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State v LT (Juvenile) [2025] PGNC 138; N11269 (17 April 2025)

N11269

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (JJ) No. 55 OF 2024

STATE

V

LT (JUVENILE)

WAIGANI: NUMAPO J
17 APRIL 2025

CRIMINAL PRACTICE & PROCEDURE – Attempted Rape – s.348 Criminal Code- Jurisdiction of the Juvenile Court – ss. 17 (2) & 20 (1) Juvenile Justice Act – National Court’s jurisdiction on juveniles limited to offences punishable by death or imprisonment for life – Matter transferred to the Juvenile Court.

Brief Facts
LT is 16 years old and a juvenile within the meaning of s. 2 of the Juvenile Justice Act 2014 (JJA). He was charged with one count of attempted rape under s 348 of the Criminal Code that carries a maximum penalty of 14 years. Except for homicide, rape or other offences punishable by death or imprisonment for life, the National Court has no jurisdiction to hear and determine the trial after the committal proceedings is completed pursuant to ss.17(2) and 20(1) of the JJA.

Held:

1. The National Court’s jurisdiction is limited by operation of ss 17 (2) and 20 (1) of the JJA except where the offence alleged to have been committed by the juvenile involves homicide, rape or other offences punishable by death or imprisonment for life.
   
2. The Juvenile Court established under the JJA is vested with specific jurisdiction to deal with juvenile offenders in both summary and indictable offences.
   
3. The National Court has no jurisdiction to hear and determine the allegation against LT in this case. The matter is transferred to the District Court to be heard and determined summarily by the Juvenile Court constituted by a Juvenile Court Magistrate pursuant to s. 17 (3) of the JJA.
   

Counsel
E Kave for the State
B Popeu for the juvenile

1. NUMAPO J: This is a ruling made in relation to the jurisdiction of the National Court on a juvenile charged with an indictable offence.

A. BACKGROUND

2. This is a ruling on the submission made on the jurisdiction of the National Court under ss 17 and 20 of the Juvenile Justice Act 2014 (JJA).

4. The name of the Juvenile will be suppressed for obvious reasons under the requirements of s 112 of the JJA. For purposes of this proceeding, the Juvenile will be referred to as LT.
   
5. LT was charged with one count of attempted rape under section 348 of the Criminal Code and was committed to stand trial in the National Court. He sexually assaulted an 8 year old girl. He was 16 years old at the time the offence was committed and therefore is a juvenile as defined under s. 2 of the JJA.
   
6. When the matter first came for mention before the National Court, the court made an inquiry into the age of the Juvenile as required under s 61 of the JJA. A ‘First Appearance Inquiry Report’ was tendered to court by the Juvenile Justice Officer, Ms Belinda Vuvut confirming the age of the Juvenile as 16 years old at the time the alleged offence was committed.
   
7. The court then directed both Counsels to make submissions with respect to the jurisdiction of the National Court given that the Juvenile was charged with attempted rape under s.348 of the Criminal Code. Section 20 (1) of the JJA states that the National Court only has jurisdiction to deal with indictable offences where death penalty or life imprisonment is imposed as maximum sentence. The offence of attempted rape carries a maximum penalty of 14 years imprisonment.
   

B. ISSUE

8. The issue is; whether the National Court has jurisdiction to hear and determine the matter.
   
9. It appears that the National Court would have no jurisdiction to hear and determine this matter if ss 17 and 20 of the JJA is given its literal meaning because the charge of attempted rape under s 348 of the Criminal Code carries a maximum penalty of 14 years and not a death penalty or life imprisonment.

C. THE LAW

10. Section 17 of the JJA states that the Juvenile Court has exclusive jurisdiction to deal with summary offences triable in the District Court (s 17(1)(a)) and any indictable offence triable summarily (s 17(1)(b)) except for those that carry the maximum penalty of death or life imprisonment (s 17(2)) without the need for election by the prosecuting authority (s 17(4)).
    
11. Section 20 of the JJA further defines or explains the exercise of jurisdiction by the National Court.

D. DEFENCE SUBMISSIONS

12. Counsel representing LT, Mr Bernard Popeu submitted that under ss 17 and 20 of the JJA, the National Court has no jurisdiction to hear and determine the matter given that the accused was 16 years old and was therefore, a juvenile within the meaning of s 2 of the JJA when the offence was committed.
    
13. Furthermore, Counsel submitted that Order 3 Rule 5 of the Criminal Practice Rules 2022 states that:

“If the Court determines that the accused is a juvenile, the Court shall proceed to determine whether it has the jurisdiction in the case, having regard to s.20 (exercise of jurisdiction by the National Court) of the Juvenile Justice Act, in form 20.”

14. Section 20 of the JJA makes it clear that if the juvenile is charged with homicide, rape or other offence punishable by death or imprisonment for life, the National Court shall hear and determine the trial after the committal proceedings is completed.
    
