Kasen v The State [2001] PGNC 64; N2133 (15 August 2001)

N2133
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

APP. 21 OF 2001

GREGORY KASEN
Appellant

vs.

THE STATE
Respondent

Lae: Kirriwom, J
2001: 6 & 15 August 2001

APPEAL – Sentence - District Court – Pleas of guilty - Possession of indecent articles – Sentence of imprisonment excessive – Over-emphasis on prior convictions of similar nature – Insufficient weight on circumstances of mitigation - Summary Offences Act Ch. 264, s.25A(1)(a).

APPEAL – District Court – Simultaneous possession of three different articles – Multiple charges of being in possession of indecent articles – One single transaction – Three similar charges – Charges bad for Multiplicity – Proceedings were a nullity – Different articles constitute circumstances of aggravation only – No separate offences created – Miscarriage of justice – Convictions quashed - Appeal upheld.

INFERIOR COURT – District Court – Practice and Procedure – Information – Charge to state adequate description of the offence in terms of the section and subsection creating the offence – Statement of facts on reverse side of information to state only the factual matters constituting the charge.

INFERIOR COURT – District Court – Practice and Procedure – Right to fair trial – Neutral and impartial tribunal – Publication of defendant’s prior convictions before trial begins - Improper practice - Disclosure of previous convictions only on sentencing – Denial of justice and fair trial.

Appellant, a lecturer at University of Technology, was convicted on three counts of being in possession of articles that were considered to be offensive to public morality and standard of decency of ordinary people which is an offence under s. 25A (1) (a) of the Summary Offences Act Ch. 264.

These articles consisted of video tapes, computer floppy-disks and also computer CDs containing pornographic pictures and materials.

The appellant pleaded guilty to all three counts and sentenced to six months concurrent on each count. He appealed against severity of sentence initially, but subsequently amending the notice of appeal with leave of the court to include appeal against his convictions.

It was noted at the hearing of the appeal that the appellant had two priors, one for similar offence; there was a single transaction of being in possession and there was only one raid of the appellant’s house under a search warrant resulting in the seizure of the pornographic items and that the appellant’s culpability was predetermined by early disclosure of his prior convictions stated on the reverse side of the information containing the charge.

Several issues were identified and discussed, including, inter alia:

1. Whether the charges laid were bad for multiplicity?
2. Whether there was over-emphasis on the prior convictions aspect and insufficient weight on factors in mitigation?
3. Whether the early disclosure of the appellant’s prior convictions to the presiding magistrate before the appellant was asked to admit or deny the truth of the charge(s) against him amounted to an unfair and predetermined hearing likely to lead to miscarriage of justice?
   

Appeal upheld. Detailed discussion and Reasons for decision are in the judgment.

Cases cited:
Chia He Jia and Huang Ming Xian v Gisa Komagin – App. 357 & 358 of 1997, March 30, 1998 – Unreported National Court Judgment (N1702)
John Worofang v Patrick Wallace [1984] PNGLR 144.
Tapopwa Thomas vs. The State [1979] PNGLR 140
Hure Vabubu vs. Nelly Maleva [1987] PNGLR 87

Texts:
Blacks Law Dictionary 6th edition

Counsel:
Mr P. Ousi for the Appellant
Mr N. Miviri for the Respondent

15 August 2001

DECISION

KIRRIWOM, J: The appellant pleaded guilty to three charges brought under section 25A(1) of the Summary Offences Act Ch. 264 and was convicted and sentenced to six months imprisonment on each count ordered to be served concurrently. The charges related to being in possession of some pornographic materials comprising video cassettes (3), floppy computer disks (5) and a CD containing digital video of obscene viewing which were contrary to the society’s standard of moral decency. All these items were confiscated from the appellant’s house under a search warrant.

The Offence

Section 25A. Possession, etc, of indecent, etc, article

(1) A person who –

• (a) has in his possession; or
• (b) makes; or
• (c) produces; or
• (d) performs in the making or production of: or
• (e) exhibits; or
• (f) sells, an article or articles that –
• (g) is or are blasphemous or indecent; or
• (h) grossly offends or grossly offend against accepted standards of decency,

is guilty of an offence.

Penalty: A fine not exceeding K2000.00 or imprisonment for a term not exceeding one year, or both.

The Charges

The three charges were worded in similar terms:

1. "Did had (sic) in his possession two (2) articles namely video cassettes that is against accepted standard of decency,
   

Thereby contravening section 25A (i) (b) of the Summary Offences Act. Ch. 264.’

