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Eliza v Mandina [1971] PGLawRp 37; [1971] PNGLR 422 (27 January 1972)

[1971-72] PNGLR 422

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

LEONARD ELIZA AND OTHERS

V.

MANDINA

Port Moresby
Kelly J

21 December 1971
27 January 1972

APPEAL - Local court - Behaving in a riotous manner - Offence incorrectly explained by magistrate - Plea of guilty - Failure to appreciate nature of charge - Conflict as to what took place in lower court - Evidence wrongly admitted before magistrate - Effect - Police Offences Ordinance 1912-1966, s. 8[cdlxiii]1.

CRIMINAL LAW - Behaving in riotous manner - What constitutes Offence - Police Offences (Papua) Ordinance 1912-1966, s. 8[cdlxiv]2.

To constitute the offence of behaving in a riotous manner under s. 8 of the Police Offences Ordinance 1912-1966, proof is required that the accused disturbed the peace in a disorderly or noisy manner causing considerable commotion.

Scott v. Howard, [1912] ArgusLawRp 45; [1912] V.L.R. 189 and Ex parte Jackson; Re Dowd (1932), 49 W.N. (N.S.W.) 126, referred to.

Additional case referred to:

Burton v. Mills [1896] ArgusLawRp 31; (1896), 2 A.L.R. 49.

In so far as there is a contest before an appellate court as to what took place in a magistrate’s court, the general rule is that the appellate court should accept the statement of the magistrate.

May v. Beeley, [1910] UKLawRpKQB 6; [1910] 2 K.B. 722, referred to.

In so far as a conviction is based on a plea of guilty, an appellate court may properly entertain an appeal against such conviction where the appellant did not appreciate the nature of the charge.

The King v. Forde, [1923] 2 K.B. 400, and Reg. v. Murphy[1965] VicRp 26; , [1965] V.R. 187, applied.

Case referred to:

Reg. v. Blandford Justices; Ex parte G. (An Infant), [1967] 1 Q.B. 82.

Where evidence is wrongly admitted by a magistrate a conviction will not necessarily be set aside on that ground if the Court is of the opinion that there is sufficient other evidence to support a conviction and that the evidence wrongly admitted did not influence the decision. The test is: is it reasonably probable that the evidence influenced the decision.

Armat v. Little; Ex parte Little, [1909] St. R. Qd. 83, applied.

Appeal from Local Court.

The appellants had each been convicted by the Local Court at Samarai of the offence of behaving in a riotous manner under s. 8 (e) of the Police Offences Ordinance 1912-1966, and sentenced to a term of imprisonment. The grounds of appeal, and the facts, are set out in the judgment.

Counsel:

Pratt, for the appellants.
Georgeson, for the respondent.
Cur. adv. vult.

27 January 1972

KELLY J: These four appeals from a decision of the Local Court at Samarai were by consent heard together. In each case the appeal is against the conviction under s. 8 (e) of the Police Offenceinance 1912-1966 of behaving in a riotous manner and thnd the sentence of imprisonment imposed on such conviction. The first three-named appellants were each sentenced to imprisonment with hard labour for three months whilst the last-named appellant was sentenced to imprisonment with hard labour for four months.

The grounds of appeal in each case were as follows:

(1) ; that inadmisseble evidencidence was adduced against the appellant at the hearing;

(2) ـ&#1he appe appellantllant was not given an opportunity at the hearing to cross-examine witnesses or put his own case;

(4) &##160; the cone convictionawas stainst the evidence and the weight of evidence;

(5) the conviction was wronlaw;

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The matter on which the appellants prally d was a pl guilould ave been taken. This was not not squarely raised by any of the groundsounds of a of appealppeal alth although ough no doubt it could be embraced within ground (5). However no objection was raised by counsel for the respondent and counsel for the appellants was permitted to rely on the submission that a plea of guilty was wrongly accepted. Counsel for the appellants did not abandon the other grounds of appeal although all were not fully argued.

