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Kanduo v State [2014] PGNC 267; N5725 (15 September 2014)

N5725

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CA NO 21 OF 2013

DOMINIC KANDUO, VINCENT IRAMU & MAX MINGU
Appellants

V

THE STATE
Respondent

Madang: Cannings J
2014: 21 July, 15 September

CRIMINAL LAW – appeal to National Court against conviction and sentence by District Court – unlawful assault, Summary Offences Act, Section 6 – Firearms Act offences

CRIMINAL PROCEDURE – whether application for adjournment was unfairly refused – record of proceedings in District Court – need for appellants to establish facts as to procedures in District Court – presumption of regularity of court proceedings: omnia praesumuntor rite essa acta

FIREARMS ACT – orders for forfeiture of firearms and motor vehicles as a consequence of conviction for offences: Firearms Act, Sections 73, 73A.

The appellants were convicted in the District Court of unlawful assault and various offences under the Firearms Act. They appealed to the National Court against their convictions and sentences. As to conviction they argued that the trial Magistrate, after the close of the State's case, unfairly refused an application for adjournment and coerced them into changing their pleas from not guilty to guilty. As to their sentences, they argued that the trial Magistrate erred in law by ordering compensation of K5,000.00 to each of the victims in the unlawful assault offences and by ordering the forfeiture to the State of a firearm and a motor vehicle owned by one of the appellants.

Held:

(1) An appellant alleging procedural error in a court (such as the District Court) which is not a court "of record", in the sense that not all of its proceedings are recorded, must be careful to establish the factual basis of an alleged error of law. The appellant must show, by reference to the record of the court or by presenting evidence, what actually happened in the District Court.

(2) If there is a dispute or uncertainty about what actually happened in the District Court and it is necessary for the National Court to make a finding as to what, in fact, happened, the starting point is to apply the presumption of regularity regarding judicial proceedings, omnia praesumuntor rite essa acta: unless the contrary is proven, court proceedings are presumed to have been conducted properly and the court's records are presumed to be accurate.

(3) Most grounds of appeal were based on allegations about what the trial Magistrate said or how his Worship conducted the proceedings but the allegations were not substantiated either by the record of the District Court or by evidence presented by the appellants. All grounds of appeal alleging procedural error failed.

(4) When a Court convicts a person of unlawful assault under Section 6(3) of the Summary Offences Act it may order him under Section 6(4) to pay such amount by way of compensation for bodily injury or damage to the property of the person occasioned by or in the course of the commission of the offence, as it considers just. No monetary limit is imposed and the procedural requirements of the Criminal Law (Compensation) Act do not apply. The appellants failed to establish error of law on the part of the trial Magistrate in ordering that K5,000.00 be paid to each victim of the unlawful assault offences.

(5) Section 73(1) of the Firearms Act provides that where an offence with a firearm etc has been proved, the firearm is unconditionally forfeited to the State. The forfeiture arises by operation of the Act and applies irrespective of whether the offender was licensed to use the firearm. No error was proven against the trial Magistrate in ordering forfeiture of an appellant's firearm.

(6) Section 73A(2) of the Firearms Act provides for the forfeiture to the State of a vehicle if the court that convicts an offender is satisfied that the vehicle used in the commission of the offence was, amongst other things, owned by the person convicted. No error was proven against the trial Magistrate in ordering forfeiture of an appellant's motor vehicle.

(7) All grounds of appeal failed, the appeal was entirely dismissed, and the orders of the District Court were affirmed.

Cases cited

The following cases are cited in the judgment:

Bolvin Paikara v Rima Nau [1971-72] PNGLR 354
Brian Michael Costello v The Controller of Civil Aviation (No 2) [1977] PNGLR 476
Bungo v Robin (2011) N4195
Francis Tarei v The State (2008) N3539
Garry Kulau v Kevin Alile (1990) N869
John Beng v The State [1977] PNGLR 115
John Francis Ihari v MVIL (2006) SC1341
Jubilee Hambru v Michael Baur (2007) N3193
Manub Edom v Wanor Agun (2013) N5225
NCDIC v Crusoe Pty Ltd [1993] PNGLR 139
Ok Tedi Mining Ltd v Niugini Insurance Corporation and Others (No 1) [1988-89] PNGLR 355
Papua Club Inc v Nusaum Holdings Ltd (2005) SC812
Public Prosecutor v Barry Holloway [1981] PNGLR 482
Rahonamo v Enai (re Hitau) [1971-72] PNGLR 58
Re Nali and Manigut [1984] PNGLR 55
SCR No 3 of 1980; Re Joseph Mavuk [1980] PNGLR 507
Tamara Player Tomscoll v The State (2012) SC1208
The State v Toroken, Ex Parte Perera (1981) N281
William Norris v The State [1979] PNGLR 605

APPEAL

This was an appeal from the District Court against convictions entered against the appellants for offences under the Summary Offences Act and the Firearms Act, and against their sentences, including orders for compensation to victims and forfeiture of a firearm and a motor vehicle.

Counsel

S Tenige, for the appellants
F K Popeu, for the respondent

15th September, 2014

1. CANNINGS J: Dominic Kanduo, Vincent Iramu and Max Mingu appeal against their conviction and sentence by the Madang District Court. They were involved in an incident at Rempi village, Madang Province, on 28 March 2012 which led to them being charged with various offences. They were prosecuted in a joint trial. They originally pleaded not guilty, but after the close of the State's case they pleaded guilty to and were convicted of all charges. The trial Magistrate in the proceedings, described as DCR Nos 469, 470, 471, 472, 474, 476, 477, 478 & 479 of 2012, was Mr M Samala. His Worship delivered a written judgment dated 18 April 2013.

2. His Worship concluded that the appellants, two of whom (Kanduo and Mingu) were employed as private security personnel in Lae and one (Iramu) who was a member of the Reserve Constabulary Branch of the Police Force at Lae, travelled from Lae, armed with weapons, and entered Rempi village in search of a person who was the prime suspect in an armed robbery of the Papindo Supermarket at Madang. The appellants had earlier travelled with Lae-based members of the Police Force on a special operation but they and the Lae-based members were sent back by Madang-based members of the Police Force. The appellants later returned without any Police support or approval and raided Rempi village without a search warrant and in the process committed the offences.

CONVICTIONS AND SENTENCES

3. The appellants were convicted and sentenced as shown in the following tables. It should be noted that the formal orders made in respect of each information that was prosecuted (each has a separate file reference, "DCR") do not correspond exactly with the summary of the orders in the written judgment of the District Court. The sentences that are set out in the formal orders have been used for the purpose of this summary.

DOMINIC KANDUO

VINCENT IRAMU

MAX MINGU

4. Though not expressly stated in the trial Magistrate's reasons for decision, it appears that his Worship set the times for payment of the fines pursuant to the discretion conferred on the District Court by Section 165(1) (time for payment or payment by instalments) of the District Courts Act, which states:

Where, by a conviction or order, a fine or sum of money or costs is or are ordered to be paid, the Court may do all or any of the following things:—

(a) allow time for the payment; and

(b) direct the payment to be made by instalments; and

(c) direct that the person liable to pay is at liberty to give security for the payment.

5. The default penalties (terms of imprisonment to be served in the event of non-payment of a fine within the time specified) appear to have been imposed having regard to the guidelines suggested by Pratt J in Re Nali and Manigut [1984] PNGLR 55 and Doherty J in Garry Kulau v Kevin Alile (1990) N869 and Section 168 (court shall impose imprisonment in default of fine etc) of the District Courts Act, which states:

(1) Except where the conviction is made against a corporation, where a Court by a conviction adjudges the payment of a fine or costs in and by its conviction, it shall impose a term of imprisonment in default of payment.

(2) If the law under which the conviction is made directs or appoints any manner or term of imprisonment, the conviction shall be framed accordingly.

(3) If the manner or term of imprisonment is not directed or appointed by the law under which the conviction is made, imprisonment may be imposed for any term which the Court thinks fit, not exceeding the time specified in Section 201 with reference to the amount to be recovered.

(4) Where a Magistrate is satisfied that default has been made in payment of a fine or costs, he may issue a warrant of commitment.

GROUNDS OF APPEAL

6. There are ten grounds of appeal. Grounds 1 to 6 relate to the convictions and allege procedural errors including denial of natural justice. Grounds 7 to 9 relate to the sentences. Ground 10 makes a general allegation of miscarriage of justice. Each ground of appeal will be determined separately.

1 REFUSAL TO GRANT ADJOURNMENT

7. Ground 1 states:

That the learned Magistrate erred in law when refusing to grant an adjournment when the facts and circumstances warranted an adjournment.

8. The appellants say that their trial was part-heard on 25 and 26 March 2013 (when evidently the State's evidence was presented) and was due to resume on 17 April 2013. They attended on that day but their lawyer, Ms M Kupul of Gamoga & Co Lawyers, was unavailable due to a death in her family so their spokesman, Vincent Iramu, applied for an adjournment to a time when their lawyer would be available. They say that the trial Magistrate refused the application on the grounds that enough time had been wasted, Ms Kupul was not a registered lawyer and had misled the court and the State had spent a lot of time on the case.

9. The appellants argue that his Worship erred by failing to properly consider the application for adjournment in that he failed to check the genuineness of the reasons put forward for wanting an adjournment and therefore denied the appellants their constitutional right to counsel of their choice.

10. I refuse this ground of appeal for one simple reason, which permeates most of the grounds of appeal and will result in most of them failing: the appellants have not proven the factual basis of their argument. They have failed to establish that an application for adjournment was made, that it was refused and that the trial Magistrate gave the reasons he is alleged to have given. It cannot be inferred from the record of the District Court that that is what transpired on 17 April 2013.

11. As I pointed out in Bungo v Robin (2011) N4195 if there is a dispute or uncertainty about what actually happened in the District Court and it is necessary to make a finding as to what, in fact, happened, the starting point is to apply the presumption of regularity regarding judicial proceedings, sometimes described by the Latin maxim omnia praesumuntor rite essa acta. It is a common law principle that says that, unless the contrary is proven, court proceedings are presumed to have been conducted properly and the court's records are presumed to be accurate (Rahonamo v Enai (re Hitau) [1971-72] PNGLR 58; Bolvin Paikara v Rima Nau [1971-72] PNGLR 354; The State v Toroken, Ex Parte Perera (1981) N281; Brian Michael Costello v The Controller of Civil Aviation (No 2) [1977] PNGLR 476; NCDIC v Crusoe Pty Ltd [1993] PNGLR 139; Jubilee Hambru v Michael Baur (2007) N3193). It is a rebuttable, not a conclusive, presumption, which means that it is open to contradiction. If there is a dispute or uncertainty as to what actually happened in court, the court's record will be regarded as accurate unless the person challenging the record proves that there is an inaccuracy.

12. Here the record of the District Court does not clearly indicate that an application for adjournment was made or if it was made, who made it and what reasons were advanced for seeking it. Nor does it show that the trial Magistrate gave the reasons he is alleged to have given for refusing it. No evidence has been given by the appellants to prove the assertions of fact on which ground 1 of the appeal relies. They could have deposed in affidavits filed in the National Court as to what actually happened in the District Court (Francis Tarei v The State (2008) N3539, Manub Edom v Wanor Agun (2013) N5225). They have not done that, so the presumption of regularity as to the District Court proceedings has not been rebutted. The factual basis of the ground of appeal has not been established.

13. When the Supreme Court hears an appeal against a conviction in the National Court, the Supreme Court must be satisfied that there is, in all the circumstances, a reasonable doubt as to the safeness or satisfactoriness of the verdict, before the appeal will be allowed (John Beng v The State [1977] PNGLR 115). The same principle should guide the National Court when it hears appeals against convictions in the District Court (Francis Tarei v The State (2008) N3539). Here, the appellants have not put anything before the National Court that raises reasonable doubt as to the safeness or satisfactoriness of the verdicts. Ground 1 is dismissed.

2 DENIAL OF NATURAL JUSTICE

14. Ground 2 states:

That the learned Magistrate erred in law in continuing the part-heard trial when he knew or ought to have known that the appellants were not prepared and not capable of defending themselves, thus denying the appellants their right of legal representation and denying them natural justice.

15. This is potentially a sound ground of appeal as it alludes to two important aspects of criminal procedure. First, an accused person has the right to legal representation of his or her choice in accordance with Section 37(4)(e) of the Constitution, which provides that a person charged with an offence:

... shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law.

