they were there to act on three separate complaints of attempted murder. They also informed him that they had a search warrant to search his premises.

The policemen then proceeded to search the four- (4) houses owned by the accused. These four houses were: [a] a dwelling house; [b] a canteen; [c] a workshop; [d] and another house which has been referred to either as a warehouse (by the police) and or a ‘haus marasin’ (by the defence). 

According to the police they searched the dwelling house first, but only briefly. It is not altogether clear but it seems the ‘other house’ (I take that to be a reference to the warehouse cum ‘haus marasin’), was also briefly searched. Then the search party, together with the accused, proceeded to the canteen. The accused opened his canteen and it was searched. A homemade gun was found inside the canteen. Sergeant Mas Tanda said the accused was there and then informed that he would be charged for being in possession of the homemade firearm. The search party exited the canteen and the accused locked it up after them.

The search party next proceeded to the dwelling house to thoroughly search it again. But before the search at the dwelling house commenced the accused disappeared. The policemen searched for the accused and called out his name but the accused was nowhere to be seen.

The dwelling house was searched thoroughly in the absence of the accused. However his wife was present. In the search a packet containing 20 rounds of AK-47 Rifle bullets was found inside a suitcase which contained man’s clothing and a passbook and passport belonging to the accused. The accused’s wife was questioned in relation to the ammunition. She denied any knowledge of it. 

After that the search party proceeded to search the workshop and the other house that is said to be a warehouse or a ‘haus marasin’. 

The Prosecution evidence in relation to the sequence and order of search of these two buildings and evidence as to what was found in them is a bit confusing. Sergeant Mas Tanda said, "…some homemade guns and parts of homemade guns were found in the workshop. Oxy bottles, Grinders and other equipment were found inside the workshop". He said the workshop was evidently a homemade gun factory. Sergeant Mas Tanda said a LG TV and Deck, suspected to be stolen properties, were found in the warehouse cum ‘haus marasin’. On the other hand the Detective Constable Raphael Doa, whilst confirming the discovery of the ammunition, differs in his recollection as to where the homemade gun and homemade gun parts together with the equipment for their production, were found. Detective Constable Doa said those were found in the other (kunai) building referred to has a warehouse or ‘haus marasin’, which was just at the back of the dwelling house. Incidentally the canteen and workshop are located some 100 –150 meters away from the dwelling house and the ‘haus marasin’. Then the third police witness, Detective Constable Benson Gabokoli, whilst also confirming the location and discovery of the ammunition, said the homemade gun parts were found in the workshop.

At the close of the prosecution case there are doubts as to where exactly the homemade gun and parts of those and the equipment were found or removed from. Was it the workshop (which was relatively further away from the dwelling house) or the warehouse cum ‘haus marasin’ (which was just besides the dwelling house)? There is some further confusion in the description of that ‘other house’. I have accepted, for the purposes of these proceedings, that that ‘other house’ is the same as the building referred to as a warehouse or a ‘haus marasin’ simply because all are agreed that four buildings belonging to the accused were searched that morning. But under the circumstances this conclusion could be faulty. There could have been five houses there! It was said the two houses were briefly searched before the search party proceeded to search the store. It was after the search at the store, when a thorough search was considered necessary, that the ‘homemade gun factory’ was discovered and searched. The point I make is that if the homemade guns and parts together with the equipment were inside the ‘other house’ (which is the same as the warehouse cum ‘haus marasin’), even a brief search would have disclosed what was in that building. Going by what the police witnesses have said that building had electric lights and it was an open spaced house with no room divisions. It had a work station bench and the other equipment found there are large objects. There would have been no need for a second search to find those large objects.

Also in relation to the production of the homemade guns I must have certain reservation about the charge itself and the wordings of the charge. The offence the accused is alleged to have committed is contrary to section 55 of the Firearms Act which reads in full:

"55 Converting toy gun, etc, into firearm

A person who converts into a firearm, a toy gun or an article of a similar nature is guilty of an offence.

Penalty: A fine not exceeding K2000.00 or imprisonment for a term not exceeding twelve months".