The hearing in the Local Court proceeded in a rather peculiar fashion as is shown by a lengthy affidavit of eighty-two paragraphs sworn by the magistrate and admitted in evidence on the appeal. I also admitted in evidence an affidavit sworn by the appellant Marcus Omba and parts of affidavits sworn respectively by the other three appellants, all of which deal, inter alia, with what took place before the magistrate. The affidavits of the appellants are much less detailed than that of the magistrate and, whilst there are a number of respects in which the affidavits are not in conflict as to the procedure followed, there is a conflict in some respects, in particular as to the point at which the appellants were called upon to plead. There was no cross examination on the affidavits, which were simply read. In so far as there is a contest as to what took place in the court below the general rule is that the appellate court should accept the statement of the magistrate (see, for example, May v. Beeley[cdlxv]3) and in this instance I can see no reason why this rule should not be followed.

The offence with which the appellants were charged arises out of an incident which occurred at Samarai on the night of Saturday, 13th March, 1971. An altercation took place involving a man named John Sakio and the four appellants, as a result of which both John Sakio and the appellant Keith Virani suffered what would appear to have been relatively minor injuries to the head. John Sakio was charged with unlawfully using violence towards Keith Virani contrary to s. 8 (a) of the Police Offences Ordinance. He was dealt with by the same magistrate who subsequently convicted the appellants, the charge against him being taken first. On being convicted he was sentenced to imprisonment with hard labour for three months. The case against the four appellants then proceeded. After being formally charged the magistrate then explained the charge to them in these words which were duly interpreted into Motu, the language spoken by the appellants: “Do you know what behaving in a riotous manner is? You are charged that you had been drinking, fighting, swearing and arguing in a public place, that is, Hely Street, where a lot of people walk, and the average person would think that you were breaking the law. Do you now understand the charge?” After agreeing to the charge being heard in the Local Court they were then asked by the magistrate “How do you plead to this charge of riotous behaviour, the one which I have just explained—guilty or not guilty? In other words do you think you have broken the law?” The four appellants then individually replied in English “Guilty”. The magistrate then noted on the court record “Defendants admit the charge”.

However, the magistrate would then appear to have proceeded as though the plea had been one of not guilty. Witnesses, three in number, were called for the prosecution after which the magistrate said to the appellants: “That is the end of the police case. You have heard the evidence given by the prosecution, you have had your chance to cross examine them, now it’s your turn to tell the Court in your own words, the story of what happened. Marcus would you start please.” This may well have given the appellants the impression that they were compelled to give evidence whether or not they wished to do so, but in the event nothing appears to turn on this. The appellant Marcus Omba then gave his version of the events and the other appellants when asked to tell their story each said that their story was the same as Marcus’s and that they had nothing further to add. The magistrate then found each of the appellants guilty of riotous behaviour and after being informed of a previous conviction of Coleman Wakuwakuta for drunkenness proceeded to pass sentence, Coleman receiving a longer sentence than the other appellants because it was said to be his second offence arising from drinking.

The appellants in their affidavits give varying explanations as to their respective reasons for pleading guilty. Leonard Eliza says: “At that time I thought I was charged with being involved in a fight and for that reason I thought I should say ‘Yes, I was in the fight’.” Marcus Omba says: “I did not know at that time what the plea of guilty or not guilty meant and since John had pleaded guilty, I did the same.” Keith Virani says: “I was not too sure what the charge was or what they meant by guilty or not guilty but since my two friends, Marcus and Leonard had pleaded guilty I thought I would too.” Coleman Wakuwakuta says: “Because the others pleaded guilty and because I thought our trouble was for fighting I also said ‘It is true I was there at the fight’.” In so far as the convictions are based on the pleas of guilty this Court may properly entertain an appeal against such conviction where the appellants did not appreciate the nature of the charge: The King v. Forde[cdlxvi]4; Reg. v. Murphy[cdlxvii]5. That this was the case is asserted by three of the appellants and is at least credible, although in the case of the remaining appellant Marcus Omba the assertion that he did not know what the plea meant is rather less credible. In any event where what is being set up is that a plea of guilty should not have been taken it is clearly incumbent on an appellate court to entertain the appeal since a decision to convict as on a plea of guilty which has been wrongly accepted is a nullity: Reg. v. Blandford Justices; Ex parte G. (An Infant)[cdlxviii]6.

