State v Koweri [1976] PGLawRp 653; [1976] PNGLR 468 (11 October 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 468 - The State v Tokai Koweri 

[1976] PNGLR 468

N63

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

TOKAI KOWERI

Waigani

Frost CJ

6 October 1976

11 October 1976

CRIMINAL LAW - Person not to be twice punished for same offence - Charge of breaking, entering and stealing - Accused previously convicted summarily of being in possession of goods reasonably suspected of being stolen contrary to s. 18 of Police Offences Act - Same goods the subject of both charges - Defence raised that accused not to be punished twice for same offence - Tests to be applied - Criminal Code s. 16[dxxiii]¹.

An accused who was charged with breaking and entering a dwelling house and stealing therefrom certain goods, and who had previously been convicted in the Local Court of the offence of being in possession of goods reasonably suspected of being stolen, contrary to s. 18 of the Police Offences Act of Papua New Guinea, (the same goods being the subject of both charges) raised by way of defence s. 16 of the Criminal Code, which provides that no person can be twice punished, either under the provisions of the Code, or under the provisions of any other law for the same act or omission.

Held

N1>(1)      The words in s. 16 of the Criminal Code, “the same act or omission” in relation to acts referred to in two charges, are to be taken as implying, at least, a unity of time and place.

R. v. Hull (No. 2) [1902] St. R. Qd. 53 per Griffith C.J. at p. 4 applied.

R. v. Gordon; Ex parte Attorney-General [1975] Qd. R. 301 at p. 323 referred to.

N1>(2)      It being clear that the acts in the first place of breaking and entering the dwelling house and of stealing, the latter being complete once the goods were taken by the accused, were quite different from the later “acts” of being found in possession of the same goods reasonably suspected of being stolen, the defence was not available.

Trial

The accused was charged with breaking and entering a dwelling house and stealing therefrom certain goods, and raised by way of defence s. 16 of the Criminal Code, he having been previously convicted in the Local Court of the offence of being in possession of goods reasonably suspected of being stolen, contrary to s. 18 of the Police Offences Act of Papua New Guinea.

Counsel

JP Edge for the State

GC Lalor for the accused

Cur. adv. vult.

11 October 1976

FROST CJ: In this prosecution in which the accused has pleaded not guilty to the charge of breaking and entering a dwelling house and therein stealing certain goods, the only defence available to the accused is that under s. 16 of the Criminal Code.

The circumstances which raise the defence are that the accused was convicted in the Local Court for the offence of being in possession of goods which are the same goods as are the subject of the present charge, and which were reasonably suspected of being stolen, contrary to s. 18 of the Police Offences Act of Papua New Guinea. For this summary offence he was sentenced to one month’s imprisonment.

Having broken into and entered the dwelling house and stolen the goods, he was found some distance away walking along the road with the goods in his possession, and was then charged before the Local Court.

Section 16 of the Criminal Code, so far as is relevant, provides as follows:

“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, ...”

Counsel for the accused relied upon a number of authorities which it is convenient to set out. They are: Regina v. Yofia Abone[dxxiv]²; Gaiari-Ganereba v. Giddings[dxxv]³; (both decisions of Minogue J. — as he then was) R. v. Hull (No. 2)[dxxvi]⁴; R. v. Gordon, Ex parte Attorney-General[dxxvii]⁵ (Court of Criminal Appeal); R. v. Dolan[dxxviii]⁶; The Director of Public Prosecutions v. Humphrys[dxxix]⁷.

(In the latter case it was held that the doctrine of issue estoppel had no application to criminal proceedings).

These cases propound various tests for the application of s. 16. In R. v. Hull[dxxx]⁸ Griffith C.J. said: “I think it is only necessary to look at the words ‘the same act or omission’ to say, that when it is alleged that acts referred to in two indictments are the same, there is implied a unity, at least, of time and place.” Minogue J. (as he then was) considered that “the intention of s. 16 is to direct consideration of the substance of an 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”[dxxxi]⁹.

In the recent case of R. v. Gordon, Ex parte Attorney-General[dxxxii]¹⁰ Hanger C.J. considered that the section refers to punishable acts or omissions, and Williams J. propounded the proper test as being “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 later offence charged”[dxxxiii]¹¹.

It is to be noted that in Gaiari-Ganereba v. Giddings[dxxxiv]¹² Sir John Minogue, applying perhaps a broad test, reached the conclusion that a previous conviction for manslaughter provided a defence under s. 16 to a subsequent prosecution — under peculiar circumstances — for driving under the influence. But in R. v. Gordon, Ex parte Attorney-General[dxxxv]¹³ the Court of Criminal Appeal of Queensland held, in the converse case, that s. 16 afforded no defence to the appellant who having been convicted of driving under the influence, was subsequently prosecuted for dangerous driving causing grievous bodily harm. However, I do not consider that this is the occasion for me to express any view upon those particular cases.

In my opinion the facts of this case are so plain that it is unnecessary for me to do otherwise than apply the words of the Code. It is clear that the acts in the first place of breaking and entering the dwelling house and of stealing, the latter being complete once the goods were taken by the accused, are quite different from the later “acts” of being found in possession of the same goods reasonably suspected of being stolen.

The case is clearly one where there is no unity of time or place within the test laid down by Griffith C.J. By reason of its persuasive value, in my opinion, that test does provide an interpretation which is applicable to the Criminal Code, s. 16. Constitution, Sch. 2.12 (2).

For these reasons I am satisfied beyond reasonable doubt that the defence fails, and the accused is therefore convicted of the charge.

Verdict of guilty of breaking, entering and stealing.

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

Solicitor for the accused: N. H. Pratt, Acting Public Solicitor.

> R>

[dxxi[dxxiii] Infra p. 469.

[dxxiv] [1967-68] P. & N.G.L.R. 277.

[dxxv] [1967-68] P. & N.G.L.R. 346.

[dxxvi] [1902] St. R. Qd. 53.

[dxxvii] [1975] Qd. R. 301.

[dxxviii] (1976) 62 Cr. App. R. 1.

[dxxix] [1976] 2 All E.R. 497.

[dxxx] [1902] St. R. Qd. 53.

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

[dxxxii] [1975] Qd. R. 301 at p. 323.

[dxxxiii] [1975] Qd. R. 301 at pp. 306, 323.

[dxxxiv] [1967-68] P. & N.G.L.R. 346.

[dxxxv] [1975] Qd. R. 301.