Mavad v GS [2021] PGDC 39; DC5095 (17 May 2021)

DC5095

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (JUVENILE SUMMARY) JURISDICTION]

JCSUM 22- 23 of 2021
BETWEEN

CONSTABLE LEO MAVAD

Informant

AND

GS
Defendant

Waigani: L Wawun-Kuvi

2021: 17 May

DISCLAMIER- Every effort has been made to comply with statutory provisions particulary section 28 of the Juvenile Courts Act 1991, prohibiting publication that apply to this judgement. The responsibility remains on any person using material in the judgement to ensure that the intended use of the material does not breach any such provision.    

CRIMINAL LAW-CRIMINAL PRACTICE AND PROCEDURE- SUMMARY PROCEEDINGS-Summary Offences Act-Same conduct giving rise to multiple charges-Multiplicity

Cases Cited
Kasen v The State [2001] N2133
Tapopwa Thomas vs. The State [1979] PNGLR 140

References
Blacks Law Dictionary, 6 ed

Legislation
District Court Act
Juvenile Justice Act
Summary Offences Act

Counsel

Police Prosecutor Senior Constable Emma Wali

Defendant Unrepresented.

Juvenile Court Officer present for Juvenile

17 May 2021

L Wawun-Kuvi, Magistrate:

1. GS is charged as follows:
   • 1.1. Did without reasonable excused threw a stone with intent to damage property namely a Toyota Coaster bus registration JAD 136, the property of Armsec Limited, thereby contravening section 28 (2) of the Summary Offences Act; and
   • 1.2. Did without reasonable did damage property namely a Toyota Coaster bus registration JAD 136, the property of Armsec Limited by throwing stones and causing dent on the rear side of the bus thereby contravening section 47(1) of the Summary Offences Act.

Whether the charging of multiple counts for the same conduct is proper?

2. It became evident upon perusal of the information and enquiry with the prosecutor that the defendant was charged for two different offences out of the one conduct, namely, the throwing of the stones.
3. This manner of charging was discussed in the National Court case of Kasen v The State [2001] N2133. This was an appeal from the District Court where the Defendant’s was charged for multiple counts of possession of pornographic materials. This type of charging is distinct from duplicity and is referred to as multiplicity.
4. His Honour Justice Kirriwom in adopting the definition from Blacks Law Dictionary^[1] defined multiplicity as follows:

“The phrase multiplicity of actions or suits aptly describes this practice were numerous and unnecessary attempts are taken to litigate the same right or cause of action. The term ‘multiplicity’ refers to the practice of charging the commission of a single offence in several counts. This practice is prohibited because a single wrongful act cannot furnish basis for more than one criminal prosecution”.

5. His Honour used the Supreme Court case of Tapopwa Thomas vs. The State [1979] PNGLR 140 as an illustration of multiplicity. In Tapopwa, the appellant was charged with one count of unlawful carnal knowledge of a girl under sixteen and one count of rape. The trial Court found him guilty of both counts and sentenced him to four months for unlawful carnal knowledge and twelve months for rape. The Supreme Court found that the appellant was punished twice for the same act of sexual invasion of the complainant.
6. His Honour’s views is clearly stated when he stated:

“The law states that a person cannot be twice convicted for the same offence. And in this context evolved the principle of law that prohibit multiplicity of charges against the offender where the circumstances are all related as to time, place and the person implicated. In this situation the prosecution must elect which one of the more serious charges that he wished to proceed with. 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.”

7. Whilst it the Constitutional powers of police to lay whatever charges the case merits, the Court, more so in the case of an unrepresented defendant, must ensure that the multiplicity of counts is not unjust and prejudicial to the rights of an accused to a fair hearing.
8. Considering the above, I find that it would be prejudicial to the juvenile in this case because essentially if the matter proceeds to sentence, he would in fact be punished twice for the same act.
9. Having raised this with the prosecution, Prosecutor Wali has decided to withdraw the charge of throwing a stone.

Orders

10. The Orders of the Court are as follows:
    1. The Information of Throwing a Stone with an intent to cause damage to property is withdrawn pursuant to section 61A (1) of the District Court Act.
    2. The Defendant is discharged pursuant to section 61A (3) of the District Court Act.
    3. The case against the Juvenile shall proceed on the charge of Wilful Damage.

Lawyer for the Informant, Police Prosecution

Lawyer for the Defendant, Self Represented

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^[1] 6^th ed