Obed Jelis v The State (2012) SC1184

• Jurisdiction: Papua New Guinea
• Judge: Batari J Mogish J Kassman J
• Judgment Date: 29 June 2012
• Citation: (2012) SC1184
• Docket Number: SCRA NO. 66 OF 2010
• Court: Supreme Court
• Year: 2012
• Judgement Number: SC1184

Full Title: SCRA NO. 66 OF 2010; Obed Jelis v The State (2012) SC1184

Supreme Court: Batari J Mogish J Kassman J

Judgment Delivered: 29 June 2012

SC1184

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 66 OF 2010

OBED JELIS

Appellant

-V-

THE STATE

Respondent

Kokopo: Batari J Mogish J Kassman J

2012: 26, 29 June

CRIMINAL LAW – appeal - conviction – alternative counts of rape and sexual penetration charged on same indictment - appellant convicted on alternative count of sexual penetration of child under 16 years - Criminal Code s. 347 & s. 229A (1) (2) – evidence – age of victim – proof of – victim over 16 years at time of offence – whether conviction lawful – alternative verdict – abuse of trust, authority or dependency – Criminal Code s. 229E –offence not on indictment - Power of Supreme Court – Supreme Court Act s. 22,23,27 - offence not available as alternative verdict under Criminal Code s. 541. - Appeal upheld and conviction quashed.

Facts

The appellant was indicted on one count of rape and in the alternative, sexual penetration of a child under 16 years. He denied the alternate counts and evidence was given on both sides. The Trial judge disbelieved the accused in his defence and convicted him on the alternative verdict of sexual penetration of a child under the age of 16 years. He appealed against his conviction only.

The issue inter alia, is whether the conviction is, in all the circumstances, lawful as a matter of law and safe and satisfactory under s 23 (1) of the Supreme Court Act.

Held:

(1) Strict proof of the complainant’s age is required where the elements of the charge include the age of the complainant.

(2) There was evidence the complainant was over the age of 16 years and hence the trial Judge erred in law in convicting the appellant of sexual penetration of a girl under the age of 16 years.

(3) There is no general principle that if a person has been charged with a specific offence and, though not all elements of it are proven, all elements of a lesser offence are proven, the court can enter a conviction for the lesser offence: The State v Kikia Solowet (2007) N3154; The State v Samuel Kawar (2011) N4234 considered and approved.

(4) The offences of sexual penetration (s. 229A), sexual touching (s.229B), indecent act directed at a child (s.229C), persistent sexual abuse of a child (s. 229D), and abuse of trust, authority or dependency (s. 229E) are not available as alternative verdicts unless specified on the indictment;

(5) Recommended that the Parliament enact an amendment to allow the court to enter a conviction for a lesser offence where all the elements of a more serious offence have not been proven.

Appeal upheld, conviction quashed.

Cases Cited:

Papua New Guinea Cases:

Denden Tom, Daniel Wilson & Samuel Tom v The State (2008) SC967

John Beng v The State [1977] PNGLR 115

Tapopwa Thomas v The State [1979] PNGLR 140

The State v Peter Joseph Haydon [1976] PNGLR 509

The State v Samuel Kawar ( 2011) N4234

The State v Kikia Solowet (2007) N3154

Overseas cases

Edwards v Noble (1971) 45 A.L.J.R. 628.18

Counsel

Appellant In-Person

T. Rutledge, for the Respondent

29 June, 2012

1. BY THE COURT: This is an appeal against a conviction of the appellant at the October sittings 2010 of the National Court at Kokopo.

2. The appellant was indicted that on a date unknown, between January 2008 and December 2009, he committed rape upon one, E.C.

3. He was charged in the alternative on the same indictment that, on a date unknown, between January 2008 and December 2009, he sexually penetrated the said E.C., a child under the age of sixteen years. And that the said E.C. was in a relationship of trust, authority or dependency with the appellant.

4. The appellant was arraigned on both counts. He pleaded not guilty to the rape count and the matter proceeded to trial on that charge. The court found him guilty on the alternative count and was sentenced to 19 years in hard labour.

Grounds of Appeal

5. The first ground of appeal worded, “Appeal against decision” is far too general and lacks particularity. Except for what is apparent on the face of the records, such shoddy and ambiguous ground invites summary dismissal of the appeal for being incompetent. We will return to this ground later.

6. The second ground of appeal can be dealt with quickly. It states, “Court did not give the opportunity to make last closing statements. (My right to speak).”

7. We uphold the State respondent’s submission that, this ground is without substance and unmeritorious. Final submissions at the end of the trial on the whole of the evidence were made by the appellant’s lawyer. This is authorized by s. 573 (3) of the Code which states, “the accused person …. may by himself or his counsel ….. address the court on the whole case.”

8. It is on record as well that, the appellant was accorded his right under s. 572 of the Code to give evidence or make a statement in his defence. He elected to adduce evidence and followed that up with his sworn testimony. When the court administered the allocutus under s. 593 of the Code, he made a statement.

9. The second ground of appeal has no substance. It is dismissed.

10. Despite the generality of the first ground of appeal, the records reveal two fundamental issues that needed to be considered. These issues are restated from the body of the State’s submissions as:

a) Did the trial judge err in acting on the uncorroborated evidence of the complainant? If so, should the verdict be set aside on the ground that under all the circumstances of the case, it is unsafe and unsatisfactory?

b) Did the trial judge err in finding that, the complainant was under the age of 16 years at the time of the alleged offence? If so, should this honourable court, instead of allowing the appeal, substitute a verdict of abuse of trust, authority or dependency under s. 229E and sentence the accused for that offence?

The law and basic principles governing Criminal Appeals

11. The power of the appellate court to determine appeals from the National Court in ordinary cases is set out in s 23 of the Supreme Court Act, Ch No 37 (the Act). Sections 23 (1) and (2) are pertinent to this appeal:

“(1) Subject to Subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that—

(a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b) the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c) there was a material irregularity in the course of the trial,

and in any other case shall dismiss the appeal

(2) Notwithstanding that the Supreme Court is of the opinion that the point raised in the appeal might be decided in favour of the appellant, it may dismiss the appeal if it considers that no miscarriage of justice has actually occurred.”

12. The question of whether a verdict is unsafe or unsatisfactory alleges the trial judge has made an error of law or has misapprehended or has failed to take into account material fact(s).

13. To succeed in an appeal against a finding of fact or application of the law, the appellant must convince the appellate court that the trial judge was wrong in his conclusion: Edwards v Noble (1971) 45 A.L.J.R. 682. The Supreme Court affirmed in John Beng v The State [1977] PNGLR 115 that, a conviction or the findings of facts by the trial judge will not be disturbed unless it is satisfied that they are wrong. It was stated:

“the Supreme Court must be satisfied that there is in all the circumstances, a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal can be allowed.” (Underling added.)

14. The case of, Denden Tom & Anor. v The State (2008) SC967 also makes this clarification:

“……. unless this Court is satisfied that, there is reasonable doubt as to the safeness and satisfactoriness of the verdict, the decision of the National Court cannot be easily upset. The issue of whether or not the conviction is safe and satisfactory can be determined by reference to the evidence that was before the Court, the treatment given to them by the trial judge and what use he made of them in terms of choosing what evidence to accept and what to reject with the reasons for doing so, his findings of fact with his reasons of his findings and the eventual decision on the appellants’ verdict.”

Background

15. The case against the appellant was that on an unknown date, sometime during 2008, the appellant had pulled the complainant into the house they shared at Walilei, forced her onto a...