State v Umauma [2021] PGNC 428; N9199 (9 September 2021)

N9199

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 924 0F 2020

THE STATE

V

BONA UMAUMA

Kwikila: Sambua, AJ
2021: 07^th & 09^th September

CRIMINAL LAW – Application to quash indictment under section 558 of Criminal Code Act Chapter 262 – indictment disclose no offence – defective indictment – amendment cannot cure the defect on the indictment.

Cases Cited:

State v William (No 1) [2004] N2556
State v Sohia Kobobo [2006] N4477
State v Jeffery Ava [2010] N4161
State v Ruth Tomande [2019] N7798

Texts:

Constitution of PNG – Section 37(2) & section 155(4)
Criminal Code of PNG – Section 558
Criminal Law and Practice in PNG – 3^rd Edition

Counsel

Mr F. Kirriwom and Mr F. Timbi, for the Accused/Applicant
Miss T. Aihi and Mr S. Kuku, for the State/Respondent

RULING

9^th September, 2021
1.SAMBUA, AJ. This is ruling on an application by the accused/applicant through his lawyer, Mr Kirriwom to quash the indictment under section 558 of the Criminal Code Act Chapter 262. Mr Kirriwom submits that the indictment is defective in that it does not disclose an offence under section 229 D (1) of the Criminal Code as amended.

2. The indictment reads:

BONA UMAUMA of Inauaia village, Kairuku Hiri, Central Province stands charged that he between the 1^st day of January 2018 and the 22^nd day of July 2019 at Inauaia village, Kairuku, Central Province in Papua New Guinea engaged in persistent sexual abuse of a child under the age of 16 years, namely Joanne Umauma then aged between 15 and 16 years old.

AND IN THE COURSE OF THE CONDUCT, the said BONA UMAUMA on two or more occasions engaged in acts of sexual penetration with the said child, JOANNE UM

AUMA by inserting his penis into her vagina.

AND AT THE TIME OF THE CONDUCT there was an existing relationship of trust, authority and dependency between the said BONA UMAUMA.

3. The State alleged that sometime between 10pm and 12am on the night 21^st July 2019 at Inauaia village, Kairuku Hiri in Central Province, the victim Joanne Bona Umauma, then aged 16 years old, was asleep in the room when the accused, who is her biological father woke her up and thereafter sexually penetrated her whilst her stepmother watched from beside her.

4. The accused had entered the room naked and forcefully removed the victim’s clothes and raised her legs before inserting his penis into her vagina, as the stepmother covered the victim’s mouth. In the course of sexually penetrating her, the accused threatened to kill the victim if she attempted to scream for help. He continued sexually penetrating the victim until he ejaculated inside her, before leaving her alone.

5. On the next day, which was on the 22^nd of July 2019, the victim escaped and reported the matter to a community child protection volunteer in the village who then had her checked at the Inauaia Health Centre and then brought her to Port Moresby to be kept at the Ruth Safe House at Ela Beach. Medical examination thereafter revealed that the victim was in fact pregnant with the accused’s child.

6. The victim alleges that the accused had sexually penetrated her on four separate occasions at the family’s garden area, and within the family home between the years 2018 and 2019.

7. On a separate occasion sometime in 2018, the victim was asleep in the room when the accused began forcefully touching and undressing her. She woke up in shock crying and the accused hit her on the head with a guitar to keep quiet. He then pinned her down and inserted his penis into her vagina, thereby sexually penetrating her.

8. The State, therefore, says that when the accused sexually penetrated the victim on each separate occasion, he persistently sexually abused her and his actions thereby contravened Section 229D (1) and (6) of the Criminal Code.

9. The charge is laid pursuant to section 229D, and it reads:

Section 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 constitute an offence against this Division, is guilty of a crime of persistent abuse of a child.”

10. The Division Section 229D (1) refers to is Division 2A. sexual offences against children. The conduct that constitutes an offence under Division 2A are captured under sections 229A, 229B, and 229C which set the child victim age limit at 16 years or under. If the child victim is aged above 16 years, then the conduct will not constitute an offence under Division 2A but under different divisions or sections of the Criminal Code Act.

11. It’s apparent from the indictment that the State failed to specify the age of the child victim, whether the child was 15 in 2018 or 16 in 2018 or the child victim was 15 in 2019 or 16 in 2019. What it states is that the child was under the age of 16 years .........then aged between 15 and 16 years. This created an uncertainty as to the age of the victim whether she was 16 years old in 2018 or whether she was 16 years old in 2019.

12. And again, in the first paragraph of the Brief Facts, the State alleges that the child victim was then 16 years old ............. If the child victim was then aged 16 years old. I agree with the defence submission that no offence would have been committed under Division 2A of the Criminal Code Act as amended and the indictment is defective.

Application to quash the indictment

13. Before I could arraign the accused/applicant, Mr Kirriwom who was representing the accused, made an application under section 558 of the Criminal Code Act to quash the indictment on grounds that it was defective.

14. Section 558 of the Criminal Code Act provides for the quashing of defective indictments.

Section 558; MOTION TO QUASH INDICTMENT.

