Commentary By Bryan Kramer
Part 2 - Criminal Code
So what is the Criminal Code?Criminal Code also referred to as Criminal Code Act are criminal laws or prohibited offences "enacted" by Parliament (hence the term "Act") to preserve peace and good order in PNG. The code defines each criminal offence and imposed penalty for breaking them. The code is arranged in nine main parts which are further categorised into divisions and sections also referred to as provisions. There are over 628 different sections that make up the Criminal Code.
PNG Criminal Code originated from Queensland when PNG was still a territory of Australia. Following PNG's independence the Code was formally adopted by Parliament using its powers under the Constitution.
In accordance with Section 37(2) of Constitution nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law, except for contempt of court. Hence the need for the Criminal Code to define each criminal offence and their prescribed penalty. There are some 500 different criminal offences under the Code which are categorised in three main classes.
(1) simple offences
(2) misdemeanour's less serious criminal offices
(3) crimes (serious)
Simple offences - also referred to as summary offences are minor where the penalty is usually between 3-6 months but less than 12 months imprisonment or a fine. Simple offences are dealt with by District Court (lower court).
Misdemeanour offences - are considered more serious where the penalty is between 12 months to 3 years.
Crimes offences - are serious criminal offences, where the penalty exceeds three years and anywhere from 7 to 50 years, life or death depending on the nature of the crime and specific penalty prescribed by the code for that particular offence.
Misdemeanour and crimes are indictable offences and they must be prosecuted and tried or dealt with by the National Court. An indictable offence is considered serious where a person is liable to serve more than 1 year imprisonment so they must be tried in a higher court.
An example of a "crimes" offence defined under the code is as follows:
"Section 299. WILFUL MURDER."
"(1) Subject to the succeeding provisions of this Code , a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder."
"(2) A person who commits wilful murder shall be liable to be sentenced to death."
The provision (section) clearly defines the meaning of the offence followed by the penalty. The definition of a crime is also referred to as elements of the offence.
What are elements of an Offence?
Elements are key parts that define a criminal offence. In the example of Wilful Murder the key elements are:
(1) a person
(2) unlawfully kills
(3) another person
(4) intending to cause death
To find a person guilty of a particular offence the evidence must prove every element of the crime. Failing to prove just one element would result in the prosecution failing to prove the person is guilty.
Example, if a person is charged for wilful murder under section 299 of Criminal Code but during the trial the evidence confirmed it was actually accidental then the charge against him would fail because element (4) states it must be intentional, in that he intended to cause death. Thus he is actually guilty of manslaughter (accidental murder) and not wilful murder and should have been charged for Manslaughter under Section 302 of Criminal Code and not Wilful Murder under Section 299.
In this case the Court would acquit him (pronounce him not guilty) of the charge of wilful murder. Police would then have to charge him with "Manslaughter" starting the process all over again. This is an example where the technicalities of law come into play. Hence why Police must first ensure they charge the Accused for the correct offence. They must also ensure they produce evidence that supports each and every element of the offence.
An example of a Misdemeanour offence is:
"Section 74. CHALLENGE TO FIGHT A DUEL"
"A person who–
(a) challenges another; or
(b) attempts to provoke another; or
(c) attempts to provoke any person to challenge another,"
"to fight a duel, is guilty of a misdemeanour. Penalty: Imprisonment for a term not exceeding three years."
Why does the penalty state imprisonment for a term not exceeding three years?
This is the same as stating the penalty maybe any amount but shall not exceed 3 years. Penalties are prescribed by law taking into consideration the nature of the crime, the principle being the more serious the crime the higher the penalty. Courts do not have the power to decide on a penalty that is not prescribed by law. Parliament passes or amends legislation determining the appropriate penalties. The Courts only have the power on imposing it whether at the maximum or a reduced term allowed.