From the explanation given by the magistrate to the appellants as to the meaning of behaving in a riotous manner it is fair to assume that at the time of accepting the pleas of guilty and at the time of convicting the appellants it was the magistrate’s understanding that the elements of the offence were: (a) drinking, fighting, swearing and arguing in a public place; and (b) the belief of the average person that such conduct was a breach of the law. In a document dated 30th March, 1971, forwarded by the clerk of the Local Court in purported compliance with r. 7 of the Appeal (Local Courts) Rules the magistrate appears to consider that the elements of the offence were as follows: (a) the defendants’ conduct in the presence of others being such as to cause an ordinary man in the community to think that a breach of the peace was likely to occur; (b) the conduct of the defendants consisting of a physical action; (c) the act being committed in a place where other members of the public were present; and (d) that a general disturbance was likely to arise; in his affidavit sworn on 27th September, 1971, he states that he was satisfied of these matters. Whatever view the magistrate may have subsequently formed as to the elements of the offence, the relevant consideration to my mind is what he believed to be the elements at the time he accepted the pleas of guilty and at the time of conviction, and I think it is only proper to assume that when he explained to the appellants the meaning of the term “behaving in a riotous manner” he was setting out the elements of that offence as he then understood them.

The meaning of the term “riotous behaviour” where used in corresponding Australian statutes has been considered in three reported decisions, two of the Supreme Court of Victoria and one of the Supreme Court of New South Wales. In Burton v. Mills[cdlxix]7 a&;Beckett J. said: “8220;Riotous behaviour cannot be held as equivalent to illegal behaviour, and I have to determine what aw means by ‘riotous’. Stephen’s Digest of the Criminal Law defineefines a riot as an unlawful assembly, which has actually begun to execute the purpose for which it assembled by a breach of the peace and to the terror of the public. Hawkins defines it as a tumultuous disturbance of the peace by three or more, with intent mutually to assist one another against anyone who shall oppose them in the execution of some enterprise of a private nature, and afterwards actually executing the same in a violent and turbulent manner, to the terror of the people. All definitions in the textbooks treat causing alarm to the public as essential to the offence. It is enough to sustain an indictment if any one person be alarmed. . . . The offence charged here is not a riot, but misbehaviour, which must have some of the characteristics of riot, and I should say that an offender ought not to be convicted of it unless the Court is satisfied that the act is of a character likely to occasion alarm of some kind to some of the public.” In Scott v. Howard[cdlxx]8 Hodges J. said 190: “#8220;It may be difficult to define or give a comprehensive definition of what is riotous behaviour; but I think thest be this element in it, that it must be conduct that is calculated to alarm the public. .ic. . . .”

In Ex parte Jackson; Re Dowd[cdlxxi]9 the material portion of the statute there under consideration, namely s. 8(a) of the Vagrancy Act, 1902, as amended by the Act of 1908 read as follows: “Every person who, in ar any public street, . . . (a) behaves in a riotous, indecindecent, offensive, threatening or insulting manner; or (b) uses any threatening, abusive, or insulting words, shall be liable . . . to a penalty. . . .” K. W. Street J. (as he then was) at p. 127 pointed out that: “It is to be noted that the section speaks in the same breath of behaviour in a riotous, offensive, threatening or insulting manner and also deals with the use of threatening, abusive or insulting words. It seems to me that each of those words must be given a meaning, and when the legislature spoke of behaving in a riotous manner it regarded such behaviour as something different to behaving in an offensive, threatening or insulting manner. Words, apparently, or behaviour, might be offensive or insulting and might still not be riotous.”

Similar reasoning might be applied to the construction of s. 8 of the Police Offences Ordinance which is in the following terms:

“A person who—

(a) ; unlawfully lals hold of, of, strikes or uses violence towards any other person;

(b) ;&#16reads falsefalse reporreports tending to give rise to trouble or ill-feeling amongst the people or between individuals;

(60;&##160; uses obscene languaie, w thin the hearing of any othe other perr person;

(d) bshaveanin decint, onfensifensive, threatening or insulting manner towards any other person; or

(e) ـ;&#16haves riotanneranner

is guilty of an offence.

PenalPenalty: 1ty: 100 do00 dollarsllars or i or imprisonment for six months or both.&#

Whilst it will be seen that this differs from from the New South Wales statute referred to by K. W. Street J. it seems clear that in Papua also the legislature regarded behaving in a riotous manner as something different from behaving in any of the other ways set out in the section. After considering the two Victorian decisions to which I have referred the learned judge concluded that riotous behaviour must be conduct of a kind calculated or likely to alarm a member of the public of reasonably firm and courageous temperament, and that in order to constitute riotous behaviour, the behaviour must be such as to cause alarm to some member of the public of a reasonably courageous frame of mind, that alarm amounting to a fear that a breach of the peace is likely to be occasioned.

All three of the decisions referred to are concerned with the common-law concept of “riotous”. In Papua it is relevant to examine the concept of “riot” and “riotous assembly” in The Criminal Code (Queensland, adopted). Section 61 of the Code is as follows:

“When three or more persons, with intent to carry out some common purpose, assemble in such a manner, or, being assembled, conduct themselves in such a manner, as to cause persons in the neighbourhood to fear on reasonable grounds that the persons so assembled will tumultuously disturb the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons tumultuously to disturb the peace, they are an unlawful assembly.

It is immaterial that the original assembling was lawful if, being assembled, they conduct themselves with a common purpose in such a manner as aforesaid.

An assembly of three or more persons who assemble for the purpose of protecting the house of any one of them against persons threatening to break and enter the house in order to commit an indictable offence therein is not an unlawful assembly.

When an unlawful assembly has begun to act in so tumultuous a manner as to disturb the peace, the assembly is called a riot, and the persons assembled are said to be riotously assembled.”

It follows from those definitions that an unlawful assembly, one of the requirements of which is conduct by those taking part which causes persons in the neighbourhood to fear on reasonable grounds that there will be a tumultuous disturbance of the peace, only becomes a riot when it acts in so tumultuous a manner as to disturb the peace.

Bearing in mind s. 61 of the Code I would consider that for the purpose of s. 8 of the Police Offences Ordinance “behaves in a riotous manner” means acting in so tumultuous a manner as to disturb the peace. “Tumultuous” is defined in the Shorter Oxford English Dictionary as “full of tumult or commotion; disorderly and noisy; turbulent” and “tumult” as “commotion, agitation, disturbance; disorderly or noisy movement or action”. Consequently the conduct which disturbs the peace must be disorderly or noisy and cause a considerable degree of commotion. I do not think it correct in this jurisdiction in view of the existence of the Code to treat as an element of the offence the common-law requirement indicated by the Victorian and New South Wales decisions to which I have referred that the conduct be calculated to alarm the public. I would think that the legislature when it used the term “riotous” in the Police Offences Ordinance must be assumed to have had in mind the Code to the extent to which it was applicable rather than the common law. However, the element of fear referred to in s. 61 of the Code is fear of a prospective disturbance of the peace, and not of the consequences of a disturbance which is then already occurring and as to constitute the offence provided for by s. 8 of the Police Offences Ordinance the offender must already be behaving in such a way as to disturb the peace it would not seem appropriate to consider whether anyone was afraid that he might do so. In my view it is not necessary to sustain a charge of the simple offence of behaving in a riotous manner, as distinct from the misdemeanour of taking part in a riot under s. 63 of the Code, that the offender should be one of an assembly of three or more persons who intend to carry out some common purpose. What is being looked at for the purpose of the offence under the Police Offences Ordinance is the nature of the conduct by the individual concerned and not the fact of his engaging in that conduct as part of a group.

The explanation given by the magistrate adopts different criteria from those to which I have referred. To drink, fight, swear and argue in a public place so that the average person would believe that a breach of the law was occurring is not necessarily the same thing as to disturb the peace in a disorderly or noisy manner causing considerable commotion. In some circumstances conduct of the nature referred to by the magistrate, particularly fighting and arguing, might be so disorderly or noisy or cause such a commotion as to amount to riotous behaviour but this would not necessarily be so. For example, the exchange of a few heated and even obscene words which were slurred rather than shouted between two men affected by liquor followed by a short exchange of blows, the incident causing no particular commotion, could scarcely be termed “riotous behaviour” whatever other offence such conduct may constitute under s. 8. Furthermore the existence of a belief on the part of the average person that a breach of the law was occurring is not a relevant consideration.