The charge laid by the police reads:

"…did convert into a firearm an article of similar to a toy gun..." (sic)

The facts concerning that charge, notwithstanding the other things mentioned relative to the same, are that pieces of pipes cut out to the length and size of regular gun barrels and accessories, were found in a building. The building housed equipment and machinery, obviously set up for the purpose of production of guns.

I am not sure if the charge as laid is made out, even if the grammatical and constructional error apparent in the charge is rectified in the exercise of this Court’s discretion. Clearly a charge under section 61 of the Act ("Possession of certain firearms, etc") would have been proper. I note with some degree of surprise that the accused has not been charged under section 61 of the Firearms Act. He should have been charged for, at least, having possessed the homemade gun that was found his canteen.

At this juncture, in all the circumstances I have alluded to above, I must find the charge that the accused "did convert into a firearm an article of similar to a toy gun" (sic) not sustained. There are pieces of pipes welded together and other items in evidence that show that some one had seriously endeavoured to produce guns. However the confusion created in the Prosecution evidence as to where these items were found is such that it would be otherwise unfair on the accused to record a conviction against him upon that charge in the circumstances. The police were well placed to collect all the evidence and present it to court in a comprehendible way. They have the onus to prove the charge preferred beyond any reasonable doubt. As I said I have doubts, as it were. 

The accused testified in person. He called two witnesses. One was his wife, and the other was his village councillor. The latter’s evidence generally has no relevance in these proceedings. The wife’s evidence is relevant to only two of these 5 charges and her evidence would be discussed at the appropriate junctures later on. 

The accused denied that a homemade gun was found in his canteen, however one clearly was found there. Nonetheless he has not been charged with being in possession of that item. The mere factual possession of the item would not necessarily prove a charge under section 55 of the Act, and so I say no further than that. However if the accused was under lawful detention at any time on the 04th of October 2000 as charged, that can only have been when the homemade gun was found in his canteen. 

The Prosecution witnesses said that the accused was cautioned and informed that Sergeant Mas Tanda would charge him for being in possession of that homemade gun. The charge of escaping from lawful custody connotes and presupposes two things: Firstly the escapee must be a person lawfully detained. It could be that he is detained over a specific charge or generally for questioning over an offence known in the law. Secondly he must be informed in no uncertain terms that he is being so detained. If the person is being arrested the requirements of Part IV and V of the Arrest Act chapter No. 339 must be complied with. The Arrest Act provides that the detainee must be informed, in a language that he can understand that he is under arrest and the reason for his arrest, [section 14]. Then the person effecting the arrest must, inter alia, use all reasonable means to prevent the arrested person from escaping, [section 16 (b) and section 17 (b)]. It is important that the accused fully understand that he is being arrested and or that he is being detained, and that he is not free to move around or go away or do anything as he wish.

On the evidence available the accused was never arrested. The evidence that the accused was only merely informed that he would be charged for being in possession of the homemade gun does not suffice. There was no reasonable means to prevent him from going anywhere, including handcuffing him. The accused needed to have been informed he was under arrest, not only just informed that he would be charged. As it now turns out the accused was never charged over the homemade gun in his canteen anyway. All this must mean one thing; I must find that the charge of escaping from lawful custody is not sustained on the evidence.

The other charge is that of being in possession of a LG TV and a Deck of the same brand which were suspected of being stolen property. The evidence on this charge is that the search party found the LG TV and the LG Deck in the ‘other house’ near the dwelling house of the accused. The police directed the accused and his wife to produce copy invoices or receipts as proof of legitimate acquisition of the items. When that was not done the accused was charged as said. 

