N5159

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 13 OF 2009

BETWEEN

THE STATE

V

VIRGIL KAGENI
(No.1)

Popondetta: Toliken AJ
2012: 13th, 14th August

CRIMINAL LAW – Practice and Procedure – Indictment – Charging one count of rape and an alternative count of sexual penetration of a girl under the age of 16 years – Application to quash – whether indictment defective – Alternative verdict available – Indictment not defective or prejudicial to accused – Motion refused – Criminal Code Act Ch. 262, ss 229A, 347, 531, 541 

Cases Cited

The following cases are cited in the judgment:

Mames –Weviong v Zania [1967-1968] PNGLR 79
R v Walsh [1971-1972] PNGLR 293

Counsel

M. Ruarri, for the Applicant
A.Ninkama, for the State

RULING ON MOTION TO QUASH INDICTMENT

14th August, 2012

1.	TOLIKEN AJ. The State presented an indictment charging the accused with one count of rape contrary to s 347 of the Criminal Code Ch. 262 (the Code) and alternative count for sexual penetration of a girl under 16 years of age contrary to s 229A(1) of Code.

2.	The accused was arraigned and pleaded not guilty to both counts. Soon after that Mr. Ninkama of counsel for the accused verbally moved to quash the indictment pursuant to s 558 of the Code.

3.	Mr. Ninkama submitted that the indictment is defective and is prejudicial to the accused. He relied on s 531 of the Code which provides that an indictment must charge one charge only and not two or more offences notwithstanding that subsections (2)(3) allow for joinder in certain circumstances. However, if the court views that the accused may be prejudiced then the State should be directed to elect what charge to proceed with. 

4.	Mr. Ninkama argued that the two charges are meant for two different scenarios since the recent amendments to the Code. He argued that s 229A (Sexual penetration of a Child under 16) caters for child victims who are incapable in law of giving consent while s 347 caters for adult victims.

5.	 He argued that the appropriate charge in this matter should be under s 229A of the Code. As it stands the indictment is defective unless the State can rectify the defect. The indictment, he argued, is defective as it prejudices the accused's defence of consent under s 229F of the Code (as amended) and furthermore it is a denial of the accused right under s 37 of the Constitution.

6.	Mr. Ruarri for the State on the hand said that he understands the crux of the motion to be over the alternative count. He argued, however, there is only one charge and that is the charge of rape under s 347 of the Code. The alternative charge is only there as a fall back charge should the evidence support it.

7.	Neither counsel was able to cite any authorities to me on the point.

8.	Now, subject to the Code, s 531 (1) generally prohibits an indictment charging more than one offence where there exists a general deficiency that cannot be reconciled from the evidence. R v Walsh [1971-1972] PNGLR 293.

9.	Subsection (2) of s 531, however, allows for the joinder of distinct offences where they are alleged to be constituted by the same acts or omissions or by a series of acts done or omitted to be done in the prosecution of a single purpose and it is not necessary to allege a connexion between the offences.

10.	But if it appears to the Court that the accused may be prejudiced then the Court can direct the prosecutor to do either of two things: (1) he can elect which charge he will proceed with or (2) direct that each of the charges be tried separately (Section 531(3) of the Code). Hence the joinder of distinct offences on an indictment in those situations contemplated by subs. (2) does not render the indictment fatally defective. Mames –Weviong v Zania [1967-1968] PNGLR 79. Subsection (4) of s 531, however, prohibits the joinder of a charge of wilful murder, murder or manslaughter with a charge of any other offence.

11.	So is the indictment defective or prejudicial to the accused?

12.	I think that the indictment is not defective nor it is prejudicial to the accused. The joinder of the alternate count for sexual penetration under s 229A seems to me to be clearly allowed by subsection (2) of s 531. Granted, the offences in question are quite distinct but they are constituted by the same act, an act that is allegedly directed towards the achievement of a single purpose. As it is, one charge is essentially alleging that the alleged act of sexual penetration was non-consensual but in the event that it was, the consent was ineffectual in law, hence the alternative count.

13.	Now it is true that the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 brought about some radical amendments to the Code. However, this had no negative impact on the power of the court under s541 of the Code to return an alternative verdict for sexual penetration of an under aged girl where an accused had been charged for rape.

14.	I therefore refuse the motion to quash the indictment. The indictment will proceed on the charge of rape as intimated by Mr. Ruarri.

15.	Now in hindsight it might not have been procedurally proper for the Court to arraign the accused on the alternative charge of sexual penetration under s 229A. So to further remove any confusion or any perceived prejudice this course might have brought upon the accused, his purported plea to the alternative charge will be vacated.

16.	I therefore order as follows:

(1)	That the trial proceed on the count of rape

(2)	That the accused's purported plea to the alternate charge for sexual penetration under s 229A of the Code is vacated. 

 ________________________________________________________________
P. Kaluwin, Public Prosecutor: Lawyers for the State	
Paul Paraka Lawyers: Lawyers for the Accused