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State v June [2020] PGNC 102; N8288 (4 March 2020)

N8288

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 939 of 2018
CR NO 953 of 2018

THE STATE

-v-

SEDE JUNE
PAUL LESTA
Defendants

Kavieng: Kangwia, J.
2020: 03^rd & 04^th March

CRIMINAL LAW - Practice And Procedure – no case to answer submission – accused made no case submission based on first leg of the case of State v Paul Kundi Rape – no case to answer upheld – accused acquitted

Cases Cited:

State v Paul Kundi Rape [1976] PNGLR 96 N34

Counsel:

L. Maru, for the State
M. Mumure, for the Accused

04^th March, 2020

1. KANGWIA, J.: This is a no case to answer submission at the close of the case for the State.

2. The accused were each charged with one count of indecent act under s.227 (1)(a) of the Criminal Code Act. They pleaded not guilty and the State offered sworn evidence through three witnesses.

3. The facts which are not in serious contention are that the accused were with a group of males involved in a ritual. The Key witness for the State who happened to pass by through a shortcut to her school identified three of them including the accused to be fully naked. She alleged that accused Sede June pulled her towards the fire. Not long after two other males came to her rescue and took her away.

4. The other two witnesses for the State gave no direct evidence in relation to offence.

5. The offence of indecent act is created by s.227 (1)(a) of the Criminal Code as follows:

227. Indecent acts

1. A person who-
   

(a) Willfully and without lawful excuse does an indecent act in a place to which the public are permitted to have access whether or not on payment of a charge for admission; or

(b) ...

Is guilty of a misdemeanor.

6. In submissions the Defence relied on the first leg of the State v Paul Kundi Rape [1976] PNGLR 96 case and submitted that the essential element of “indecent act” and “public place” were not established by the evidence offered on behalf of the State. The evidence was of acts and rituals performed in a bush near gardens which were not public places.

7. It was further submitted that the evidence of the first witness who averred of taking a shortcut to her school, affirmed that the shortcut and area of the activity was not a public place. They further submitted that the evidence of the Second State witness that he was collecting herbs in the bush when he saw the rituals being practiced also affirmed, the view that the rituals were not practiced in a public place.

8. While acceding that rituals were going on, the Court was urged to consider whether the rituals were intended for the public. They submitted that the ritual was a private act for which the bush was used.

9. On behalf of the State Ms. Maru submitted that the “public place” used in the offence was not defined in law. There was no interpretation of it.

10. It was submitted that the evidence showed that the track near where the activity was going on, was used by the public to travel between the two main villages. The area was not fenced nor was it a private property.

11. It was evidenced by the First Witness for the State who as usual, used the track to travel to her school. It was submitted that the evidence satisfactorily established the public use of the area.

12. Two issues arise from the submissions of counsel.

1. Whether the acts referred to were indecent acts; and
2. Whether the acts were committed in a place described by s227 (1) (a).
   

13. The issues are inter related and are considered together.
The law under s 227 (1) (a) is silent as to what constitutes an “indecent act” and the “place to which the public is permitted”. There is no specific interpretation as to the application of those words and terms. Therefore interpretations can vary. Both Counsel have appropriately and correctly proposed and argued their views from the evidence offered by the State.

14. In light of the views of counsel under the given facts, the Court is of the view that in the absence of a relevant interpretation under the Act, a determination would be dependent on the facts and circumstances under which the charges were laid.

S 227 (1) (a) refers to a “place”.

15. In Mr. Mumure’s submission the reference to a ‘public place’ is not a proper interpretation of ‘place’ referred to under s. 227(1) (a). The provision makes no mention of a public place. It refers to “a place in which the public are permitted to have access”.

16. The difference in my view is that ‘place’ under the provision would refer to areas including structures which had some form of enclosure around it like studious, sports fields, stores, school premises or church premises to name a few. That view is further qualified by the reference to payment of an admission fee.

17. A “place” in which the public are permitted to have access is more an open-ended description of a place. It would refer to a wider coverage including public places and others without specific enclosures.

18. In the present case it is not disputed that a ritual was performed in a bush. The bush was near a shortcut which was open to the public. It is also undisputed that during the ritual the accused with others were completely naked. The question that arises is whether such ritual amounted to an indecent act?

19. According to s 227 an act becomes an indecent act when it is done or performed at a place at which the public is permitted to have access to.

20. In the present case there is no evidence that the area where the ritual took place was a place where the public had access to. It was not a sports field, church premises, school grounds or any other establishment that the public could have access to.

21. However, there is a qualification as to the “place” under s 227(1) (a) of the Criminal Code Act. The qualification is that the “place” must be accessed by the public either by the payment of a charge or otherwise.

22. When considered with that qualification, the bush referred to in the facts of this case cannot qualify as a place from which s 227 (1)(a) can be invoked.

23. If the accused and the others did perform an indecent act, by being naked, it did not occur at a place where the public was permitted to have access. No one could pay a fee to enter the bush. Therefore, the bush cannot come within the ambit of “place” prescribed by s. 227 (1) (a) of the Criminal Code. The bush cannot be deemed as a place where the public can have access.

24. Secondly from the facts it makes no sense to suggest that the rituals were intended for the public. The public could not possibly be permitted access in to the bush in the early hours when people were naturally waking up.

25. Finally, it is the opinion of the Court that provisions under s 227 (1) (a) of the Act was structured for certain class of places where the offence of indecent act could be deemed to have been committed. Respectfully, I add that the provision was merely adopted as part of the common law. It could not have been intended to apply anywhere or everywhere including a short-cut through the bush at which a person may have access to either by chance or choice.

26. In view of those considerations this Court finds that the accused each and severally have no case to answer. Each accused is discharged. Any bail paid shall be refunded.
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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Applicant