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State v Ugunnie [1989] PGNC 105; [1988-89] PNGLR 101; N689 (31 March 1989)

N689

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

ALBERT UGUNNIE, MARTIN TAUMU,
AND MATHEW DAVAI MOROUA

Waigani
Bredmeyer J

9-10 March 1989
14-15 March 1989
21 March 1989
28 March 1989
31 March 1989

CRIMINAL LAW - Particular offences - Mutiny - Resisting or disobeying lawful "authority" - Actual communication required - Defence Act (Ch No 74), s 53(a), (b).

CRIMINAL LAW - Particular offences - Mutiny - "Impeding" the "performance of any duty or service in the Defence Force" - Ordinary meaning - Large number of soldiers demonstrating outside Parliament - Deliberate and active participation and support from officers - Officers as accessories - Defence Act (Ch No 74) ss 53(c), 55 - Criminal Code (Ch No 262), ss 7, 15.

Under s 55(1) of the Defence Act (Ch No 74), a person subject to the Code of Military Discipline who takes part in a mutiny is guilty of an offence.

Section 53 defines "mutiny" as meaning

"a combination of two or more persons subject to the Code of Military Discipline or the service law of an ally of Papua New Guinea, or between persons of whom at least two are such persons:

(a) to overthrow or resist lawful authority in the Defence Force, ... or in any part of the Defence Force or any such force; or

(b) to disobey any such authority in such circumstances as to make the disobedience subversive to discipline, or with the object of avoiding any service or duty against, or in connexion with operations against, an enemy; or

(c) to impede the performance of any duty or service in the Defence Force or any force co-operating with the Defence Force, or in any part of the Defence Force or any such force."

Held

(1) For the purposes of s 53(a) and (b), the "authority" to be resisted or disobeyed must be an authority or order actually communicated to the accused person.

(2) A statement by a superior officer to soldiers that they "should go back to" their barracks was not sufficiently direct as to amount to an order.

(3) For the purposes of s 53(c), a march by persons subject to the Code of Military Discipline whilst off duty could not be said to "impede", that is, retard or hinder, "any duty or service in the Defence Force".

(4) The words "any duty or service in the Defence Force" have their natural and ordinary meaning, so that the deliberate absenting of 400 to 500 men from their work in the Defence Force for the purpose of demonstrating outside Parliament would "impede the performance of any duty or service in the Defence Force" and would constitute mutiny under s 53(c).

(5) The deliberate presence at such a demonstration of officers who participated in the demonstration by actively supporting the demands of the gathering in a manner which encouraged or aided the large numbers of men to be absent from duty, rendered those officers accessories and therefore guilty of mutiny under s 53(c).
R v Tovarula [1973] PNGLR 140, applied.

Cases Cited

R v Tovarula [1973] PNGLR 140.
R v Grant, Davis, Riley and Topley [1957] 1 WLR 906; [1957] 2 All ER 694.

Trial

The three accused were charged with various counts of mutiny, an offence under s 55 of the Defence Act (Ch No 74).

Editor’s Note

An appeal to the Supreme Court has been lodged.

Counsel

W Akuani, for the State.
D Liosi, for the accused, Ugunnie and Moroua.
F Pitpit, for the accused, Taumu.
Cur adv vult

31 March 1989

BREDMEYER J: These three men are charged with one count of mutiny on 8 February 1989 and the third accused, whom I will call Matthew Davai, is also charged with mutiny on 7 February 1989. The State called six witnesses and the accused declined to give evidence or to call witnesses. There is not much dispute as to the primary facts. The dispute is as to the legal effect of those primary facts: whether those facts prove the elements of the offence.

The offence of mutiny is set out in s 55 and s 53 of the Defence Act (Ch No 74) which read as follows:

"55. Mutiny

(1) A person subject to the Code of Military Discipline who takes part in a mutiny is guilty of an offence.

Penalty: Imprisonment for life or for a lesser term.

