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Masuve v Bryant; Epehu v Bryant [1974] PGSC 24; [1974] PNGLR 61 (2 May 1974)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 61 - Sapuro Masuve v Harold Bryant; Pirinavi Epehu v Harold Bryant

[1974] PNGLR 61

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SAPURO MASUVE

V

HAROLD BRYANT

PIRINAVI EPEHU

V

HAROLD BRYANT

Port Moresby

Clarkson J

17 April 1974

2 May 1974

CRIMINAL LAW - Jurisdiction - Plea of autrefois acquit - Test to be applied - Unlawful assault open on previous charge of murder - Whether plea available on charge of behaving in riotous manner.

The test to be applied when dealing with the plea of autrefois acquit is whether the two offences are substantially the same or in effect the same, or whether the evidence necessary to support the commission of the second offence would have been sufficient to procure a conviction on the first offence.

Connelly v. Director of Public Prosecutions [1964] A.C. 1280; [1964] 2 All E.R. 401 and Brennan v. Williams [1951] WALawRp 14; (1951) 53 W.A.L.R. 30 followed.

Held

That an acquittal on a charge of unlawful assault (which was open as a verdict on a charge of wilful murder under the Criminal Code), did not of itself preclude a conviction for behaving in a riotous manner contrary to s. 8 of the Police Offences Act (New Guinea) 1925-1965, at least before the unlawful offence commenced.

Appeal

These were appeals against conviction for the offence of behaving in a riotous manner contrary to s. 8 of the Police Offences Act (New Guinea) 1925-1965. Both appellants had been tried for wilful murder of one Peter Moini, arising out of the circumstances of the conviction appealed from, and acquitted. The trial judge on the previous charge took the view that on an indictment for wilful murder, the only verdicts open were wilful murder, murder or manslaughter but the Full Court on appeal (R. v. S.M. and Others [1973] P.N.G.L.R. 304) held that other verdicts including unlawful assault were open. The appellants appealed in the present proceedings against (inter alia) rejection of their plea of autrefois acquit.

Counsel

M. Kapi, for the appellants.

P. C. White, for the respondents.

Cur. adv. vult.

2 May 1974

CLARKSON J: Each of the appellants appeals against a conviction for the offence of behaving in a riotous manner on 24th December, 1972, contrary to s. 8 of the Police Offences Act (New Guinea). On that date near Goroka a young girl was hit and killed by a motor vehicle. The driver of the vehicle and his passenger ran from the scene and were assaulted by a number of men including the two appellants. It appears that as a result the driver and his passenger died.

Soon after the events involving the death of the girl and of the two occupants of the vehicle each accused was interviewed by a police officer. The records of these interviews put in evidence before the court below showed each appellant as admitting he had struck one of the occupants of the vehicle.

Before the Magistrate the evidence against each appellant consisted of the relevant record of interview and of conduct by each accused after the killing which might be taken as an admission that he played some part in causing the death of a man and evidence of policemen who attended the scene and were present at the interview.

At the hearing of the appeals each appellant was without objection granted leave to amend his notice of appeal by adding the ground that the conviction was against the evidence and the weight of evidence and I will deal with this ground first.

The Magistrate when sentencing the appellants referred to the facts as he had found them at the trial. He said, “In interviews with the Police, they have admitted to participating in the chase of a man after a traffic accident; when he was brought to the ground, to striking and kicking him, with others assisting them, and to attacking him with stones when he was in no position to flee nor defend himself. In the overall circumstances surrounding this assault, I am satisfied that they behaved riotously.”

I have little doubt that on the facts as set out each appellant could be said to have behaved in a riotous manner and the question in each case is whether the findings are justified on the evidence.

The charges against the appellants were heard together as were the appeals, but it is necessary to bear in mind that each charge must be considered separately, and that in a mere narrative of events which have occurred, statements made by one appellant do not constitute evidence against the other. The effect in the present cases is that the case of the prosecution against each appellant insofar as it relies on admissions stands or falls on what he and not the other appellant, said to the police officer.

It seems to me on a careful consideration of what was said to the investigating officer and of what was observed at the scene of the traffic accident and subsequently at the appellant’s village that with one exception the findings against each appellant were justified. The exception is the finding that the appellants participated in the “chase” of a man. The man whom Sapuro hit “ran towards” him and Pirinavi “went to stop” a man running away. It is not said whether the man was running away from the vehicles or from Pirinavi. It might be more accurate to say that each appellant intercepted a man running from the scene of the accident.

But it seems clear enough that a number of men intercepted two men, at different places and attacked them using fists, feet and stones and that each of the appellants took part in these activities.

