Unreported National Court Decisions
N540
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
RAY SHEEKIOT
Madang
Wilson J
9 May 1986
12 May 1986
16 May 1986
CRIMINAL LAW - SECTION 16 OF THE CRIMINAL CODE - OFFENCES: UNLAWFUL ON PREMISES AND BREAK, ENTER AND STEAL - PERSON NOT TO BE PUNISHED TWICE FOR SAME ACT OR COMMISSION.
PROCEDURE - Appropriate application to be made on presentation of indictment.
DUTY OF COUNSEL - Required to raise relevant issues - Research law in interest of client.
Text
(1)      Criminal Jurisdiction of Magistrates in Papua New Guinea.
O’Neill & Dessailly (1982).
(2)      Criminal Law and Practice of Papua New Guinea.
2nd Ed. - Chalmers, Weisbrot & Andrew.
Cases Cited:
Gaiari-Ganeraba v. Giddings (1967-68) P.N.G.L.R. 346
R v. Ambaidunga Kinde (1974) No. 799
R v. Hull (1902) St.R.Qd.53.
R v. Gordon, Ex parte Attorney General (1975) Qd.R. 301.
Tapopwa Thomas v. St (1979) P.N.G.L.R. 140
WILSON J:  The accused was arraigned and pleaded guilty to a charge on indictment of Break, Enter and Steal. The brief allegation against the defendant was that he had participated in a break and enter of the Bogia Hotel when a vehicle was used to crash through the door of the bottle shop and an amount of liquor taken. After the premises were broken into in this manner, the defendant and others entered the premises and took bottles of liquor.
In accordance with the usual practice the depositions from the committal were tendered to me. I read them and formed the view that the plea should be accepted. On the allocutus the defendant stated that he wished his lawyer to talk for him. The State Prosecutor tendered an antecedent report which among other matters stated that the defendant had no prior convictions. The report stated that he had been charged with being unlawfully on premises (without detail of whether conviction had been entered). The Prosecutor indicated that the defendant had been in custody for five months. This information was presented in such a way as to suggest that this was time in custody awaiting trial.
Defence Counsel was then invited to make submissions. These were matters covering the defendant’s background and Defence Counsel submitted that the defendant did not have any prior convictions. Asked about the issue of time in custody, Counsel then informed the Court that the defendant had been in custody for five (5) months which was a sentence he had received for being unlawfully on the premises. On being questioned about this, Counsel informed the Court that this offence related to the same incident for which the defendant was to be dealt with by this Court.
After further discussion about the ramifications of s.16 of the Code to such circumstances and the Court’s concern to see that justice was done it was arranged that the depositions dealing with the previous offence would be tendered to the court and that the matter should be adjourned for Counsel to give consideration to the issues raised. It was clear to me that Defence Counsel had not given consideration to this aspect in his preparation of the case nor had he taken the care to examine the depositions of the previous conviction. At this stage both Counsel seemed to be of the view that since the charges disclosed different offences that was the end of the matter and the Court should proceed to sentence.
The matter was adjourned for several days. Neither Counsel had taken the trouble to consider the depositions and on resumption both maintained their previous view of the law. Both Counsel were then invited to review the depositions to see whether anything contained therein would change their view. It did not and they maintained that s.16 of the Code had no application.
It is appropriate to set out in full “the Statement of Facts” contained in the depositions and the information placed before the learned Magistrate by way of “Antecedent Report”.
“Statement of Facts:
It is alleged that on the 22nd day of September 1985, at about 11.55 pm the defendant who is now before the Court with five (5) of his friends accompanying him went to Bogia Hotel Bottle Shop in a stolen motor vehicle. The defendant was picked up in his village with the others by Anton Turik (driver), one of the accused. They drove all the way to Bogia Hotel Bottle Shop and stopped the vehicle, and reversed to the main door of the bottle shop and broken into by the force of the vehicle. After they had broken into the bottle shop, the driver told them to get whatever they wanted in the bottle shop. The defendant who is now before the Court ran into the bottle shop and grabbed two (2) Bunderberg bottle rum both valued at K32.50. After getting whatever they wanted they got back into the vehicle and followed North Coast Road towards Awar Government station. Getting the information from Bogia police station, the police started to follow them up. When seeing the police following them, they dumped the vehicle on the beach on the side of the road and decamped into the bushes. One of the suspected persons was arrested and brought to Bogia police station. Police help was sought from Madang police station where police from Madang arrived and caught the defendant and some of his friends and brought them to Madang Police station. The defendant was questioned about the offence where he fully admitted the offence. The defendant was arrested, told of his rights, cautioned, charged and placed in the cell.”
Immediately following was this information:
“Antecedent Report:
The defendant is a single man and residing with his parents at Samusamu Village, Bogia village and unemployed. The defendant has no previous conviction and he is still under investigation for some other offences he committed at Bogia.”
The facts set out above constitute the basis on which the defendant pleaded guilty before the learned Magistrate. I note at this stage that it is clear on the record that the act for which the defendant was to be punished was his act involving the break and enter.
The matter was adjourned by the learned Magistrate for a pre-sentence report from the Probation Service which was presented on 9 October 1985. At this time the learned Magistrate adjourned the matter again because of his concern of being made aware that the defendant was being charged with offence of Break, Enter and Steal. The following notation was made on the Court record:
“I am very reluctant to sentence the defendant at this stage due to the fact that I have only just become aware that the defendant was also been charged with Break & Enter in connection with the same incident that resulted in this change.
Matter is adjourned to allow time for the Prosecutor to contact the State Solicitor who is presently on circuit in Manus.”
On the 18 October the matter proceeded to sentence and because of the age of the defendant the learned Magistrate exercised his discretion under s.32(5) of the Child Welfare Act and treated the defendant as a juvenile and sentenced him to five months imprisonment.
I have set out the facts in this matter in detail as I consider that they are all relevant to a determination of the issue and assist in a proper understanding of the appropriate application of the law in this case.
Section 16 of the Criminal Code is in the following terms:
“16.    Person not to be punished twice for same offence.
(1)      “Subject to Subsection (2), a person cannot be punished twice under the provisions of this code or under the provisions of any other law for the same act or omission.
(2)      Subsection (1) does not apply where an act or omission is such that by means of it the offender causes the death of another person, in which case he may be convicted of the offence of which he is guilty by reason of causing death, notwithstanding that he has already been convicted of some other offence constituted by act or omission.”
It is important to recognise that s. 16 of the Criminal Code is quite different to s.17 which is the statutory recognition of the defence commonly known as “autrefois convict or acquit”.
In considering the application of s.16 of the Criminal Code it is in my view necessary to take a broad view. The Constitution s.158(2) dealing with the exerise of Judicial Power directs that “(2) in interpreting the law the Court shall give paramount consideration to the dispensation of justice”.
The correct way of interpreting s.16 of the Code is to look primarily at the act or omission for which the accused is to be punished, not to concentrate on the offence as stated and then decide on the similarity or otherwise of the offences. This latter approach is more relevant to a consideration of the defence in s.17 of the Code.
The wording of s.16 of the Criminal Code does not say that a person cannot be punished twice for the offence, it specifically directs attention to the act or omission. This is made absolutely clear when one considers s.16(2) which uses the words “... notwithstanding that he has already been convicted of some other offence constituted by the act or omission.” (my emphasis).
In my view the approach taken by Minogue, J. (as he then was) in Gaiari-Ganeraba v. Giddings (1967-68) P.N.G.L.R. 346 at p.352, is correct. His Honour states:
“(the) intention of s.16. is to direct consideration of the substance of an offence, that is the ingredients that go to make up the act or omission which renders the doer of the act or the maker of the omission liable to punishment”.
It is important to recognise that it is not the elements of the particular offence that is to be considered but the ingredients of the acts or omission.
Where there is, as there is in this case, contemporaneity the concept of unity emerges and from that can be seen the rationale in justice for such a provision. Griffiths, C.J. expressed this aspect succinctly in R v. Hull (1902) St.R.Qd.53 at p.57, when he said of s.16:
“I think it is only necessary to look at the words “the same act or omission” to say, that when it is alleged that acts referred to in two indictments are the same, there is implied a unity, at least of time and place”.
In R v. Gordon, Ex parte Attorney-General (1975) Qd R 301, Williams, J. at p.323 set out what in his view was the proper test when he said:
“Whether the same wrongful act or omission which previously resulted in conviction and punishment is the central theme, the focal point or for want of a more apt choice of words and perhaps more appropriately, the basic act or omission in the later offence charged.”
I respectfully adopt this test.
It is necessary to consider all the facts of a particular case to determine whether s.16 of the Code is applicable. It is clear when one reviews the facts of this case that the basic act is comprehensively included in both charges. It is clear that the learned sentencing magistrate was punishing the defendant for the same acts for which I am now invited by the State to impose sentence. To do so would in my view amount to an injustice. It is clear that the defendant would rightly have considered himself dealt with finally by the learned magistrate, the facts tendered by the prosecution on his plea cover the ground comprehensively. The prosecuting authorities were alerted to the position by the learned Magistrate and proceeded to sentence.
I am aware that it is the practice for the charge of “Unlawfully on Premises” to be used as a holding or back up charge. The prosecuting authorities however must be alert to the concept of double punishment and realise their responsibility in the decisions they take on the offences they pursue in such circumstances. In this context I refer to and approve the following passage from “Criminal Law and Procedure in Papua New Guinea” (2nd Ed.) at p.698, 699:
“Where the being unlawfully adjacent was immediately followed by the theft, it is unjust to punish for both offences. The cases where the two offences are so distinctive as to deserve two sentences must be very rare. There is no objection to charging an offender with the two offences, however, so that if the major offence of stealing cannot be proved the prosecution may fall back on the lesser charge under this section. Kalia Fane v. Police (1959) No.144”.
There is a useful discussion of the application of s.16 of the Code in the same edition of “Criminal Law and Procedure in Papua New Guinea: at pp.305-309 and also in the very helpful “Criminal Jurisdiction of Magistrates in PNG” by Messrs O’Neill and Dessailly at s.74.
Turning now to the position of the defendant before the Court. The case was interrupted before the completion of the Defence Councel’s submission. It is clear that a plea of guilty is not a conviction and in my view Defence Councel’s submissions form part of the allocutus. The Court has a discretion regarding the recording of a conviction up until the completion of the allocutus. R v. Ambaidunga Kinde (1974) No.799. I exercise that discretion and now re-consider the matter as if it were a motion to quash the indictment. On the basis that a conviction on this indictment would of itself be punishment for the same acts for which the defendant has already been punished I quash the indictment and discharge the defendant.
This procedure is appropriate in this case because all the facts are before the Court as the defendant was entering a plea and the depositions were tendered. There being no dispute on the facts it is not necessary for the Court to reserve its deliberation, as would normally be the case, until the close of the evidence. As to the question of whether conviction amounts to punishment see Prentice, C.J. in Tapopwa Thomas v. St (1979) P.N.G.L.R. 140.
The defendant was represented by Counsel who should have taken the appropriate course of applying to quash the indictment when it was first presented. It is clear that Counsel was instructed that the defendant had previously been convicted and punished. Counsel has a duty to his client to vigorously and fully investigate the circumstances of his particular brief and to acquaint himself with all the facts and the law. Failure of any Counsel to undertake these basic tasks can only result in injustice and a demeaning of the essential role that the lawyer plays in the administration of justice. My comments on this case are made as an indicator and hopefully as a guide for Counsel to be alert to all possible defences and to pursue the appreciation of the law, the lawyers tools of trade, with diligence and commitment. If this is done so it can be of invaluable assistance to the Court. If Counsel fail to do so, it is as failure of the lawyer’s duty.
Lawyer for State: State Prosecutor
Lawyer for Defendant: Public Solicitor