(1) The accused person may, before pleading, apply to the court to quash the indictment on the ground that–

(a) it is calculated to prejudice or embarrass him in his defence to the charge; or

(b) it is formally defective.

(2) On a motion under Subsection (1), the court may–

(a) quash the indictment; or

(b) order it to be amended in such manner as the court thinks just; or

(c) refuse the motion.

15. Section 558 (1) provide situation where an accused may apply to quash an indictment and in subsection (2) it provides actions the court may take. The court may quash the indictment or amend the indictment or refuse the motion.

16. The issue now is should the court quash the indictment or order it to be amended or refuse the motion by the defence? However, before making a decision as to whether or not the court should quash the indictment or amend it or refuse the motion, a further issue arises as to whether it would be in the best interest of justice for the court to take action as prescribe under section 558(2)?

17. In the case of State v Ruth Tomande [2019] N7798 (5 April 2019) a decision by Berrigan, J whereby the State had presented an indictment against the accused containing one count of money laundering, contrary to s. 508B(1) of the Criminal Code (Ch. 262) (the Criminal Code). The State then sought leave to withdraw the indictment with the intention of presenting a fresh indictment containing the said count together with an additional 14 counts of obtaining property by false pretence and one count of misappropriation, contrary to ss. 404 and 383A of the Criminal Code, respectively.

18. The defence objected to the withdrawal of the indictment. It was not submitted that the proposed course is prejudicial to the accused, rather that it is an irregularity.

19. Her Honour Berrigan J was of the view that the accused was yet to be arraigned and therefore is yet to be brought to trial. A trial only begins when the accused is called on to plead to the indictment: s. 557 of the Criminal Code; Simili Kara v The State [1984] PNGLR 254. As such, there can be no question of the State seeking to amend the indictment to include the proposed additional counts at this stage; s. 535 is, by its terms, predicated on a trial having commenced.
.
20. Leave was granted as it was in the interests of justice to do so. The interests of justice require both that accused persons are brought to trial and that they receive and are seen to receive a fair trial. For these reasons it was her view that leave to withdraw the indictment in that case was granted.

Withdrawal of indictment

21. In this case the State has asked me to exercise the inherent powers of the National Court to exercise its inherent power under section 155(4) of the Constitution to allow withdrawal of the indictment and for State to present a new one with an amended new charge of rape under section 347 of the Criminal Code Act as amended.

22. In the case of State v William (No 1) [2004] N2556 (28 April 2004) Popondetta KANDAKASI, J stated:

In this case, the State indicated, a desire to present an indictment charging you three men with a charge of attempted murder and in the alternative, causing grievous bodily harm. The first preferred charge of attempted murder was a totally, new charge. Therefore, it was not a case of amendment because of a variance between the facts and the charge or an error or omission but an introduction of a new charge.

In an article I did entitled "The Power of Amendment in the District Courts Act Under Section 32 of the District Courts Act (Chp.40)", Melanesian Law Journal, Vol. 16, 1988, p.115, I expressed the view that, the Court has power to allow amendments to an information charging a defendant with an offence. That power is available and is exercisable at any stage of the proceedings but before judgment. I then concluded that, whilst it is within the powers of the Court to allow amendments, it must be exercised at the earliest possible, to avoid prejudice and therefore any injustice to the defendant.

It follows therefore that, if this was merely a case of amendment that could have occurred without any difficulty. This is because, the trial had not yet commenced within the meaning of s. 557 (2) of the Code. Therefore, no issues of prejudice and injustice could have arisen. The decision to vacate your guilty pleas resulted in the order for your trial before a different judge. That different judge turned out to be me. I could not proceed on the basis of what happened before the previous Court in terms of your arraignment and the taking of your plea. I am not aware of any practice or law that says I must proceed on the basis of the previous proceedings. Instead, I am aware that, I must re-arraign you and take your plea. This is because the commencement of the trial on the presentation of the indictment before the earlier judge aborted on his vacation of your guilty plea and ordered your trial to go before a different judge. Therefore, you had to have the whole process of commencing your trial restarted before me and that is what happened.

In any case, I note that the Public Prosecutor has an absolute discretion to present whatever charges he considers he is able to prove on the required standard and secure a conviction. He is not subject to any direction or control of anybody or authority, including even the Courts. The Supreme Court in Nelson Ngasele v. The State (Unreported judgment delivered on 03/10/03) SCRA 17 of 2002, recently restated this position in these terms:

"It is settled law that the Public Prosecutor as an absolute power to decide and present whatever charge he considers the state will be able to prove against an offender. That power is not subject to any direction or control from or by anybody. Section 525 (1)(a) of the Criminal Code gives him that power. This has been acknowledged and affirmed by a number of judgements such as The State v. Jack Gola and Mopana Aure ...and The State v Jason Dongoma..."

What this meant in your cases was that, the Public Prosecutor was at liberty to present whatever charges he considered he was able to sustain. Since what happened before the earlier judge is not binding on this Court, it makes no sense to take a different view and hold that the public prosecutor is bound by the earlier indictment and the proceedings based on it. I am of the view that, it is within the powers of the Public Prosecutor to either present the same indictment he earlier presented or have it amended and or present a new indictment since the proceedings were starting afresh before me. The public prosecutor chose to present a new indictment, which the Court could not refuse in view of the powers vested in the Public Prosecutor.

