Police v Kingston [2013] PGDC 10; DC2061 (12 April 2013)

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(In the Criminal Jurisdictions of the District Court Held at Lae)
CB Numbers 3187 - 3191/2012
CB Numbers 3181 - 3185/2012

District Courts Act Chapter No 40: Criminal Practice & Procedure at District Courts set out under Act – jurisdictions & parameter of application of powers defined and demarcated by Act –

Firearms Act – particular offences – possessions of & dealings in high powered firearms to wit rifles without license – possessions of & dealings in pistols without license – possession of & dealing in live ammunitions without license –

Practice & Procedure in criminal prosecution – preliminary application to strike out charges for 'multiplicity' – multiple charges for offences arising out of same transaction, same date, same place & same defendants– but under separate sections of Act creating separate offences – severance of charge from ones pronounced bad for 'multiplicity' -

Legislations/Rules/Regulations:
1: District Courts Act Chapter 40
2: Firearms Act

1: C/S Nick Miviri: for Prosecution
2: Mr Paul Ousi: for Defendant Michael Kenneth Kingston
3: Mr David Poka: for Defendant Yoshi Kuni Ikeda

1: The multiple charges preferred against Michael Kenneth Kingston are bad for "multiplicity of charges" and are therefore struck out except for the charge of 'had in possession' of 200 rounds of 5.56 caliber live ammunitions contrary to s 65A (a) of the Firearms Act by way of severance as being in order.

2: The multiple charges preferred against Yoshi Kuni Ikeda are in part defective and part bad for "multiplicity of charges" and are therefore struck out except for the charge of 'did deal in' 200 rounds of 5.56 caliber live ammunitions contrary to s 38 (b) of the Firearms Act by way of severance as being in order.

C Inkisopo: This is a ruling on two separate applications by the Defendants through their lawyers urging this Court to strike out all the five (5) charges preferred against each of them separately and individually. All the charges relate to firearms; Defendant Kingston on charges of 'had possession' offences relating to firearms whilst Defendant Ikeda is on charges of 'did deal in' offences relating also to firearms.

2: On 13th March, 2013 the Senior Provincial Magistrate, Mr Posain Polloh transferred these two (2) matters to me to preside over. When the matters were actually handed over to me to preside over, I had assumed that the matters were fixed and ready to commence hearing on that day (13/03/2013) and I went into Court with that impression. As I am Bulolo based Magistrate (from outside of Lae), a lot was playing on my mind in terms of the time that it will take for me to complete hearing the matters especially when legal Counsels are involved representing their respective clients.

3: There are two separate Defendants facing five (5) individual charges each relating to firearms and each Defendant being defended by two senior lawyers of Lae. Both Counsels made separate applications for their respective clients raising primarily similar grounds as the basis of their respective applications. Ordinarily, they would be entitled to separate individualized rulings but I consider it expedient to make only one ruling covering the two (2) matters as a single ruling.

4: A single ruling because of primarily, convenience and secondarily, expediency; and also because the issues raised by both Messrs Ousi and Poka for their respective clients being all similar in nature and principle, I propose to deal with them all in this one written ruling and this I now do. As Counsels will appreciate, inadequate legal resource materials were available to me at Bulolo so could not undertake deep legal discussions of the legal issues I would like to have undertaken. But under the circumstance, this is the next best I could muster.

5: When the Court opened to commence session, Mr Ousi, Counsel for Defendant Kingston rose to his feet and intimated to the Court that he has a preliminary application to make. And Mr Poka also joined in by making similar remarks. Chief Superintendent (C/S) Miviri was asked if he was prepared to deal with the applications and he said he was. The Court proceeded and heard the Applications.

6: Mr Ousi, speaking first for Defendant Kingston, told the Court that his client was slapped with five (5) separate charges of possessing firearms and ammunitions without being licensed under various provisions of the Firearms Act. These charges, he said, all arose out of a single transaction alleged to have occurred during one related period, location and against the same one person and are therefore bad for 'multiplicity' of charges . The term "multiplicity" refers to the practice of charging the commission of a single offence in several counts which he said is prohibited because a single wrongful act cannot furnish the basis for more than one criminal prosecution. He cited in support of this submission the case of Gregory Kasen -vs- State (2001) N2133), a decision by his honour, Mr Justice Kirriwom at Lae; and incidentally, Messrs Ousi and Miviri appeared on the opposing ends of that case as counsel.

7: That was an appeal case from the order of the District Court on grounds firstly on severity of sentence and secondly, and later (with leave) amended ground against conviction. In that case, the Appellant, a lecturer at the Papua New Guinea University of Technology was convicted on pleas of guilty to three (3) charges of being in possession of articles: (5) x video tapes, (3) x computer floppy disks and one (1) computer CD containing pornographic pictures and materials contrary to s 25A (i) (b) of the Summary Offences Act chapter No 264.

8: He pleaded guilty to the three (3) charges and was convicted on all three (3) counts and sentenced to six (6) months imprisonment each to be served concurrently. The appellate Court upheld the appeal on grounds inter alia; that the Appellant was convicted on multiple charges arising out of a single transaction which was held to be bad for "multiplicity" and accordingly quashed the District Court order.

9: Mr Ousi submitted that the present case is similar to the Gregory Kasen case (supra) in that his client is facing five (5) charges arising out of one transaction that allegedly occurred on a single stated period (of between 21st February and 14th May, 20012), and at one place (at 11-Mile Guard Dog Armoury) and against the same one person. Therefore he submits, laying of five (5) separate charges in circumstances of the instant case is bad for "multiplicity" of charges. He therefore submitted that the charges laid against his client should all be struck out and his client discharged forthwith of these or any other charges.

10: C/S Miviri counter-argued that the Defendant was charged with separately and individually created and defined offences under the Firearms Act that do not and can not offend for "multiplicity" of charges. The charges related to different firearms offending against different and separate sections of the Firearms Act.

11: Hence, laying separate charges for the possession of various types of firearms under variously created sections of the Act can not offend against the rule on "multiplicity". He went on to highlight to the Court that the definition section of the Act refers to specific firearms as being offence if possessed without license as they are specifically and differently created offences set out in various sections that created distinct and independent offences and therefore the present five (5) charges preferred can not be bad for "multiplicity" of charges. I understood C/S Miviri to be saying that the Defendant Michael Kenneth Kingston's charges are in order and the Defendant should take the stand and take his pleas to the charges as they were correctly laid and do not offend against the notion of "multiplicity" of charges.

12: Mr Poka speaking for Defendant Yoshi Kuni Ikeda made a similar submission as Mr Ousi's for Defendant Kingston. Mr Poka submitted that his client was slapped with five (5) separate charges of dealing in firearms and ammunitions without being in possession of a dealers' license contrary to ss 38(a), 38(a), 38(b), 38(b) and 38(b) of the Firearms Act which were alleged to have arisen out of a single transaction that occurred in a single stated period and at the same place. He therefore argued that preferring five (5) separate charges against his client under those circumstances render them bad for "multiplicity" of charges. He therefore submitted that the five (5) separate charges laid against his client should all be struck out completely and his client discharged.

13: C/S Miviri repeated his earlier argument in response to Mr Ousi's to say that the charges were properly and correctly laid against the Defendant with the correct sections of the offences the defendant is alleged to have committed and is standing charged with.

Assessment of Arguments
14: For ease of identification and for purposes of contrasting the individual charges as laid against each of the Defendants and related issues, I consider it convenient to summarize and set them out in Tables as follows;

No	*CB #*	*Nature of Charge*	*Offence Section of Firearms Act*	*Offence period/dates*
01	CB#3187/2012	Possession of 200 rounds of 5.56 caliber live bullet w/o license	Section 65A (a)	21/2/2012 & 14/05/2012
O2	CB#3188/2012	Possession of STI Pistol Serial#UC5678 w/o license	Section 27A (3) (a)	03/02/2012 & 14/5/2012
03	CB#3189/2012	Possession of STI Pistol Serial # 2012001w/o license	Section 27A (3) (a)	03/2/2012 & 14/5/2012
04	CB#3190/2012	Possession of high-powered firearm to wit Colt M4 Rifle Serial#223004 w/o license	Section 27(1)(b)	21/2/2012 & 14/5/2012
05	CB#3191/2012	Possession of high-powered firearm to wit Colt M4 Rifle Serial#2012002 w/o license	Section 27 (1) (b)	03/2/2012 & 14/2/2012