The reason behind why the law does not state a specific imprisonment term but rather states it must not exceed a prescribed term is because not every case is the same. In some cases the person although guilty had justified reasons or different circumstances why he committed the offence therefore although he is guilty it would be unjust to sentence him at the maximum penalty allowed. In other cases a person may be completely at fault without any excuse or remorse (regret) and therefore it would be just for the Judge to sentence him to the maximum term. Thus the Judge has the discretion to decide on the penalty provided it does not exceed the imposed term in the example above being 3 years. When imposing a penalty or prison term the Judge must always take into consideration the circumstances of each case.
In the example Paul Tiensten, Francis Potape and Havilo Kavo all three Members of Parliament were found guilty of Misappropriation, a serious crime. The penalty for which is imprisonment for a term not exceeding 10 years. Tiensten was sentenced to 9 years just short of the maximum while Potape and Kavo were sentenced to prison for 2.5 and 1.5 years respectively. Deputy Chief Justice Sir Salika when sentencing Tiensten took into account the the amount of funds misapplied (K10m) and his high position of trust he held as elected Member of Parliament . The Judge pointed out that previous cases of Members of Parliament who were charged and convicted of misappropriation the amounts were less than K150,000 and they received a prison term upto 5 year. So it would be unjust to sentence Tiensten to a equal term when he was found guilty of misappropriating K10m. Potapte and Kavo were found guilty of misappropriating K330,000 and K131,338 respectively. Their original sentence was 5 and 3 years but after they repaid the funds their sentence was reduced by half.
In 2013 Parliament made amendments to the Criminal Code where if a person is found guilty of misappropriating between K1 million and K10m will now be sentenced to 50 years without parole. Where the amount is more than K10m the penalty will be life imprisonment without parole. The new penalties only apply to any person who misappropriates K1 million after the new amendments came into effect and not before. Hence although Tiensten was convicted in 2014 he misapplied the funds in 2009.
So who does the Criminal Code apply to?
The criminal code applies to any and every person who commits or is suspected of committing a criminal offence under the Code, from the Prime Minister. Governor General, down to the villager including non-citizens (foreigners). This even includes those who are in charge of enforcing the law, Judges, Police Public Prosecutor and Chief Ombudsman.
The only persons who are exempt from criminal code are those who have diplomatic immunity (foreign government officials) who are protected under Diplomatic & Consular Privileges and Immunities Act or International Organisation (Privileges and Immunities ) Act. It is part of international law that protects foreign diplomats from being subject to a country's domestic laws. PNG diplomats share the same privileges in other countries.
Who is in charge of enforcing the Criminal Code?
Criminal Code is enforced or supervised by PNG Royal Constabulary (PNGRC) or Police Force. Members of the Force are responsible to investigate any complaint filed by any person or initiate their own investigation into any alleged breach of the laws under the Criminal Code. They have constitutional powers to lay, prosecute or withdraw charges against any person in respect of criminal offences and are not subject to direction or control by any person outside the Force.
Supreme Court recently ruled the Commissioner of Police has authority to issue directions to other members of the Police Force regarding the conduct of criminal investigations, including applying for arrest and search warrants, laying charges, and presenting information before the Court.
PNGRC is part of the Law and Justice Sector of the Government. Its headquarters is in Port Moresby and the total members of Police Force nationwide is around 6,000+
The head of Constabulary is Commissioner of Police followed by two Deputy Commissioner of Police (DCP), Operations and Administration. All three positions are appointed by Government (NEC) chaired by Prime Minister.
Under DCP Operations there are six Assistant Commissioners of Police (ACP). Four in charge of the four regions, Momase, Highlands, Southern, New Guinea Islands, fifth in charge of NCD & Central and six ACP Operations. Under ACP Operations there are 7 Directorates or Directors responsible for:
(1) Special Services Division - (SSD) mobile squads, Air Bourne Unit.
(2) Communications
(3) Crimes (Crimes Investigation Division)
(4) Traffic,
(5) Dogs Unit
(6) Police Prosecutions
(7) Auxiliary (Reservist) Police.
The Deputy Commissioner of Police (Administration) is responsible for finance and administrative support functions of the Police Force.
So how are criminal investigations carried out by Police?
A complaint is reported to Police at any Police Station. An officer on duty will register it in the Occurrence Book (OB). Every complaint made is registered and assigned a specific OB number. The officer will write a brief paragraph of the nature of the complaint, the alleged offence, location, time, who was involved or a witness to it. Police will then interview the person who filed the complaint referred to as "Complainant" to establish whether his/her complaint is genuine. Depending on the nature of the offence the officer may refer the case to a specific Crimes Division. Example Serious Crimes, Sexual Violence Unit, and Fraud or General Duties.
The Officer in Charge (OIC) of the Crime Division or Crimes Investigation Division (CID) will be briefed of the complaint and will assign an officer to carry-out investigations, interview witnesses, collect evidence to establish probable cause to justify making an arrest. The alleged offender or Accused is then tracked down, arrested and brought to the Police Station to be interviewed before being formally charged. Every person arrested or detained by Police has Constitutional rights.
So what are the Constitutional Rights of a person Arrested by Police?
Section 42(2) of Constitution states that a person who is arrested or detained–
(a) shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and
(b) shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and
(c) shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained, and shall be informed immediately on his arrest or detention of his rights under this subsection.
If you are ever arrested by Police you have a constitutional right to make a phone call in private to contact a family member, friend or your lawyer to inform them of your arrest. If Police were to arrest and charge you without informing you or denying you your rights then your arrest and charges against you may be deemed illegal and thrown out by the Courts.
It is advisable you contact a person to go down to the Police Station to witness your formal interview by Police. Having a person act as a witness ensures that if your rights are breached, or you were intimidated, forced or inducted to answer questions then you have a witness to support your side of the story. The Investigating Officer will also ensure he/she has a fellow officer or colleague to act as a witness to protect him against false allegations that he didn't follow the proper process.
The purpose of formal interview is for Police to give you the opportunity to give your side of the story before formally charging you of the alleged crime. It is similar to right to be heard by Ombudsman Commission (OC).
It's important to understand just like the OC if you are called in for an interview to answer to the allegations against you it usually means they have already collected sufficient evidence to believe you are guilty of the crime.
Before conducting a formal interview Police will first ask if you speak English. If you don't they must arrange for an interpreter to ensure you are aware of the reasons of your arrest and understand the questions being asked of you, required by Section 42(2)(a) of Constitution.
Officer will commence the interview recording the time it started before asking specific questions, your name, age, marital status, birth place, residential address, occupation, employer etc. He will then ask you specific questions in relation to allegations against you. Where were you at the time of alleged offence? What were you doing there? etc.
If you know you are innocent of the allegations then you will be inclined to co-operate by answering the questions. However it is always advisable to exercise your constitutional right not to answer or say anything. You may answer the questions by stating you wish to say nothing reserving your right to remain silent.
Not answering questions doesn't make you guilty it just makes you smart and safe from someone using your words against you. It's important to understand the investigating officer's objective is to charge you for the alleged offence and based on the findings of his investigation secure your conviction in a court of law, while your objective is to prove your innocence. If you are innocent answering questions during your interview will not determine it but rather only the evidence produced in Court.
Once the Officer has completed asking you questions in relation to the allegations he will then place his hand over your right hand to formally charge you stating the criminal offence and section under the Criminal Code you have been charged with and ask you to confirm you understand.
He will then type up all the questions asked during the interview including your response. A copy will be provided to you to read through, you will be asked if you wish to make any changes or corrections. Once completed everybody involved in the interview will sign it. The officer will then prepare charge sheet and statement of facts before locking you up in the Police Cells.
Part 3 will cover Bail, Arraignment and Committal Hearing before District Court.
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