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Thomas v The State [1979] PNGLR 140 (4 May 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 140 - Tapopwa Thomas v The State

[1979] PNGLR 140

SC150

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

TAPOPWA THOMAS

THE STATE

Waigani

Prentice CJ Pritchard Andrew JJ

29 March 1979

4 May 1979

CRIMINAL LAW - Judgment and punishment - Two counts - Conviction and sentence on each - Rape and unlawful carnal knowledge - Whether sentence double “punishment” - Whether conviction double “punishment” - “Same act or omission” - Test to be applied - Focal point or basic act in later offence - Second conviction and sentence quashed - Criminal Code, s. 16[cxxvii]¹.

CRIMINAL LAW - Indictments - Joinder of counts - One act or omission possibly constituting two different offences - Rape and unlawful carnal knowledge - Conviction and sentence on each - Whether double punishment - Procedure discussed - Criminal Code, ss. 16[cxxviii]², 2[cxxix]³ and 553[cxxx]⁴ - Supreme Court Act 1975, ss. 1(1) and 25 (2)[cxxxi]⁵.

WORDS AND PHRASES - “Punishment” - Double punishment - Whether conviction, punishment - Criminal Code, s. 16[cxxxii]⁶.

WORDS AND PHRASES - “Same act or omission” - Criminal law - Possibility of two counts - Focal point or basic act in later offence - Criminal Code, s. 16[cxxxiii]⁷.

An accused who was arraigned on an indictment containing two counts, namely (1) committing rape and (2) unlawfully having carnal knowledge of a girl under sixteen, both charges arising out of the one act of intercourse, was convicted on both counts and sentenced to twelve months in hard labour for rape and four months in hard labour for unlawful carnal knowledge, the sentences to be served concurrently. On appeal against the conviction and sentence for unlawful carnal knowledge, on the grounds that the second count being an alternative count no conviction should have been recorded and failure to consider s. 16 of the Criminal Code which provides that, “A person cannot be twice punished either under the provisions of this Code or under the provisions of any other law for the same act or omission ...”;

Held

(1) (Per Prentice C.J. and Andrew J., Pritchard J. not deciding). The proper test to be applied under s. 16 of the Criminal Code is whether the same wrongful act or omission which previously resulted in conviction and punishment, was the central theme, the focal point or the basic act or omission in the latter offence.

R. v. Gordon; Ex parte Attorney-General, [1975] Qd. R. 301, per Williams J., adopted and applied.

(2) The punishable offence which constituted the offence of rape being the same punishable act which constituted the offence of unlawful carnal knowledge, the two punishments, that is the two sentences, could not stand because of s. 16 of the Criminal Code.

(3) (Per Prentice C.J. and Andrew J., Pritchard J. dissenting.) Entry of a conviction on the charge of unlawful carnal knowledge, following conviction for rape, in the circumstances, amounted to double punishment for the same act or omission within the meaning of s. 16 of the Criminal Code and the conviction should be quashed.

(Per Prentice C.J.) Section 16 of the Criminal Code is to be read as intending that the entry of a particular conviction, of itself, may amount to a punishment, where it can clearly as a matter of English meaning, be seen to “punish”; a second conviction such as the one in the present case must be considered a “punishment” at least so far as it becomes established on a person’s criminal record.

Gaiari-Ganereba v. Giddings, [1967-68] P. & N.G.L.R. 346, at p. 355, considered.

(Per Andrew J.) Two charges arising out of the “same act or omission” are to be treated as alternative charges and s. 16 of the Criminal Code is therefore to be read as providing for a defence to the second charge entitling an accused to an acquittal.

R. v. Cowdell, [1962] Crim.L.R. 262, applied;

R. v. Gordon; Ex parte Attorney-General, [1975] Qd. R. 301, at p. 305;

R. v. Donnelly (1920), 14 Q.J.P.R. 62;

R. v. Hull, [1902] Q.S.R. 53; and

Gaiari-Ganereba v. Giddings, [1967-68] P. & N.G.L.R. 346, referred to.

Appeal

An accused was charged and convicted on two separate counts, namely, rape contrary to s. 357 of the Criminal Code and unlawful carnal knowledge of a girl under the age of sixteen years, contrary to s. 219 of the Criminal Code, both charges arising out of the one act of sexual intercourse; he was sentenced to twelve months in hard labour on the first charge and four months in hard labour on the second charge. This was an appeal against conviction and sentence on the second charge on the grounds:

(1) that the learned trial judge erred in law in recording a conviction on the second count in that the second count was an alternative to the first; and

(2) that the learned trial judge erred in law in recording a conviction and imposing a sentence on the second count in that he failed to consider the provisions of s. 16 of the Criminal Code.

Counsel

M. Kapi, for the appellant.

K. B. Egan, for the State.

Cur. adv. vult.

4 May 1979

PRENTICE CJ: In May 1978 the accused was arraigned on an indictment containing two counts, namely (1) on 4th February, 1978, committing rape upon one H.K., (2) on 4th February, 1978, unlawfully having carnal knowledge of one H.K. a girl under sixteen. Both charges arose from the one act of intercourse.

It has become the practice for the prosecution to include two such charges in the one indictment when the prosecutrix is under sixteen years of age, because s. 553 of the Criminal Code does not allow an alternative verdict to be brought in on a charge of rape. In my opinion this is an unfortunate state of affairs and calls for a simple legislative amendment. It appears to have been brought about by an error in the drafting of the 1974 Criminal Code which replaced the Criminal Code (Queensland Adopted) which had previously been in force. That this is so can I think, be inferred from the heading of the present section. Section 553 reads as follows:

“553. CHARGE OF RAPE AND LIKE OFFENCES

Upon an indictment charging a person with the crime of having unlawful carnal knowledge of a girl under the age of 12 years, he may be convicted of any offence which is established by the evidence, and of which the unlawful carnal knowledge of a woman or girl, whether of a particular age or description or not, is an element, and blood relationship is not an element, or of which procuring the woman or girl to have unlawful carnal connexion with any man is an element; or he may be convicted of any of the offences following, that is to say:

(a) administering to the woman or girl, or causing her to take, any drug or other thing, with intent to stupefy or overpower her in order to enable any man to have unlawful carnal knowledge of her; or

(b) unlawfully and indecently assaulting the woman or girl; or

Section 578 of the Queensland Criminal Code (in force prior to 1974 in P.N.G.) reads as follows (emphasis mine):

“578. CHARGE OF RAPE AND LIKE OFFENCES

Upon an indictment charging a person with the crime of rape or with the crime of having unlawful carnal knowledge of a girl under the age of twelve years, he may be convicted of any offence which is established by the evidence, and of which the unlawful carnal knowledge of a woman or girl, whether of a particular age or description or not, is an element, and blood relationship is not an element, or of which procuring the woman or girl to have unlawful carnal connection with any man is an element:

Or he may be convicted of any of the offences following, that is to say,

(a) Administering to the woman or girl, or causing her to take, any drug or other thing, with intent to stupefy or overpower her in order to enable any man to have unlawful carnal knowledge of her; or

(b) Unlawfully and indecently assaulting the woman or girl; or

(c) Unlawfully and indecently dealing with a girl under the age of ... seventeen years; if any such offence is established by the evidence.”

The difficulties at present being experienced by prosecution and the National Court could be removed by the insertion of the words “with the crime of rape or” next after the word “person” appearing in s. 553.

In the present case, the judge of the National Court, being satisfied that intercourse had been had by the appellant of the prosecutrix without her consent, and that she was in any event then under the age of sixteen years, convicted him on both counts of the indictment and sentenced him to serve twelve months in hard labour for rape and four months in hard labour for the other offence — the sentences to be served concurrently.

Appeal is now brought against the second conviction and sentence. By consent a further ground of appeal was allowed to be joined to the effect that:

“The learned trial judge erred in law in recording a conviction and imposing a sentence on the second count in that he failed to consider the provisions of s. 16 of the Criminal Code.”

The Public Prosecutor who appeared on the appeal conceded that the provisions of s. 16 of the Criminal Code prevents the imposition of a second sentence, but submits that the second conviction can be supported. Both counsel agree that s. 17 is not relevant to the situation under discussion, and it is clear that that section envisages the presentation of two indictments successively. It is important to note however that s. 17, the implementation of which is provided for in s. 572, is concerned with conviction or acquittal, and makes no reference to “punishment”.

Section 16 is in the following terms (emphasis mine):

“PERSON NOT TO BE TWICE PUNISHED FOR SAME OFFENCE

A person cannot be twice punished either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof he 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 that death, notwithstanding that he has already been convicted of some other offence constituted by the act or omission.”

At the outset, it is interesting to observe that though the section heading refers to being twice punished for the “same offence”, but it forbids double punishment for “the same act or omission” the body of the section makes no such reference to “same offence” (see Minogue J. in Gaiari-Ganereba v. Giddings[cxxxiv]⁸). Since argument was heard in this matter, my attention has been drawn to s. 2 of the Criminal Code which reads:

“An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.”

This section does not appear to have received reference either in the judgments in R. v. Gordon; Ex parte Attorney-General[cxxxv]⁹ or in Gaiari’s case. But I am unable to see that it assists interpretation of s. 16 of the Criminal Code for the good reason that the body of that section contains both the notions of “offence” and “act or omission”, and appears to make a clear distinction between the two. If one were to attempt to substitute in that section the word “offence” for the phrase “act or omission”; the effect would be to make nonsense of the exception provided for therein. The considerations to which the court must turn are suggested by his Honour in Gaiari’s case[cxxxvi]¹⁰ to be, “... the substance of the offence, that is, of 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.” A somewhat different analysis of the comparable Queensland section was given by Hanger C.J. in R. v. Gordon; Ex parte Attorney-General[cxxxvii]¹¹. In Gaiari’s case Minogue J. because of the narrow ambit of negligence proved in what was a manslaughter case, felt able to say that in so far as the negligence amounted only to driving under the influence of intoxicating liquor, he was being punished twice for the same act or omission when later convicted and sentenced for driving under the influence of intoxicating liquor (the same incident). With respect, I am not to be taken as adopting his Honour’s reasoning on those facts as having general application, or indeed as agreeing in it. In Gordon’s case the question involved conviction in the Magistrate’s Court for being in charge of a motor vehicle whilst under the influence of liquor or a drug and later conviction in the District Court for dangerous driving causing grievous bodily harm. The Court of Criminal Appeal held the punishable act in the two charges was not the same.

In Gordon’s case Hanger C.J.[cxxxviii]¹² expressed his understanding of the effect of ss. 16 and 17 of the Queensland Criminal Code upon its other provisions in these terms:

“... there are mentioned in the Code many offences which could be constituted by the same act or omission. In respect of some of these, the provisions to which I have referred operate to prevent a double set of proceedings. For example, by s. 212, it is an offence to have carnal unlawful knowledge of a girl under the age of twelve years; by s. 215, it is an offence to have unlawful carnal knowledge of a girl under the age of seventeen years; by s. 216, it is an offence unlawfully and indecently to deal with a girl under the age of seventeen years; and by s. 350 it is an offence unlawfully and indecently to assault a woman or girl. It is possible that a man might commit all of these offences at the one time; but, by s. 578 of the Code, on an indictment charging the first of them, the accused might be convicted of that or of any of the others. If he had been so charged and convicted or acquitted, he could not, because of s. 17, be convicted of any of those offences subsequently. However, there are other offences which may be constituted by the same act or omission where s. 17 does not operate. For example, by s. 222, it is an offence for a man carnally to know a girl, who is to his knowledge, his daughter. If she were under twelve, the act amounting to incest would also be an offence under s. 212. But proceedings consequent upon an indictment under s. 212, would not bar later proceedings under s. 222. Again by s. 210, it is an offence unlawfully and indecently to deal with a boy under the age of fourteen years; and by s. 211, it is an offence for a male person, in public or private, to commit an act of gross indecency with another male person. In these cases also, one and the same act may constitute each of the offences; and the legislation to which I have referred (other than s. 16 of the Code) has no operation to prevent successful prosecutions for each of the offences. Section 16, in saying that a person cannot be twice punished for the same act or omission, must be referring to punishable acts or omissions; and the prohibition applies though the act or omission would constitute two different offences. It is to these cases that the section is directed. The exceptional case is where there has been one act which has had a particular result — death. In this case, the act of e.g. assault is punishable; if the same punishable act causes death, it is also punishable notwithstanding the earlier punishment. It is true that the section, in dealing with homicide speaks of ‘conviction’; but it has already made homicide an exception to the general rule contained in the first part of the section and I do not think that the reference to ‘conviction’ affects the overall construction of the section. The latter part of the section emphasises that the offender may be convicted of the homicide though he has already been convicted of the assault.”

In a separate lengthy discussion Williams J.[cxxxix]¹³ summarised the proper test to decide whether “the same act or omission” was being punished twice, as being that the court should consider:

“... 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 latest offence charged. If it is then except in the case of resulting death in terms of the exception in s. 16, a person may not be twice punished for the same act or omission. [His Honour goes on to say] In my view it would be dangerous to attempt to state the position more specifically in the hope of propounding a general rule. Each set of situations should be considered on their own particular ‘acts or omissions’.”

— a proposition with which, having considered the facts of R. v. Gordon; Ex parte Attorney General[cxl]¹⁴ on the one hand, and of Gaiari’s case on the other, I most decidedly agree. On the same subject, the judgment of Frost C.J. in The State v. Tokai Koweri[cxli]¹⁵ notes the authorities. The U.K. and N.Z. cases respecting double punishment “for the same offence” are not I think, helpful in the construction of our Code’s s. 16.

I find myself in agreement with the submission by Mr. Kapi and the concession by Mr. Egan, that in so far as sentences have been imposed on the appellant herein, both for rape and for unlawful carnal knowledge of a girl under sixteen (both charges arising out of the one act of intercourse), that the accused has been punished twice for the same act — namely an act of illegal intercourse, though differential factors lay in lack of consent as to one offence and in age as to the other offence — both of those factors being outside the actual deed of the appellant.

IS THE ENTRY OF TWO CONVICTIONS FOR THE ONE ACT — DOUBLE PUNISHMENT?

It is necessary now to consider whether the entry of a conviction for the unlawful carnal knowledge offence, following conviction for rape in the instant case, amounted (setting sentence aside) to double punishment under s. 16. For this court must decide whether it is sufficient to quash the second sentence, or whether it must also quash the second conviction. Unless and until s. 553 of the Criminal Code be amended, this question could be of considerable procedural importance; for the powers of this court on an appeal against conviction are limited (ss. 22 and 25 Supreme Court Act). To illustrate, if an appeal from a conviction for rape succeeded, it is obviously highly inconvenient and possibly impracticable for the appellant to have to be re-charged with unlawful carnal knowledge of a girl under sixteen (in a case where the facts would have supported such a charge in the first instance).

This question was touched upon by Minogue J. (as he then was) in Gaiari’s case[cxlii]¹⁶ when he said (emphasis mine):

“There remains the question what should this court do when there has been a breach of s. 16; that is, should it quash the conviction or merely remove the punishment. The section itself seems to equate punishment with conviction when after stating the rule that a person cannot be twice punished for the same act or omission it goes on in the exception to allow conviction where there is subsequent death, and this notwithstanding that there had been a previous conviction. Punishment is not mentioned at all in the exception. The judges of the Full Court of Queensland in Connolly v. Meagher[cxliii]¹⁷ preferred to reserve the question whether a conviction in all cases is to be regarded as a punishment although in the circumstances of the case before them they decided that it was.”

His Honour went on to decide that a conviction as therein registered amounted to a punishment because it was mandatory for a court to impose a disqualification of licence, saying[cxliv]¹⁸ “Punishment in such a case is inseparable from conviction.” In Gordon’s case both Hanger C.J.[cxlv]¹⁹ and Williams J. found that a conviction without sentence, amounted to a “sentence” under s. 668 of the Queensland Criminal Code.

With respect, I consider Minogue J.’s interpretation of s. 16 forceful. The section seems to me to intend to include a conviction standing alone, as a punishment — certainly where it can clearly as a matter of English meaning, be seen to “punish”. Without wishing to decide that every conviction must necessarily of itself amount to a punishment and potentially give rise to the application of s. 16; I consider that the second conviction in such a case as this must be considered a “punishment” at least in so far as it becomes established on the man’s criminal record. I think we have all seen instances of records of convictions which do not clearly delineate whether separate offences occurred in the one episode. One can readily envisage that a man with a record showing convictions for both rape and unlawful carnal knowledge could well find himself penalised thereby in seeking a position or otherwise.

Mr. Egan mounted an argument that s. 18 of the Criminal Code in so far as it set out “the punishments which may be inflicted under the Code” without tabulating therein “the recording of a conviction” (without sentence), should have the effect, as a matter of interpretation, of rendering a “conviction” not a “punishment”. I do not think this reasoning can be accepted. Section 18 is concerned with punishments that may be inflicted, s. 16 with a kind, viz. “double punishments”, that may not. I think it remains necessary to consider whether the entry of a particular conviction can of itself amount to “punishing” an accused twice.

I am therefore of the opinion that the addition of a conviction for unlawful carnal knowledge to that of rape (for the one act of intercourse) amounts to the accused being punished twice for the one act or omission within the meaning of s. 16. I would allow the appeal and quash the conviction and sentence for unlawful carnal knowledge and confirm the conviction and sentence for rape.

It is interesting to note the position at common law as it is stated by Wells J. to be, in a lengthy traverse of the text books and decided cases — set out in R. v. O’Loughlin; Ex parte Ralphs [cxlvi]²⁰:

“Where the information alleges offences in a descending scale of seriousness, and a verdict or finding of guilty is given or made on the more, or most, serious of the counts, the other counts should, in a court of superior jurisdiction, be stayed ...”

It appears to me that pending amendment to the law, which I hope would be forthcoming, it will be prudent for the prosecution to continue to present an indictment charging both rape and unlawful carnal knowledge (when the alleged age of the girl warrants the latter). If the judge of the National Court convicts and sentences on the count of rape, I apprehend that it would be proper and appropriate for him to make findings on the second charge as well. If these findings would have warranted a conviction on the second charge, he should note them in his judgment, but not proceed to conviction thereon (though perhaps indicating what he would have regarded as an appropriate sentence in the circumstances if such a conviction had been recorded). In the event of a successful appeal against the conviction for rape; it would I consider, remain open to the Supreme Court to use his findings as to the second count to substitute a conviction and sentence for unlawful carnal knowledge. Section 25(2) of the Supreme Court Act 1975 reads as follows:

“Where an appellant has been convicted of an offence and he could on the charge have been found guilty of some other offence, and the Supreme Court is satisfied as to facts which proved him guilty of that other offence, the Supreme Court may, instead of allowing or dismissing the appeal, substitute for the verdict a verdict of guilty of that other offence and pass such sentence in substitution for the sentence passed at the trial as is proper and as is warranted in law for that other offence, not being a sentence of greater severity.”

The phrase “on the charge” is to be read in the light of the definition of “charge” in s. 1(1) Supreme Court Act 1975 (another section not referred to the court in argument), as including “an indictment and an information”. It seems therefore, that the Supreme Court could substitute a verdict accordingly.

PRITCHARD J: This appellant was convicted by the National Court at Losuia on two counts contained in the indictment against him, namely rape, contrary to s. 357 of the Criminal Code and unlawful carnal knowledge of a girl under the age of sixteen years, contrary to s. 219 of the Criminal Code. The victim in each charge was the same girl and the act of sexual intercourse alleged was one and the same. The accused pleaded not guilty to each charge but after a trial was found guilty of both and sentenced to twelve months’ imprisonment with hard labour on the first count and four months’ similar imprisonment on the second count, the sentences to be served concurrently.

When the Criminal Code Act was enacted in 1974, s. 553 omitted six words from s. 578 of the Queensland Criminal Code which, in adopted form, had been in force here up to that time. The words omitted and the detail of each of these sections are set out in the judgment of the Chief Justice which I have read in draft, and I will not repeat them. Suffice it to say, it is as the Chief Justice says, the omission of these words and the consequent inability to convict a man charged with rape of the alternative charge of unlawful carnal knowledge which has led to state prosecutors indicting an accused on both counts where the prosecutrix is aged under sixteen years.

The appeal here is brought against the second conviction and sentence only. Argument in the main centred on s. 16 of the Criminal Code which reads as follows:

“16. PERSON NOT TO BE TWICE PUNISHED FOR SAME OFFENCE

A person cannot be twice punished either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof he 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 that death, notwithstanding that he has already been convicted of some other offence constituted by the act or omission.”

One must read the section in the light of the definition in s. 2 of the Criminal Code which reads:

“2. DEFINITION OF OFFENCE

An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.”

The fact that the second sentence was ordered to be served concurrently does not alter the fact that it is one of the various kinds of punishment which s. 18 of the Criminal Code provides may be inflicted upon convicted persons. Mr. Egan, the Public Prosecutor, who appeared on this appeal for the State, concedes that the second sentence is a double punishment of the appellant and as such it cannot stand.

Under s. 543 of the Criminal Code the general rule is laid down that an indictment must charge one offence only and not two or more offences. The section has the following proviso:

“Provided that when several distinct indictable offences are alleged to be constituted by the same acts or omissions, or by a series of acts done or omitted to be done in the prosecution of a single purpose, charges of such distinct offences may be joined in the same indictment against the same person.”

There are certain safeguards set out in the section concerning the use of this proviso but it is under the proviso that the prosecution laid these two charges against the appellant. There is no element of “prosecution of a single purpose” involved here and the two charges, it is not disputed, arose out of the one act of rape committed as it happened, on a girl under the age of sixteen years. The second sentence must therefore be quashed because it contravenes s. 16.

The main argument before us turned on whether the second conviction itself should be allowed to stand. Mr. Kapi, the Public Solicitor, who appeared for the appellant asserts that it cannot while Mr. Egan claims it can.

I will deal with Mr. Kapi’s concluding argument first. He points out that under s. 608 of the Criminal Code (“SENTENCE”) it is provided (apart from the question of arrest of judgment) that the court may either pass sentence upon the offender forthwith or discharge him on recognisance to appear for sentence at some future sitting or when called upon. The latter procedure is provided for in s. 19 of the Criminal Code (“CONSTRUCTION OF PROVISIONS OF CODE AS TO PUNISHMENTS”). Section 608 goes on to provide that if sentence is not passed forthwith any judge of the court may, at any subsequent sitting of the court at which the offender is present, pass sentence upon him. Mr. Kapi submits that this means that sooner or later a judge must pass sentence on the offender and that there is no provision in the Criminal Code allowing a court to simply convict and do no more.

The answer to this argument is s. 16 itself. It specifically prohibits the imposition of a second punishment if the offender has already been punished under the Code or any other law for an offence arising out of the same act or omission.

The other argument put by Mr. Kapi is that in fact and in law a conviction is a punishment within the meaning of s. 16. This argument virtually asks us to decide that the word “punished” in the first line of s. 16 means “convicted”. This is a feat of legal interpretation which I am not prepared to perform and would be tantamount to saying that the legislature originally made a mistake, which I am sure it did not do.

The factual basis of the submission relates to the possibility that a man could suffer because it may appear to others unfamiliar with the true facts that he had committed two separate and distinct crimes, not arising out of the one act. Whilst this might happen, I hardly think that its possibility can be used as a basis of interpretation. For a start, it presupposes either error on the part of the person preparing the record of convictions or error on the part of the person reading it or both. If the record is accurate, the dates of conviction identical, the nature of the two convictions clearly set out, the former showing a sentence and the second none, the only proper conclusion to reach is that the convictions arose from the one act and for that reason, only one punishment was imposed. That a person reading the record of convictions may think otherwise is unfortunate but to my mind irrelevant in considering whether the second conviction is a punishment within the meaning of s. 16.

As this submission is based on what may happen in reality, I would perhaps, counter it by expressing the view firstly that a convicted, gaoled rapist is unlikely to suffer any great loss by someone else believing that he had also been convicted of carnal knowledge and secondly, that it may well be in the public interest for his record of convictions to show that the woman he outraged was in fact a girl under the age of sixteen years, which a simple conviction for rape would not indicate, and which in fact was the truth.

The authorities relied on in support of the submission that in law a conviction is a punishment I shall refer to shortly but first I believe it is necessary to consider s. 16 itself. The question of its application can arise in two situations. The first is where a person charged with an offence has previously been convicted and punished for another offence which he claims was the same punishable act or omission for which he is being charged anew, despite the fact that the offence itself is a different one. The second is where a person is charged with two offences at the one time, as in the case of the present appeal, where it is claimed that the act or omission constituting each offence is the same.

There is an essential difference in these situations. In the first case s. 16 can be relied on as a defence whereas in the second case it cannot. To explain this I will refer to a number of the authorities cited to us. Firstly it is clear that s. 16 is a very different provision to the Code equivalent of the common law plea of “autrefois convict” namely s. 17 which provides that it is a defence to a charge to show that an accused has already been convicted on an indictment on which he might have been convicted of the offence with which he is charged or has already been convicted of an offence of which he could be convicted upon the indictment on which he is charged. Connolly v. Meagher; Ex parte Connolly[cxlvii]²¹ (per Griffith, C.J.). In R. v. Gordon; Ex parte Attorney-General[cxlviii]²² Hanger C.J. says, after referring to s. 17:

“It is clear that the section is concerned with defences to offences. Section 16 does not purport to deal with this subject matter but with punishments. Before the question of punishments can arise, there must be a conviction. Sections 16 and 17 do not deal with the same subject matter.”

Despite these remarks, it is also clear that s. 16 has been regarded as a defence. Unlike s. 17 which is spelt out to be a specific plea to an indictment under s. 572 of the Criminal Code, s. 16 is not. In R. v. Simpson (No. 1)[cxlix]²³ the plea was raised and Sheehy J. ruled that in the circumstances of that case he would have to hear the evidence before ruling on such a plea. This decision was followed by Minogue J. in R. v. Yofia Abone[cl]²⁴. In R. v. Hull (No. 2)[cli]²⁵ Griffith C.J. said “The prisoner set up as a defence that he had already been convicted and punished for the same act. He relies upon s. 16 of the Criminal Code ...”

In Gordon’s case[clii]²⁶ Hanger C.J. refers to R. v. Donnelly[cliii]²⁷ and the summing up of Shand J. in which he said to the jury “... that raises a substantial defence under s. 16 of the Code. A person cannot be punished twice for the same act or omission ... Let me have your verdict.” Hanger C.J. goes on[cliv]²⁸ “Section 16 seems clearly to be treated as providing for a defence to a charge — as entitling an accused to an acquittal.”

In my view the reason s. 16 is a defence entitling an accused to an acquittal when he is in the first situation I posed above, springs from the definition of “offence” in s. 2 which is set out earlier in this judgment. It is this, that if the evidence discloses that the act or omission relied on to establish the offence is the same act or omission for which the accused has already been punished, it is no longer an act or omission rendering the accused liable to punishment because of s. 16, and therefore no longer an offence within the definition and the accused cannot be convicted.

This reasoning helps to explain why in dealing with the exception to the general rule in s. 16, namely homicide, the section uses the words “may be convicted” and not the word “punished” which is used in the first line.

The second situation posed above is not the same at all. At the time of conviction on both counts in the indictment the accused has not been punished whether the findings are simultaneous or follow one another. Before proceeding to punishment the court administers the allocutus (s. 605). The Criminal Code contains a number of provisions relating to alternative findings, both as to those which are permitted and those which are not. If there is no provision in the Criminal Code prohibiting the finding of guilt in an indictment such as that the subject of this appeal the only assumption I make is that the finding of guilt on both charges can be made. Although in common law countries there are authorities to the effect that before a jury, when an accused has been found guilty on a more serious charge, no finding should be sought on a less serious charge in the indictment, there have been many instances of “simultaneous” verdicts in the past.

In the case of the Criminal Code, I do not believe these authorities are relevant. Section 16 provides the protection the legislature thought fit to extend. In my view the words “cannot be twice punished ... under the provisions of this Code” mean “cannot have a second punishment inflicted on him in accordance with the provisions of this Code.” The only punishments which may be inflicted under the Code are set out in s. 18 and I believe they are the only punishments to which s. 16 is referring. In other words they are specific penalties, not findings of guilt on a charge in an indictment which is itself not subject to objection.

I have not discussed the cases referred to in argument on the question of what constitutes the “same act or omission” because it is unnecessary for the purposes of this appeal. The principles were laid down in R. v. Hull (No. 2)[clv]²⁹ and were approved by the pre-Independence Full Court in Magr v. The Queen [clvi]³⁰. The common law history of the rule in s. 16 is traced in detail in Connelly v. Director of Public Prosecutions [clvii]³¹.

The final point is whether a conviction simpliciter can ever amount to a punishment within the meaning of s. 16. In the present case I believe that it clearly is not. In the Queensland Full Court in Connolly v. Meagher; Ex parte Meagher[clviii]³² two of the judges reserved their view on this general question, but Chubb J.[clix]³³ felt that as a conviction under the Licensing Act of Queensland could place the publican defendant’s licence in jeopardy it should be regarded as a punishment. In Gaiari-Ganereba v. Giddings[clx]³⁴ Minogue J. held that in a driving under the influence conviction which carries a mandatory licence disqualification, punishment and conviction were inseparable. Where punishment and conviction are inseparable I agree s. 16 would operate as a bar to conviction.

For all these reasons I would quash the sentence on the second count and confirm the conviction on that count.

ANDREW J: This is an appeal against a conviction of the appellant at the May sittings 1978 of the National Court at Losuia.

The appellant was indicted on two counts namely:

1. That on the 4th February, 1978, he committed rape upon one H.K.

2. That on the 4th February, 1978, he unlawfully had carnal knowledge of the said H.K. a girl under the age of sixteen years.

He pleaded not guilty to both counts and the matter proceeded to trial. He was found guilty on both counts and was sentenced to twelve months in hard labour on the count of rape and four months in hard labour on the count of unlawful carnal knowledge of a girl under the age of sixteen years. The sentences to be served concurrently.

The ground of appeal is that the learned trial judge erred in law in recording a conviction on the second count in that the second count was an alternative to the first count. The point raised is an important one and on the hearing of the appeal both the Public Prosecutor and the Public Solicitor agreed that the appeal should be widened to include a second or alternative ground namely:

“The learned trial judge erred in law in recording a conviction and imposing a sentence on the second count in that he failed to consider the provisions of s. 16 of the Criminal Code.”

Section 16 of the Criminal Code provides:

“16. PERSON NOT TO BE TWICE PUNISHED FOR SAME OFFENCE

A similar provision is contained in s. 20 of the Interpretation (Interim Provisions) Act:

“20. OFFENCES UNDER TWO OR MORE LAWS

Where an act or omission constitutes an offence under two or more provisions, or both under a provision and under another law of the State, the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those provisions, or either under that provision or under that other law, but shall not be liable to be punished twice for the same offence.”

In my view s. 16 of the Criminal Code may apply firstly to prevent an accused receiving multiple punishments for the one act or omission. In earlier periods in English history multiple punishments were often awarded:

“And on one wrongdoer many punishments may be inflicted according to his deserts, as happened with David Prince of Wales, when by the King’s record he was punished with five judgments of death. For since his demerits so required, he was drawn, hanged, beheaded, dismembered and burnt, and his head was taken to the capital city and his four quarters to the four quarters of the realm, there to be hung in (witness of) the hatefulness of traitors.”

Selden Society, 1953, vol. 72, p. 35.

Secondly, the section operates to prevent more than one punishment where the one act or omission may constitute more than one offence. The proper test to be applied under the Criminal Code, s. 16 is whether the same wrongful act or omission which resulted in conviction and punishment was the central theme, the focal point or the basic act or omission in the latter offence: R. v. Gordon; Ex parte Attorney-General[clxi]³⁵. The words “same act or omission” imply a unity at least of time and place.

There are in the Criminal Code many offences which could be constituted by the same act or omission for example, by s. 216, it is an offence to have unlawful carnal knowledge of a girl under the age of twelve years; by s. 219 it is an offence to have unlawful carnal knowledge of a girl under the age of sixteen years; by s. 220 it is an offence unlawfully and indecently to deal with a girl under the age of sixteen years; and by s. 260 it is an offence unlawfully and indecently to assault a woman or girl. It is possible that a man might commit all of these offences at the one time, but by s. 553, on an indictment charging the first of them, the accused might be convicted of that or any of the others. If he had been so charged and convicted or acquitted, he could not, because of s. 17, be convicted of any of those offences subsequently. However, there are other offences which may be constituted by the same act or omission where s. 17 does not operate. For example by s. 226 it is an offence for a man carnally to know a girl, who is to his knowledge, his daughter. If she were under twelve, the act amounting to incest would also be an offence under s. 216. But proceedings consequent upon an indictment under s. 216 would not bar later proceedings under s. 226. Again by s. 217, it is an offence unlawfully and indecently to deal with a boy under the age of fourteen years; and by s. 215 it is an offence for a male person, in public or private, to commit an act of gross indecency with another male person. In these cases also, one and the same act may constitute each of the offences; and the legislation to which I have referred (other than s. 16 of the Criminal Code) has no operation to prevent successful prosecutions for each of the offences. See R. v. Gordon; Ex parte Attorney-General[clxii]³⁶.

Into this later category falls the present case due to what is acknowledged to be a drafting error in the Code. This arises because s. 553 of the Criminal Code does not now provide (as did its predecessor in the old Codes), that upon an indictment charging rape a conviction for unlawful carnal knowledge of a girl under the age of sixteen, is open. Section 16, in saying that a person cannot be twice punished for the same act or omission, must be referring to punishable acts or omissions; and the prohibition applies though the act or omission would constitute two different offences. It is to these cases that the section is directed. The exceptional case is where there has been one act which has had a particular result — death. In this case, the act of, e.g., assault is punishable: if the same punishable act causes death, it is also punishable notwithstanding the earlier punishment. It is true that the section, in dealing with homicide, speaks of “conviction”, but it has already made homicide an exception to the general rule contained in the first part of the section and the reference to “conviction” does not affect the overall construction of the section. The latter part of the section emphasises that the offender may be convicted of the homicide though he has already been convicted of the assault.

The Public Prosecutor concedes, and I believe quite rightly, that the punishable act which constituted the offence of rape was the same punishable act which constituted the offence of unlawful carnal knowledge of a girl under the age of sixteen. It follows that the two punishments namely the sentence of twelve months’ imprisonment and four months’ imprisonment cannot stand together.

The question remains whether the two convictions can stand together. The Public Prosecutor submits that the second sentence only is a nullity; that s. 16 is dealing only with punishment and that punishment is not conviction. As a matter of practicality, he submits, the second conviction should stand. If, as happened in the recent case of Birch v. The State[clxiii]³⁷, an appellant successfully appealed against a conviction for rape but the conviction for carnal knowledge remained; then had it not so remained the appellant would have had to have been tried all over again.

In England, where an indictment contains alternative counts, if the jury convict on one count, they should be discharged from giving a verdict on the other, the reason being that if the jury are asked to return a formal verdict of not guilty, the Court of Appeal will be unable to alter the verdict to a conviction on the alternative count: R. v. Seymour[clxiv]³⁸ and see R. v. Plain [clxv]³⁹.

In R. v. Cowdell[clxvi]⁴⁰ there was no doubt that the accused was guilty technically both of unlawful wounding and assault occasioning actual bodily harm but in practice those two charges arising out of one and the same incident had always been looked upon and treated as alternative charges. The court felt that the practice should be adhered to. It would be wrong for two convictions to appear on the record in respect of exactly the same incident. The Court of Criminal Appeal said that the jury ought to have been discharged from giving a verdict on the second and alternative count, and, if that was done, then if the first count had for some reason to be quashed, it would be open to the Court of Appeal to substitute a verdict of assault occasioning actual bodily harm under the provisions of s. 5(2) of the Criminal Appeal Act, 1907. The conviction of assault occasioning actual bodily harm was quashed. The second count is in effect left alive.

In R. v. Harris[clxvii]⁴¹ the appellant had been convicted of buggery with a boy aged fourteen and indecent assault on the same boy. The two charges arose out of the same incident. The Court of Criminal Appeal said that:

“It does not seem to this Court right or desirable that one and the same incident should be made the subject matter of distinct charges, so that hereafter it may appear to those not familiar with the circumstances that two entirely separate offences were committed. Were this permitted generally, a single offence could frequently give rise to a multiplicity of charges and great unfairness could ensue. We accordingly allow the application for leave to appeal against the conviction of indecent assault, which really merges into the conviction of the graver charge.”

The lesser conviction was then quashed. See also R. v. Roma[clxviii]⁴². In some jurisdictions the legislature has shown an awareness of the problem of an accused having a number of convictions registered against him for the one act or omission and has provided that previous convictions be only for “separate and independent occasions”. See the Canadian Criminal Code 1953-4, s. 660(2)(a).

In my opinion the procedure as laid down in Cowdell’s[clxix]⁴³ is the correct one and applicable to the conditions of Papua New Guinea (the Constitution Schedule 2.2) and in my opinion s. 25(2) of our Supreme Court Act 1975 gives this court the same powers on appeal to substitute a conviction for an alternative offence that the Court of Appeal in England has when exercising jurisdiction under the now Criminal Appeal Act 1968, s. 3(1). Alternatively, the trial judge could make findings on the second charge without proceeding to conviction.

Section 25(2) of the Supreme Court Act 1975 is as follows (emphasis mine):

“25(2) Where an appellant has been convicted of an offence and he could on the charge have been found guilty of some other offence, and the Supreme Court is satisfied as to facts which proved him guilty of that other offence, the Supreme Court may, instead of allowing or dismissing the appeal, substitute for the verdict, a verdict of guilty of that other offence and pass such sentence in substitution for the sentence passed at the trial as is proper and as is warranted in law for that other offence, not being a sentence of greater severity.”

It is true that in England s. 3(1) of the Criminal Appeal Act 1968 says “... could on the indictment have found him guilty of some other offence ...” whereas s. 25(2) of the Supreme Court Act 1975 says “... could on the charge have been found guilty of some other offence ...” However by s. 1 of the Supreme Court Act 1975 a “charge” includes an indictment and an information.

In my view the words “... he could on the charge have been found guilty of some other offence ...” are wide enough to mean he could on the hearing of the charges (or the indictment) have been found guilty of some other offence and should not be given the narrower interpretation that the second charge must be one which was open by definition on the first, as for example on a charge of wilful murder where verdicts of murder, manslaughter, unlawfully doing grievous bodily harm, unlawful assault thereby doing bodily harm, unlawful wounding and unlawful assault, are all open by definition (s. 552 of the Criminal Code) or under the general provisions of the Criminal Code, s. 550, providing for conviction in cases with circumstances of aggravation where a lesser offence is established by the evidence. I think it is important to note here a distinction between s. 16 and s. 17. The latter section applies, not necessarily to cases where the offences are the same or substantially the same, but rather where, because of the particular provisions of our Criminal Code on certain charges, convictions for specific offences are also open and consequently a person in standing his trial is in jeopardy or at risk of being convicted of one or other of the various offences not specifically named in the charge.

Applications under s. 16 normally occur when a second indictment is presented or on the hearing of the second indictment. If successful, they result in an acquittal. I mention this point because the Public Prosecutor has submitted that even though the second sentence might be a nullity the second conviction can stand. In R. v. Donnelly[clxx]⁴⁴ Shand J. in directing the jury to acquit said:

“In my opinion — and you are bound to take the law from me, for it can be corrected if I am wrong — that raises a substantial defence under s. 16 of the Code. A person cannot be punished twice for the same act or omission ... Let me have your verdict.”

Section 16 seems clearly to be treated as providing for a defence to a charge as entitling an accused to an acquittal; R. v. Gordon; Ex parte Attorney-General[clxxi]⁴⁵; and see also R. v. Donnelly[clxxii]⁴⁶, R. v. Hull (No. 2)[clxxiii]⁴⁷ and Gaiari-Ganereba v. Giddings[clxxiv]⁴⁸.

I do not accept the argument that because the two counts were on the one indictment there were “simultaneous” convictions. In R. v. Simpson (No. 1)[clxxv]⁴⁹ the accused was tried on indictment containing three counts, (a) attempted rape; (b) assault with intent to commit rape; (c) unlawful and indecent assault. The jury disagreed as to counts (a) and (b), and returned a verdict of guilty on (c). He was again charged on counts (a) and (b). On a plea under s. 16 the word “indictment” was regarded as referring to a charge and where the indictment contained more than one count, each count, for the purpose of interpretation of the section was regarded as a separate indictment and was to be treated as such.

For all of these reasons I am of the opinion that the appeal should be allowed and the conviction and sentence on the second count of unlawful carnal knowledge should be quashed. I would confirm the conviction and sentence on the first count of rape.

Order that the appeal be allowed and the conviction and sentence for rape be confirmed; that the conviction and sentence for unlawful carnal knowledge of a girl under sixteen be quashed.

Solicitor for the appellant: M. Kapi, Public Solicitor.

Solicitor for the State: K. B. Egan, Public Prosecutor.

ence>[cxxvii]Infra p. 143.

[cxxviii]Infra p. 143.

[cxxix]Infra pp. 143-144.

[cxxx]Infra p. 142.

[cxxxi]Infra p. 148.

[cxxxii]Infra p. 143.

[cxxxiii]Infra p. 143.

[cxxxiv][1967-68] P. & N.G.L.R. 346, at p. 352.

[cxxxv][1975] Qd. R. 301.

[cxxxvi][1967-68] P. & N.G.L.R. 346, at p. 352.