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Anis v Afuti [1976] PGNC 2; N31 (26 March 1976)

Unreported National Court Decisions

N31

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APP. NO. 205 OF 1975 (NG)
STEVEN (DING) ANIS
V
DANIEL AFUTI

Rabaul & Port Moresby

Prentice DCJ
20 March 1976
26 March 1976

CRIMINAL CODE (MISC. PROV.) ACT 1975 - an indictable offence triable summarily - trial must start within six months after commission of offence - magistrate misled by statement of facts.

PRENTICE DCJ: The apnt was convicted in d in the District Court at Rabaul on 12th December, 1975 of stealing a ruby ring valued at K1,000.00. No complaint could be laid against the adjudication on the material placed before the learned magistrate. The complainant was one Kevin Edward Feeney. It does not appear with complete clarity whether in the reading of the charge to the appellant, the date alleged in the information as being the date of commission of the offence, viz. 5th December, 1975, was actually put to the appellant. But correct procedures were gone through. A statement of facts in the terms following was read to the appellant, the then accused:

“...did steal one Gold Ruby’s (sic) Ring valued at K1000.00 the property of one Edward Kevin Feeney an offence against Sec. 384(1) of the Criminal Code Act 1974.”

Whereupon the appellant said “I agree”. “It is true”. In the circumstances the conviction was properly arrived at.

However, by consent, on this appeal an affidavit by the complainant Feeney has been allowed to be filed in evidence. Mr. Feeney has been cross-examined. From this fresh evidence it is evident that the appellant took the complainant’s ring some time in mid-April. There can be no doubt about the month - for it is fixed in Feeney’s mind by the date of his employer’s leaving Rabaul. A few days thereafter a complete turning out of household effects and clothing was undertaken - of which the appellant must have been aware. The ring was not found - no explanation for its taking was proffered by the appellant. Early in December Feeney was informed that the appellant had been seen wearing his ring. He then challenged the appellant over the matter, and the latter admitted taking the ring but asserted he lost it before returning it as he had intended to do. Feeney avers that the police must have misunderstood his charge - that at no stage did he state 5th December as the date of taking.

The complainant Feeney apparently lived and still lives on terms of intimacy with the appellant. They share house, and the complainant proposes to take the appellant to a plantation in the Bainings in some sort of pupillage and to assist him with his studies. No implications against Mr. Feeney’s veracity have been brought. It has been established to my satisfaction, therefore, that the taking of the ring occurred in mid-April. Theft, if theft it were, occurred then.

By s.10 of the Criminal Code (Miscellaneous Provisions) Act 1975, which came into force on 1st November, 1975, it is provided in regard to summary convictions that:

“A prosecution for a simple offence, or for an indictable offence in order to the summary conviction of the offender must, unless otherwise expressly provided, be begun within six months after the offence is committed.”

The offence allegedly committed here was an indictable one which could be dealt with summarily, but only within six months of its committal. The learned magistrate was unwittingly dealing with an offence some eight months old. He, therefore, acted without jurisdiction. He had, of course, jurisdiction, if the full facts had been made known to him, to have proceeded to commit for trial in this court.

The appeal must, therefore, be allowed. I quash the conviction. The authorities will no doubt decide whether they wish to pursue a committal.

Solicitor for the Appellant: N.H. Pratt, A/Public Solicitor

Counsel for the Appellant: C.F. Wall

Solicitor for the Respondent: K.B. Egan, A/Public Prosecutor

Counsel for the Respondent: T.R. Bredmeyer