53. Mutiny means a combination of two or more persons subject to the Code of Military Discipline or the service law of an ally of Papua New Guinea, or between persons of whom at least two are such persons:

(a) to overthrow or resist lawful authority in the Defence Force or any force co-operating with the Defence Force, or in any part of the Defence Force or any such force; or

(b) to disobey any such authority in such circumstances as to make the disobedience subversive to discipline, or with the object of avoiding any service or duty against, or in connexion with operations against, an enemy; or

(c) to impede the performance of any duty or service in the Defence Force or any force co-operating with the Defence Force, or in any part of the Defence Force or any such force."

The evidence is clear that these three accused were subject to the Code of Military Discipline and that in the events which occurred they were acting in a combination of two or more persons subject to that Code.

I consider that the officer witnesses called by the State were all truthful and convincing witnesses. I was impressed by their evidence and it was a new experience to be hearing evidence of events which happened only a month before. The freshness of the events meant that memories were not dimmed by time. The last State witness, Corporal Kubuo Towaswa, was less impressive and where his evidence differs from that of the officers I prefer that of the officers. He, too, took part in the march. He, too, would be guilty of whatever offence those participants may have committed and that may have coloured his evidence. But more importantly he was at the back of the crowd scenes and so did not see some events which happened in the foreground.

I am satisfied beyond reasonable doubt that the following events occurred on the night of Tuesday, 7 February 1989. At about 7 pm on that night 150 to 200 men held a meeting in the Geai Club at Taurama Barracks to protest about the inadequacy of pay rises which they were scheduled to get later in that week. Matthew Davai was a spokesman at that meeting. He spoke to the crowd about their pay grievances. The accused Martin Taumu said, "We should go to Murray Barracks and get the support of our comrades". He said that in a loud voice. The people acted on that statement and moved off towards Murray Barracks.

The officers at Taurama Barracks learned of this march a little later and used their best efforts to stop it. A company commander, Captain Jacob Pauwia, got into a vehicle, drove past the marching men, poked his head out of the vehicle from time to time and called out, "Change your mind and go back". I am satisfied that not all of the men taking part in the march heard him. While the march was going on there was much noise and abusive language; it was also pitch dark. Meanwhile Major Kavanamur, the Acting Commanding Officer of Taurama Barracks, got into another vehicle with other officers, including Major Kukuma, and drove past the line of marching men, turned the vehicle around with its headlights facing the men and then stood up in front of the headlights with three or four officers, standing up with their arms raised and joined together and in a loud voice he cried out a number of times, "Yu stap pastaim". The other officers said the same thing. At that time there was much noise and abusive language. It was pitch dark and nobody stopped. I am satisfied that only those in the front would have heard those commands or seen those raised hands signalling the men to stop. None of the officers identified any of the three accused as being present.

The officers then used their vehicle to get in front of the men and they set up a similar road-block (if I can use that term) at the gate on Hohola Road to Murray Barracks. They stood up with arms outstretched and they said to the men as they marched in, "Stop here, let us discuss this matter further". The officers said that, or words to that effect, a number of times in loud voices. By this time the 150 to 200 men of Taurama Barracks had been joined by a similar number from Murray Barracks and they ignored the officers and made their way into Murray Barracks.

A little way inside Murray Barracks is the Fire Station and beside that Fire Station is a street light. Although the men were all shouting and using abusive language, Major Kavanamur managed to shout them down and asked someone to come forward and bring their grievances. A soldier came out from among their number with all the other men crowding around and he told the officer of their grievances, all of which were related to the recent pay rise. Major Kavanamur did not know his name at the time but later found out his name and identified that soldier in court as the accused Matthew Davai. Captain Pauwia, who was Matthew Davai’s company commander, also identified Davai as the soldier who came out in response to Major Kavanamur’s request to present the soldiers’ grievances. The major wrote down those grievances on a piece of paper. Because Matthew Davai was present at the meeting at the Geai Club at Taurama Barracks and was later the spokesman for the soldiers at the Fire Station at Murray Barracks, I infer beyond reasonable doubt that he took part in that march.