2. ‘Did had (sic) in his possession an article namely an ELECTRO SEX compact disc, digital video that is against accepted standard of decency,
   

Thereby contravening section 25A (i) (b) of the Summary Offences Act Ch. 264.’

3. ‘Did had (sic) in his possession five (5) articles namely floppy computer disk that is against accepted standard of decency,
   

Thereby contravening section 25A (i) (b) of the Summary Offences Act Ch. 264.’

The appellant appealed to this Court initially against the severity of sentence. When he appeared at the hearing of his appeal on 6th August 2001 his counsel applied for leave to amend the Notice of Appeal to include an additional ground challenging his conviction as well. Leave was granted and his fresh ground appears as ground 1 below under grounds of appeal.

GROUNDS OF APPEAL

The grounds of appeal, as amended, are:

1. The learned magistrate erred in law and in fact in:
   
   • (a) Proceeding to hear the information when the Information was defective and bad in law when:-
     
     • (i) The wording of the charges did not include an essential element of the offence being "grossly"
     • (ii) The charges pleaded guilty to did not disclose an offence known in law especially the Summary Offences Act.
     • (iii) The charges under Section 25A (i) (b) relate to ‘making’ and not in possession of pornographic materials and does not disclose an offence.
       
2. The sentence was manifestly excessive in the circumstances that the Magistrate erred in law in taking the three Information as three different offences as all three offences were brought under the same action and the offence occurred on the same date.
   
3. The learned magistrate failed to consider or put any weight to the Appellant’s submission on sentence.
   
4. The learned magistrate erred taking the previous conviction out of context in that the similar offence occurred in 1999 and the conviction on assault related to family disputes.
   
5. The appellant’s offence does not fall into the worst type category.
   
6. The sentence was manifestly excessive.
   

Appeal against conviction

The appellant challenged his conviction on procedural errors including the failure to describe the charge in the term or adjective used in the section vis-à-vis ‘grossly’, and citing wrong subsection of the section that creates the offence.

The charge simply states that of being in possession of (the items complained of) that is against the standard of decency. With the inclusion of the word ‘grossly’ as submitted by counsel, the charge should read '‘being in possession of (the items complained of) that grossly offends against the standard of decency or accepted standard of decency". It was submitted that because the charge was not properly amended to include the word "grossly", the charge as it stood did not disclose an offence and the appellant was convicted for an offence that never existed in law. This argument, just like the other related submissions premised on similar grounds must fail. The appellant knew exactly why he was in court, he read the charge and understood it before he pleaded to it. He was not an illiterate person. In Jacob Prai & Anor v PNG [1979] PNGLR 247 the Supreme Court said at p. 250:

"The appellants were under no illusion as to the nature of the charges against them. In our view there has been a description of the offence in similar words to the Act which import each element of the offence."

Neither was the appellant in this case under any illusion at all as to what he was pleading to. With the level of sophistication he had as a lecturer and being an educationist, naturally he understood the charges against him. In Jacob Prai case, the appellants were charged under the Migration Act as aliens who were illegally on PNG soil. Although the wording of the charge could have been a little bit more explicit or precise for want of understanding, the charges related to their illegal entry and presence in PNG without the relevant entry permits. They knew why they were in court in the first place.

It is settled law in this jurisdiction that a charge is not created by its section number but by its wording that creates the offence. As Bredmeyer,J said in John Worofang v Patrick Wallace [1984] PNGLR 144 at p.145:

"If there is any variation between the words of an information and the section number, the words prevail. Afterall a defendant pleads guilty to the words of the charge put to him and not to the section number. On getting an information a magistrate should check that the charge is correctly worded, that it follows the section properly, and then put the charge to the defendant. He should not read the section number to the defendant. A defendant can only plead to facts for example "that he did on the 1 December 1983 break and enter the property of A and while therein stole the properties etc." A defendant cannot plead to law. Whether or not those facts constitute an offence under s. 395(1) or (2) or any other section is for the magistrate to decide. In this case the section mentioned in the information was wrong but the defendant pleaded to facts as alleged in the text of the information and the wrong section number is in itself of no consequence. It is not a "substantial miscarriage of justice". (Emphasis added)

The defect in the charge was curable given some prudence and care. The offence itself is adequately described in the information in the words used in the subsection concerned but for the wrong subsection number.

Whether or not the article or articles complained of were indecent, obscene or grossly offensive or grossly offended accepted standard of decency in society is an issue for strict proof of that element of the offence in a trial. But that is not the case here. Such proof was not necessary, as the appellant pleaded guilty to the charges. All these argument simply have no merit.

The charges as drafted were that of being in possession which is clearly supported by the statement of facts. However, the charge was laid under sub-section (1)(b) when it should have been sub-section (1)(a). Subsection (1)(b) creates a different offence of "making" of what I term as pornographic materials. There are overwhelming authorities that already set down the law. In Chia He Jia and Huang Ming Xian v Gisa Komagin – App. 357 & 358 of 1997, March 30, 1998 – Unreported National Court Judgment (N1702) the appellants were convicted under the Fisheries Act of illegally fishing in PNG waters by the District Court. One of their grounds of appeal was very similar to this case. In dismissing the argument, hence the ground of appeal, Jalina, J. said:

"Mr. Yalo for the appellants has submitted that in view of the clear wording of s.57 sub-section (1) and (2)(a), the appellants could not be convicted under sub-section (2)(a) because that provision does not create the offence. The offence is created by sub-section (1)(a) and (b). Consequently the charges that were laid and the convictions that were entered under s.57(2)(a) were wrong. They were convicted under the wrong section which meant that they were convicted of an offence not defined by law...

With respect, I cannot see any merit in the arguments presented...In my view, sub-section (1) of s.57 was sufficiently incorporated through the use of words such as ‘fish’, ‘be in’ or ‘being used for fishing’ which appear in that sub-section. It is not the section of the Act that should be looked at but the facts or actions that constituted the offence. It was the facts or actions that are alleged to constitute the offence that were put to the appellants to plead to. Not the section of the law." (Emphasis added is mine).

The only argument that was not a ground of appeal but was alluded to in counsel’s submission is the one on multiplicity. The prosecution of these charges breached the rule against multiplicity of charges. By creating three distinct and separate counts out of one act or omission ie, being in possession of pornographic materials, the appellant was convicted and punished more than he should have. Neither counsel addressed the court directly on this point although on the face of the record, it was pretty obvious that the appellant was convicted and punished three times for the same act or omission.

Multiplicity

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 – see Blacks Law Dictionary 6th edition.

The charge is only one. And that is for the offence of being in possession of pornographic materials. The offence was committed on 25th May 2001 when, under a search warrant, the police seized various items named herein from the appellant’s house. The items concerned were the substances of the three charges.

It was not the numerical volume or quantity of the items per se that created the number of several different offences under the same or one single transaction. The offence was of ‘possessing’ or ‘being in possession’ of those offensive items. Remember that the same items do not constitute criminal offence in other countries for one being in possession of them, either for his own consumption in the privacy of his home or for sharing with others in a wider scope. As the offence is one against morality, what is considered offensive to morality and common decency according to the standard one society sets for itself, is not an offence in other more liberal and free societies where such taboos are non existent.

The appellant who appeared on his own at the District Court when the charges were put to him did not have the benefit of legal counsel or advice when he made his plea. If he had, I would imagine, the apparent defect in the charge would have been rectified. The criminal conduct complained of against him was a continuing one. As long as he had in his possession those items considered to be against standards of decency, he was in breach of the law. The fact that he had more than one of those prohibited materials only aggravated the single offence. The police misconstrued these circumstances of aggravation by magnifying the continuing conduct into three distinct and separate counts arising out of the same single transaction or conduct complained of.

The police misconception went unchecked by the learned magistrate who dealt with the case. This is clear from the opening part of his reasons for decision where he states:

‘CHARGE – In possession of articles that is against accepted standard of decency.

Section 25A (i) (b) Summary Offences Act Ch. 284.
The defendant plea (sic) guilty to the charges as stated (sic) follows:

(01) Five (5) floppy computer disks
(02) Three (3) video cassettes
(03) An electronic sex CD.’

He accepted the charges and pleas as normal and after convicting him on all three charges, made this observation on sentence:

‘I therefore impose a custodial sentence of six (6) months for the three charges, a total of eighteen (18) months to be served concurrently with the first six (6) months.’

Clearly the learned magistrate convicted and sentenced the appellant three times on this one single transaction.

Tapopwa Thomas vs. The State [1979] PNGLR 140 gives an illustration of multiplicity where the appellant was charged with one count of rape and another count of unlawful carnal knowledge of girl under sixteen years. He was convicted on both counts and sentenced to twelve months for rape and four months for unlawful carnal knowledge. On appeal, the Supreme Court upheld the appeal on the basis of double-punishment in that the same act of sexual invasion of the victim was being punished twice, one for rape and the other for unlawful carnal knowledge. Prentice, CJ concluded at p. 147:

"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."

Andrew, J (as he then was) stated in the same case at pp. 156 – 157:

"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 (30), 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 (31) and see R. v. Plain (32).

