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State v Tiapu [2007] PGNC 274; N3182 (20 July 2007)

N3182

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 199 of 2007

THE STATE

v

RIMBON TIAPU

Madang: Gavara -Nanu, J
2007: 16 & 20 July

CRIMINAL LAW – "Escape" – Escaping from lawful custody – Criminal Code Act, Chapter No. 262 s. 139 – Elements constituting the offence – Onus on the prosecution to prove requisite intention – Intention to escape and to remain at large – Relevant test – Intention to escape may be inferred from the overall conduct of the accused.

Cases cited:
Kavali v Hoi Hoi [1986] PNGLR 329
The State v. Arey Watul [1992] PNGLR 475

Overseas cases
R v. Scott [1967] V.R 276

Counsel:
J. Wala, for the State
T. Ohuma, for the Accused

1. Gavara-Nanu J.: The accused has been charged on an indictment that; "he on 8 September, 2006 at Beon CIS in Madang while serving a term of imprisonment for rape in the lawful custody of jail commander, Andy Sisipa at Beon Corrective Institution unlawfully escaped from such custody".

2. The charge is laid under s.139 of the Criminal Code Act, Chapter No. 262.

3. Following a not guilty plea by the accused, the State called evidence. The only witness for the State was Sergeant Kevin Bayama of Beon Corrective Institution. The State's version of the events according to Sergeant Bayama's evidence is that on 8 September, 2006 the accused and nine other prisoners were taken out by Sergeant Bayama as a work party to build a bush material house for Sergeant Bayama inside Beon prison compound. The work was authorized by the jail commander.

4. During work, the accused withdrew from the work party and went around the back of Sergeant Bayama and went to a nearby banana patch which was a few meters from the work party and stood behind a banana tree. From there, the accused went a little bit further and stood behind another banana tree. The distance between the second banana tree and the work party was still only a few meters and the accused was in clear view of the work party and Sergeant Bayama.

5. Upon seeing the accused's movements, Sergeant Bayama called all the prisoners in the work party together, including the accused and told them that they were to work where he could see them and not to move out of his sight.

6. After that, the accused went and joined another prisoner by the name of Jacob Lepo, who was a few meters away from where the other prisoners were and two of them started cooking bananas on fire. Sometime later, Sergeant Bayama called the accused and Jacob Lepo for one of them to bring him fire to burn a heap of dried grass. Jacob Lepo then brought fire to Sergeant Bayama. A little while later, when Sergeant Bayama looked over to where the accused was cooking bananas, the accused was not there. The accused and Jacob Lepo were cooking bananas on top of a small hill. When Sergeant Bayama asked about the accused, Jacob Lepo told him that accused had gone down the other side of the hill. Sergeant Bayama told the Court that upon hearing that, he knew straight away that accused had escaped, so he ran to the top of the hill, then went down the other side of the hill in search of the accused. He told the Court that as he was searching, he called the accused three times but the accused did not respond. He went further down the hill and found the accused standing near some coconut trees belonging to the land owners. When Sergeant Bayama asked the accused what he was doing there, the accused told him that he was looking for fallen dried coconuts because he wanted to eat coconut with the bananas he and Jacob Lepo cooked. Sergeant Bayama told the accused that he did not get his permission to collect coconuts and ordered him to return to the work party.

7. Sergeant Bayama told the Court that the distance between where the accused and Jacob Lepo was cooking bananas and the spot where he found him near the coconuts was about 300 to 400 meters. He said because the accused had escaped from his custody, he brought him straight to the prison and reported the matter to the jail commander. He gave the time from when the accused left the place where the accused and Jacob Lepo were cooking bananas to the time he found the accused near the coconuts to be about 10 minutes. He said prisoners are not allowed to go to where the accused was found because it is a customary land and the area is outside of the CIS boundary. Sergeant Bayama told the Court that he had to walk through tall grass which he said was taller than him to find the accused. He denied that the spot where the accused was found was 30 to 40 meters from where the accused and Jacob Lepo were cooking bananas.

8. The accused was the only one to give evidence in his defence. He told the Court that it was true that he first moved away from the rest of the work party and went to the two banana trees in a nearby banana patch, but those banana trees were not far from the work party. He said the banana trees were still inside the CIS boundary and he was only a few meters away from the work party and they could all see him. He said he went to the first banana tree to urinate behind it he then went to the second banana tree which was slightly further away to remove his prison short to change into a civilian sport short. He said he only changed his prison short as he did not wear a prison shirt.