The soldiers who were then gathered at the Fire Station had all moved off to the Kingsbury Club which is further inside Murray Barracks. The officers wanted to go there to tell them to disperse. However, they were met by a hail of sticks, stones and bottles thrown at them and abusive language shouted at them from men outside the club. Included in that language was a threat, "If you come here we will kill you". Captain Pauwia was hit on the arm by a stone and the officers decided it was not safe to go any nearer to the club to disperse the men. The men were at the club for about 30 minutes and then they dispersed. No formal order was given to them to disperse as the officers could not get close enough to the men to do that.

As I have said, Private Davai is the only man charged with the offence of mutiny on that night. I propose to examine the evidence about him in relation to the elements of the offence. Paragraph (a) of the definition in s 53 speaks of "resist lawful authority", and par (b) refers to "disobey any such authority ...". In each case I consider that the authority, or the order, has to be communicated to the accused. In this case there is no evidence as to where Matthew Davai was in the march which the officers attempted to stop at a road-block, at a road junction some distance from Taurama Barracks. I must find in his favour that he could have been at the back of 200 men. If that is so, I consider that he would not have seen the upraised arms of the officers signalling the men to stop nor heard the commands of the officers to stop. I therefore consider that he could not be said to have resisted or disobeyed lawful authority. Similarly, with the incident at the Murray Barracks gate there is no evidence as to where Matthew Davai was when those 400 men entered the gate. I will therefore have to find in his favour that he may have been at the back of that group and therefore not seen the raised arms nor heard the spoken words telling them to stop. I therefore consider that he is not guilty under par (a) or par (b) of that section. Paragraph (c) refers "to impede the performance of any duty or service in the Defence Force". The men were off duty at the time and I cannot see that their march after hours when they were off duty in any way impeded, that is, retarded or hindered, the duties and services of the Defence Force on that night. I therefore acquit Davai of the first charge.

THE EVENTS OF WEDNESDAY, 8 FEBRUARY 1989

All three accused are charged with mutiny on this day. I am satisfied from the evidence, principally of the officers, that the following series of events happened on that day. By about 8.45 am some 400 to 500 men from Murray Barracks and Taurama Barracks had assembled at the soccer field in Murray Barracks. Some were inside and some were outside the soccer field. The men had parked two army vehicles across the road, thereby blocking traffic. The men had also overturned a police vehicle at the lights. At that time a warrant officer, the Regimental Sergeant Major Kuia, went down there with a microphone and tried to speak to the men, "Yupela harim, tok pastaim" etc. Someone grabbed the loud hailer from him and he was unable to continue.

A number of officers went down there intending to talk to the men but were met by a barrage of sticks and stones and bottles thrown at them so that they felt at risk and they could not proceed further. None of the three accused was seen in that incident at the soccer field. The 400 to 500 men then marched through the Murray Barracks gate, the same gate that was used the night before and marched into the barracks. Among them at the front was Sergeant Ugunnie dressed without a shirt, or at least a T-shirt around his neck. The men were shouting in a violent manner and they were throwing sticks and stones. An officer tried to direct them towards the parade ground but they ignored his direction and assembled at the commander’s carpark. The officers got the men to sit down or at least some of the men to sit and reduced the level of noise although it continued throughout and the men were then addressed by Sergeant Ugunnie, Matthew Davai, Colonel Frank, Colonel Leo Nuia and Colonel Vagi Mai. Colonel Vagi Mai was the last speaker. Sergeant Ugunnie was at the front of the crowd; he got the microphone; he addressed the soldiers. He spoke of their pay grievances and he also told them to calm down, present their demands and listen to their officers. There was an initial wait, a delay of half an hour or more, while the soldiers waited for the representatives to come and Matthew Davai appears to have been the leading representative. He came up later with others and Private Martin Taumu came also at that time. Matthew Davai used the microphone, too, and presented the soldiers’ demands to the officers in a forceful and respectful speech. He spoke in Pidgin. He continued to stand at the front of the soldiers. Private Martin Taumu was at the front, a bit to the side, and took no prominent part in the assembly. He was not seen shouting or throwing sticks or stones or waving his arms or anything like that. The first officer to speak was Colonel Frank, the Acting Commanding Officer (the Commanding Officer himself being away in Bougainville at the time). He explained the pay increases but without the details could not explain them in a convincing way. He told them to keep quiet so he could address them but his speech was punctuated by noise. Some people said of him, "Who are you? We don’t want you". Colonel Leo Nuia also addressed the men with the loudspeaker. He spoke after Matthew Davai. He said, "Your grievances have been noted by the staff and you should go back to your respective barracks". He said those words once and note that he used the word "should". Colonel Vagi Mai gave a different version. He said that Colonel Nuia said, "We would like you to go back to the barracks" but I prefer Colonel Nuia’s version.

I consider those words, "You should go back to your respective barracks", could be regarded as an order, or a request, or an admonition. The word "should" could mean any of those things. Given the context of a superior officer talking to men who should have been about their lawful duties on that day, it could be argued that it was an order or a command. Nevertheless, officers in the army are used to giving orders and commands and it could have been in much more direct English, for example, "I order you to go back to your barracks" or "I command you to go back to your barracks" or "You must go back to your barracks". I consider that the use of the word "should" was not direct enough and I am not satisfied beyond reasonable doubt that those words amounted to an order.

Lieutenant Colonel Vagi Mai was the last speaker. He is Acting Officer in Charge of Personnel and he is directly responsible for paying the men. He gave a speech explaining the different pay rises but was shouted down. He asked for quiet on a number of occasions but he was shouted down and he could not continue. Following his speech, Matthew Davai said, "We are not getting any satisfactory answers from here. We will go higher", and as he said that he threw a clenched fist into the air. Someone then said from the back, "We will go to Parliament. We will go to see the NEC at Parliament". Thereupon the 400 men marched off to Parliament. It appears that they were joined by non-army men en route.

At Parliament House the marchers smashed the windscreens and windows of 13 cars parked in the public carpark at the front. No evidence was given to me about the smashing of some windows at Parliament. At Parliament House Sergeant Ugunnie and Matthew Davai again addressed the soldiers. They told them to keep quiet and to present their grievances to the National Executive Council. The Deputy Prime Minister, Mr Akoka Doi, and the Head of the Public Service, Mr Wep Kanawi, came outside to address the people as did also the Provincial Police Commander. The Deputy Prime Minister invited a delegation to go inside and meet with the ministers and Sergeant Ugunnie and Private Davai were two of those who went inside to meet with them. After a while the delegation came outside and Private Davai addressed the assembled men again and told them that they could go back peacefully. As a result of that meeting, the soldiers were given an additional pay rise the following fortnight, that is, additional to the pay rise which they did receive on the week ending 10 February.

I now look at the specific evidence against each accused and discuss it in relation to the elements of the offence. It was put to me by the State Prosecutor that Colonel Leo Nuia issued an order for the men to go home, that all three accused were at the front and heard that order, though the men at the back, due to the shouting and the noise, may well have not heard the order, and that all three disobeyed the order and hence are guilty under the definition (a) and (b) of s 53. I repeat what I said earlier that I am not satisfied beyond reasonable doubt that Colonel Nuia’s words, "You should go back to your barracks", amounted to an order. That is enough to reject that argument but, in addition, there is no evidence of what Martin Taumu did after the meeting in the commander’s carpark. There is no evidence that he went to Parliament House. It is therefore possible that he did obey the request and went to his barracks.

It is clear to me that all three men were present at the meeting in the commander’s carpark and that two of them took a prominent part in that meeting, that two of them later marched to Parliament and took a prominent part in the gathering at Parliament. I can infer beyond reasonable doubt from the fact that Sergeant Ugunnie and Private Davai were seen at the meeting in the commander’s carpark and later at Parliament House, that they took part in the march in between. There is evidence that 95 per cent of those 400 to 500 army men present at the commander’s carpark and later at Parliament were on active duty that day. The meeting started around 9 or 9.30 am and that, plus the visit to Parliament, occupied the rest of the morning. There is no evidence as to whether these three accused were on duty.

Members of the Defence Force are under a general duty to carry out the orders of their superior officers. Section 208 of the Constitution provides:

"Because of the special nature of disciplined forces and of their operations, it is a primary duty of their members to obey lawful orders ... ."

Section 4 of the Defence Act (Ch No 74) provides:

"Subject to this Act and any other laws it is the duty of ... the members of the Defence Force to carry out the lawful orders of the government and of superior officers ... "

I consider that because 95 per cent of those men present at the meeting in the commander’s carpark, the march to Parliament, and the meeting outside the doors of Parliament, were supposed to be on duty that morning, their absence from duty thereby impeded the performance of the duties and services of the Defence Force for that morning. It was argued before me by defence counsel that the phrase "any duty or service in the Defence Force" in par (c) only refers to any major, or substantial, or important duty, in the Defence Force and that if, for example, a few army cleaners went on strike, that would not be mutiny but a lesser offence, for example, "disobeying a lawful order" under par C4(2)(g) of the Code of Military Discipline which is set out in an appendix to the Defence Act. I do not agree with that interpretation. I consider that the words "any duty or service in the Defence Force" mean just that and, in any event, I infer beyond reasonable doubt that the absence of 400 to 500 men from their work in the Defence Force that morning certainly impeded the work of the Defence Force on that day. It was argued before me by defence counsel that the soldiers had the right to participate in those two protest meetings, under s 47 of the Constitution which gives a freedom of assembly and association. That section commences: "Every person has the right peacefully to assemble and associate ... " (My emphasis.). On the evidence before me neither of the two assemblies mentioned was peaceful. There was abusive language and throwing of sticks and stones at the meeting in the commander’s carpark and there was similar conduct at the meeting at Parliament together with the damage to the 13 vehicles already mentioned. I consider that the constitutional right has no application to the facts of this case.

I consider that all those men who were supposed to be on duty that morning, that is 95 per cent of the 400 to 500 men who took part in those events I have described, impeded the performance of duties and services in the Defence Force that morning and thus would be guilty under par (c) of s 53 of the offence. There is no evidence that the three accused were supposed to be on duty that morning. They could have been among the 5 per cent of men who were standing down that morning and, given the onus of proof on the State, I must give them the benefit of that doubt. I therefore have to ask myself whether their participation in those meetings and that march makes them guilty as accessories. Officers and men of the Defence Force are by s 15 of the Criminal Code (Ch No 263) not exempt from the provisions of the Code and s 7 of the Code defines principals and, in effect, accessories. The latter includes "every person who aids another in the offence" and "any person who counsels or procures any other person to commit the offence". The meaning of that section has been elucidated in R v Tovarula [1973] PNGLR 140 in the head note at 142:

"[An accessory] is one who intentionally encourages the commission of a crime by word, action or by his mere presence. If presence at the commission of the crime is relied on, as distinct from any act or words of assistance, the presence must be willed not accidental and with the intention of encouraging or assisting the commission of the crime charged."

Sergeant Ugunnie was a spokesman for the soldiers and their grievances at the commander’s carpark and at Parliament and I therefore find that his presence at those gatherings and at the march in between was a deliberate presence. He supported the 95 per cent of men who should have been at their duties that morning by his presence and by speaking in support of their demands at both gatherings. He therefore actively encouraged or aided those soldiers who should have been on duty not to be on duty and thus is guilty of the offence charged.

