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State v Kosi [1981] PGNC 3; N303 (19 January 1981)

Unreported National Court Decisions

N303

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
JOHN KOSI, ARUA AU, LAKI AWAYA, & VETALI MAURAVA

Waigani

Kidu CJ
19 January 1981

KIDU CJ: The State case belosed Coud Counsel for the four accused submits that his clients have no case to answer.

On 2nd May 1980 the accused with former drivers from the Port Moresby Bus Co. decided to hold a stration at Waigani. Their heir purpose was quite clear - to demonstrate before the Minister for Transport and Civil Aviation and get the Government to do something about bus drivers who had lost their jobs as a result of the Port Moresby Bus Service ceasing to operate.

During a meeting on the morning of 2nd May 1980 the Union leaders, including the accused, assured the Police that the demonstration would be held the following week. The reason being the visit of the Vice Premier of the People’s Republic of China and that day (2/5/80) the Vice Premier was going to be escorted from Travelodge to Waigani and then to the airport.

For reasons which do not appear from evidence, the Union leaders and the bus drivers decided to hold the procession to Waigani on the afternoon of 2 May 1980. This eventuated. Twenty buses led by a vehicle driven by the accused John Kosi with the other three accused as passengers left the bus depot at Hanuabada. Police at Boroko were informed and Inspector Jimu was sent to meet them. He met the convoy at Ela Beach near the Davara Motel. He did nothing to stop the convoy. In fact he was instructed later to stop the convoy at the Taurama traffic lights (junction of Hubert Murray Highway and Taurama Road). The convoy proceeded along Ela Beach Road, Le Hunte Road into Koki then along Scratchley Road to Kila Kila and up Gavamani Road. At the junction of Gavamani and Taurama Roads the convoy was met by Inspector Jimu. He got in front and led it towards the Taurama street lights. Just before the lights he stopped the convoy. Only Kosi’s vehicle was allowed to pass. Senior Inspector Wardle then boarded the first bus and talked to the driver. The accused Kosi approached and as Mr Wardle was getting off the bus an exchange of words occurred between Wardle and Kosi. Kosi wanted the convoy to proceed but Wardle told him they could not as they had no permit to have the procession and that the China’s Vice President was going to use the Hubert Murray Highway to go to Waigani. The result was the accused were arrested and the buses drove off to return to the Bus Depot at Hanuabada. Before this Jimu had been told to get views and particulars of all the drivers and this he did. While Kosi and Wardle were talking a crowd gathered - some were for the drivers whilst others were against them. They were shouting. It is alleged that the other three accused talked to the crowd. What they said is not in evidence nor the effect (if any) of what they said.

The facts outlined in my view, do not show an unlawful assembly. Section 61 of the Code defines unlawful assembly:

“When three or more persons, with intent to carry cut some common purpose, assembly 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 in 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”.

The assembly in this case was caused by the Police stopping the convoy. Although the buses in the convoy had their lights on and the drivers were beeping their horns, no other action is alleged against either the drivers or the accused. The argument between Kosi and Wardle does not constitute any element of unlawful assembly.

Here we have people proceeding in a convoy to Waigani being stopped by Police and as a result a crowd gathered. Apart from taking sides nothing else happened, except shouting and taking sides by the crowd. While this was going on it seems Insp. Jimu went around quite calmly it seems taking down particulars of the bus drivers. He gave no evidence of any fear that public peace would be disturbed.

Kosi did not incite any of the crowd to do anything or provoke disturbance of public peace. Apart from Wardle’s evidence that the three accused talked to the crowd, there is no evidence they incited any of the crowd and it is not shown that by what they did it was likely or feared that public peace would be disturbed.

It is alleged that the common purpose was “to disobey instruction of the police”. There is no evidence of this and I find no facts from which to draw any such inference. It is, however, clear that the common purpose was to go to Waigani and demonstrate in front of the Prime Minister’s office about drivers losing their jobs and of the bus company ceasing operation. People have the right to demonstrate peacefully and in my view this was happening when the convoy was stopped. Accused and others might have breached traffic laws but this consideration is irrelevant for the purpose of deciding whether there was an unlawful assembly at Taurama Road.

From all evidence I find State has failed to convince me that I can lawfully convict on the evidence before me.

I might mention here that if there was evidence of unlawful assembly, on the evidence before me it cannot be said that by any action taken by them the accused took part in an unlawful assembly.

I rule that accused have no case to answer. They are discharged.

Solicitor for the State: L. Gavara-Nanu, Public Prosecutor

Counsel: J. Byrne

Solicitor for the Accused: B. Brunton

Counsel: B. Brunton