Police v Ikeda [2013] PGDC 14; DC2066 (8 August 2013)

DC2066

PAPUA NEW GUINEA
[In the Criminal Jurisdictions of the District Court at Lae]
CB # 3181 of 2012

Between:

POLICE
(Informant)

And:

YOSHI KUNI IKEDA (No.2)
(Defendant)

Lae: C Inkisopo

2013: 31stJuly & 8th August

CRIMINAL-particular Offence under s 38 (b) of the Firearms Act – application to strike Information out for uncertainty in wording of charge – wordings of charge and wordings of s 38 (b) of Act going to substance - dichotomy of wordings of charge to wording of section of section creating offence –difference between “ammunition dealer’s licence” and “gun dealer’s licence” in section of Act and the text of charge – a fundamental error –

Criminal practice and procedure – options for amendment to charge under s 32 0f District Courts Act –error goes to substance of charge preferred against Defendant as opposed to being only a slight variance or only of peripheral nature – amendment not a permissibleoption -

Criminal practice and procedure – error so fundamental that charge is rendered bad for uncertainty – charge struck out thereby -

Cases Cited:
(No case cited)

References:

1: District Courts Act, Chapter 40
2: Firearms Act, Chapter 301

Counsel:
1: Chief Superintendent Nicholas Miviri
2: Mr David Poka

2013

REASONS FOR RULING

C Inkisopo: Defendant through his legal Counsel Mr David Poka filed a Notice of Motion seeking the following orders;-

(1) An entitlement to a fair hearing under Section 37(3) of Constitution of Papua New Guinea and the Information preferred against him be struck out as it is defective; namely that it does not specify or set out the essential elements/ingredients of the alleged offence; viz the type of licence in questionas prescribed in Section 38(b) of the Firearms Act ; and/or the Information is bad for uncertainty in that whilst the provision of Section 38(b) prescribes for the “holder of an ammunition dealer’s licence, the wording of the alleged charge reads as “ the holder of a gun dealer’s licence and further; that he be tried separately from his co-defendant Michael Kenneth Kingston.

2: This matter as counsel says in Submission is a matter of law-purely preliminary legal issues and I agree. I agree also to one other remark by Counsel that it is only important that this matter was raised at the outset at this juncture; that is, before the matter goes to a fully fledged trial becausethe issue is one that was still going to be considered at some stage of the trial. In my view this issue is crucial and the fate of the case was going to come down substantially on this issue. Counsel raised a number of issues but the crucial one in my humble view is the issue relating to uncertainty as to the wordings of the charge laid against the Defendant as to the wordings of the offence creating provision of s 38(b) of the Firearms Act Chapter 301.

3: The wordings of the offence creating provision of the Act provide (and I quote);

Section 38(b) AMMUNITIONS DEALER’S LICENCE

“A person who;-

(a) Deals in firearms; or
(b) Deals in ammunition unless he is the holder of an ammunition dealer’s licence
(c)

Is guilty of an offence.

Penalty: A fine not exceeding K10, 000.00 and imprisonment for a term not exceeding 10 years.

4: As can be appreciated, the offence of “dealing in ammunitions under this part of the Act (Part IX)is given a serious impetus and in fact do agree that it is serious in the sense that the penalty provision of that section (s 38(b) of the Act prescribes a penalty of K10,000.00 fine and 10 years jail term. The seriousness of the offence as reflected in the penalty provision of the Act as shown above equally calls for a discreet and an accurate formulation of charges to be pressed against defendants charged with offences under that section of the Act.

5: Furthermore, as respects the Defendant’s other claim of right to a fair hearing,I consider that the Defendant is not being denied any of his rights to a fair hearing as he claims in his Notice of Motion of being entitled to a fair hearing by an independent impartial tribunal such as this Court. This claim in my view is misconceived as there is no reason in my humble view for theDefendant to be crying for a fair hearing. He is in every sense of the word being accorded his entitlement to be tried fairly by this court and there is no conceivable reason for this claim.

6: I therefore reject this claim outright though the Defendant may be saying that because of the other defects he said are apparent in this case as highlighted above; and because of that fundamental defect, he could thereby be prompted into claiming his right to be tried fairly; but whatever it means that issue in my humble view is irrelevant for our immediate purposes as my giving priority and commitment to dealing with this matter travelling in from Bulolo negates completely any cause for a claim to being tried fairly.

