Kape Sulu v The State (2003) N2456

• Jurisdiction: Papua New Guinea
• Judge: Manuhu AJ
• Judgment Date: 31 July 2003
• Citation: (2003) N2456
• Court: National Court
• Year: 2003
• Judgement Number: N2456

Full Title: Kape Sulu v The State (2003) N2456

National Court: Manuhu AJ

Judgment Delivered: 31 July 2003

N2456

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE AT LAE

CR. 369 of 2003

KAPE SULU

- vs -

THE STATE

Lae: Manuhu, AJ

2003: 30 & 31st July

JUDGMENT

CRIMINAL LAW – Application to quash indictment – Effect of changes in the law – Repeal of ‘unlawful carnal knowledge’ provision – Substituted with ‘sexual penetration’ provision - New penalty provision - Offence committed prior to new provision – Accused indicted under new provision.

The following cases were cited in the judgment:

Baizi Tadu Avona v. The State [1986] PNGLR 148.

The State v Tom Gaia and Two Others (Unreported) N544.

Ms. Maliaki, for the Applicant.

Ms. Ganai, for the Respondent.

31th July 2003.

MANUHU, AJ: Before pleading to the charge on the indictment, the accused person, through his lawyer, applied to the court for the indictment to be quashed on the basis, I presume, that the indictment is “calculated to prejudice or embarrass him in his defence” or that “the indictment is formally defective”.

1 See s. 558 of the Criminal Code.

1

The indictment was presented against the accused charging him with one count of sexual penetration of a girl under sixteen years old. The charge is laid pursuant to a new provision, section 229A of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (“The Act”), which carries a maximum penalty of twenty five years imprisonment. The Act was certified on 26th June 2002 and is already in force but the actual gazettal date is presently unknown. The repealed predecessor of this provision is section 216

2 (Criminal Code).

2, which prescribed that a person who has carnal knowledge of a girl under the age of sixteen years is guilty of a misdemeanor, and may be sentenced to a term not exceeding five years.

The substance of the application is that the new provision was not in force at the time of the alleged offence. The alleged offence was committed on 3rd November 2002. The new provision came into effect after the commission of the offence. Thus, consistent with section 37(2) of the Constitution and section 11 of the Criminal Code, it is argued, the accused cannot be charged under the new provision.

Section 37(2) of the Constitution lays down the broad perimeters of the general principle that no one should be punished for an offence not defined by and the penalty for which is not prescribed by a written law. In the daily application and administration of this principle, section 11(1)

3 (Criminal Code).

3 is relevant. Section 11(1) provides that a person cannot be punished for doing or omitting to do an act unless the act or omission constituted an offence under the law in force when it occurred; and, doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when he is charged with the offence. Section 11(2) provides that if the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorized by the former law, or to any greater extent than is authorized by the latter.

Counsel for the applicant referred to the Supreme Court case of Baiza Tadu Avona v. The State

4 [1986] PNGLR 148.

4 where section 11 was discussed. However, that case relates to changes in the penalty provisions only. The immediate case relates to the definition of the offence as well as the penalty provision. In any event, one of the issues therein was whether section 11(1) and section 11(2) should be read together or independently. The Supreme Court considered and disagreed with the views of Kapi, DCJ (as he then was) in The State v Tom Gaia and Two Others

5 (Unreported) N544.

5, thus:

“With respect to his Honour, we do not agree that the provision cannot be read on its own. The provisions of s. 11(1) are directly related to the offence and to the circumstances in which a person can be punished for doing or omitting to do an act. Section 11(2) in broad terms deals with penalty or punishment. It may well be that there are situations where both provisions apply to the particular circumstances of a particular case but it is equally true that that s. 11(2) can apply where only a penalty provision or penalty aspect of a particular offence has been altered. It is our view that the provision should be read this way. The provision of s. 11(1) can be read without reference at all to s. 11(2).”

Unlike the Supreme Court case, which relates to a change in the penalty provision only, this application relates to the separate issue of the validity of the charge against...