9. The Court visited the scene and during the visit the accused explained that he removed his prison short because he did not want it to get dirty. He confirmed that he was cooking bananas with Jacob Lepo on a small hill, which was a few meters away from the work party and after the bananas were cooked he left Jacob Lepo and went down the other side of the hill to where the coconuts were to look for dry coconuts that may have fallen on the ground because he really wanted to eat coconut with the bananas he cooked. He said when Sergeant Bayama called him, he responded to the first call but Sergeant Bayama did not hear him. He said anyone looking down from the top of the hill where he and Jacob Lepo were cooking bananas to where he was standing near the coconuts, could easily see him because he was standing in a clear view. He denied Sergeant Bayama's assertion that there was tall grass between the top of the hill and where he was standing near the coconuts. He also said the prisoners go there regularly in search of fallen dry coconuts to eat, so he was not the first to go there to look for dry coconuts.

10. In his evidence in chief, he told the Court that the distance from where he was cooking bananas to where he was standing near the coconuts was only about 30 to 40 meters. I should at this juncture say that after seeing the scene, I agree with his estimation of the distance. The distance cannot be anywhere near 300 to 400 meters as claimed by Sergeant Bayama.

11. The accused agreed that he did not get permission from Sergeant Bayama before going to look for coconuts. His reason for this is, he thought that if he sought permission from Sergeant Bayama, he might not be allowed to go, so he decided to go quickly and collect coconuts and return to the work party.

12. He conceded that he had been convicted once for escaping from lawful custody for which he had been punished. He said he had learned his lesson from it and it was never his intention to escape that day as he would not want to go through the same experience.

Submissions

13. Ms. Ohuma submitted that accused's conduct could not amount to escaping from lawful custody as prescribed under s. 139 of the Criminal Code Act. She said ten minutes from the time he left the area where he was cooking bananas to where he was found by Sergeant Bayama near the coconuts was long enough for the accused to run away and disappear into the nearby bushes if he wanted to escape. He did not escape because he had no intention of escaping. She said the accused did not run away because he was standing in a place where he could be clearly seen and when Sergeant Bayama saw him, he was looking for fallen dry coconuts. In other words, he was not hiding. It was submitted that accused has given a reasonable explanation for his temporary departure from the work party and should be believed.

14. Ms. Ohuma further submitted that accused's conduct did not amount to escape and even if there was some evidence to say the accused's conduct could amount to escape, the Court cannot be satisfied beyond reasonable doubt of the requisite intention to escape from lawful custody. She submitted that there should still be doubt in my mind as to whether the accused did escape from lawful custody, and therefore he should be acquitted from the charge.

15. Mr Wala on the other hand argued that the conduct of the accused did amount to escaping from lawful custody, because he was in custody of Sergeant Bayama at the relevant time and when he wandered off without obtaining permission from Sergeant Bayama, the conduct amounted to escaping from lawful custody, and thereby contravened s.139 of the Criminal Code Act. He said the spot where the accused was found near the coconuts is outside the CIS boundary and it is in the bush. It was therefore submitted that when the accused withdrew from the rest of the work party, he had escaped as he was no longer in the custody of Sergeant Bayama.

16. Mr. Wala further submitted that when the accused left the work party, he was physically out of the custody of Sergeant Bayama. This argument, it was submitted, finds support in the fact that the accused deliberately did not obtain permission from Sergeant Bayama before withdrawing from the rest of the work party to look for coconuts. It was submitted that the conduct of the accused clearly showed that he intended to escape from lawful custody and he did. Mr. Wala submitted that if the accused wanted to collect dried coconuts, he should have first obtained permission from Sergeant Bayama, but he did not and this can only mean that he intended to escape from the actual custody of Sergeant Bayama. The end result is that he escaped from lawful custody and he should be convicted of the charge.

Law

17. As I said the charge is laid under s. 139 of the Criminal Code Act. Subsection (1) is relevant and it provides:

139. Escape by prisoner.

(1) A person who, being a prisoner in lawful custody, escapes from that custody is guilty of a crime.

Penalty: A term of imprisonment of not less than five years.

18. The question that arises is whether the accused's conduct in leaving the place where he was cooking bananas without Sergeant Bayama's permission or notice and going to the place where he was found by Sergeant Bayama near the coconuts amounted to escaping from lawful custody under s. 139 of the Criminal Code Act?