23. In State v Sohia Kobobo [2006] N4477 (21 August 2006 which is a Buka case by Cannings J, where an indictment was presented against a man, charging him with incest. It was alleged that he engaged in an act of sexual penetration with his niece. His defence counsel objected to the indictment on the ground that when the alleged act was committed it was not an offence for him to have sex with his niece. When the objection was raised the prosecutor sought leave to withdraw the indictment. The accused objected to that too. A ruling was required on three questions: (1) did the prosecutor need leave to withdraw the indictment? (2) if yes – should leave be granted? (3) if leave was not granted, should the indictment be quashed? His Honour Cannings J held that:

(1) Leave was required to withdraw the indictment.

(2) Leave was granted to withdraw the indictment, as leave was sought for a proper motive: to consider the State’s position in light of the defect in the indictment exposed by the defence counsel. No abuse of process is apparent, and the accused is being given the full protection of the law.

(3) If the indictment were not withdrawn, it would have been quashed as it was alleging an offence – engaging in an act of sexual penetration with a niece – that did not exist at the time that act was allegedly committed.

24. In State v Jeffery Ava [2010] N4161 (16 November 2010) a Wewak case by Kariko J, whereby he stated that the prosecution may with leave of the court amend an indictment after presentation and before arraignment. It is a matter of discretion for the Judge before whom the application for amendment is made, and the Judge may have regard to but is not bound by the matters prescribed by section 535 of the Criminal Code; Review pursuant to Constitution, Section 155(2)(b) Application by Herman Joseph Leahy (2010) SC1018. Although this Supreme Court decision relates to an indictment laid under section 526 of the Criminal Code or what is commonly referred to as an "ex-officio indictment", the principles equally apply to an indictment laid under section 525 of the Criminal Code.

26. In that case His Honour Kariko, J accepted the submissions by the State and balancing the interest of the accused and the interest of justice, he granted the application to amend the indictment however went on further to state that the course open to the prosecution:

Apart from amending the indictment, there is another option available to the prosecution. Where an indictment has been presented but before arraignment, the State may with leave of the court withdraw the indictment and present another indictment; see The State v William (No 1) [2004] PNGC 212. The accused would not be prejudiced by the withdrawal of the indictment as he has not been called upon to plead to the indictment; The State v Kobobo [2006] PNGC 92.

If I allowed the State to elect and proceed on one of the indictments and amended it in terms of its application, it would be a very messy exercise given the form of the indictment already before the court. The wording of the charge on the indictment (whether count 1 or count 2) simply leaves no room to clearly and in a orderly legible fashion include the amendments. In the circumstances, I would grant leave for the State to withdraw the indictments and present a new indictment containing the proposed amended charges. To ensure the right of the accused to a fair trial is protected, the case should then be adjourned for the relevant notice of alibi to be properly served and the alibi witnesses interviewed.

While I appreciate that being on circuit in a small town offers certain limitations in preparation for a case, including the drafting of an indictment, the prosecution duty to properly indict must be discharged with great care and diligence. This important task cannot be rushed and there can be no short-cuts. The indictment may be in writing; R v Toigen Tiolo [1969-1970] PNGLR 285, and if there is insufficient space to include all charges on the pro-forma that is carried by prosecutors on circuit, then the prosecutor should write up the complete indictment or better still seek assistance from the court staff or the Police to have the indictment typed up.

27. The sentiment expressed by His Honour Kariko J are equally applicable to this case that the prosecution duty to properly indict must be discharged with great care and diligence. This important task cannot be rushed and there can be no short-cuts. Great care has to be taken when performing this task.

28. So the question now is, will it be in the best interest of justice for this court to quash the indictment and discharge the accused or allow the State to withdraw the indictment and present a new one with an amended charge as held by the case law authorities referred to here-above which I am inclined to do so?

29. In this case the accused has not been arraigned and that the trial has not commenced under section 557 of the Criminal Code Act therefore no prejudice has been done to the accused who has been arrested by police for a very serious criminal allegation. Hence, he has to be processed and dealt with according to law.

30. For this reason I am exercising my discretion not to quash the indictment but to grant leave to the State to withdraw the indictment and present a new one with an amended charge. I consider that it is not necessary to invoke the courts inherent power under section 155(2)(b) of the Constitution to order withdrawal of the indictment and the State to present a new indictment with an amended charge. The four case law precedents alluded to here-above gives me authority to do so in this case. And I do so.

Order

31. The formal orders of the court are:

1. Motion to quash indictment refused.
2. Leave granted to the State to withdraw the indictment presented on 07/09/21 and to present new indictment with an amended charge.
3. State to serve copy of new indictment to lawyers for the accused before Monday 13^th September 2021
4. Matter adjourned to next Monday 13/09/21
5. Accused remanded in CS custody until Monday 13^th September 2021

______________________________________________________________
Public Solicitor: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent