The State v Moses Jafisa Winga (No 1) (2005) N2952

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 13 September 2005
• Citation: (2005) N2952
• Docket Number: CR No 1031 of 2003
• Court: National Court
• Year: 2005
• Judgement Number: N2952

Full Title: CR No 1031 of 2003; The State v Moses Jafisa Winga (No 1) (2005) N2952

National Court: Kandakasi J

Judgment Delivered: 12 or 13 September 2005

N2952

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1031 of 2003

THE STATE

-V-

MOSES JAFISA WINGA (No.1)

WEWAK: KANDAKASI, J.

2005: 07th, 8th and 12th and 13th September

CRIMINAL LAW – PRACTICE & PROCEDURE – Presentation of indictment after change of law creating offence and penalty – Section 11 of the Criminal Code applicable – Effect of s. 11 considered – Indictment can be presented under new law but the penalty is subject to a consideration of maximum prescribed under the old law.

CRIMINAL LAW – PRACTICE & PROCEDURE – Sexual offence committed prior to change in the law – Requirement for corroboration in sexual offences and meeting of same - Recent complaint at the earliest available opportunity sufficient.

CRIMINAL LAW - Verdict –Rape of school girl by a relative - Complaint made some weeks later –Lack of medical report not fatal to prosecution case - Lack of direct corroboration – Need to warn of dangers of proceeding to convict in such circumstances - No reason to doubt victims’ evidence – Return of guilty verdict – Criminal Code s. 347.

CRIMINAL LAW – Sentence – Two rape incidents – Rape of school girl by a relative – Use of bush knife to threaten and secure rape – Conviction after trial – Age difference between offender and victim– First time offender – Prevalence of offence – Cumulative Sentence reduced – Sentence of 26 years in total imposed after applying totality in principle.

Cases cited:

State v. Thomas Angup (21/04/05) N2830.

The State v. Tom Gaia (1986) N544.

Baza Tadu Avona v. State.

State v. Donald Angavia, Paulus Moi and Clement Samoka (No 2) (29/04/04) N2590.

The State v. Luke Sitban (No 1) (07/06/04) N2572.

The State v Pennias Mokei (No 1) (23/08/04) N2606.

The State v. Donald Angavia, Paulus Moi and Clement Samoka (No 1) (Unnumbered and unreported judgment delivered on 27 April 2004).

Counsels:

Mr. A. Kupmain for the State.

Mr. J. Mesa for the Prisoner.

12th September 2005

DECISION ON VERDICT

KANDAKASI J: On Tuesday 07th September 2005, the State presented an indictment against you, charging you with two counts of rape contrary to s. 347 of Criminal Code as amended. You pleaded not guilty to the charge, which necessitated a trial, conducted on 7th and concluded on 8th of this instant.

Preliminary Issue

The trial commenced with Counsel for the State, Mr. Kupmain, seeking to present the indictment charging you under the old s. 347 of the Criminal Code, which the Sexual Offences and Crimes against Children Act repealed and replaced. That law came into operation on 10th April 2003.

1 National Gazette G45/02.

1 I asked counsel whether that could be legally done in view of the repeal and replacement. Both the prosecution and defence counsel were of the view that, that could be done, without referring to any authority. I was not comfortable with that so I adjourned the matter to do a bit of research and inform myself.

My research took me to s. 11 of the Criminal Code and s. 63 of the Interpretations Act. These provisions respectively read:

“11. Effect of changes in law.

(1) A person cannot be punished for doing or omitting to do an act unless—

(a) the act or omission constituted an offence under the law in force when it occurred; and

(b) 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.

(2) 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 law.”

…

63. Effect of repeal.

(1) The repeal of a provision does not—

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of the repealed provision, or anything duly done or suffered under the repealed provision; or

(c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under the repealed provision; or

(d) affect any penalty, forfeiture, or punishment incurred in respect of an offence committed against the repealed provision; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding, or remedy may be instituted, continued or enforced, and any such penalty, forfeiture, or punishment may be imposed, as if the repeal had not been made”.

(Emphasis supplied)

My research also took me to my brother Justice Lay’s judgment in State v. Thomas Angup (21/04/05) N28301, which assisted me greatly. As His Honour pointed out, this Court in The State v. Tom Gaia,

1 21/04/05) N2830.

2 (1986) N544 per Kapi DCJ.

2 discussed s. 11 and s.63 of the Interpretation Act and the question of changes to both the offence and penalty. Again, as His Honour pointed out, the Supreme Court in Baza Tadu Avona v. State

3 [1986] PNGLR 148.

3 discussed the change in the penalty only. For the purpose of this judgment, I need not set out these discussions in any detail.

However, proceeding on the basis of the discussions in the above cases, I note as did Justice Lay that:

“It is a threshold question to determine whether the charges should have been laid under the forms, which they took before amendment, preserved by s.63 of the Interpretation Act, or the new provisions applied in conjunction with s.11 of the Criminal Code. And in order to determine that issue, the Supreme Court said in Avona’s Case, I must decide if the provision is an amending one or a repealing one, as s.63 of the Interpretation Act applies only to the latter. To do that one looks at the substance rather than the form of the provision, the relevant provision being the Criminal Code (Sexual Offences and Crimes against Children) Act 2002.”

In this case the new amended s. 347 reads:

“347. Definition of rape.

(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape.

Penalty: Subject to Subsection (2), imprisonment for 15 years.

(2) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.”

Its predecessor read:

“ 347 Definition of rape

A person who has carnal knowledge of a woman or girl, not being his wife –

(a) without her consent;

(b) with her consent, if the consent is obtained –

(i) by force; or

(ii) by means of threats or intimidation; or

(iii) by fear of bodily harm; or

(iv) by means of false and fraudulent representations as to the nature of the act; or

(v) in the case of a married woman, by personating her husband,

is guilty of the crime of rape.

Penalty: Subject to Section 19, imprisonment for life.”

I noted in The State v. Donald Angavia, Paulus Moi and Clement Samoka (No 2),

4 (29/04/04) N2590.

4 that the amendment divided the penalty provision into two categories. The first being a simple act of rape whilst the second being aggravated rape attracting different range of sentences. The former attracts a sentence of up to 15 years, whilst the later attracts a sentence from 15 years up to a maximum of life imprisonment. Otherwise, the offence of rape remains the same as before apart from the issue of consent, which section 347A now defines in a manner that would render cases of consent no consent at all and thereby making conviction easier than it was under the old provision. I now also observe that, excluding rape of a wife from the coverage and the protection accorded to women and girls under the old provision has been removed to now cover rape of wives by their husbands.

In your case, I took the view, with both counsel’s concurrence that, because the amendments did not in fact repeal in terms of decriminalizing the act of rape, you could not be charged under the old s.347 preserved by s. 63(1)(e) of the Interpretation Act. Instead, you ought to be charged under the amended s. 347 and that is what happened because that provision has now been varied with the old provision no longer applying.

The Evidence

In support of the charge against you, the State called two witnesses. These were the victim and her mother, whose names I will not mention for the protection of the victim. The victim was the main witness against you whilst the prosecution called the mother merely to corroborate the victim’s testimony. Their evidence is simple and straightforward.

The...