No	*CB#*	*Nature of Charge*	*Offence Section of Firearms Act & period/dates of offence*
01	CB#3181/2012	Did deal in a firearm to wit Colt M4 Rifle Serial#223004 whilst not a holder of gun dealers' license	Section 38(a) & dated 21/2/2012 – 14/05/2012
02	CB#3182/2012	Did deal in a firearm to wit a Colt M4 Rifle Serial#2012002 whilst not a holder of gun dealers' license	Section 38(a) & dated 21/2/2012 – 14/5/2012
03	CB#3183/2012	Did deal in firearms to wit a STI Pistol Serial#2012001 .9mm Calibre whilst not being the holder of dealer's license	Section38(b) & dated 21/2/2012 – 14/5/2012
04	CB#3184/2012	Did deal in firearms to wit a STI brand Pistol Serial#UC5678 whilst not being holder of a gun dealer's license	Section 38 (b) & dated 21/2/2012 – 14/52012
05	CB#3185/2012	Did deal in ammunitions to wit 200 rounds of live 5.56 caliber whilst not the holder of a gun dealer's license	Section 38 (b) & dated 21/2/2012 – 14/5/2012

15: From Table 1, several scenarios emerge for the Court's consideration in dealing with Defendant Michael Kenneth Kingston's matter and they are:-

i: Two (2) charges of possession of two (2) high-powered firearms to wit Colt M4 Rifles with Serial numbers 223004 & 2012002 without license thereby both contravening Section 27(1) (b) of the Firearms Act.

ii: Two (2) charges of possessions of two (2) STI brand Pistols with Serial numbers UC5678 & 2012001whilst not being holder of a pistol license thereby both contravening s 27A (3) (a) of the Firearms Act.

iii: One only charge of 'had in possession 200 rounds of 5.56 caliber live bullets whilst not being holder of ammunitions license' thereby contravening s 65A (a) of the Firearms Act.

16: I have considered the applications carefully and discreetly gone through all five (5) charges several times as well as critically looking up and studying the various sections cited as being the offence creating provisions under which the defendant was charged.

17: Similarly for the charges relating to Defendant Yoshi Kuni Ikeda, there are two (2) sets of charges of 'did deal in' high-powered firearms to wit two (2) Colt M4 rifles with serial numbers 223004 & 2012002 whilst not being the holder of gun dealer's license contrary to s 38(a), two (2) sets of charges that he did 'deal in' STI brand pistols with serial #20012001 & UC5678 whilst not being holder of gun dealer's license contrary to s 38(b) and one only charge for dealing in 200 rounds of live bullets whilst not holding an ammunition dealer's license contrary to s 38(b) of the Firearms Act, thus making five charges in all.

18: Before dealing with the question of "multiplicity" of charges impacting on the present charges as preferred against each of the Defendants separately, I intend to deal first with what I consider to be serious latent defects in two (2) of the five (5) charges preferred against Defendant Yoshi Kuni Ikeda.

19: These defects relate to the charges that Yoshi Kuni Ikeda 'did deal in pistols' as denoted by CB numbers 3183/12 and 3184/12 as alleged to being offences under s 38(b) of the Firearms Act. The statement of the offence is not supported by the offence section of the Act; namely s 38(b) which makes it an offence to deal in ammunitions without being holder of ammunitions dealer's license. To put it differently, the section of the Act alleged to have been breached is not supported by the statement of the charge. In other words; the statements of the charges talk of 'did deal in pistols' whilst the provisions meant to be offended against ie; s 38 (b), talks about a completely different subject matter; namely ammunitions – ammunitions and pistols are two different things.

(b) deals in ammunition unless he is the holder of an ammunition dealer's license, is guilty of an offence.

Penalty: A fine not exceeding K10, 000.00 and imprisonment for a term not exceeding 10 years." (In Bold and italics are my emphases).

20: The charge as preferred against defendant Yoshi Kuni Ikeda denoted by CB #3183/12 says and I quote: "Did deal in firearms to wit a (sic) STI brand Pistol serial #20012001, .9mm caliber whilst not being the holder of a gun dealer's license; thereby contravening s 38 (b) of the Firearms Act."

21: Whilst the other charge denoted by CB #3184/12 says and I quote: "Did deal in firearms to wit a (sic) STI brand Pistol serial #UC5678, .9mm caliber whilst not being the holder of a gun dealer's license; thereby contravening s 38(b) of the Firearms Act."

22: In my view, this provision is talking clearly about ammunitions as against the wording of the charge of 'did deal in' a pistol whilst the offence creating section of the Act is talking clearly about ammunitions as against pistols. It is in my view absolutely clear that the wordings of the preferred charges as highlighted above do not add up or match to constitute offences under s 38 (b) of the Firearms Act. This discrepancy to my mind is substantial and has serious consequences on the charges preferred.

23: In serious firearms charge as this, it is no small matter to just gloss over these latent defects; particularly when the implicated person's liberty is at stake, This Court has a duty to be vigilant at all times to ensure that a person facing a serious criminal charge is accorded the protection guaranteed him under the Constitution.

24: I therefore consider CB #3183/12 and CB #3184/12 to be clearly defective in substance and ought to be struck out. Besides; this is a criminal charge and that the Defendant's rights to his personal liberty should not be compromised in attempting to fix up simple but potentially fatal mistakes of State agents in not carefully formulating and preferring charges and ending up laying defective charges that are wrong. I consider this defect to be substantial as opposed to being only subsidiary in nature or being a slight variance in order therefore to being able to be cured by invoking the Court's discretion to effect amendments under s 32 of the District Courts Act. It could also be quite against public policy to cure these fundamental defects just like that.

25: I am of the humble view that the fates of these two charges of dealing in pistols under the offence creating provision of s 38(b) of the Firearms Act should terminate forthwith by way of being struck out and I so strike them out. I feel fortified in that view because laying charges against wrong sections of the Act creating the offence in my view is likened to charging someone for an offence not known to law. In a serious firearms charge as this, any attempt, howsoever slight or minor it might appear to be; to interfere with someone's liberty by preferring defective charges and later moving to cure such defects by amendments should be resisted and discouraged. This then puts paid to two (2) of the charges out of the five (5) laid against Defendant Ikeda; leaving only three to proceed to the next stage.

26: Defendant Yoshi Kuni Ikeda's remaining charges are CB #3181/12, CB #3182/12 and CB #3185/12 relating to the two high-powered rifles both contrary to s 38(a) and CB #3185/12 relating to 200 rounds of live bullets, without license contrary to s 38(b) of the Firearms Act.

27: One may be forgiven for thinking and saying that the charges as preferred against both Defendants were correct and in order as being for specific and separately identified offences under the Act, as the Prosecution argues. But given the current criminal practice precedent of the Gregory Kasen-vs- State case (supra), the question whether all these charges are bad for 'multiplicity' must necessarily be resolved on the current legal position; 'the practice of charging the commission of a single offence in several counts is prohibited because a single wrongful act, it is said, cannot furnish the basis for more than one criminal prosecutions'. See Gregory Kasen -vs- State (supra).It is trite that this principle of law "prohibits 'multiplicity' of charges against offenders where the circumstances are so related as to time, place and the person implicated". Gregory Kasen -vs-State case (page 8)

28: I am convinced that these compound charges arose out of what I consider to be single transaction, notwithstanding the fact that they are all separately defined and created offences, but are substantially arising from same transaction, same time period, same place and the persons implicated and would therefore render all related and the multiple charges emanating thence to being bad for "multiplicity" of charges; because "the whole scheme of this law is to ensure that a person charged with a criminal offence is tried fairly and according to law. He must be able to defend himself without being prejudiced by the manner in which his charge is pressed." See Gregory Kasen case (supra) at page 8.

29: But given the fact that the various charges laid against Defendant Kingston and Defendant Ikeda having have already been made issues and subjects of two (2) separate but similar Applications, the two Defendants' multiple charges preferred on the same items of two (2) rifles and two (2) pistols in each case are considered bad for "multiplicity" of charges.

30: As I have determined that the four (4) different charges of the five (5) against Defendant Kingston and the two remaining ones of the three (3) for Defendant Ikeda as being bad for "multiplicity" of charges as propounded in Gregory Kasen -vs- State case (supra), they must therefore be struck out on that sole basis. That leaves only one (1) charge each remaining for each of the Defendants to plead to.

32: In the end result, I consider that the two Defendants have now only one charge each relating to the 200 rounds of 5.56 caliber live bullets the individual charges for which were formulated differently for each defendant: Defendant Michael Kenneth Kingston is charged that he "had in possession 200 rounds of 5.56 caliber live bullets whilst not being holder of ammunition license thereby contravening s 65A (a) of the firearms Act" whilst Defendant Yoshi Kuni Ikeda, is charged that he "did deal in ammunitions to wit 200 rounds of live 5.56 caliber bullets whilst not being the holder of ammunitions dealer's license thereby contravening s 38(b) of the Firearms Act."

33: This lone charge against each Defendant under separate sections of the Act are variously in my view proper and in order as stand-alone charges from the ones found to be bad and offend for "multiplicity" of charges as discussed above. This is because; the various charges against Defendant Kingston and Defendant Ikeda relating to the 200 rounds of ammunitions are a single stand-alone charge against the defendants and in my humble view capable of severance from the ones that offended for "multiplicity" of charges.

34: I will therefore deal with this residual ammunition charge against the two Defendants from the other charges found to be bad for "multiplicity" of charges by way of 'severance'. The term severance is referred to as "where a transaction is composed of several parts, and it is possible to divide it up so as to preserve part and disregard the other part, the contract is said to be severable. Thus if one of the promises is to do an act which is either in itself a criminal offence or contra bonos mores, the whole contract is void, but if the objectionable part is only subsidiary, then it may be treated as struck out and the contract enforced without it." Osborne's Concise Law Dictionary (1983) Seventh Edition – Sweet & Maxwell by Roger Bird. Here, it seems the word severance is being considered in the context of a contract (civil), however, to my mind the general tenor of the principle is quite appropriate for consideration and applied loosely here in the sense that the objectionable parts ("multiplicity of charges") of the transaction in these matters have been duly discarded on grounds of being bad for "multiplicity". I find this principle quite apposite for our immediate purposes and so I propose to apply it in the present case to sever the charges relating to ammunitions from the ones relating to the firearms namely pistols and rifles because the charge relating to ammunitions is one only and single and on its own. Hence, I am of the humble view and on the basis of my above observations, the ammunitions charges are severable from the other offending charges that were rendered bad for "multiplicity" and duly discarded and struck out.

35: In the final analysis, I find that the Defendants each has a valid charge against each of them relating to the 200 rounds of live bullets; the charge that Michael Kenneth Kingston – "had in possession 200 rounds of 5.56 caliber live bullets whilst not being holder of ammunitions license thereby contravening s 65A (a) of the Firearms Act" whilst for Yoshi Kuni Ikeda; the charge that he "did deal in ammunitions to wit 200 rounds of 5.56 caliber live bullets whilst not being the holder of ammunitions dealer's license thereby contravening s 38 (b) of the Firearms Act."

1: Defendant Michael Kenneth Kingston now has only one charge to take his plea on and to be dealt with according to law.

2: Defendant Yoshi Kuni Ikeda now has only one charge to take his plea on and to be dealt with according to law.

Papua New Guinea District Court

Police v Kingston [2013] PGDC 10; DC2061 (12 April 2013)