N4477

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1661 OF 2005

THE STATE

V

SOHIA KOBOBO

Buka: Cannings J
2006: 17, 21 August

RULING

CRIMINAL LAW – practice and procedure – application to quash indictment – charge of incest – alleged sexual relationship between uncle and niece – uncle charged with incest – alleged offence committed prior to commencement of the current law proscribing such a relationship – whether sexual relationship between uncle and niece constituted incest under the old law – application to withdraw indictment – circumstances in which indictment can be withdrawn.

An indictment was presented against a man, charging him with incest. It was alleged that he engaged in an act of sexual penetration with his niece. His defence counsel objected to the indictment on the ground that when the alleged act was committed it was not an offence for him to have sex with his niece. When the objection was raised the prosecutor sought leave to withdraw the indictment. The accused objected to that too. A ruling was required on three questions: (1) did the prosecutor need leave to withdraw the indictment? (2) if yes – should leave be granted? (3) if leave was not granted, should the indictment be quashed?

Held:

(1)	Leave was required to withdraw the indictment.

(2)	Leave is granted to withdraw the indictment, as leave was sought for a proper motive: to consider the State’s position in light of the defect in the indictment exposed by the defence counsel. No abuse of process is apparent and the accused is being given the full protection of the law.

(3)	If the indictment were not withdrawn, it would have been quashed as it was alleging an offence – engaging in an act of sexual penetration with a niece – that did not exist at the time that act was allegedly committed.

Cases cited

The following cases are cited in the judgment:

Kape Sulu v The State (2003) N2456
Re Emmanuel Lavaki (1982) N324(M)
The State v Dibol Petrus Kopal (2004) N2778
The State v Jason Rihata (2005) CR 171 of 2005
The State v John Ritsi Kutetoa (2005) N2814
The State v Moses Jafisa Winga (No 1) (2005) 
The State v Peter Painke [1976] PNGLR 210
The State v Thomas Angup (2005) N2830

APPLICATIONS

This is a ruling on an application to withdraw an indictment and an application to quash an indictment.

Counsel

R Luman, for the State
P Kaluwin, for the accused

INTRODUCTION

1. CANNINGS J: This is a ruling on two applications made at the start of a criminal case in which a man was charged with incest for having sex with his niece. After the indictment was presented, the defence counsel, Mr Kaluwin, applied to quash it on the ground that it charged an offence that did not exist at the relevant time. When it became apparent that there might be a problem with the indictment, the prosecutor, Mr Luman, applied for leave to withdraw it. Mr Kaluwin opposed the granting of leave on the ground that the indictment had already been presented and its withdrawal would cause prejudice to the accused as the State may present a substitute indictment.

THE INDICTMENT

2. An indictment was presented in these terms:

Sohia Kabobo of Roha, Malasang, Bougainville, stands charged that he … between 1 and 31 December 2002 at Roha, Malasang, … engaged in an act of sexual penetration with [the complainant], a close blood relative, namely his niece.

3. Mr Luman said that the State was alleging an offence under Section 223 (incest) of the Criminal Code, which states:

(1)	A person who engages in an act of sexual penetration with a close blood relative is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

(2)	For the purposes of this section, a close blood relative means a parent, son, daughter, sibling (including a half-brother or half-sister), grandparent, grandchild, aunt, uncle, niece, nephew or first cousin, being such a family member from birth and not from marriage or adoption.

(3)	No person shall be found guilty of an offence under this section if, at the time the act of sexual penetration occurred, he was under restraint, duress or fear of the other person engaged in the act.

4. The elements of the offence of incest are that a person:

•	engages in an act of sexual penetration (as defined by Section 6)

•	with a "close blood relative" (as defined exhaustively by Section 223(2)).

5. Section 223(2) refers to 11 types of incestuous relationships, one of which must exist between the accused and the complainant by reason of the complainant being such a family member from birth and not from marriage or adoption:

1	a parent; 
2	a son; 
3	a daughter; 
4	a sibling (including a half-brother or half-sister); 
5	a grandparent;
6	a grandchild; 
7	an aunt; 
8	an uncle;
9	niece (not defined in the Criminal Code, but the ordinary definition of "niece" is a daughter of one’s brother or sister; see Concise Oxford English Dictionary, 11th edition, © 2004);
10	a nephew (as in niece); or 
11	a first cousin (a first cousin is a child of a person’s uncle or aunt).

6. I did not endorse the indictment as I quizzed Mr Luman on its wording. It was framed under the existing incest provision of the Criminal Code, which replaced the former Section 223. The new provision was inserted by Section 13 of the Criminal Code (Sexual Offences and Crimes Against Children) Act No 27 of 2002, made by the National Parliament on 28 March 2002. That Act was certified by the Speaker on 25 June 2002 and commenced operation on 10 April 2003. (See Constitution, Section 110(2), the commencement clause of Act No 27 of 2002 and the notice of commencement in the National Gazette No G45 of 2003 at page 2.) 

7. The alleged offence was committed in December 2002, four months before the new incest law commenced operation. It would have been proper to draft the indictment under the new law provided that:

•	the act constituting the charged offence (engaging in an act of sexual penetration with a niece) constituted an offence defined and prescribed by a written law at the time it allegedly took place (December 2002); and 

•	the new law amended (as distinct from repealed) the old law. 

(See Kape Sulu v The State (2003) N2456, Manuhu AJ; The State v Dibol Petrus Kopal (2004) N2778, Lay J; The State v Jason Rihata (2005) CR No 171 of 2005, Lay J; The State v John Ritsi Kutetoa (2005) N2814, Cannings J; The State v Thomas Angup (2005) N2830, Lay J; The State v Moses Jafisa Winga (No 1) (2005) N2952, Kandakasi J.)

APPLICATION TO QUASH INDICTMENT

8. Mr Kaluwin applied under Section 558 of the Criminal Code to quash the indictment on the grounds that those two preconditions were not met and therefore the indictment was formally defective.

9. Section 558 (motion to quash indictment) states:

(1)	The accused person may, before pleading, apply to the court to quash the indictment on the ground that—

(a) it is calculated to prejudice or embarrass him in his defence to the charge; or
(b) it is formally defective.

(2)	On a motion under Subsection (1), the court may—

(a) quash the indictment; or
(b) order it to be amended in such manner as the court thinks just; or
(c) refuse the motion.

10. Mr Kaluwin argued that in December 2002 it was not an offence for a person to engage in an act of sexual penetration with their niece and that the new law in substance repealed and replaced the old law. He pointed out that the former Section 223(1) (incest by man) stated:

A person who carnally knows a woman or a girl who is, to his knowledge –

(a)	his daughter or other lineal descendent; or
(b)	his sister; or
(c)	his mother,

is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.

11. In Re Emmanuel Lavaki (1982) N324(M) it was held that a niece is not a man’s lineal descendant for the purposes of the incest law; and that was accepted as a proper statement of the law until the new incest law commenced operation in 2003.

APPLICATION TO WITHDRAW INDICTMENT

12. Mr Kaluwin’s argument appeared sound and in the process of responding to it, Mr Luman sought to withdraw the indictment. He wanted to review the State’s position, take fresh instructions, review the file and perhaps present a fresh indictment charging a different offence, depending on the age of the complainant and whether sexual penetration was consensual.

13. Mr Kaluwin objected to withdrawal of the indictment on the ground that the indictment had already been presented and its withdrawal would cause prejudice to the accused as the State might present a substitute indictment.

ISSUES

14. A ruling was therefore required on three questions:

(1)	did the prosecutor need leave to withdraw the indictment?

(2)	 if leave was required – should it be granted?

(3)	 if leave was not granted, should the indictment be quashed?

WAS LEAVE REQUIRED TO WITHDRAW THE INDICTMENT?

Yes.

15. Neither the Criminal Code nor the Criminal Practice Rules expressly state that the leave of the court is required to withdraw an indictment, once it is presented. However, this is to be inferred from Section 535 of the Code, which allows amendment of an indictment by order of the court.

16. In the present case, leave to withdraw the indictment was sought after it was presented and before I endorsed it as being received. That was at a very early stage of the proceedings. A trial does not begin until the accused is called upon to plead to the indictment (see Section 557(2)). Nevertheless, the court’s jurisdiction had been invoked and it was necessary and proper for the prosecutor to seek the leave of the court to withdraw the indictment.

SHOULD LEAVE BE GRANTED TO WITHDRAW THE INDICTMENT?

Yes. 

17. I consider that leave was being sought for a proper motive: to consider the State’s position in light of the defects in the indictment exposed by the defence counsel. This is not a case where the matter has been set down for trial on numerous occasions and been adjourned at the request of the State. No breach of the accused’s right under Section 37(3) of the Constitution to be afforded a fair hearing within a reasonable time has been alleged by his counsel. I cannot see that the accused will be prejudiced by withdrawal of the indictment. He has not been called upon to plead to the indictment. If a new indictment is presented, he will be presumed innocent until proven guilty according to law, in accordance with Section 37(4)(a) of the Constitution.

18. He has been and will continue to be given the full protection of the law under Section 37(1) of the Constitution. In fact when this matter first came before me, it was listed as a plea matter. That is, the court was informed that the accused would be pleading guilty. It was only when I started to quiz the prosecutor on the wording of the indictment that the apparent defects in it came to light.

19. In all proceedings, whether civil or criminal, the court has to be alert to possible abuse of its processes. As O’Leary AJ stated in The State v Peter Painke [1976] PNGLR 210:

There is no doubt that [the National Court], as a superior court of record, has inherent jurisdiction to take steps to prevent any abuse of its process. It is a power that extends to all situations where the justice of the case requires it to be exercised, and it is not confined to any closed categories of cases.

20. I do not consider in this case that any abuse of process is apparent. Neither do I see any prejudice to the accused. I therefore grant leave for the indictment to be withdrawn.

IF LEAVE IS NOT GRANTED, SHOULD THE INDICTMENT BE

Yes.

21. If the indictment had not been withdrawn, I would have upheld the defence counsel’s Section 558 application and quashed the indictment as it was alleging an offence – engaging in an act of sexual penetration with a niece – that did not exist at the time that that act was allegedly committed.

RULING

1	Leave is granted to the State to withdraw the indictment.

2	The indictment stands withdrawn.

3	The Public Prosecutor is to notify the Court of his position on this matter when it is mentioned at the sittings of the National Court at Buka on 25 August 2006.

Ruling accordingly.

_________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused