Robert Agen v The State

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Judge: Salika CJ,Berrigan,Dowa JJ
• Judgment Date: 02 September 2024
• Neutral Citation: SC2623
• Citation: SC2623, 2024-09-02
• Docket Number: SCRA NO. 19 OF 2023
• Date: 02 September 2024
• Counsel: D Dotaona, for the Appellant,M Tamate, for the Respondent State,Counsel

SC2623

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 19 OF 2023

Robert Agen

Appellant

v.

The State

Respondent

Waigani: Salika CJ, Berrigan and Dowa JJ

2024: 29^th February and 2^nd September

APPEAL — APPEAL AGAINST CONVICTION — S 347, Criminal Code — Rape — S 335, Common Assault — Appeal upheld.

APPEAL — APPEAL AGAINST CONVICTION — S 335, Criminal Code Common Assault — Defence of provocation excluded beyond reasonable doubt — Appeal dismissed.

Cases Cited:

Papua New Guinean Cases

Wartoto v State (2015) SC1411

State v Songke Mai SCR NO. 5 of [1988] PNGLR 56

The State v The Principal Magistrate District Court, Port Moresby; Ex Parte the Public Prosecutor [1983] PNGLR 43

In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police (2014) SC1388

Paru v State (2017) SC1632

Manning v Romongi (2022) SC2197

Antonia Dawa v. Sam Inguba — Commissioner for Police (2005) N2899

State v Paraka (Decision on Motion to Quash/Permanently Stay Indictment (2021) N8807

State v Wohuinangu (1991) N966

In re Namah (2018) N7194

Thompson v Kalaut (2011) N4265

Lati v The State (2015) SC1413

John Beng v The State [1977] PNGLR 115

Didei v The State [1990] PNGLR 458

State v Paulo [1994] PNGLR 335

The State v Anton Kumak (1990) N835

State v Merriam [1994] PNGLR 104

Birch v The State [1979] PNGLR 75

The State v Bikhet Nguares Paulo [1994] PNGLR 335

John Jaminan v. The State (No 2) [1983] PNGLR 318

Kitawal v The State (2007) SC927

Liberato v The Queen (1985) 159 CLR 507

Karo Gamoga v The State [1981] PNGLR 443

Peter Wawaru Waranaka v Gabriel Dusava (2008) SC942

Michael Tenarum Balbal v. The State (2007) SC860

Waranaka v Dusava [2009] PGSC 11 SC980

RD Tuna Canners Ltd v Sengi (2022) SC2232

Garitau Bonu and Rosana Bonu v The State (1997) SC 528

Balbal v State SC 860 (2003)

Maraga v The State (2009) SC968

James Pari & Bomai Tine Kaupa v The State [1993] PNGLR 173

Denden Tom & Ors v The State (2008) SC967

Devlyn David v The State (2006) SC881

Kapahi v State (2010) SC1023

The State v Joseph Maino [1977] PNGLR 216

The State v John Yambra Pai (1986) N535

State v Paru (2021) N9108

Overseas Cases

Williams v Spautz [1992] HCA 34

Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23

R v Crawley [2014] EWCA Crim 1028

References Cited

Sections 6, 229H, 267, 335, 347, 347A, 347B, 525, 526, 574 of the Criminal Code

Sections 37(1), 37(2), 42(2), 43, 59(2), 155(4), 197(2) of the Constitution

Section 33(2) of the Police Act

Sections 28, 41, 49, 94, 94A of the District Courts Act, 1963

Section 21 of the Supreme Court Act

Section 4 of the Public Prosecutor (Office and Functions) Act, 1980

Counsel

D Dotaona, for the Appellant

M Tamate, for the Respondent State

Dotaona Lawyers: Lawyer for the Appellant

Office of the Public Prosecutor: Lawyer for the Respondent

DECISION ON APPEAL

2^nd September 2024

1. BY THE COURT: The appellant was convicted following trial of three charges arising out of two separate incidents involving the same complainant, a woman, AHJ, namely, the rape and common assault of AHJ on 30 April 2018 at Owers' Corner, Central Province, contrary to ss 347 and 335 of the Criminal Code, respectively, and the common assault of AHJ on 15 September 2018 at Waigani, NCD, contrary to s 335 of the Criminal Code: State v Agen (No 7) (2022) N10294. The appellant was given an effective head sentence of 11 years of imprisonment in hard labour, five and half years of which was suspended. He appeals against conviction on all three counts.

2. The notice of appeal contains 47 grounds which are prolix and repetitive. There are two main areas of contention. The first concerns alleged irregularities at the charging or committal stage which the appellant says meant that he was never properly before the District Court. The second challenges the convictions on various grounds.

CHARGING AT THE DISTRICT COURT

3. The appellant made an application to quash the verdict on each count following his conviction and prior to sentence at the National Court. He contends that the trial judge erred in refusing to hear and grant the application on the bases that:

(a) he was never arrested and charged by police for the Owers' Corner rape and grievous bodily harm charges, and he was never re-arrested and charged by police for the Waigani grievous bodily harm charge after the common assault charge initially laid in relation to that incident was withdrawn by the police prosecutor at the committal court, and he was therefore never brought before the committal court on those charges, in contravention of his rights under ss 37(1), 37(2), 42(2) and 59(2) of the Constitution;

(b) it is the function of the police and not the Public Prosecutor to lay criminal charges as occurred here;

(c) the investigating officer had been convicted of a criminal offence involving dishonesty and therefore stood dismissed from the Police Force under s 33(2) of the Police Act and lacked legal standing to bring criminal proceedings; and

(d) consequently, most if not all documents contained in the police hand up brief were false in contravention of s 94A of the District Courts Act, 1963.

4. Alternatively, the appellant contends that the trial judge erred in refusing to refer questions arising from those matters to the Supreme Court for consideration.

5. The State submits that the arguments were considered by the trial judge and makes no submissions as to their merits.

Background

6. The appellant was interviewed and charged by investigating officer, Joshua Kraip, on 20 September 2018 in relation to one count of alleged common assault contrary to s 335 of the Criminal Code for an alleged incident at Waigani on 15 September 2018. An information was laid before the District Court in relation to that matter on 21 September 2018 by the said investigating officer.

7. On 17 December 2018 the police prosecutor at the District Court wrote to the Public Prosecutor seeking his election for the matter to proceed summarily. On 24 January 2019 the Public Prosecutor responded declining the request. On 7 February 2019 the Public Prosecutor sent a further letter again declining the request and strongly recommending that the appellant be charged with two counts of grievous bodily harm and one count of rape.

8. At some stage thereafter, the date is unclear, informations were laid by Joshua Kraip at the District Court charging the appellant with one count of grievous bodily harm in relation to the alleged Waigani incident, together with one count of rape and one count of grievous bodily harm of the same complainant alleged to have occurred at Owers' Corner on 30 April 2018.

9. On 1 April 2019 a brief of evidence was served on the appellant at the District Court containing material in relation to both incidents. On 7 May 2019 submissions on the sufficiency of evidence in relation to the Owers' Corner rape and grievous bodily harm and the Waigani grievous bodily harm charges were filed by the appellant. The prosecution's submissions were filed on 7 June 2019. On 14 June 2019 police withdrew the common assault charge for the Waigani incident and confirmed that they would be proceeding with the other three charges. Submissions on the sufficiency of evidence in support of those charges were heard on 16 August 2019.

10. On 23 August 2019 the appellant was given the opportunity to make a statement under s 96 of the District Courts Act in response to the charges. He exercised his right to say nothing. The appellant was committed to stand trial at the National Court on all three charges relating to events at both Owers' Corner and Waigani.

Consideration

11. There was no error on the part of the trial judge in refusing to hear the appellant's application to quash the verdict.

12. The appellant relied on s 155(4), Constitution to bring the motion, in effect asking the National Court to use its inherent power to make an order to do “justice in the circumstances of” the case. As made clear on numerous occasions by the Supreme Court, “justice” means “justice according to law”: Electoral Commission v. Pila Niningi (2003) SC710; Kala Rawali v. Paias Wingti; Tom Olga v. Paias Wingti (2009) SC1033; PNG Tropical Wood Products Ltd v. Manuel Gramgari (2013) SC1145; Nikint Investment Ltd v. Niganu (2020) SC1919; Telikom PNG Ltd v Kopalye (2021) SC2141; State v Yomba (2022) SC2274, amongst others.

13. The appellant did not identify the legal basis upon which the trial judge could revisit her decision on verdict either at the time the application was made in the National Court nor during submissions before us on appeal. Section 155(4) of itself provides no such basis whether by reference to s 37(1) (protection of the law) or any of the provisions under s 37(4)(a) to (f) (right to fair trial). The application was a clear abuse of process in any event.

14. Objections about the commencement of proceedings in the District Court must be raised at the earliest opportunity at the District Court. Attempts to raise such matters before the National Court having failed to do so may well constitute an abuse of process: see Wartoto v State (2015) SC1411 at [45] to [51]. If such objections are to be maintained in the National Court they must also be raised there at an early stage.

15. In this case the objections were raised by the appellant and dismissed by the trial judge at various stages, including prior to the presentation of the indictment, upon presentation of the indictment, at the close of the State case and again on verdict after considering evidence led in that regard during the trial. The appellant was entitled to maintain his position for the purposes of an appeal but it was a clear abuse of process to raise the objections again.

16. For similar reasons it was an abuse of process for the appellant to seek to have the same or similar issues referred to the Supreme Court pursuant to 21, Supreme Court Act.

17. We turn now to the substantive arguments raised.

18. Firstly, it is...