State v Ogerem [2004] PGNC 10; N2780 (27 October 2004)

N2780

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1093 OF 2004

THE STATE

AND

SAUL OGEREM

ALOTAU : Lay, J
2004:13th, 21st 22nd & 24th September and 27th October

CONSTITUTION S37(2) – whether omitting mandatory particulars in indictment is failure to charge offence in a written law – Criminal Law – Criminal Code – amendment to Code, whether s11 applicable - s229D(4) – s525 – whether indictment omitting mandatory particulars is a ‘charge’ – s229D(4) requirement to plead particulars – effect of failure to plead particulars – whether ‘short facts’ part of indictment for arraignment purposes – s557 – whether provisions of s229D(4) requires joinder of charges contrary to s531 – whether omitting mandatory particulars amendable by s535.

Counsel:
Ms Nidue for the State
Mr. Sakumai for the Defendant

RULING ON VALIDITY OF INDICTMENT

Facts

The Defendant was charged with one count of persistent sexual abuse of a child contrary to s229D of the Criminal Code. No particulars specifying two or more offences were charged per s229D(4). A plea of guilty was accepted. The Court then asked for argument on the status of the indictment.

Held

The omission of the s229D(4) particulars meant (a) the Defendant had been charged with an offence not in a written law contrary to s37(2) of the Constitution (b) had not been charged with an offence (c) the Defendant had been deprived of the opportunity of pleading to every element of the charge and his right pursuant to s528 to have all particulars necessary to inform him of the nature of the charge. The Defendant pleads to the indictment not the short facts. The indictment must contain all the elements of the offence. The conviction was unsafe. The plea was unsafe. The Court had power to set both aside and would do so. The indictment was a nullity and could not be cured by application of s535 of the Criminal Code. Indictment quashed. Defendant discharged.

Cases Cited:
State v Danny Sunu and Ors [1983] PNGLR 396
SCR No 1 of 1984 [1984] PNGLR 314
SCR No 4 of 1985
Omaro Garo v The Police [1985] PNGLR 320
Baza Tiadu Avona v State1 [1986] PNGLR 148
SCR NO. 1 of 1994 Re Aruve Waiba Unreported (1996) Los and Salika JJ
Simili Kara v State [1984] PNGLR 254
Wui Wapiv Ludwick Kembu [1980] PNGLR 7
Ivarabou v Nanau [1967-68] PNGLR 12
Gabriel Laku v State [1981] PNGLR 350
The State v Francis Kumo Gene [1991] PNGLR 33
Arthur Gilbert Smedley v State [1980] PNGLR 379
The State v Pawa Kombea (11/2/1997) N1518

LAY, J: The Defendant was charged with one count of persistent sexual abuse of a child contrary to Section 229D of the Criminal Code.

The indictment presented read as follows:

"Saul Ogerem of Irikaba, Rabaraba, Milne Bay Province stands charged that between 13th day of August 2003 and 4th day of September 2003, at Alotau in Papua New Guinea, did commit persistent sexual abuse of a child namely, ......"(the victim).

The facts on which the Defendant, aged 20 years, was arraigned are that on 13th August 2003 the Defendant intercepted the victim, aged 14 years, whilst on her way to a well for water. He took her into nearby bushes, removed her clothes and had sexual intercourse with her. A week later the same thing occurred. On 4th September 2003 the accused followed the victim into a coconut plantation removed her clothes and again had sexual intercourse with her. As a result the victim fell pregnant and was expelled from school when her pregnancy was discovered at 5 months.

I entered a plea of guilty having considered the District Court Depositions. On his allocutus the Defendant asked that his lawyer speak on his behalf. Defence Counsel sought a Probation Report and a request was made pursuant to the Probation Act for a pre sentence report to be provided and to be before the Court on 22st September 2004. Defence Counsel reserved his address until then.

I had the matter mentioned on 21st September 2004 and drew Counsel’s attention to the fact that having had the opportunity of studying the charged Section of the Code, my preliminary view was that the indictment did not comply with the requirements of the Criminal Code Subsection 229D(4)(b) in that it did not describe the nature of the separate offences alleged to have been committed by the accused during the period. Further, my preliminary opinion was that the description, to fulfil the requirements of the Subsection must be of conduct...that constitutes an offence against this Division being an offence or offences contained in a Section other than Section 229D. I asked Counsel to consider the matter and to make submissions when the hearing on sentence resumed the following day. When the matter resumed counsel asked for time to consider the matter which was then specially fixed for 27th October 2004 for argument.

Submissions

Counsel for the Defendant submitted that after considering the provisions of ss. 229D, 531, 535 and 536 there was a conflict between s531 which prohibits charging more than one offence in the indictment and s229B which requires more than one offence to be specified. He referred me to State v Danny Sunu and Ors[1], SCR No 1 of 1984[2],, SCR No 4 of 1985; Omaro Garo v The Police[3],, Baza Tiadu Avona v State[4] and SCR NO. 1 of 1994 Re Aruve Waiba[5],which he submitted dealt with construction generally, and s11 of the Criminal Code. He submitted that these cases were authority for the propositions that:

1. Parliament does not make mistakes;
2. a lenient interpretation should apply to avoid conflict;
3. the charge appearing in the indictment was in order read with the short statement of facts put to the Defendant on arraignment;
4. I should proceed to sentence the Defendant.
   

Counsel for the State adopted the submissions made by Counsel for the Defendant.

Reasons
Firstly I observe that as the Court travelled to Alotau for a special fixture principally to hear argument on this matter, the level of argument was some what disappointing. Litigation in Papua New Guinea is conducted in an adversarial system. One of the great features of the adversarial system is that when it works properly the Court is assisted by the presentation of opposing, or at least different points of view from opposing counsel. In this case, where Counsel for the Defendant advanced an argument I might have expected from the prosecution and the prosecution made no argument at all I was not greatly assisted; particularly as Counsel did not really touch on the main issue, which is the absence of mandatory particulars in the indictment.

Although Defence Counsel did not raise an objection or make an application to quash the indictment within the time stipulated by the Criminal Code Section 535(2) or at all, the Court should not ignore the defect in the indictment. It is necessary to address the issue to ensure that the Defendant obtains the protection of the law to which he is entitled under the Constitution[6].

Section 229D of the Criminal Code is in the following terms (with emphasis added):

229D. Persistent sexual abuse of a child.

(1) A person who, on two or more occasions, engages in conduct in relation to a particular child that constitutes an offence against this Division, is guilty of a crime of persistent sexual abuse of a child.

Penalty: Subject to Subsection (6), imprisonment for a term not exceeding 15 years.

(2) for the purposes of Subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.

(3) In proceedings related to an offence against this Section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.

(4) A charge of an offence against this section—

(a) must specify with reasonable particularity the period during which the offence against this section occurred; and

(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.

(5) For an accused to be committed of an offence against this section—

(a) the court must be satisfied beyond reasonable doubt that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence against this Division in relation to a particular child; and

(b) the court must be so satisfied about the material facts of the two incidents, although the court need not be so satisfied about the dates or the order of those occasions.

(6) If one or more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to life imprisonment.

Section 229A, which is in the same Division of the Code as Section 229D provides as follows:

229A. Sexual penetration of a child.

(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

Penalty: Subject to Subsections (2) and (3), imprisonment for a term not exceeding 25 years.

Sections 229A and 229D of the Criminal Code were introduced by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 which came into force on 10th April 2003. The offence charged took place after the introduction of this amendment to the Criminal Code. S11 of the Code (dealing with offences committed prior to amendment) therefore has no application.

Provision of the particulars required by Section 229D(4) in the indictment is mandatory, the wording of the Code will admit of no other view. There are 2 clear reasons why this should be so:

1. Section 229D does not itself specify the physical acts the performance of which will constitute the offence. Those acts are contained in the other Sections of Division 2A. Without the inclusion in the indictment of the particulars of the dates between which the offences are alleged to have occurred and the nature of the offences, the Defendant does not have sufficient information in the indictment to identify what is being alleged against him;
   
2. the nature of the offences alleged pursuant to Subsection 229D(4))(b)will determine whether the Defendant is exposed to the maximum penalty of 15 years prescribed by Subsection 229D(1) or life imprisonment prescribed by Subsection 229D(6).
   

The dates set out in the indictment presented fulfil the requirements of Subsection 229D(4)(a). The requirements of Subsection 229D(4)(b) have not been fulfilled as the nature of the separate offences have not been provided at all in the indictment, although contained in the short facts read to the Defendant before the Defendant pleaded on arraignment.

Dealing firstly with the submission that there is a conflict between ss229D and 531, I do not accept that submission. Section 531 is in the following terms:

531. Joinder of charges: General rules.

(1) Subject to this Code, an indictment must charge one offence only, and not two or more offences.

(2) Subject to Subsection (3), when several distinct indictable offences are alleged to be constituted—

(a) by the same acts or omissions; or

(b) by a series of acts done or omitted to be done in the prosecution of a single purpose,

...

A charge under s229D is single offence. The particulars to be provided are of other offences, but in the context of a s229D charge they are particulars and are not separate charges. There is therefore no conflict between ss229D and 531.

What I must now decide is:

1. What is the effect of the omission of the Section 229D(4)(b) particulars on the indictment?
   
2. What should happen to the guilty plea and conviction entered?
   
3. Is the indictment amendable?
   

Effect of the Omission of Subsection 229D(4) particulars

Section 37(2) of the Constitution provides as follows:

"(2) Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law."

Where the wording of the Code specifies that certain particulars are mandatory to charge an offence, and those particulars are omitted the charged offence is incomplete. The indictment in question does not mention the Section of the Code under which the Defendant is charged. Therefore the only test which can be applied to the indictment to decide whether it contains an offence defined in a written law is to ask do the facts alleged in the indictment constitute such an offence? I think the answer must be "no". Where the written law says that the indictment must describe the nature of the separate offences; not to do so is to charge the offence in a manner not defined in a written law.

Section 525 of the Code provides:

525. Procedure for indictment.

(1) Where a person is committed for trial or sentence for an indictable offence, the Public Prosecutor or a State Prosecutor shall consider the evidence in the matter and may—

(a) reduce into writing in an indictment a charge of any offence that the evidence appears to him to warrant; or

(b) decline to lay a charge.

And s528 provides:

528. Form of indictment.

(1) An indictment shall be intituled with the name of the court in which it is presented, and must, subject to the succeeding provisions of this Division set forth the offence with which the accused person is charged-

(a) in such a manner; and

(b) with such particulars as to—

(i) the alleged time and place of committing the offence; and

(ii) the person (if any) alleged to be aggrieved; and

(iii) the property (if any) in question,

as is necessary to inform the accused person of the nature of the charge.

The wording of the indictment has not alleged a charge of any offence and it has omitted particulars necessary to inform the accused person of the nature of the charge. Thus it has prevented the Defendant from knowing and pleading to each of the elements of the charge. In relation to the submission that the short facts on arraignment can substitute for the mandatory particulars not included in the indictment, one only has to reads the words of s557 of the Code. A Defendant does not plead to the short facts, he pleads to the indictment.

In Simili Kara v State[7] Chief Justice Kidu said:

"Section 557 of the Criminal Code protects a person charged from being tried without being informed of the charge against him. It also protects him from being tried without being asked to plead to the charge in the indictment. So s. 557 being a law which protects a person charged with an offence must be strictly complied with by the National Court. Also a trial must be conducted according to law. The non-compliance with s. 557 in this case means that the trial was not in accordance with the law."

In that case the Defendant was asked to plead to a charge not contained in the indictment. In this case the accused was asked to plead to wording which did not constitute a charge. The result must be the same.

In order that the Court can be satisfied that it is safe to accept a plea of guilty, it is essential that the Defendant plead to and unequivocally admit every element of the charge: Wui Wapiv Ludwick Kembu[8]. As the Defendant has been deprived of the opportunity of pleading to elements of the charge the guilty plea and conviction are not safe. Indeed where a plea of guilty has been wrongly entered any conviction based upon it is a nullity. See Ivarabou v Nanau[9].

In the case of Gabriel Laku v State[10] the Supreme Court held that:

"Once an unequivocal plea has been entered and the court proceeds to consider sentence, the prisoner is regarded as having been convicted, and it is a matter of the court’s discretion as to whether the conviction should be set aside and the plea of guilty vacated."

A little later in the same judgement the Court said:

"Nevertheless it is quite clear that even after conviction and at any time up until the final disposal of the case by the passing of sentence and the entry of the conviction and sentence in the record at the end of the sittings, the court has power to set aside its own conviction (and sentence if already passed). The exercise of this power is wholly discretionary. These principles have been laid down in many decisions in other places and they may be regarded as part of the underlying law of Papua New Guinea".

What Should happen to the Conviction and Guilty Plea?

The entry of the guilty plea and conviction are clearly unsafe. I have discretion to set them aside. I therefore exercise my discretion and set aside the conviction and the plea of guilty.

Is the Indictment Amendable?

Section 535 if the Criminal Code is in the following terms:

535. Amendment of indictments.
     

(1) If on the trial of a person charged with an indictable offence-

(a) there appears to be a variance between the indictment and the evidence; or

(b) it appears that-

(i) any words that ought to have been inserted in the indictment have been omitted; or

(ii) any words that ought to have been omitted have been inserted,

the court may, if it thinks that-

(c) the variance, omission or insertion is not material to the merits of the case; and

(d) the accused person will not be prejudiced in his defence on the merits,

order the indictment to be amended, so far as it is necessary, on such terms (if any) as to postponing the trial as the court thinks reasonable.

(2) When an indictment has been amended, the trial shall proceed at the appointed time, on the amended indictment, and the same consequences ensue in all respects and as to all persons as if the indictment had been originally in its amended form.

(3) If it becomes necessary to draw up a formal record in any case in which an amendment to an indictment has been made, the record shall be drawn up setting out the indictment as amended, and without taking any notice of the fact of the amendment having been made.

Firstly, the onus is on the State Prosecutor to get the wording of the indictment right, not the Court. And secondly the longer the Prosecution waits in the prosecution of the case to seek an amendment, the more likelihood that it will be oppressive and unfair to the Defendant. Any application by the Prosecution for amendment of the indictment should be made before the Defendant is arraigned: The State v Francis Kumo Gene[11]. Thirdly it has been held that the Public Prosecutor has the right to present only one indictment pursuant to ss. 525 & 526 of the Code: Arthur Gilbert Smedley v State[12], although this is not an issue which concerns me now.

In my opinion the current status of the indictment is that it is a nullity. Although no amendment has been sought, any variance, omission or insertion would be for the purpose of turning a nullity into an effective indictment on which the Defendant could be properly convicted. Therefore it is impossible to say that the variance, omission or insertion would not be material to the merits of the case. As Lenalia J said in The State v Pawa Kombea[13]

"...the jurisdiction given this Court to amend an indictment is governed by S. 535 of the Code. I must therefore keep within the limits provided in that section and the common law principles governing presentment of indictments. On this instance I do not think I should use the inherent power given this Court to cure something that was void ab initio."

I agree with and apply those words in this case.

Orders:

1. The conviction is set aside
2. The plea is set aside
3. The indictment is quashed
4. The Defendant is discharged.

________________________________________________
Lawyers:
For the State : State Solicitor
For the Defendant : Public Solicitor

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^[1] [1983] PNGLR 396
^[2] [1984] PNGLR 314
^[3] [1985] PNGLR 320
^[4] [1986] PNGLR 148
^[5] Unreported (1996) Los and Salika JJ
^[6] The State v Francis Kumo Gene (supra) and s.37(1) of the Constitution
^[7] [1984] PNGLR 254 Kidu CJ, Bredmeyer and Amet JJ
^[8] [1980] PNGLR 7
^[9] [1967-68] PNGLR 12 per Frost J
^[10] [1981] PNGLR 350
^[11] [1991] PNGLR 33
^[12] [1980] PNGLR 379
^[13] (11/2/1997)N1518