In R. v. Cowdell (33) there was no doubt that the accused was guilty technically both of unlawfully wounding and assaulting 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 hard 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. Haris (34) 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." (Emphasis is added by me)

The lesser conviction was then quashed. See also R. v. Roma (35). 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).

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.

Multiplicity must not be confused with duplicity of charges were two or more charges are pleaded in the one indictment or information. The rule of duplicity prohibits the simultaneous charging of several distinct and unrelated crimes in one indictment. It is also defined as the joining in a single count of two or more distinct and separate offences – see Black’s Law Dictionary 6th edition.

In Hure Vabubu vs. Nelly Maleva [1987] PNGLR 87 where a complaint for adultery alleged two different dates in one complaint, the charge was held to be bad for duplicity and the complaint was dismissed. As Chief Justice Sir Buri said at pp.90 – 91:

"The complaint in this case was defective and the conviction on it was bad. It appears that the Local Court either convicted the appellant of two charges of adultery but only imposed one penalty or that the conviction was for only one of the offences. If the latter was the case, which of the offences was the subject of the conviction – the one which alleged occurred on 9 May or the one which was alleged to have occurred on 10 May? I am not prepared to say that the conviction was for both offences alleged, because the fact that one penalty was imposed clearly shows that the appellant was convicted of one offence only.

In the circumstances I hold that the appellant was not afforded a proper trial albeit it follows that substantial miscarriage was done to her." (Emphasis added by me)

Early disclosure of Priors

A person’s antecedents which include his personal background and history as a law-abiding person are the last thing that a judge or magistrate must know of a Defendant appearing before him, only after a conviction is recorded, not before. That is the practice most solemnly observed in the superior courts and for good reason. A judicial officer must be impartial and free to carry out his duty freely without being unduly influenced or biased against the Defendant or anyone connected with the case in which he is presiding by any means.

The appellant’s right to a fair trial by an impartial court was delivered a serious blow in this case. The police-arresting officer, either consciously or unconsciously, included with the statement of facts of the offence on the reverse side of the information sheet and the bottom of the page, the appellant’s priors. The appellant had two prior convictions in 1999 one of which was for exactly the same offence. Surely, if the learned magistrate had read this as he perused the file before going into court, naturally, he had already formed a view or opinion on the type of person the defendant was, a case of being convicted before even being tried. The appellant’s right to be tried by an impartial arbiter on properly adduced evidence was denied him from the very start of his case. No one would believe him if he denied the charge. If this is police practice in the lower courts, it must cease forthwith as it is unconstitutional. A person must not be convicted by his past record. In the same way, a person must not be punished for his previous convictions, but for the offence for which he is before the court.

Previous convictions must not to be disclosed until after conviction is recorded. The chances of the learned magistrate being unduly influenced in his mind against the appellant by the premature revelation of his priors cannot be ruled out. This is denial of justice to the appellant.

In both circumstances, I find that there was substantial miscarriage of justice. The appeal is upheld and the convictions are quashed.

Excessive Sentence

On the face of the record, spent considerable time writing his decision on sentence. Almost two-thirds of his two-page judgment covers the appellant’s background and he addresses the appellant’s submission on sentence. The remaining balance sets out the appellant’s antecedents showing two prior convictions, one for very similar offence. And the learned magistrate remarked:

‘The defendant has not been deterred (sic) by the previous penalties for offences committed. Penalties of Court fine or Good behaviour bond has been given to the Defendant. I do not think it is appropriate to apply the same penalty again because the defendant did not feel the effect of the previous penalty’.

The learned magistrate was entitled to take into account the prior conviction of similar offence. It is possible that his worship over-emphasised the aspect of prior convictions and placed too much weight on it. These convictions were recorded in August and December of 1999. He was fined K300 and in default three (3) months imprisonment for being in possession of an indecent article and ordered to pay K100 surety and placed on Good Behaviour Bond for the assault of his wife.

From the public perspective, it could be argued that the learned magistrate failed to give sufficient weight to the nature of the offence, in view of the fact that this type of offence is often committed in private in the privacy of one’s own home. No one is offended, however obscene or indecent the articles(s) or pornographic materials may be because they are not for public consumption. The offence is primarily one for monetary fine rather than a custodial sentence. For this kind of offence, prison should be the last resort. In fact this is not the worst case of its kind.

The appeal must be upheld for the reasons given above.
_____________________________________________________________________
Lawyer for the Appellant : Warner Shand Lawyers
Lawyer for the Respondent : Public Prosecutor