N9669

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1073 OF 2021
CR N0 1074 OF 2021
CR NO 1075 OF 2021
CR NO 1076 OF 2021

STATE

V

EMMANUEL OKA, JUNOR OKA, BUPA OKA AND BRANDA OKA

Waigani: Wawun-Kuvi, AJ
2022:  5th, 9th, 24th & 27th May

CRIMINAL LAW-TRIAL-Application to stop the case-Criminal Code, Wilful Damage to Property, s 444(1)-Application to stop the case- Indictment Duplicitous- State’s case run on one set of evidence- State’s case ambiguous and plague with various issues - Application to stop case upheld

The accused persons were jointly charged for Wilful Damage to Property under section 444(1) of the Criminal Code. The properties were: a dwelling house, a trade store, two deep freezers, a cooler freezer, power sewing machine, flat screen television, fan, radio, traditional attire, utensils, clothes, and beddings. The State alleged that the accused acted in concert when they damaged the properties. The State invoked section 7 (1) (a)(b)(c) of the Criminal Code. 

Held:

1.	In an application to stop the case, the court considers the tenuous character of the State’s evidence which may be that it is inherently weak, vague or is inconsistent with other evidence. This is the second limb enunciated in the case of State v Paul Kundi Rape [1976] [1976] PNGLR 96 which was endorsed by the Supreme Court in, The State v Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] PNGLR 287.

2.	There is no weighing of the evidence or assessment on the credibility of witnesses at this stage. Any issues in relation to the State’s case must be apparent on the face of the evidence.

3.	The evidence at the close of the State’s case revealed that the indictment was bad for duplicity and in breach of section 531 of the Criminal Code.

4.	The rule against duplicity prohibits the charging of separate and distinct offences in one count or statement of offence: Walsh v Tattershall (1996) 188 CLR 7. See also State v Paraka [2021] PGNC 55; N8807, State v Paraka [2021] PGNC 222; N8938, State v Yawijah [2019] PGNC 52; N7767 and State v Kasen [2001] PGNC 64; N2133.

5.	Whether an indictment is duplicitous depends on the factual circumstances of the case and whether it may be considered as a series of acts constituting one offence: R v Baynes [1989] 2 Qd R 431.

6.	In the present circumstance, the evidence revealed two distinct offences that were separated by several weeks. Some of the accused persons were involved in one offence and not the other. The evidence did not demonstrate a connection between the two offences.

7.	The duplicity is further plagued with various issues that have tainted the State’s case. 

8.	Considering the duplicity and the various issues that have created ambiguity and inconsistency, the application to stop the case is upheld.

Cases Cited:
Papua New Guinean Cases

State v Paraka [2021] PGNC 222; N8938 
State v Paraka [2021] PGNC 55; N8807 
State v Yawijah [2019] PGNC 52; N7767
State v Kasen [2001] PGNC 64
The State v Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] PNGLR 287 
The State v Paul Kundi Rape [1996] PNGLR 96

Overseas Cases

Walsh v Tattershall (1996) 188 CLR 77
R v Baynes [1989] 2 Qd R 431
DPP v Merriman [1973] AC 584

Reference

Criminal Code (Ch 262)

Counsel

Ms Gretel Gunson, for the State
Ms Rachael Mangi, for the Defence

RULING

27th May, 2022

1.	WAWUN-KUVI, AJ:  The State presented an indictment jointly charging the accused persons for wilful damage to property under section 444(1) of the Criminal Code. All accused, denied the charge, and each pleaded not guilty. The State called four witnesses and closed its case.

2.	The defence then moved an application to stop the case. 

3.	The application was moved pursuant to the second limb enunciated in the case of State v Paul Kundi Rape [1976] which was endorsed by the Supreme Court in, The State v Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983].

4.	Under the second limb, the court considers whether the State’s evidence is of a tenuous character, that is, whether it is inherently weak, vague or is inconsistent with other evidence. 

5.	There is no weighing of the evidence or assessment on the credibility of witnesses at this stage. Any issues in relation to the State’s case must be apparent on the face of the evidence.

6.	The question of proof beyond reasonable doubt is not considered at this stage of the proceedings. The Court must consider whether on the evidence as it stands the accused can lawfully be convicted: State v Paul Kundi Rape [1976].
7.	The Defence have made some submissions that have touched on inviting the Court to weigh the evidence. That is misconceived.

8.	The relevant submission as it relates to the application is as follows:

•	There is no evidence as to who damaged the two deep freezers, a cooler freezer, power sewing machine, flat screen television, fan, radio, traditional attire, utensils, clothes, and beddings.
•	There is evidence that the dwelling home described as the “bottle house” and the “chicken house” are one building. The evidence demonstrates that another person at the behest of the complainant was responsible for removing the other part of the building described as the “chicken house”.
•	The evidence does not clearly show that the complainant is the owner of the dwelling home.