Similarly with Private Matthew Davai, he too was a spokesman at both meetings. He was also the man who volunteered to come forward with the grievances the night before. I am satisfied beyond reasonable doubt that he was present at those meetings on the Wednesday and on the march in between as an act of deliberate choice. On the evidence before me he was the leader of the men. He was the main speaker on behalf of the angry soldiers at the commander’s carpark, and one of the two main speakers at Parliament House. His active participation in the meetings I consider aided and encouraged those who chose to take the morning off work to express their pay grievances and thereby impeded the performance of the duties of the Defence Force for that day. I convict him of the offence of mutiny.

The accused Martin Taumu was present at the meeting at the commander’s carpark but on the evidence before me was not present at Parliament House. I am willing to infer beyond reasonable doubt from the evidence, including the evidence that he was present and spoke at the meeting held about their pay at the Taurama Barracks the previous night, that his attendance at the meeting was deliberate and willed. I am also willing to infer beyond reasonable doubt that he shared their grievances and anger over pay and that his attendance was with the intention of supporting them and encouraging them by his presence. Numbers are important in this kind of offence. Three or four men may not have had the courage to stop work, organise a protest march and gather to present their grievances in a rowdy manner to the officers. They may have feared arrest by military police or other adverse repercussions. On the other hand, surrounded by 400 comrades they would be emboldened and encouraged — with less fear of being identified, or caught, or punished. I consider that his presence at that meeting was with the intention of showing his support and encouragement for their cause which impeded the duty and service of the Defence Force that morning. I convict him of the offence.

ON SENTENCE

[After administering the allocutus and hearing defence addresses on sentence the judge continued:]

I now deal with the matter of punishment for the three men. Albert Ugunnie and Matthew Davai took part in two protest meetings, one at the commander’s carpark, one at Parliament House and in the march in between. On my findings each man spoke at the protest meetings and in that sense only were leaders. The offence is a very serious one as can be seen by the fact that it is brought before this Court and not before a disciplinary tribunal and in that it carries a maximum sentence of life imprisonment. Nevertheless, there are three types of mutiny in the definition of s 53 and the type which these men have been found guilty of is the least serious of those three kinds. The punishment I impose must be adequate to teach these men a lesson and to deter others. At the same time the punishment must be fair to the men concerned.

I take into account the following matters in their favour:

(1) It is the first offence for any of these men.

(2) They each have apparently an unblemished record in the Defence Force. They have not got into any trouble before and, in Sergeant Ugunnie’s case, he has had a very long and impressive record of nearly 22 years.

(3) They had a real grievance over pay. There was a delay in paying them. They saw that as a failed promise. The pay rise was much less than they were led to expect and there seems to have been a lack of communication between the officers and the men as to the details of the pay rise.

(4) There is no evidence that any of these men used violence, used abusive language at the officers, or destroyed or damaged any property. Neither did they counsel others to do those things. Indeed, two of the men, Sergeant Ugunnie and Matthew Davai, played a positive role to try and stop the men, to try and calm them down, and from what was said on allocutus, to stop them from damaging property, in the case of Sergeant Ugunnie.

Sergeant Ugunnie and Matthew Davai were the leading spokesmen at the two meetings. On the evidence before me Martin Taumu was not a leader and only attended the meeting at the commander’s carpark. It is therefore appropriate that he be given a lesser sentence. In addition to those matters, I have taken into account the punishment which the other men got for taking part in the events of that day.

Sergeant Ugunnie and Matthew Davai, stand up please. I sentence each of you to nine months imprisonment with hard labour and recommend that you be dismissed or otherwise allow to resign from the Defence Force. Martin Taumu, would you stand up please. I sentence you to four months imprisonment with hard labour and I make no recommendation about your future in the Defence Force. I remind all three of you that you have a right of appeal which you must exercise within 40 days.

I order the defendant to pay the plaintiffs taxed costs.

Verdicts of guilty Sentences imposed

____________________

Lawyers for the plaintiff: Blake Dawson & Waldron.
Lawyers for the defendant: Young & Williams.