The accused said the TV and Deck were purchased in 1993. He mentioned that in the course of cross-examining the second Prosecution witness - Detective Constable Raphael Doa. The accused’s wife later simply said they acquired the TV and Deck, together with their other properties, through hard work and that nothing was acquired illegally. The Prosecution did not examine them (the accused and his wife) on how they had acquired the TV and Deck. The Prosecution however called the supervisor of the audio and video section at the Brian Bell Store in Mt. Hagen, Ms. Josephine Popua. Her evidence is that they (Brian Bell) are the only authorised company merchandising the LG product range (of TV and refrigerators only) in the country. She said the LG range of products came into the market in the country in 1996. Ms. Josephine Popua would not recall if any of their TV and Deck shipment were stolen specifically, though there was an instance when one of their cargo containers was held up on transit and robbed of its contents, along the Minj area. There is some further evidence that a cargo container belonging to Bromley & Manton Stores had been stopped and raided within the proximity of the Minj area. It was said that container had a cargo of TV and video equipment. However the evidence is that Bromley & Manton Stores do not merchandise any LG products. The TV and Deck found in the accused’s premises would not have come from the raid on the Bromley & Manton container. Again the Prosecution have the onus of proving that the TV and Deck were, in all reasonableness, stolen. That onus does not equate with getting the accused to prove due ownership by producing receipts or invoices. On the Prosecution evidence the LG TV and Deck would not have from the raids on the Brian Bell and Bromley & Manton cargo containers. It is not proved that the TV and Deck may have been stolen from anyone else. There can never be a proper conviction under these circumstances. I further acquit the accused on this charge.

Finally the matter of the packet of 20 rounds of AK- 47 Rifle bullets. Two separate charges were preferred against the accused relative to this item.

The first charge is that the accused had in his possession ammunition without licence or authority contrary to section 65A of the Firearms Act. The packet was found in a suitcase inside the dwelling house as alluded to earlier. It was discovered in the course of the second search. When the dwelling house was searched briefly initially, the suitcase was not searched. The accused had disappeared before the second search. However his wife was present. His wife said she never left the dwelling house because as she said "…I was with the baby and it was night". During her evidence in chief the accused’s wife said she did not see the policemen find or remove anything from the suitcase. Then in cross-examination she said the suitcase belonged to her and the baby. She said she had told the police that time, when shown the bullets then, that she knew nothing of it. She agreed that the accused kept this passbook in that suitcase, and so too I would presume his passport. Evidence that man’s clothes, presumably the accused’s, also found in the suitcase was, quite significantly, not denied.
 
If the accused had hoped that this Court would infer and conclude that the police many have ‘planted’ the bullets in his suitcase, then he would be disappointed. I say that he may have hoped so because the accused just generally denied any knowledge of the packet of ammunition. However, clearly the suitcase was his. It evidently was a man’s case. It contained his passport and passbook. And of course it was his dwelling house inside which all those things were found. No one else lived in that house apart from the accused and his family. There is no evidence whatsoever before this Court to show that the police may have ‘planted’ evidence to ‘get’ the accused. I would conclude as the evidence stands in relation to that charge. I find the accused guilty as charged on the count of having in his possession ammunition without authorisation contrary to section 65A of the Firearms Act.

The accused was charged with the second count of having in his possession those ammunition which were suspected of being stolen. I can not comprehend what prompted this charge, but it is evident that it is a double charge. It is trite law that one can not be tried (and punished) twice for the same offence. There is no essential distinction between the notions of unauthorised possession within the context of section 65A of the Firearms Act and unlawful possession as envisaged by section 16 of the Summary Offences Act. Possession of stolen property is an unauthorised and unlawful act under both of the above statutes. Further, the evidence does not sustain the charge of having in possession-stolen ammunition. The ammunition may have been given by, or bought from, or otherwise conveyed to the accused by, a person who had legitimately acquired them. There is no evidence adduced by the Prosecution to establish that the ammunition packet was or may have been stolen. On this charge the accused would have to be acquitted.

Summary

1. On the charge of conversion of a toy gun or similar item into a firearm contrary to section 55 of the Firearms Act: The accused is acquitted and discharged.

2. On the charge of unlawful escape from custody contrary to section 22 (1) of the Summary Offences Act: The accused is acquitted and discharged.

3. On the charge of possession of stolen ammunition contrary to section 16 of the Summary Offences Act: The accused is acquitted and discharged.

4. On the charge of Possession of stolen LG TV & Deck contrary to section 16 of the Summary Offences Act: The accused is acquitted and discharged.

5. On the charge of having possessed ammunition without licence or authority contrary to section 65A of the Firearms Act: The accused is convicted as charged.

Constable Gordon: Complainant
In Person: Defendant