19. Both counsel did not refer me to any case law on the point, but in the limited research I did, I found the case of R v Scott (1967) V.R. 276, helpful. In that case, the prisoner who was undergoing a sentence of imprisonment at a prison in 1962 was assigned to work with a number of other prisoners to clear timber outside the prison buildings under the supervision of a warder. During the day, the warder noticed that the prisoner was absent and upon returning to the prison he reported the prisoner's absence. Apparently no search was then made and the prisoner was not apprehended until 1966.

20. Upon his apprehension in 1966, the prisoner was charged under s. 35 of the Gaol's Act, 1958, but which in its terms alleged the common law offence of simple escape. At his trial, the prisoner gave evidence that on the day in question, he was attacked by another prisoner and struck on the head with a piece of timber. He claimed to have no recollection of leaving the place where he was working or the events of the next two days and to have become conscious of his surroundings at the place, 10 to 15 miles from the prison. He said that when he left the place where he was working, he was not conscious of his actions and had no intention of escaping. The trial judge defined the ingredients of the offence which the Crown had to prove but he did not refer to the need to show both conscious actions and intention on the part of the accused. The trial judge referred to the evidence of the accused and to his admission that, two days after his departure, he became aware that he had escaped and his Honour told the jury that escape was a continuing offence. The prisoner was convicted for escaping from custody.

21. The prisoner appealed against his conviction to the Full Court of the Supreme Court of Victoria, which comprised of Barry, Smith and Gilliard, JJ. The Court held that, to constitute 'escape', there had to be a conscious and intentional act of withdrawal from actual custody. The court said the offence of escape could not be committed when the act of withdrawal and the intention to escape did not concur. It was held that it was a defence to a charge of common law offence of simple escape and to a charge of statutory offence under s. 35 of the Gaols Act, 1958, where the original withdrawal from custody was unintentional.

22. The court noted that the prisoner at his trial had also told the court that he had served eight months of his sentence at the time of his escape and he only had three or four months at the most still to serve; and during the eight months, he had numerous opportunities to abscond in cars and trucks, when fighting bushfires and on other occasions. He said:

"I had no intentions of ever doing anything like that but after the trouble I had with Wilson I just went on my way. But I can honestly say that at that particular time I did escape and I never knew I did escape. I never knew a thing until at least 2 days later. I remember looking down on the Hume Highway which I'd worked out must be every bit of ten or fifteen miles from the camp; and I just like to say that I never had any intention of escaping from Beechworth prison. I never knew that I did escape when I did".

23. After discussing the facts, Barry J., in his judgment at 278 said:

"A successful escape from imprisonment under a judicial sentence may be effected by escaping from the precinct of the gaol, or from the custody of a gaoler when the prisoner is working, either alone or in a party, outside the gaol precincts under the supervision of a penal officer, e.g. for the purpose of hospital treatment or to visit a person believed to be dying (Gaols Act 1958, s. 22 (2) or as a witness in legal proceedings.

If a prisoner is outside the goal under the supervision or control of a penal officer, as the appellate was on 2 May, 1962, he is for legal purposes still in the custody of the governor of the goal, and if such a prisoner intentionally absconds he is guilty of an offence against s. 35, and when he is apprehended it is legally correct to charge him with escaping in contravention of that section from the custody of the gaoler, i.e. the governor of the goal. That the custody with which the section is concerned is an actual custody exercised by the governor personally or through his staff, is plain from its terms, and is confirmed by s. 18 (5) which suspends the operation of a sentence for the period intervening between the day on which the offender escapes and the day on which he surrenders himself or is apprehended. The offence of escaping from the custody of the gaoler created by s. 35 requires, therefore, that at the time of the act of departing from the custody there shall be an intention to escape; in other words, that there shall be a coincidence of act and intention..." (emphasis mine ).

24. Then Smith J., at 284 said:

"It is clear also, I consider, that the element of going at large out of an actual custody, which is essential to constitute an escape, must be a conscious act done by the prisoner with the intention of liberating himself from that custody. This conclusion is supported by the general principles of common law; for it is a "cardinal rule" that "the intent and the act must both concur to constitute the crime": see R v. Reyn Goudt [1962] HCA 23; (1962), 107 C.L.R. 381, at p. 386; [1962] HCA 23; [1962] A.L.R. 483, at p. 484; and compare Hardgrave v. R. [1906] HCA 47; (1906), 4 C.L.R. 232 at p. 237; [1906] HCA 47; 13 A.L.R. 206, at p. 207..." (my emphasis).

