Tapopwa Thomas v The State

• Jurisdiction: Papua New Guinea
• Citation: [1979] PNGLR 140
• Date: 04 May 1979
• Court: Supreme Court
• Year: 1979

Supreme Court: Prentice CJ, Pritchard J, Andrew J

Judgment Delivered: 4 May 1979

1 Criminal law—rape and unlawful carnal knowledge—2 counts—conviction and sentence on each—whether "double punishment"

2 CRIMINAL LAW—Judgment and punishment—Two counts—Conviction and sentence on each—Rape and unlawful carnal knowledge—Whether sentence double "punishment"—Whether conviction double "punishment"—"Same act or omission"—Test to be applied—Focal point or basic act in later offence—Second conviction and sentence quashed—Criminal Code, s16.

3 CRIMINAL LAW—Indictments—Joinder of counts—One act or omission possibly constituting two different offences—Rape and unlawful carnal knowledge—Conviction and sentence on each—Whether double punishment—Procedure discussed—Criminal Code, s16, s2 and s553—Supreme Court Act 1975, s1(1) and s25(2).

4 WORDS AND PHRASES—"Punishment"—Double punishment—Whether conviction, punishment—Criminal Code, s16.

5 WORDS AND PHRASES—"Same act or omission"—Criminal law—Possibility of two counts—Focal point or basic act in later offence—Criminal Code, s16.

An accused who was arraigned on an indictment containing two counts, namely (1) committing rape and (2) unlawfully having carnal knowledge of a girl under sixteen, both charges arising out of the one act of intercourse, was convicted on both counts and sentenced to twelve months in hard labour for rape and four months in hard labour for unlawful carnal knowledge, the sentences to be served concurrently. On appeal against the conviction and sentence for unlawful carnal knowledge, on the grounds that the second count being an alternative count no conviction should have been recorded and failure to consider s16 of the Criminal Code which provides that, "A person cannot be twice punished either under the provisions of this Code or under the provisions of any other law for the same act or omission . . . ";

Held:

(1) (Per Prentice CJ and Andrew J, Pritchard J not deciding). The proper test to be applied under s16 of the Criminal Code is whether the same wrongful act or omission which previously resulted in conviction and punishment, was the central theme, the focal point or the basic act or omission in the latter offence.

R v Gordon; Ex parte Attorney–General [1975] Qd R 301, per Williams J, adopted and applied.

(2) The punishable offence which constituted the offence of rape being the same punishable act which constituted the offence of unlawful carnal knowledge, the two punishments, that is the two sentences, could not stand because of s16 of the Criminal Code.

(3) (Per Prentice CJ and Andrew J, Pritchard J dissenting.) Entry of a conviction on the charge of unlawful carnal knowledge, following conviction for rape, in the circumstances, amounted to double punishment for the same act or omission within the meaning of s16 of the Criminal Code and the conviction should be quashed.

(Per Prentice CJ) S16 of the Criminal Code is to be read as intending that the entry of a particular conviction, of itself, may amount to a punishment, where it can clearly as a matter of English meaning, be seen to "punish"; a second conviction such as the one in the present case must be considered a "punishment" at least so far as it becomes established on a person's criminal record.

Gaiari–Ganereba v Giddings [1967–68] PNGLR 346 at 355, considered.

(Per Andrew J) Two charges arising out of the "same act or omission" are to be treated as alternative charges and s16 of the Criminal Code is therefore to be read as providing for a defence to the second charge entitling an accused to an acquittal.

R v Cowdell [1962] Crim LR 262, applied;

R v Gordon; Ex parte Attorney–General [1975] Qd R 301 at 305, R v Donnelly (1920) 14 QJPR 62, R v Hull [1902] QSR 53 and Gaiari–Ganereba v Giddings [1967–68] PNGLR 346, referred to.

Appeal.

An accused was charged and convicted on two separate counts, namely, rape contrary to s357 of the Criminal Code and unlawful carnal knowledge of a girl under the age of sixteen years, contrary to s219 of the Criminal Code, both charges arising out of the one act of sexual intercourse; he was sentenced to twelve months in hard labour on the first charge and four months in hard labour on the second charge. This was an appeal against conviction and sentence on the second charge on the grounds:

(1) that the learned trial judge erred in law in recording a conviction on the second count in that the second count was an alternative to the first; and

(2) that the learned trial judge erred in law in recording a conviction and imposing a sentence on the second count in that he failed to consider the provisions of s16 of the Criminal Code.

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Prentice CJ:

In May 1978 the accused was arraigned on an indictment containing two counts, namely (1) on 4 February 1978, committing rape upon one HK, (2) on 4 February 1978, unlawfully having carnal knowledge of one HK a girl under sixteen. Both charges arose from the one act of intercourse.

It has become the practice for the prosecution to include two such charges in the one indictment when the prosecutrix is under sixteen years of age, because s553 of the Criminal Code does not allow an alternative verdict to be brought in on a charge of rape. In my opinion this is an unfortunate state of affairs and calls for a simple legislative amendment. It appears to have been brought about by an error in the drafting of the 1974 Criminal Code which replaced the Criminal Code (Queensland Adopted) which had previously been in force. That this is so can I think, be inferred from the heading of the present section. S553 reads as follows:

"s553. CHARGE OF RAPE AND LIKE OFFENCES.

Upon an indictment charging a person with the crime of having unlawful carnal knowledge of a girl under the age of 12 years, he may be convicted of any offence which is established by the evidence, and of which the unlawful carnal knowledge of a woman or girl, whether of a particular age or description or not, is an element, and blood relationship is not an element, or of which procuring the woman or girl to have unlawful carnal connexion with any man is an element; or he may be convicted of any of the offences following, that is to say—

(a) administering to the woman or girl, or causing her to take, any drug or other thing, with intent to stupefy or overpower her in order to enable any man to have unlawful carnal knowledge of her; or

(b) unlawfully and indecently assaulting the woman or girl; or

(c) unlawfully and indecently dealing with a girl under the age of 12 years or a girl under the age of 16 years."

S578 of the Queensland Criminal Code (in force prior to 1974 in PNG) reads as follows (emphasis mine):

"s578.—CHARGE OF RAPE AND LIKE OFFENCES.

Upon an indictment charging a person with the crime of rape or with the crime of having unlawful carnal knowledge of a girl under the age of twelve years, he may be convicted of any offence which is established by the evidence, and of which the unlawful carnal knowledge of a woman or girl, whether of a particular age or description or not, is an element, and blood relationship is not an element, or of which procuring the woman or girl to have unlawful carnal connection with any man is an element:

Or he may be convicted of any of the offences following, that is to say,—

(a) Administering to the woman or girl, or causing her to take, any drug or other thing, with intent to stupefy or overpower her in order to enable any man to have unlawful carnal knowledge of her; or

(b) Unlawfully and indecently assaulting the woman or girl; or

(c) Unlawfully and indecently dealing with a girl under the age of . . . seventeen years; if any such offence is established by the evidence."

The difficulties at present being experienced by prosecution and the National Court could be removed by the insertion of the words "with the crime of rape or" next after the word "person" appearing in s553.

In the present case, the judge of the National Court, being satisfied that intercourse had been had by the appellant of the prosecutrix without her consent, and that she was in any event then under the age of sixteen years, convicted him on both counts of the indictment and sentenced him to serve twelve months in hard labour for rape and four months...