1. I therefore reject this claim
   
2. I also reject his other argument as denoted in Item #(1)(a)(2) as being defective in that the wording of the charge do not specify or set out the essential elements and ingredients of the alleged offence viz the type of licence in question as prescribed by s 38(b) of the Firearms Act (Chapter 301).
   

7: In my humble view, the charge for the start does not have to set out the ingredients of the charge on the Information laid which substantially is a question that becomes relevant only after evidence have been received. The charge as it is; excepting what I will be saying below; is adequately worded to require the Defendant to enter his plea on. The main and crucial issue before this Court in this Application is the last item the Defendant raises in his Notice of Motion. That isrelief Item number (1) (a) (ii) which is in the following words;

“... [I]t is bad for uncertainty in that whilst the provision of s 38(b) of the Fire Arms Act prescribes for the ‘holder of an ammunition dealer’s licence’, the wordings of the alleged charge are statedto being “the holder of a gun dealer’slicense.” (Underlined and in italics is my emphasis).

8: For a fuller appreciation and understanding of this dichotomy, I’d wish to set out verbatim the wordings of the present charge as laid against the Defendant to that of the above provision of the Act under s 38(b) of the Firearms Act, Chapter 301.

9: The wordings of the charge verbatim are;-

“Did deal in ammunitions towit 200 rounds of live 5.56 calibre whilst not being the holder of a gun dealer’s licence” thereby contravening s 38 (b) of the Fire Arms Act whilst s 38(b) of the Firearms Act provides;-

Section 38 AMMUNITION DEALER’S LICENCES

“A person who-

(a) Deals in firearms; or
(b) deals in ammunition unless he is the holder of an ammunition dealer’s licence

is guilty of an offence.

Penalty

A fine not exceeding K10, 000.00 and imprisonment for a term not exceeding 10 years.

10: Comparing and contrasting the charge as preferred against the Defendant with the actual wordings of s 38(b) of the Firearms Act; I notice a glaring difference between the wordings of the charge with that of the offence creating provision of s 38(b) of the Act.

11: To my mind with respect, the wordings of the charge demonstrates a significant degree of uncertainty and ambiguity in preferring a charge of not being the holder of a “gun dealer’s licence” on a charge relating to ammunitions andwhereas the offence creating provision of s 38(b) provides as “whilst not being the holder of an ‘ammunition dealer’s licence’.”

12: To my mind; it seems obvious on the face of the charge as preferred against the Defendant and there to be apparent crucial difference and uncertainty as the Defendant claims as per paragraph 1 (a) (ii) of his Notice of Motion filed and dated 30th July, 2013.

13: As this is criminal proceeding, any uncertainty as to the charges preferred or existence of any a slight doubt or ambiguity in charges preferred, let alone evidence received at full trial, it is trite that our system of criminal justice principles and procedure dictate that the benefit of any uncertainties and doubts surrounding criminal charges must be given to the Defendant. In my humble view, I find that there is apparent on the face of the charge a fair degree of uncertainty regarding the charge preferred against the Defendant. Accordingly, this Court has no option but to stop this case from proceeding further; for in my humble view this defect and the issue it spawns goes to the substance of the charge levelled against the Defendant.

14: As a result of the above discussion I uphold the Defendant’s Application to strike out this charge of dealing in 200 live ammunition contrary to s 38(b) of the Firearms Act for the cause of uncertainty due largely to incompatibility of wordings of charge to the wordings of the offence creating provision of the Act.

15: With this conclusion, it is not necessary for me now to proceed to dealing with the Defendant’s other application to be tried separately from his co-Defendant, Mr Michael Kenneth Kingston. That issue goes with this ruling.

The formal Orders of the Court are;

1. The Information charging the Defendant with dealing in ammunition contrary to s 38(b) of the Firearms Act Chapter 301 is herebystruck out for uncertainty due to incompatibility of wordings of charge and wordings of offence creating provision of Act
2. The Defendant shall be discharged forthwith of this charge.
   
3. The Defendant’s K6, 000.00 cash bail shall be refunded to him
   
4. The Defendant’s passport shall be released forthwith and restored to him.
   
5. The exhibits of 2 x rifles, 2 x pistols and 200 rounds of live 5.56 calibre bullets shall remain with the State forfeited and destroyed after 30 days from instant date.
   

Lawyers:

1: Police Headquarters Legal Services Unit, Konedobu, Port Moresby, National Capital District.

2: Niugini Lawyers, Lae, Morobe Province.