25. The circumstances in which the prisoner in R v. Scott escaped from the custody of the jail officer are clearly different to those in the case before me, in that, in R v Scott, the prisoner did not know that he had escaped until he was about 10 to 15 miles from the jail when he first realized that he was walking along the Hume Highway. By then he had been at large for two days, so he just continued on his way. He said he was suffering from automatism at the time he walked out of the custody of the prison officer after he was hit over the head by another prisoner with a timber. He was therefore not aware of his actions when walking out of the custody of the prison officer. He said he had no intention of escaping.

26. The court said, in those circumstances, the prisoner could not be guilty of escaping from custody because he was not conscious of his actions and he did not intend to escape. The court went on to say that by the time the prisoner realized that he was at large, he was no longer under the custody of the prison officer, therefore he could not be guilty of escaping from custody.

27. Whilst the circumstances under which the prisoner in R v Scott absconded may be different to those in this case; the principles stated there, in regard to what may amount to or constitute "escape" and "escaping from lawful custody", are relevant and applicable to this case. The issue of whether there was escape by the prisoner in R v Scott is the same issue in this case.

28. Thus having regard to the principles stated in R v Scott, following factors which emerge as the essential elements which the prosecution in a given case must prove on a charge of "escaping from lawful custody" by a prisoner, under s. 139 of the Criminal Code Act, Chapter No. 262:-

(1) The escapee was a prisoner.

(2) At the time of escaping, the prisoner was in a lawful custody either at a Corrective Institution or Police Cell or of a police officer or of a prison warder.

(3) There was a conscious decision by the prisoner to abscond and to free himself from actual custody he was in and that he had the requisite intention to remain at large.

(4) The act of escaping must concur and co-incide with the intention to escape.

29. These are the same essential elements the prosecution must prove in this case to show that the conduct of the accused amounted to escaping from lawful custody as prescribed by s. 139 of the Criminal Code Act.

30. There is no issue that the accused was a prisoner at Beon jail at the time of his alleged escape. It is also not in issue that accused was in the actual custody of Sergeant Bayama. What is in issue is whether the accused had escaped from that actual custody of Sergeant Bayama by intentionally moving away from him for ten minutes to look for fallen dried coconuts.

31. The test in deciding whether the accused had intended to escape is a subjective one, which this Court may infer from the overall circumstances of the case, including the overall conduct of the accused. See, Kawali v. Hoi Hoi [1986] PNGLR 329. See also The State v. Arey Watul [1992] PNGLR 475. The issue therefore hinges primarily on the answer to the third element, i.e, whether there was a conscious and deliberate decision by the accused to abscond and free himself from the actual custody of Sergeant Bayama. The prosecution also has to prove that there was a requisite intention by the accused to remain at large. Looking at the overall conduct of the accused and having regard to the principles stated in R v Scott, I come to the firm conclusion that the conduct of the accused did not amount to escaping from lawful custody. In coming to this conclusion, I find that the prosecution has failed to prove third and fourth elements stated above.

32. This conclusion is based on the following reasons:-

1. The prosecution has not proved that accused had intended to permanently free himself from the actual custody of Sergeant Bayama and to remain at large.

2. The subsequent conduct of the accused after he was found near the coconuts i.e, returning willingly to the work party when ordered to do so by Sergeant Bayama, to my mind shows clearly that he had no intention of escaping from the actual custody of Sergeant Bayama nor was there a requisite intention by the accused to remain at large.

3. The accused was not recaptured when he was located near the coconuts. He voluntarily returned to the rest of the work party when he was told to do so by Sergeant Bayama, thus a clear indication that he was still under Sergeant Bayama's actual custody.

4. The accused has provided a reasonable explanation for walking away temporarily from the rest of the work party and Sergeant Bayama, namely to look for and collect fallen dry coconuts to eat with the bananas he had cooked. I find this explanation reasonable because he did cook bananas on fire and were waiting to be eaten and he went to a place where there were coconuts (as seen during the visit to the scene) from which fallen dry coconuts could be found and collected on the ground. Furthermore, I find that ten minutes he was away from Sergeant Bayama was long enough for him to escape into the nearby bushes had he wanted to escape.

33. I therefore find the accused not guilty and I acquit him of the charge.

____________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused