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

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

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

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Presentation of indictment after change of law creating offence and penalty—s11 of the Criminal Code applicable—Effect of s11 considered—Indictment can be presented under new law but the penalty is subject to a consideration of maximum prescribed under the old law.

2 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.

3 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 s347.

4 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.

5 State v Thomas Angup (2005) 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) referred to

12 September 2005

DECISION ON VERDICT

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Kandakasi J: On Tuesday 7 September 2005, the State presented an indictment against you, charging you with two counts of rape contrary to s347 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 s347 of the Criminal Code, which the Sexual Offences and Crimes against Children Act repealed and replaced. That law came into operation on 10 April 2003 (National Gazette G45 of 2002). 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 s11 of the Criminal Code and s63 of the Interpretation 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...