16. This means that if an accused pays for a lawyer the accused is entitled to have that lawyer represent the accused at a trial (SCR No 3 of 1980; Re Joseph Mavuk [1980] PNGLR 507, Tamara Player Tomscoll v The State (2012) SC1208).

17. Secondly, when any court hears an application for adjournment it must accord natural justice to the applicant and fairly hear and consider the reasons put forward for wanting an adjournment. Each application must be considered on its merits, after taking into account a range of considerations including:

• whether previous adjournments have been granted;
• whether the party seeking the adjournment is doing so for an improper or unethical purpose;
• whether the adjournment is opposed;
• whether other parties would be prejudiced by the adjournment;
• whether the court would be unduly inconvenienced by an adjournment;
• whether a long or indefinite adjournment is sought; and
• whether it is in the interests of justice to refuse the adjournment.
  

18. The above principles emerge from the decisions of the Supreme Court in Ok Tedi Mining Ltd v Niugini Insurance Corporation and Others (No 1) [1988-89] PNGLR 355 and John Francis Ihari v MVIL (2006) SC1341.

19. However, the appellants have, as in ground 1, deprived themselves of the opportunity to argue these points of law by failing to establish the facts underlying them. The factual circumstances in which an application for adjournment was allegedly refused have not been established. Ground 2 is dismissed.

3 FAILURE TO INFORM APPELLANTS OF THEIR RIGHTS

20. Ground 3 states:

That the learned Magistrate erred in law and in court procedure, when after the conclusion of the State evidence (case) he was obliged to inform the appellants of their right to make an application for further adjournment or to inform the appellants of their right to make a no case submission on the evidence, but failed to do so.

21. The facts that would have to be proven in order to make this ground arguable are that after the conclusion of the State's case the trial Magistrate did not inform the appellants of their right to make an application for further adjournment or their right to make a no case submission. Those facts are not apparent from the face of the record, nor can they be inferred from the record. The facts needed to be proven by the appellants. They have not been proven. The presumption of regularity applies. Ground 3 is dismissed.

4 COERCING APPELLANTS TO CHANGE THEIR PLEAS

22. Ground 4 states:

That the learned Magistrate erred in law when after the close of the prosecution case he informed the appellants that there was sufficient evidence by the prosecution for a conviction and therefore recommended and coerced the appellants to change their pleas from "not guilty" to "guilty" to which the appellants took into account the said advice and duly changed their pleas as instructed and directed by the Court [sic].

23. It can be inferred from the record of the District Court that after the close of the State's case the trial Magistrate informed the appellants that there was sufficient evidence for a conviction and recommended that they change their pleas. It cannot be inferred, and there is no evidence to support the assertion, that he coerced them to change their pleas. I am not persuaded that his Worship committed any error of law by telling the appellants that there was sufficient evidence for convictions or recommending that they change their pleas. No authority was cited in support of theses propositions. Ground 4 is dismissed.

5 FAILURE TO ALLOW APPELLANTS TO SEEK LEGAL ADVICE

24. Ground 5 states:

That the learned Magistrate erred in law when entering pleas of guilty on behalf of the appellants at the close of the prosecution case when he should have allowed the appellants an adjournment to seek independent legal advice.

25. This is a rehash of grounds 1 and 2. No new argument is raised. Therefore ground 5 is dismissed.

6 INTIMIDATION OF APPELLANTS

26. Ground 6 states:

That the learned Magistrate erred in law when as adjudicator he also appeared to act as legal adviser to the appellants by recommending and coercing the appellants by advising the said appellants of the strength of the prosecution evidence, thus influencing and intimidating the appellants to change their plea from not guilty to guilty.

27. This is a rehash of ground 4. No new argument is raised. Ground 6 is dismissed.

7 AWARDING COMPENSATION WITHOUT EVIDENCE

28. Ground 7 states:

The learned Magistrate erred in law and in fact when he awarded compensation to the alleged victims of the alleged assault when there was no evidence of the gravity and seriousness of the injuries before the Court nor was there any evidence of medical receipts or invoices to substantiate and support such claims.