9.	The State in response submits that there is sufficient evidence establishing each element of the offence.

The Indictment

10.	The accused persons are charged as follows:

“……on 2 August 2019, at 9 Mile, Moitaka Ridge, Port Moresby, National Capital District in Papua New Guinea, willfully and unlawfully damaged properties namely a bottle house, and a trade store including properties such as two deep freezers, a cooler freezer, power sewing machine, flat screen TV, fan, radio, traditional attire, utensils, clothes, and beddings all valued at K47 800, the property of Cathy Oka.”

11.	 The evidence on close of the State’s case revealed that the indictment was bad for duplicity and in breach of section 531 of the Criminal Code. 

12.	The rule against duplicity prohibits the charging of separate and distinct offences in one count or statement of offence: Walsh v Tattershall (1996) 188 CLR 7. See also State v Paraka [2021] PGNC 55; N8807, State v Paraka [2021] PGNC 222; N8938, State v Yawijah [2019] PGNC 52; N7767 and State v Kasen [2001] PGNC 64; N2133.
13.	Whether an indictment is duplicitous depends on the factual circumstances of the case and whether it may be considered as a series of acts constituting one offence: R v Baynes [1989] 2 Qd R 431 and State v Yawijah [2019] PGNC 52.

14.	Duplicity is not fatal for the prosecution. The prosecution will only be required to elect which of the charge it wishes to proceed with: Section 531 (3)(a) of the Criminal Code. See also State v Yawijah [2019] PGNC 52; N7767.

15.	Indicting for the damage to multiple items of properties in one count may not in itself constitute a separate offence. The facts must demonstrate that the events are so closely related that they form ‘one transaction’ and may be charged in one count: DPP v Merriman [1973] AC 584.

16.	An indictment which charges multiple persons for damage to multiple items of properties may also be charged as one count. They are captured under the provisions of section 7 and 8 as either principal offenders or aiders and abettors: R v Baynes [1989] 2 Qd R 431.

17.	In the present circumstance, the evidence revealed two distinct offences that were separated by several weeks. Some accused were involved in one offence and not the other. The evidence did not demonstrate a connection between the two offences.

18.	The duplicity is further plagued with various issues that have tainted the State’s case. 

19.	Firstly, the State conducted its case on one set of evidence. 

20.	In R v Baynes [1989] a case of two accused jointly charged in one count for distinct offences, the Court of Appeal ruled that two separate, consecutive, and distinct incidents should not be included in one count. However, there was no miscarriage of justice because the trial was conducted based on two identifiable sets of evidence applicable to the offence against each accused. The defectiveness was cured on appeal. 

21.	The result of the State conducting its case on the same evidence is that the State’s case is ambiguous.

22.	There is no evidence whether the properties described as two deep freezers, a cooler freezer, power sewing machine, flat screen television, fan, radio traditional attire, utensils, clothes, and beddings were inside the “bottle house” or the trade store.

23.	There is no evidence that any of those items of property were damaged. The complainant gave general evidence regarding some items but implied that they were stolen.
 
24.	Secondly, the evidence shows that Junior Oka was not present on 2 August 2019 as alleged in the indictment.

25.	Thirdly, the evidence demonstrates that Bupa, Branda, and Emmanuel Oka were not present on the second occasion. Or had any part or involvement in the second occasion.

26.	Fourthly, the evidence demonstrates that a person named as Clement Bruno was the instigator and the person responsible for removing the building described the “bottle house” on 2 August 2019. There was no explanation as to why he was not arrested.

27.	Fifthly, the evidence demonstrates that the dwelling house described as the “bottle house” and the dwelling house described as the ‘chicken house are one building. The occupants of the “bottle house” are Bupa, Branda, Emmanuel, and their families. The occupants of the “chicken house” are Junior and his family.

28.	The complainant was responsible for some damage to the “bottle house’ and at her behest, her son took down the “chicken house”. 

29.	Finally, whilst there is some evidence against Bupa Oka and Emmanuel Oka for the events of 2 August 2019, the evidence is not of them destroying or damaging the part of the dwelling house described as the “bottle house”. The evidence is that they were removing their dwelling home following a domestic dispute with their stepmother. 

30.	Considering the duplicity and the various issues that create ambiguity and inconsistency in the State’s case, the application to stop the case is upheld.

Orders

31.	The Orders of the Court are:

1.	Application to stop the case upheld.
2.	Verdict of Not Guilty Returned.
3.	Accused persons are acquitted.
4.	The accused are discharged of the Indictment.
5.	Bail is refunded.

________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defendants