15. In this case, LT was charged with attempted rape pursuant to s 348 of the Criminal Code which carries a maximum sentence of 14 years. It is not a charge of rape under s.347 which is punishable by death or imprisonment for life. On that basis, defence Counsel submitted that the National Court under s 20 of the JJA and Order 3 Rule 5 of the Criminal Practice Rules, has no jurisdiction to hear and determine the allegation. The matter should, therefore, be transferred to the Juvenile Court to be dealt with summarily.

E. STATE’S CASE

16. Ms Elizabeth Kave for the State submitted that although, LT was charged with attempted rape under s 348 of the Criminal Code, the State after having considered the evidence opted to charge him with sexual penetration of a child under the age of 16 years pursuant to section 229A (1) (2) of the Criminal Code. The charge of sexual penetration carries life imprisonment therefore, it comes under the jurisdiction of the National Court.
    
17. Ms Kave submitted further that although, LT was committed to stand trial for attempted rape, the evidence on file strongly suggested that penetration did take place to support the charge of sexual penetration under s 229A (1)(2).
    
18. Counsel further submitted that the Public Prosecutor has powers under section 525 (1) (a) of the Criminal Code to charge a person for whatever offence the evidence appears to warrant. The Public Prosecutor is mandated with the prosecution function under sections 176 and 177 of the Constitution which is further expounded in the Public Prosecutor (Office and Functions) Act 1977.
    
19. Section 177 (a) clearly states that the function of the Public Prosecutor is to control the exercise and performance of the prosecution function; one of which is the power to elect under section 420 and Schedule 2 of the Criminal Code and section 4 (1) (a) of the Public Prosecutor (Office and Functions) Act 1977.
    
20. Ms Kave emphasized that the prosecution powers is vested on the Public Prosecutor by the Constitution and is subject to no authority except only in matters for National Security under section 177 (3) (a) (b) (4) of the Constitution. The powers so vested to allow for the vetting process in the criminal justice system to ensure that offenders are charged with correct charges. After the committal process is completed and the accused is committed for trial, the Public Prosecutor considered the evidence contained in the Police Hand Up Brief and the committal depositions and assess the strength of the evidence and in the exercise of its powers under the Constitution, the Criminal Code and the Public Prosecutor (Office and Functions) Act and will decide what appropriate charge to present the indictment accordingly.
    
21. Section 17 of the JJA does not remove any of the powers of the Public Prosecutor.

F. DETERMINATION

22. Having heard submissions from Counsels, I am satisfied that the National Court’s jurisdiction is limited by operation of s 20 of the JJA except where the offence alleged to have been committed by the juvenile involves homicide, rape or other offences punishable by death or imprisonment. Furthermore, the Juvenile Court has exclusive jurisdiction under s 17 of the JJA.
    
23. The Juvenile Court established under the JJA was vested with specific jurisdiction to deal with juvenile offenders in both summary and indictable offences. Whilst summary offences are largely dealt with by the District Court, category of indictable offences committed to the National Court is limited only to homicide, rape cases or other offences punishable by death or life imprisonment.
    
24. The objective of the JJA is made clear in section 5; “...to establish the basis for the administration of a comprehensive and separate juvenile justice system and to establish a code for dealing with juvenile charged with or alleged to have committed an offence.”
    
25. As regards to the issue on whether ss 17 and 20 of JJA infringes on the powers of the Public Prosecutor under ss 176 and 177 of the Constitution, that is a matter for the Supreme Court having the original interpretative jurisdiction under s 18 of the Constitution to interpret, if and when the matter is referred to it, but for now, it is clear to me that this case falls outside of the jurisdiction of the National Court given that LT was charged with an offence that does not carry a death penalty or life imprisonment. For such cases the Juvenile Court has an exclusive jurisdiction under ss 17 and 20 of JJA.
    
26. In its Pre-Trial Review Statement, the State opted to proceed with the charge of sexual penetration of a child under s 229A (1) (2) of the Criminal Code instead of the attempted rape charge of which LT was committed to stand trial on. Counsel for the State submitted that the evidence in the file supports the charge of sexual penetration. The evidence supporting sexual penetration is yet to be presented to the court and the burden is on the State to discharge that beyond a reasonable doubt and until that is done, it would be unwise in my opinion, to speculate on the strength of the evidence.
    
27. All in all, I am satisfied that this Court does not have the jurisdiction to hear and determine the allegation against LT in this case. The matter, therefore, is to be heard and determined by the Juvenile Court pursuant to the provisions of the JJA. Accordingly, I order that this matter is transferred to the Juvenile Court.

G. ORDER

28. It is Ordered that:

(i) This matter is transferred to the Waigani District Court to be heard and determined by the Juvenile Court constituted by a Juvenile Court Magistrate exercising the powers of summary jurisdiction pursuant to s.17 (3) of the JJA.
(ii) The Registrar of the National Court shall transfer forthwith the Court file to the Clerk of the Waigani District Court for the matter to be listed before a Magistrate of the Juvenile Court.
(iii) LT is to be accorded with all treatment necessary as required under the JJA for his appearance before the Juvenile Court.
(iv) Bail (parental) is extended with conditions.

Orders accordingly
__________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for defence: Public Solicitor