N3012

PAPUA NEW GUINEA

[In the National Court of Justice]

CR NO. 1111 OF 2004

Between:
THE STATE

And:
KAUPA KOKIA

WAIGANI: GAVARA-NANU, J
2005: 20th, 21st October and 21st November

CRIMINAL LAW – Criminal Code Act, Chapter No.262, s.347 – Rape – Criminal Code (Sexual Offences and Crimes Against Children) Act, 2002 – ss.347, 347A and 347B - Amendment or repeal – Effect is to amend rather than repeal – Principal Act, s.347 operative in its amended form. 

CRIMINAL LAW - Indictment – Rape – Charge laid under s.347 of the Principal Act – Such charge is deemed to have been laid under s.347 as amended – Indictment valid. 

PNG Cases Cited:
Kape Sulu v. The State N.2456.
The State v. Dibol Petrus Kopal N.2778.
The State v. Sam Akui and Masia Sam Akui (17th and 22nd March, 2004).

Other cases cited:
Beaumont v. Yeomans (1934) 3 SR (NSW) 562.
Foamlite (Australia) Pty Ltd v. Ozyigit [1984] 2 NSWLR 156. 

Counsel:
R. Luman for The State.
T. Palme for the Accused.

GAVARA-NANU, J: On 20th October, 2005, an indictment was presented against the accused charging him that he between 1st January, 2001 and 30th December, 2002, at Badili, in Papua New Guinea, committed rape upon one Sani Alvis on three occasions contrary to s. 347 of the Criminal Code Act, Chapter No. 262 ("the Principal Act").

Before arraignment, Mr. Palme raised an objection arguing that the accused was indicted under a wrong provision. He submitted that s.347 of the Principal Act, under which the accused was charged had been repealed by s.17 of the new and amending Criminal Code (Sexual Offences And Crimes Against Children) Act, 2002. 

Mr. Palme argued that the accused could not be charged under the provision which had been repealed and therefore is no longer a law. He submitted that the accused should have been charged under the new s.347 for sexual penetration without the consent of the victim.

It was therefore submitted that the indictment should be quashed and the accused be discharged forthwith.

Mr Ai in reply argued that crime of rape is the same under both provisions and therefore the indictment should not be quashed. He submitted that public interest and public policy dictate that the charge should be sustained because if the indictment is quashed, it would affect numerous other rape cases in which accused have been charged and convicted under s.347 of the Principal Act.

Mr Ai also argued that the accused will not be prejudiced. He placed reliance on The State v. Sam Akui and Masia Sam Aku which was decided in 2004. The trial judge in that case, Mogish J, quashed the indictment because although the accused was committed to stand trial under s.347 of the Principal Act, the charge was laid under new s.347. 

Mr. Palme in reply argued that the accused would be prejudiced if he is tried under the repealed law and said that it is in the interest of justice that the indictment be quashed and the accused be discharged forthwith. He relied on The State v. Dibol Petrus Kopal N.2778. In that case, the offence occurred before the new and amending Criminal Code Act came into force and the accused there was charged under s.347 of the Principal Act. The trial judge, Lay J held that the accused was tried under s. 347 of the Principal Act, as amended. In placing reliance on this case, I think Mr. Palme has misconceived the ratio of that case because his argument was that new s.347 has repealed s.347 of the Principal Act. I will return to this point later in the judgement. 

Mr Palme also relied on the decision by Manuhu A/J (as he then was) in Kape Sulu v. The State, N2456. There, the accused was charged under s.229A of the amending Criminal Code Act, for sexual penetration of a child under the age of 16 although the offence was committed before the amending Criminal Code Act came into force. His Honour held that the accused was correctly charged and dismissed the application to quash the indictment.

It is to be noted that only selected sections of the Principal Act, have either been amended or repealed by virtue of the words "amended" or "repealed" appearing in the sections affected in the amending Criminal Code Act. Those parts relate to sexual and related offences against children. 

The particular section being considered here is s.347 of the Principal Act.
This section and it’s amending or repealing section in the amending Criminal Code Act, are reproduced here for ease of reference.

Section 347 of the Principal Act.

Division 7 – Assaults on Females: Abduction.

347.	Definition of rape.

A person who has carnal knowledge of a woman or girl, not being his wife–

(a)	without her consent; or
(b)	with her consent, if the consent is obtained -

(i)	by force; or
(ii)	by means of threats or intimidation; or
(iii)	by fear of bodily harm; or
(iv)	by means of false and fraudulent representations as to the nature of the act; or
(v)	in the case of a married woman, by personating her husband,

is guilty of the crime of rape.

Section 347 of the Criminal Code (Sexual Offences and Crimes Against Children) Act, 2002.

16.	AMENDMENT OF TITLE OF DIVISION V.7.

The title of Division V.7 of the Principal Act is amended by repealing the words Assaults on Females: Abduction" and replacing them with the following: -

"Sexual offences and abduction."

17.	REPEAL AND REPLACEMENT OF SECTION 347.

Section 347 of the Principal Act is repealed and is replaced with the following: -

"347.	DEFINITION OF RAPE.

A person who sexually penetrates a person without his consent is guilty of a crime of rape.

Penalty:	subject to Subsection (2), imprisonment for 15 years.

"(2)	Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life:"

18.	NEW SECTIONS 347A AND 347B.

The Principal Act is amended by inserting the following new sections after Section 347: -

"347A.	 MEANING OF CONSENT.

For the purposes of this Part, "consent" means free and voluntary agreement.

"(2)	circumstances in which a person does not consent to an act include but not limited to, the following: -

the person submits to the act because of the use of violence or force on that person or some one else, or

the person submits because of the threats or intimidation against that person or someone else; or

the person submits because of fear of harm to that person or to someone else; or

the person submits because he is unlawfully detained; or

the person is asleep, unconscious or so affected by alcohol or another drug so as to be incapable of freely consenting; or

the person is incapable of understanding the essential nature of the act or of communicating his unwillingness to participate in the act due to mental or physical disability; or

the person is mistaken about the sexual nature of the act or the identity of the person; or

the person mistakenly believes that the act is for medical or hygienic purposes; or

the accused induces the person to engage in the activity by abusing a position of trust, power or authority; or

the person, having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity; or

the agreement is expressed by the words or conduct of a person other than the complainant.

"(3)	In determining whether or not a person consented to that act that forms the subject matter of the charge, a judge or magistrate shall have regard to the following: -

(a)	the fact that the person did not say or do anything to indicate consent to a sexual act is normally enough to show that the act took place without the person’s consent; and

(b)	a person is not to be regarded as having consented to a sexual act just because –

he did not physically resist; or

(ii)	he did not sustain physical injury; or
(iii)	on that or on an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person.

"347B. WHERE BELIEF IS CONSENT IS NOT A DEFENCE.

It is not a defence to a charge under this Part that the accused person believed that the person consented to the activity that forms the subject matter of the charge where-

(a)	the accused’s belief arose from his –

(i)	self-induced intoxication; or
(ii)	reckless or wilful blindness; or

(b)	the accused did not take reasonable steps, in the circumstances known to him at that time, to ascertain whether the person was consenting.".

The new s. 347 clearly gives a broad definition to rape and provides an enlarged scope of its operation. This is evident from new ss. 347A and 347B, which prescribe circumstances in which consent may be negated and the belief by the offender that the victim was a consenting party may fail if raised in defence.

The heading of new s.347 reads – "REPEAL AND REPLACEMENT OF SECTION 347". Thus, the pertinent question that arises is: Has s. 347 of the Principal Act, been repealed? From what has been said above, the answer must be in the negative. Thus the effect of new s. 347 is that, it amended s. 347 of the Principal Act, rather than repealed it. Section 347 of the Principal Act, therefore now operates in its amended form in new s. 347.

In this regard, I am in total agreement with Lay J’s conclusion in The State v. Dibal Petrus Kopal (supra). There, his Honour held that the effect of new s.347 is that, it amended s.347 of the Principal Act, rather than repealed it. His Honour at page 6 of his judgment said:

"Although the amending legislation speaks of repealing s. 347, the effect is to amend the provision so that it is non gender specific and to divide the penalty provision into two categories, 15 years and life.

I find the substantive effect of the Act is to amend rather than repeal and therefore s.63 of the Interpretation Act has no application"

So, what the new s.347 did is that it amended s.347 of the Principal Act, by broadening the definition of rape and enlarged the scope of the operation for s. 347 of the Principal Act, without otherwise affecting its validity. Thus the new s.347 did not repeal s.347 of the Principal Act, as contended by Mr. Palme. The end result is that s. 347 of the Principal Act, remains operative in the new and amending s. 347. See, also Foamlite (Australia) Pty Ltd v. Ozyigit [1984] 2 NSWLR 156.

In this regard, I adopt entirely the utterance of the law by Gordon CJ in Beaument v. Yeomans (1934) 3 SR (NSW) 562 at 569 – 570. His Honour said:

"Whether an Act has been repealed or amended is a matter of substance and not one of form only. One Act may purport to amend another by repealing part of it. On the other hand, an amendment may be effected either by the addition to a section of a particular phrase, or by the repeal of the section and the substitution of the same words with the phrase added … And where a provision of an Act is repealed and re-enacted in a form which enlarges its scope, this has been construed as amounting in substance to an amendment, because the new provision has been regarded as intended to be retrospective so far as it is new: Ex parte Todd (1887) 19 QBD 186)". (my underlining).

It would therefore be quite absurd and a misconception of the law if I was to say that new s.347 had repealed s.347 of the Principal Act. Indeed, it is axiomatic in the language of new s.347 that its desired effect is to amend rather than to repeal s.347 of the Principal Act.

It follows that the charge laid under s. 347 of the Principal Act, is valid.

The application to quash the indictment is therefore dismissed.
_______________________________________________
Lawyer for the State		:	Public Prosecutor.
Lawyer for the Accused	:	Yapao Lawyers.