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State v Monja [1987] PGNC 15; N632 (27 November 1987)

Unreported National Court Decisions

N632

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 747 OF 1987
THE STATE
V
ALBERT MONJA

Waigani

King AJ
26 October 1987
28-29 October 1987
4 November 1987

KING AJ: is trial of the accused uped upon indictment for the crime of attempted rape, a preliminary point of some apparent difficulty presented itself in the course of inal submissions of Counsel for the defence, Mr. Sode. Afte After the evidence and the final address for the State had been completed, he argued that the accused should not be convicted of attempted rape because the evidence strongly suggested that an act of sexual intercourse had taken place. There being no doubt on the evidence as it emerged that the prosecutrix was not a consenting party, this argument comes down to these logical, but perhaps surprising, propositions. First, that the elements of any crime of attempting to commit a particular crime include as one essential ingredient that the accused fails to achieve his ultimate purpose. Secondly, since rape involves penetration of the vagina by the penis, attempted rape must involve a failure to achieve that aim. Thirdly, on the evidence in this case the accused and the prosecutrix both say that sexual intercourse took place. Therefore if the evidence suggests that actual penetration did occur, there must be a reasonable doubt whether a mere attempted rape took place, if not a positive conclusion to the contrary.

The reason I remarked earlier that this line of argument was perhaps surprising is the obvious one that it involves defence Counsel in submitting, in the endeavour to avoid his client’s conviction of a lesser crime, that he is in fact actually or probably guilty of a more serious crime. In those circumstances, if the indictment could be amended to charge the greater offence, or if the State responded by filing a nolle prosequi in the proceedings for attempt and later indicted the accused for the complete offence, or even if the submission succeeded and after acquittal for attempt the State later took the same course, the defence would be exposing the accused to conviction on a higher charge and thus to a higher penalty. I venture to think, therefofe, that the point I have now to decide will not often arise in future.

It arises in this case, nonetheless, because it was not open to the State to amend the indictment to charge rape itself when the defence put its submission. The decision of the learned Chief Justice in State -v- Gelam Koivacu (N565 17 October 1986) makes it clear that an amendment of an indictment pursuant to s. 535 of the Criminal Code, notwithstanding the strict wording of the provision, should not as a matter of practice be made at a very late hour, and specifically not after the final address of Counsel for the defence. As a decision of the learned Chief Justice I would regard this decision as so persuasive as to be in effect binding on me, but in any event it is a sound rule of fairness and firmly supported by earlier authority, especially R -v- Rymes [1853] EngR 330; (1853) 175 E.R. 573. As well as being unable to amend, the State did not file a nolle prosequi, but allowed the matter to go forward, arguing that s. 547 of the Code applied and authorised a conviction of the crime of attempted rape on the present evidence. Indeed as argument progressed it seemed that both counsel were anxious to get a decision of the court dealing with the point which arises in this case and with the scope of s. 547, to which I shall later return.

Before I outline fully the arguments of Counsel, I should indicate the way in which the point which I am confronted with developed in the case. For I must acknowledge and to some extent regret that I did not intervene at the close of the State case and suggest that the point be nipped in the bud before reaching full flower in the defence address. The State opened the case in the short statement of the facts as one of attempted rape, and then terdered by consent the affidavit of Dr. Puloka, who had examined the prosecutrix only a few hours after the alleged offence. At that time she was calm, well dressed and in no distress, showed no signs of violence to her person, and in particular on virginal examination showed no abnormal findings, no tears or tenderness. No sperm were found or vaginal swab. This evidence, whilst not excluding sexual intercourse without physical injury or ejaculation, would be quite consistent with a failure to achieve penetration. Then the State tendered the accused’s record of interview, the admissibility of which was contested on a voir dire. I admitted the record and it contained clear admissions by the accused of actual sexual intercourse which were not challenged in the course of the voir dire as being inaccurate, or as not having been made. No doubt this was part of the defence’s overall approach to the matter in paving the way for the final submission. At that stage, however, the prosecutrix had not been called and it may of course have been that she would not say that sexual intercourse actually occurred, or that she was not certain (since she was asleep and was roused to find the accused lying on top of her) or that the State had doubts about her qualities as a witness. It would not be the first time that a man thought he had achieved penetration but was, in the heat of the moment, mistaken. However when the prosecutrix was called her statement to the police, with one agreed deletion which did not detract from the substance of her evidence, was tendered by consent and short additional evidence as to her acquaintance with the accused, the fact that she had never encouraged him, and her identification of him at the time of the offence, was led in chief. She was not cross-examined at all. Her statement unequivocally said that actual sexual intercourse took place of which she was conscious when she woke up, and she was a good, clear and forthright witness.

So it came about that at the conclusion of the State case on the charge of attempted rape the accused had admitted actual intercourse in his record of interview, the prosecutrix said it had taken place, and the medical evidence was consistent with it. It is the practice of the Bench to take an active role in the conduct of criminal cases in an even-handed fashion in this country, but regrettably I did not suggest to the prosecution that consideration be given to amending the indictment to charge rape after the prosecutrix’s evidence. Had I done so, and had the amendment been made, the point I have to decide would not have arisen. Indeed, there is authority to say that I could have directed that the accused be re-indicted for the greater offence, and was not restricted to making a suggestion that the indictment be amended: R -v- Abbott (1898) 9 Q.L.J. 92.

The first argument put by Mr. Sode has already been mentioned. Shortly stated, it is that there can be no conviction of attempt to commit an act when it appears that the act was committed. He relied on s. 4 of the Code, which provides that a person “.... is said to attempt to commit the offence” when he has the intention to commit it, begins to put that intention into execution by means adapted to its fulfillment and manifests his intention by some overt act “.... but does not fulfill his intention to such an extent as to commit the offence...”, and he also relied on a number of decided cases which refer to the failure of the accused, in the circumstances, to achieve his intended purpose. It is only necessary to cite R -v- Joseph - Kure (1965-66) PNGLR 161 and R -v- Barbeler (1977) Qd R 80, the latter of which I shall return to shortly. I can part from this argument and proceed to the next by saying that I accept the submission that evidence supporting the conclusion that the ultimate act was committed excludes the mere attempt to commit it for the purposes of criminality, save for the operation of s. 547 of the Code which I shall come to in due course. In my opinion the definition in s. 4 and the authorities do not leave open the approach that in every completed intentional act the antecedent intent remains as a distinct entity. That argument has some attraction on the well known precept that “the greater includes the less”. However I think such an argument cannot prevail over s. 4 and the authorities. This conclusion is not affected by the statement in R -v- Barbeler (supra) that the component of a crime of attempt, i.e. that the accused does not fulfill his intention to such an extent as to commit the offence, qualifies the other components but is not a matter for proof. That statement must be read in context and does not mean that it need not be established that the accused failed to fulfill his intention for a conviction of attempt to follow. It means, in the context of that case, that it was for the jury as the tribunal of fact to say whether the accused’s intention was or was not fulfilled: see p. 83. Since judges in Papua New Guinea sit as judge and jury in criminal matters, R -v- Barbeler does not overcome the force of Mr. Sode’s first submission.

The next submission, closely related to the first, was that where the evidence on a charge of attempting to commit an offence shows that the full offence was committed, there is a principle of law which governs the decision on the charge of attempt, namely that the attempt merges with the full offence so that there can be no conviction of the attempt. Mr. Sode conceded that this principle of law is a common law principle and that it only applied where the offence constituted by the attempt was a misdemeamout and the full offence was a felony. It did not apply at common law where both offences were of the same class. He referred to Webley -v- Buxton (1977) Q.B. 481, where the principle is exhaustively discussed and from which it amply appears that the concessions made by Mr. Sode were properly made. With respect to his argument on this point, it seems to me bound to fail and really to add nothing to his first argument. Under the Code, the offences of attempted rape and rape itself are of the same class: they are both “crimes”. If it were appropriate to engraft the common law principle of merger onto the code, it would have no application in this case because when one endeavoured to apply it, it would not operate upon offences of the same class. However the decision of the Queensland Court of Criminal Appeal in R -v- Barbeler (supra), which has the great weight of being a decision given by the late Douglas J. on the Queensland Criminal Code, and is therefore of direct relevance to the local Code, contains the following passage at p. 85:

“I regard the doctrine (of merger) as having no parallel with the enactments in the Criminal Code of Queensland, and as not being relevant to a discussion in regard to them. The Code is quite self contained...”

This is a clear judicial statement at appellate level that the common law doctrine of merger has no application to offences laid down by a self contained code of criminal law, and while not binding on the National Court it should be followed unless there is compelling reason or Supreme Court authority to the contrary. There are no such considerations to the contrary. Moreover in my opinion Douglas J, from whom I should be slow to differ in any event, was clearly correct.

I come now to the crux of this matter, namely a consideration of s. 547. It is upon this provision that the State must rely for its contention that the accused may be convicted of attempted rape in view of my decision on Mr. Sode’s first argument. The question simply is: does s. 547, on its true construction, permit the conviction of a person for the lesser offence of attempt when the evidence in the case shows that the full offence was committed? The provision is as follows, so far as material:

547. evidehce sofws offence ence of similar nature

(1) &&#160on t e trie trial of l of a person charged with an indictable offence the evidence establishes that he is guilty of another indictable offence of such a nathat indit charging him with it he might have beve been coen convictnvicted of the offence with which he is actually charged, he may be convicted of the offence with which he is so charged.

Clearly the resolution of the question depends on the meaning of “might have been convicted” where those words appear in the provision.

They may refer to no more than the theoretical possibility of a conviction of a similar or lesser offence i.e. such as the possibility, which always exists in theory, at least at the commencement of a case, of a conviction of manslaughter or of attempted murder on an indictment for murder, or of simple assault on a indictment for assault occasioning actual bodily harm, or, relevantly, of attempted rape on an indictment for rape. Or they may refer to what is possible as an alternative conviction not in theory but in concrete terms on the evidence in the case. (The third possibility, that they may refer to the possibility of a conviction of attempt in accordance with s. 546of the Code seems to me to be too restrictive an interpretation and in any event is covered by the second possibility).

Naturally the State contended that the first possibility was the proper construction; and the defence the second. I have no doubt that the first represents the correct view. Curiously there is no authority here or in the Queensland reports which Counsel or I could find which sheds light on the provision. But that, I am sure, is because its meaning is clear; and possibly because situations like the present will seldom arise to bring the provision into play.

When one reads s. 547(1) it cannot be doubted that it is an enabling or facultative provision, designed to overcome problems which might emerge in the course of criminal trials, whether technical or substantive, and which are not or cannot be cured by laying alternative charges or amending the indictment. Because it is an enabling provision, it should be construed in the way which will make it most effective in that role. That consideration alone is in my opinion decisive. However such a construction has the incidental effect of providing a sensible and workable solution to the problem in this case and does not hold the law up to ridicule. Most reasonable people would, I am sure, think it absurd that if the evidence in a given case involving a charge of attempt shows that the full offence was probably committed, the accused should automatically escape conviction of attempt and public funds be wasted on a second trial. There is, moreover, a further incidental effect of the construction I feel should be placed upon s. 547 which is desirable. It gives a measure of freedom to prosecuting Counsel to frame an indictment for attempt even though there is a body of evidence suggesting the full offence was committed. As mentioned earlier, it may be that the prosecutor has reason to doubt the value of some of his evidence and he may feel it more prudent to indict for attempt than for the full offence. It may even be (though I do not wish to be taken as doing more than raising this as one possibility) that the State, as successor to the Crown in having the conduct of public prosecutions, has reposed in it the equivalent of the prerogative of mercy, and can, in what it feels is an appropriate case, indict for a lesser offence in exercise of that prerogative. I would not, in any event, regard drawing an indictment for attempt in an appropriate case, even though there may be some evidence of the full offence, so long as it is done after proper consideration, as a failure in the prosecutor’s duty to frame an indictment with care.

For the foregoing reasons I hold that s. 547 defeats the effect of Mr. Sode’s first argument and that a conviction of the accused of attempted rape is open in this case as a matter of law. I stand the matter over for final addresses as to his guilt or innocence on the evidence to 27 November, 1987.

Lawyer for State: Mrs. Mugawbwa

Lawyer for Accused: Mr. Sode