There was undoubtedly a breach of the peace and although there is no evidence of shouting or other noise, I could not say the Magistrate was wrong in inferring that there was commotion and disorderliness of such a nature as with the breach of the peace to establish that each appellant behaved in a riotous manner. (See Leonard Eliza and Others v. Mandina[lxxiii]¹.)

This ground of appeal therefore fails.

Each appellant also appeals against conviction on the ground that he has already been acquitted of an offence the elements of which were the same as “those of the present conviction ...”.

This was treated as an assertion that s. 17 of the Criminal Code provided a defence or that there was a good defence of autrefois acquit.

It would be sufficient to dispose of this ground of appeal to say that nothing in relation to the acquittal referred to was established in the evidence. There was no evidence of any prior indictment, trial or verdict, nor that any prior indictment or verdict related to events disclosed in evidence, nor to the attack on nor to the death of a man that either appellant attacked.

However, the reference in the Magistrate’s reasons for judgment to the previous acquittal of the appellants by the Supreme Court in proceedings referred to as Bryant v. Sapuro Masuve and Two Others and the written submissions made on behalf of the appellants before the Lower Court show that the effect of those proceedings was canvassed. Counsel before me explained the considerations which arose and argued them. In deference to counsel I express my views although they cannot affect the result of these appeals.

Counsel said that the two appellants with another or others had been indicted and tried for wilful murder of Peter Moini and that he was one of the occupants of the vehicle. They were acquitted. I accept for present purposes that Moini was the man whom each appellant attacked.

The trial judge took the view that on an indictment for wilful murder the only verdicts open were wilful murder, murder or manslaughter. Subsequently the Full Court held that other verdicts including unlawful assault were open. R. v. S.M. and Others[lxxiv]².

However it seems clear that neither appellant could have been convicted by the Supreme Court of behaving in a riotous manner nor has he been acquitted upon indictment of an offence of which he might have been convicted upon the complaint (information) on which he was charged in these proceedings, namely the information that he behaved in a riotous manner. Section 17 of the Criminal Code therefore could not have assisted the appellants.

Reliance was placed on Connelly v. Director of Public Prosecutions[lxxv]³ one of a line of authorities dealing with the defence of autrefois acquit.

The trial judge in effect directed himself that as a matter of law a verdict of guilty of unlawful assault was not open to him. It might be doubted whether in these circumstances there was any acquittal on that charge on which the relevant doctrine could operate but I assume in favour of the appellants that there was.

It then becomes necessary to consider the degree of identity between the offence of which the appellants were acquitted and that with which they are now charged, that is, to apply the test which has been variously described as being whether the two offences are substantially the same or in effect the same or whether the evidence necessary to support the commission of the second offence would have been sufficient to procure a conviction on the first offence. (See Connelly v. Director of Public Prosecutions[lxxvi]⁴, Li Wan Quai v. Christie[lxxvii]⁵, Brennan v. Williams[lxxviii]⁶. Here, there were a number of men behaving in a riotous manner. During the course of this disturbance, but after it had commenced, the appellants unlawfully assaulted another. I apprehend that an acquittal on a charge of unlawful assault would not by itself preclude conviction for behaving in a riotous manner at least before the unlawful assault commenced. I reach this conclusion by the same reasoning as I applied when dealing with a submission on s. 16 of the Criminal Code in The Queen v. James Korea and Others[lxxix]⁷.

The sentences were imposed by the Magistrate in the exercise of a judicial discretion. He had knowledge of the relevant local conditions and atmosphere to an extent which I do not. The sentences appear to me to be within permissible limits and I would not disturb them.

I dismiss both appeals.

Appeals dismissed.

Solicitor for the appellant: G. R. Keenan.

Solicitor for the respondent: P. J. Clay, Crown Solicitor.

[lxxiv][1973] P.N.G.L.R. 304.

[lxxv][1964] A.C. 1280; [1964] 2 All E.R. 401.

[lxxvi][1964] A.C. 1280; [1964] 2 All E.R. 401.

[lxxvii][1906] 3 C.L.R. 1125.

[lxxviii](1951) 53 W.A.L.R. 30.

[lxxix]Unreported, Supreme Court, June, 1968, No. 479.

[lxxx]Section 34 of the Supreme Court (Full Court) Act 1968 provides so far as is relevant:

N2>(1) Subject to Subsection (2) of this section, where a person convicted desires to appeal, or to obtain leave to appeal, to the Full Court, he shall give notice of appeal, or notice of his application for leave to appeal as the case may be, in the manner prescribed by the Rules of Court within forty days after the date of conviction.

N2>(2) The time within which notice of appeal, or notice of an application for leave to appeal, may be given may be extended at any time by the Full Court or a Judge.