29. The trial Magistrate convicted Dominic Kanduo of one count of unlawful assault (the victim being Peter Albert) and convicted Vincent Iramu of two counts of unlawful assault (the victims being George Sivut and Bansik Anis). In each case his Worship imposed a fine of K500.00 (in default, six months imprisonment) and ordered the offenders to pay K5,000.00 compensation within 14 days to the victims. The convictions and sentences (comprising the fines and compensation orders) were entered and passed under Sections 6(3) and 6(4) (assault) of the Summary Offences Act, which state:

(3) A person who unlawfully assaults another person is guilty of an offence.

Penalty: A fine not exceeding K500.00 or imprisonment for a term not exceeding two years.

(4) Where a court convicts a person of an offence against Subsection (3), it may order him to pay—

(a) to the person, in relation to whom the offence was committed; or

(b) to any other person who suffers bodily injury or damage to property as a result of the commission of the offence,

such amount by way of compensation for bodily injury or damage to the property of the person occasioned by or in the course of the commission of the offence, as it considers just.

30. The appellants argue that his Worship erred by making such substantial compensation orders without evidence of the extent of injuries suffered by the victims. Mr Tenige, for the appellants, also argued that his Worship erred by not following the Criminal Law (Compensation) Act 1991, which requires a court, before ordering an offender to pay compensation as punishment for an offence, to amongst other things take into account six factors under Section 3 and request the Chief Probation Officer under Section 4 to furnish a means assessment report.

31. The argument about the Criminal Law (Compensation) Act is not properly before the Court. It raises a specific question of law but is not included in the grounds of appeal. Leave to argue it has not been sought or granted so it does not require determination (Papua Club Inc v Nusaum Holdings Ltd (2005) SC812).

32. I say in passing that if the argument had been included in the grounds of appeal I would have dismissed it as the requirements of the Criminal Law (Compensation) Act only apply to compensation orders made under Section 2 (compensation as punishment) of that Act, which states:

(1) Notwithstanding that payment of compensation is not specified as a punishment for an offence, a court may, in addition to any other punishments imposed, order an offender to pay compensation in accordance with this Act.

(2) When a court is considering the punishment or punishments to be imposed for an offence, it shall also consider whether in the circumstances of the case, compensation should be ordered.

33. Here the compensation orders were made under Section 6(4) of the Summary Offences Act, so it was not necessary to adhere to the Criminal Law (Compensation) Act before making the orders.

34. The argument about the compensation orders being made without evidence is specifically included in the ground of appeal and requires determination. However it has no merit. His Worship made the following findings about the nature and extent of each assault:

• Dominic Kanduo approached Peter Albert, while Mr Albert was being held by Vincent Iramu who was pointing a gun at his face, and punched and gun-butted him on the face, causing him to fall to the ground; and while he was on the ground, with his face bleeding, Dominic Kanduo and the other two appellants pointed guns at him, demanded that he tell them where the suspect in the Papindo robbery was, booted him and then ordered him to run away, which he did.
  
• Vincent Iramu, who was the driver of the Toyota Landcruiser used by the appellants to enter the village, assaulted George Sivut soon after the appellants came into the village (at which time two shots were fired in the air causing fright and confusion for the villagers, including women and children). Vincent Iramu ran out of the vehicle straight after parking it, straight to Mr Sivut, pointed his gun at him and proceeded to assault him by punching, booting and gun-butting him, breaking his left pointer-finger bone, inflicting a permanent disability.
  
• Vincent Iramu, after assaulting Mr Sivut, moved on to Anis Bansik, a customer at a trade store, and assaulted him with a folded fist on his face and chin and then gun-butted him on the jaw with the metal part of the gun barrel.
  

35. Clearly each assault amounted to a very serious offence, committed in frightening circumstances. Each victim was not only injured but, inevitably, traumatised. It was appropriate, in my view, for the District Court, when determining under Section 6(4) the "amount by way of compensation for bodily injury ... occasioned by the commission of the offence, as it considers just", to take into account not only the nature and extent of the bodily injury suffered by each victim, but the circumstances in which the injury was inflicted. The trial Magistrate has clearly done this and arrived at an amount of compensation which he considered just. Though Section 6(4) imposes no limit on the amount of compensation that can be ordered, it is significant that his Worship has ordered the maximum amount that can be ordered under the Criminal Law (Compensation) Act.

