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Sulu v The State [2003] PGNC 64; N2456 (31 July 2003)

N2456

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT LAE]

CR. 369 of 2003

KAPE SULU

- vs -

THE STATE

Lae: Manuhu, AJ

2003: 30 & 31st July

JUDGMENT

CRIMINAL LAW – Application to quash indictment – Effect of changes in the law – Repeal of ‘unlawful carnal knowledge’ provision – Substituted with ‘sexual penetration’ provision - New penalty provision - Offence committed prior to new provision – Accused indicted under new provision.

Cases Cited:
The following cases were cited in the judgment:
Baizi Tadu Avona v. The State [1986] PNGLR 148.
The State v Tom Gaia and Two Others (Unreported) N544.

Counsel:
Ms. Maliaki, for the Applicant.
Ms. Ganai, for the Respondent.

31st July 2003.

MANUHU, AJ: Before pleading to the charge on the indictment, the accused person, through his lawyer, applied to the court for the indictment to be quashed on the basis, I presume, that the indictment is "calculated to prejudice or embarrass him in his defence" or that "the indictment is formally defective".[1]

The indictment was presented against the accused charging him with one count of sexual penetration of a girl under sixteen years old. The charge is laid pursuant to a new provision, section 229A of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 ("The Act"), which carries a maximum penalty of twenty five years imprisonment. The Act was certified on 26th June 2002 and is already in force but the actual gazettal date is presently unknown. The repealed predecessor of this provision is section 216[2], which prescribed that a person who has carnal knowledge of a girl under the age of sixteen years is guilty of a misdemeanour, and may be sentenced to a term not exceeding five years.

The substance of the application is that the new provision was not in force at the time of the alleged offence. The alleged offence was committed on 3rd November 2002. The new provision came into effect after the commission of the offence. Thus, consistent with section 37(2) of the Constitution and section 11 of the Criminal Code, it is argued, the accused cannot be charged under the new provision.

Section 37(2) of the Constitution lays down the broad perimeters of the general principle that no one should be punished for an offence not defined by and the penalty for which is not prescribed by a written law. In the daily application and administration of this principle, section 11(1)[3] is relevant. Section 11(1) provides that a person cannot be punished for doing or omitting to do an act unless the act or omission constituted an offence under the law in force when it occurred; and, doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when he is charged with the offence. Section 11(2) provides that if the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorized by the former law, or to any greater extent than is authorized by the latter.

Counsel for the applicant referred to the Supreme Court case of Baiza Tadu Avona v. The State[4] where section 11 was discussed. However, that case relates to changes in the penalty provisions only. The immediate case relates to the definition of the offence as well as the penalty provision. In any event, one of the issues therein was whether section 11(1) and section 11(2) should be read together or independently. The Supreme Court considered and disagreed with the views of Kapi, DCJ (as he then was) in The State v Tom Gaia and Two Others[5], thus:

"With respect to his Honour, we do not agree that the provision cannot be read on its own. The provisions of s. 11(1) are directly related to the offence and to the circumstances in which a person can be punished for doing or omitting to do an act. Section 11(2) in broad terms deals with penalty or punishment. It may well be that there are situations where both provisions apply to the particular circumstances of a particular case but it is equally true that that s. 11(2) can apply where only a penalty provision or penalty aspect of a particular offence has been altered. It is our view that the provision should be read this way. The provision of s. 11(1) can be read without reference at all to s. 11(2)."

Unlike the Supreme Court case, which relates to a change in the penalty provision only, this application relates to the separate issue of the validity of the charge against the accused. In other words, the question of whether the accused could be charged under the new provision must be considered separately under section 11(1). Section 11(2) does not apply until after conviction when consideration of appropriate sentence becomes necessary.

Under section 11(1), therefore, where there is a change in the law, two requirements must both be met before a person can be charged for the offence concerned. First, the act or omission in question must constitute an offence under the law in force when the concerned act or omission occurred. Secondly, the act or omission under the same circumstances must constitute an offence under the law in force when a person is charged or indicted.

To my mind, this means in practice that, since the old provision is no longer in existence and has no application, the relevant charge must proceed under the new provision, subject to the following conditions. First, where an act or omission was not an offence at the time it was committed no future law can have retrospective effect to hold any person criminally responsible for that act or omission. Thus, the laying of an indictment in this situation cannot be maintained. Secondly, where an act or omission constituting an offence was committed during the existence of the relevant repealed law, the would-be offender cannot be charged after the repeal if the act or omission in question no longer constitutes an offence. Thus, except for those offenders whose cases have been finalised, any pending prosecution of an act or omission constituting an offence under the repealed law has to be abandoned. Thirdly, where an act or omission constitutes an offence under the repealed law, and the same act or omission still constitutes an offence under the new law, the offender can be charged under the new law.

In this case, section 216 has been repealed and it has no application. The prosecution cannot maintain a charge under section 216 but it can under the new section 229A. Whilst the act or omission complained of was committed prior to the new provision becoming effective, all the necessary requirements have been met. That is, the act or omission complained of constituted an offence under the repealed law under section 216. The same act or omission constitutes an offence under the new law under section 229A. Whilst the wordings of the charge have been changed, for instance, from "sexual intercourse" to "sexual penetration", there is no practical difference in the elements of the act or omission complained of.

For the foregoing reasons, I am of the ultimate view that the accused can be charged under the new section 229A even when the act or omission complained of was committed prior to section 229A becoming law.

The conclusion I have reached naturally raises the question of punishment in the event the accused is convicted. As I have earlier stated, this is when section 11(2) and the decision of the Supreme Court in the cited case become directly relevant. Section 11(2) specifically provides:

"If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorised by the former law, or to any greater extent than is authorised by the latter law."

In the Supreme Court case referred to, there was a discussion on whether the old penalty provision has been repealed or amended. The Supreme Court observed that "the provisions that amend the penalty provisions in substance are amendments although the word repeal is one of the words that is used and the word amend and replacement are also used." In my view, however, such distinction is not necessary. Amended or repealed, under section 11(2), between the old and the new penalty provisions, a prisoner must only be subjected to the lesser of the two penalty provisions.

Thus, if the new penalty provision carries a lesser penalty that would indeed be the applicable penalty provision despite the fact that the offence was committed before the new penalty provision became law. The offence of incest may be dealt with in this way because, under the Act, the penalty for incest has been reduced from life imprisonment to seven years maximum. On the other hand, where the old penalty provision is the lesser penalty, that would be the applicable penalty provision, despite the fact that the charge and conviction were sustained under the new law.

In this case, therefore, whilst the accused may be charged, by virtue of section 11(2), under section 229A, the maximum penalty that may be imposed on him is five years which is the penalty for sexual intercourse of a girl under the age of sixteen years under the repealed law. He cannot be subjected to the higher penalty of twenty five years.

The conclusions I have reached in respect to my understanding of section 11(1) and section 11(2), in my view, is not only convenient but is also in harmony with section 37(2) of the Constitution and the general principles of fairness in the administration of criminal justice. On the other hand, it is inappropriate that charges should be laid under an old law when it no longer exists.

Accordingly, I find that the indictment and the charge therein against the accused are not defective and not prejudicial to the accused person. I dismiss the application.

Orders accordingly.
___________________________________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the Accused : Public Solicitor

^[1] See s. 558 of the Criminal Code.
^[2] (Criminal Code).
^[3] (Criminal Code).
^[4] [1986] PNGLR 148.
^[5] (Unreported) N544.