The National – Wednesday, June 15, 2011
SOME doctors can work on treating people who catch a disease while other doctors work on preventing a disease.
For example, while many doctors are asked to treat people who have malaria, some doctors are working to prevent malaria. Anyone who has ever had malaria will agree that it is a good idea to try to prevent malaria.
Unfortunately, while many lawyers work on criminal cases after a crime has been committed, not many lawyers work on trying to stop crimes from being committed.
The following paragraphs may help to prevent crime by letting people know of the danger they face if they join or assist people who are committing a crime.
It is important for people to know, in advance, that they may be sentenced to a term of imprisonment if they join or assist people who are committing a crime.
The courts do not, usually, allow people to say they did not know what the law was. That is why judges and magistrates may use the words: “Ignorance of the law is no excuse.”
It might come as a surprise to know that a person can be found guilty of robbing a bank without going inside the bank when it is robbed. This can occur in one of two ways and the reason lies in the words of sections 7 and 8 of the Criminal Code.
While section 7 covers a number of situations, it is most often applied to a person who aids another person to commit a crime. That means that if a group of people rob a bank – one drives a car used to get to and from the bank, one carries the gun and a third person carries the money away from the bank – then they can each be found guilty of armed robbery even though two of them did not carry any weapon and one did not even go inside the bank.
It is worth noting that another situation that is covered by section 7 of the Criminal Code is encouraging someone to commit a crime.
For example, suppose there are two men called Alan and Bill.
Bill has a gun. If a third person, called Charlie, calls out to Bill to shoot Alan, Bill shoots Alan, and Alan dies from that gunshot then Charlie can be charged just the same as Bill even though Charlie did not carry the gun and did not fire a gun.
A person can be charged with being an accessory (ie helper) because of what he or she did before the crime was committed (called an accessory before the fact) or because of what he or she did after the crime was committed (called an accessory after the fact).
An example of an accessory before the fact would be if a person, who owns a gun, is asked to lend it to someone who says they want to use that gun to kill someone.
In that situation, the owner of the gun could be charged with being an accessory to murder.
An example of an accessory after the fact would be when a person hides in his or her house someone who they know had committed a crime.
That is the first reason why people need to be careful when asked to join someone else. They might be convicted of the same crime even though they played a lesser role, regardless of whether that lesser role arose before, during or after the time when the crime was committed.
Section 8 provides a second way in which a person can be found guilty of a crime even though they might think they have not committed that crime.
For example, if a group of 10 people, each carrying a bush knife, agree that they will form a circle around a person they think is a sorcerer. Even if only one of the 10 people uses his bush knife to hit the alleged sorcerer on the head and kill him, each of the 10 people can be charged with and convicted of murder if they either had a prior plan to kill the alleged sorcerer or even if they only had a plan to hurt the sorcerer but his death was a probable consequence of the purpose or plan which the group had.
Judges and lawyers commonly refer to situations covered by section 8 as a case where there is a common purpose.
When a person is charged with a criminal offence and the case against them is based on either section 7 or section 8 of the Criminal Code, then, they cannot only be found guilty of the same offence as the main offender. They can also be given the same punishment as that person.
Even if a lesser sentence is imposed, if the main offender is sentenced to a term of imprisonment, then the other offenders involved in that crime are likely to still be sent to prison even if it is for a shorter term.
Sections 7 and 8 of the Criminal Code are important for police officers to remember because it may mean that it is not necessary for police to work out who, in a tribal fight, struck the blow which caused the victim’s death. The evidence available to the police may mean that anyone who was participating in the tribal fight can be charged.
Those sections are also important for people to remember because a person who wants to commit a crime may try to get others to help him or join in his (or her) purpose.
That commonly arises in cases where carrying out the crime requires the attackers to outnumber the victim or victims.
If more people in Papua New Guinea knew that they could be charged and convicted of a crime, even if all they did was to help someone else, then, it may be that fewer people would help criminals and the amount of crime in this country would be less.
*Graham Ellis SC is a former judge of the National Court and Supreme Court. He served from 1990 to 1992, when he was based in Rabaul, and from 2009-11 when he was based in Wabag.