36. Given the detailed findings of fact made by his Worship it cannot be said that there was no evidence of the gravity and seriousness of the injuries suffered by the victims. There was no requirement for evidence of medical receipts or invoices. The amount of compensation ordered to be paid to each victim cannot be said to be unreasonable.

37. Appeals to the National Court against sentences imposed by the District Court are determined in a similar way to appeals to the Supreme Court against sentences imposed by the National Court. The appellant must show that the District Court either made an identifiable error that has the effect of vitiating the sentence or imposed a sentence that was obviously (not merely arguably) excessive. And there is one additional requirement: it must be established that there has been a substantial miscarriage of justice (William Norris v The State [1979] PNGLR 605, Public Prosecutor v Barry Holloway [1981] PNGLR 482). Here the appellants have not shown that the trial Magistrate made any identifiable error. Nor have they shown that the amounts of compensation were obviously excessive or that there has been any miscarriage of justice. Ground 7 is dismissed.

8 FORFEITURE OF FIREARM

38. Ground 8 states:

The learned Magistrate erred in law in forfeiting the firearm serial No 431999 pump action pistol when the said firearm was duly licensed by the appellant [sic].

39. The trial Magistrate ordered that the firearm in question be forfeited to the State under Section 73(1) (forfeiture of firearm used in commission of offence) of the Firearms Act, which states:

Where an offence with a firearm, pistol, high-powered firearm or machine gun whether or not licensed, against a law in force in the country has been proved, then that firearm, pistol, high-powered firearm, or machine gun is unconditionally forfeited to the State.

40. His Worship made that order in connection with the conviction of Vincent Iramu of an offence under Section 57 (possession of firearms whilst under influence, etc) of the Firearms Act for being found under the influence of alcohol in actual physical possession of a firearm.

41. The appellants argue in ground 8 that, in fact, the firearm was duly licensed and that the appellant, Iramu, had lawful authority to hold it. This argument is flawed. Iramu was convicted of being found under the influence of alcohol in actual physical possession of the firearm. The penalty for that offence included forfeiture of the firearm under Section 73(1) of the Firearms Act. If in fact the firearm was duly licensed and Iramu had lawful authority to hold it, he would still be guilty of the offence under Section 57. Furthermore, the forfeiture order under Section 73(1), which is a mandatory consequence of a conviction under Section 57, would still be made as Section 73(1) applies irrespective of whether the firearm is licensed. The appellants' arguments are without merit. Ground 8 is dismissed.

9 FORFEITURE OF MOTOR VEHICLE

42. Ground 9 states:

The learned Magistrate erred in law in forfeiting motor vehicle LBB-250 to the State when the Magistrate had no power to make such an order and furthermore there was no evidence that the said motor vehicle LBB-250 being used in the commission of the offence or any offence nor was there any charge against the appellants for the unlawful use of the said motor vehicle.

43. The trial Magistrate ordered that the vehicle in question be forfeited to the State and sold by auction or public tender after 40 days. The order was made under Sections 73A(2) and (3) (forfeiture of vehicles etc) of the Firearms Act, which state:

(2) Where a court has convicted a person of an offence against this Act and the court is satisfied that a vehicle used in the commission of the offence—

(a) is owned by the person convicted; or

(b) is owned by a person other than the person convicted and the owner was aware that the vehicle was used or to be used or liable to be used in the commission of an offence,

the court may, in addition to any other penalty it imposes in accordance with this Act in relation to that offence, order that the vehicle be forfeited to the State.

(3) A vehicle forfeited under Subsection (1) becomes the property of the State and may be sold or otherwise disposed of by the State.

44. His Worship made that order in connection with the conviction of Vincent Iramu of the offence under Section 57 of the Firearms Act. The appellants argue that his Worship erred in law as:

(a) he had no power to make such an order;

(b) there was no evidence that the vehicle LBB-250 was used in the commission of the offence; and

(c) none of the appellants was charged with the unlawful use of the vehicle.

45. Mr Tenige raised another argument in submissions: that his Worship erred in law as:

(d) the vehicle was not the proceeds of any crime, nor was it impounded under a warrant of execution.

46. Argument (a) is without merit as Section 73A(2) of the Firearms Act is a grant of power to the District Court to order that a vehicle be forfeited to the State, which can be exercised when:

• the court has convicted a person of an offence against the Firearms Act;
  
• the court is satisfied that a vehicle has been used in the commission of the offence;
  
• the court is satisfied that the vehicle is owned by the person convicted or is owned by a person other than the person convicted and the owner was aware that the vehicle was used or to be used or liable to be used in the commission of an offence.
  

47. Here, the District Court convicted Vincent Iramu of an offence under Section 57 of the Firearms Act. It can be reasonably inferred, having regard to the reasons for decision of the trial Magistrate and the report he provided under Section 225(2) (report by magistrate) of the District Courts Act, that his Worship was satisfied:

• that the vehicle, in which Kanduo and Mingu were passengers, was driven by Iramu into Rempi village, the place at which the offence was committed, and therefore "was used in the commission of the offence"; and
  
• that the vehicle was owned by Kanduo, a person other than the person, Iramu, convicted of the offence under Section 57, and that Kanduo, the owner, "was aware that the vehicle was used or to be used or liable to be used in the commission of an offence".
  

48. As to argument (b), Mr Popeu, for the State in the appeal, was prepared to concede this ground of appeal. He submitted that there was no evidence that the vehicle was used by the appellants at the time of commission of the offences. I consider, with respect, that the concession was wrongly made. I am not bound by it, and I disregard it. The trial Magistrate referred on a number of occasions in his written reasons for decision to evidence given by State witnesses that the vehicle registration No LBB 250 is the vehicle that was driven into the village by Vincent Iramu. His Worship found that that was the vehicle used by the appellants to transport them from Lae to Rempi, the place of commission by Iramu of the offence under Section 59(2). This evidence was a sufficient basis on which his Worship could reasonably be satisfied that that vehicle was used in the commission of the offence under Section 57. Argument (b) fails.

49. As to argument (c), the fact that none of the appellants was charged with the unlawful use of the vehicle is irrelevant. It is not a precondition to the exercise of the power of forfeiture that the user or owner of the vehicle be charged with its unlawful use.

50. Likewise with argument (d). The facts that the vehicle was not the proceeds of any crime, or that it had not been impounded under a warrant of execution, are irrelevant. Neither of those matters is a precondition to the exercise of the power of forfeiture.

51. The appellants have failed to prove any error of law by the trial Magistrate when ordering forfeiture of the vehicle. Ground 9 is dismissed.

10 GRAVE MISCARRIAGE OF JUSTICE

52. Ground 10 states:

That the learned Magistrate erred in law in the conduct of the proceedings, thus causing a grave miscarriage of justice to the appellants.

53. This is a vague ground of appeal, which adds nothing to the preceding grounds. Ground 10 is dismissed.

WHAT ORDERS SHOULD THE NATIONAL COURT MAKE?

54. As all grounds of appeal are dismissed, the appeal must fail. There was no miscarriage of justice. I will under Section 230(1)(c) (power of National Court on appeal) of the District Courts Act affirm the order appealed from and clarify that the periods specified by the District Court within which things must be done will run from the date of this judgment.

ORDER

(1) The appeal is dismissed.

(2) The orders of the Madang District Court of 18 April 2013 in DCR Nos 469 and 470 of 2012 (Police v Dominic Kanduo), DCR Nos 475-479 of 2012 (Police v Vincent Iramu) and DCR Nos 472 and 473 of 2012 (Police v Max Mingu) are affirmed.

(3) For the avoidance of doubt, the periods specified by the District Court within which things must be done will run from the date of this judgment.

(4) The Assistant Registrar, National Court, Madang shall forthwith serve sealed copies of the judgment and order of the National Court in CA No 21 of 2013 on the Clerk of the Madang District Court who shall forthwith bring these matters to the attention of the Senior Provincial Magistrate and the trial Magistrate so that the Madang District Court can supervise enforcement of the orders of 18 April 2013.

_______________________________________________________
Gamoga & Co Lawyers: Lawyers for the Appellants
Public Prosecutor: Lawyer for the Respondent