The fact that the offence was explained in these terms lends considerable credence to the explanation given by two of the appellants to the effect that they thought they were in trouble for fighting. In view of the terms in which the offence was explained I do not consider that the plea of guilty can properly be regarded as a plea of guilty to the offence charged so that the conviction could not be sustained on that basis.

If the magistrate had purported to deal with the appellants as on a plea of guilty his subsequent conduct of the proceedings is somewhat puzzling. Proceeding on the basis that notwithstanding that the appellants had each admitted the charge the magistrate considered it desirable to satisfy himself of their guilt and so proceeded as on a plea of not guilty, it becomes necessary to consider whether, disregarding altogether the plea of guilty, the appellants were then rightly convicted on the evidence before him.

I do not propose to review at length the evidence before the magistrate. The prosecution witnesses were Sergeant Oriobi, Lai Sakio a brother of John Sakio and John Sakio himself. A considerable part of Sergeant Oriobi’s evidence was hearsay and should not have been admitted. Lai Sakio describes the incidents in some detail but the evidence of John Sakio was very limited and he said that he was drunk and did not remember everything. Evidence given by the appellant Marcus Omba with which the other appellants agreed differed in material respects from that given by the prosecution witnesses. From the magistrate’s affidavit it is apparent that he accepted the version of events given by the prosecution witnesses and in fact he went even further and professed to be satisfied on some matters as to which there was no evidence, as for instance that the appellants were reasonably drunk.

Where evidence is wrongly admitted by a magistrate a conviction will not necessarily be set aside on that ground if the Court is of the opinion that there is sufficient other evidence to support a conviction and that the evidence wrongly admitted did not influence the decision. The test has been expressed as: is it reasonably probable that the evidence influenced the decision: Armat v. Little; Ex parte Little[cdlxxii]10 . Applying that test in this instance it could certainly be said that it is reasonably probable that the evidence of Sergeant Oriobi influenced the dec, as there was a conflict of evidence and he was the only apparently disinterested witness.ness. For that reason alone the conviction could not stand. There is also the further reason that the magistrate having misdirected himself as to the elements of the offence in the way in which I have indicated, his finding that the appellants were guilty of the offence should not in any event be allowed to stand. In the circumstances there has been a substantial miscarriage of justice.

The decision of the Local Court in the case of each appellant must therefore be reversed. I am not disposed to order a rehearing in view of the time that has elapsed since the occurrence of the events which are the subject of the charges. There is nothing to indicate that the appellants have been responsible for the long period that elapsed between the institution of these appeals and their hearing and I do not consider that in the circumstances they should again be placed in jeopardy on these charges.

In each case the appeal is allowed and the decision of the Local Court reversed. In lieu of that decision it is ordered that the complaint in each case be dismissed and the defendant discharged.

Appeals allowed. Order that complaint in each case be dismissed and defendant discharged.

Solicitor for the appellants: Craig Kirke & Pratt.
Solicitor for the respondent: P. J. Clay, Crown Solicitor.

[cdlxiii]Infra p. 428.
[cdlxiv]Infra p. 428.
[cdlxv][1910] UKLawRpKQB 6; [1910] 2 KB. 722, per Lord Alverstone C.J., at p. 725.
[cdlxvi] [1923] 2 KB. 400, at p. 403.
[cdlxvii][1965] VicRp 26; [1965] VR. 187.
[cdlxviii] [1967] 1 QB. 82.
[cdlxix][1896] ArgusLawRp 31; (1896) 2 ALR. 49.
[cdlxx][1912] ArgusLawRp 45; [1912] VLR. 189.
[cdlxxi] (1932) 49 WN. (N.S.W.) 126.
[cdlxxii] [1909] QSR. 83, at p. 88.