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State v Nugints [1994] PGNC 46; N1228 (21 April 1994)

N1228

PAPUA NEW GUINEA
[In the National Court of Justice]

CR 384 of 1993

THE STATE

V

JOHN NUGINTS

WAIGANI: INJIA, AJ.
1994: 21st April

Criminal Law - Practice and Procedure - Plea of autrefois acquit - where an information charging a person with unlawful assault contrary to S.6(1) of the Summary Offences Act Ch. 262 is dismissed by a District Court and the same person is indicted on a charge of unlawfully doing grievous bodily harm contrary to S.319 of the Criminal Code Ch. No. 262 in relation to the same matter - whether plea of autrefois acquit is available - Criminal Code Chapter No. 262, Ss 560(2)(e), 574; District Courts Act Chapter No. 40, S.162; Constitution, S.37(8).

Held:

(1) That a plea of autrefois pursuant to Section 560(2) of the Criminal Code is available in a situation where a person is acquitted by a District Court on an information with charging unlawful assault contrary to Section 6(1) of the Summary Offences Act Ch. No. 264 and the same person is subsequently indicted in the National Court on a charge of unlawfully doing grievous bodily harm contrary to Section 319 of the Criminal Code Ch. No. 264, insofar as the two offences are substantially the same or in effect the same or, where the evidence necessary to support the unlawful assault charge would be substantially the same or in effect the same as the evidence necessary to support the charge of unlawfully doing grievous bodily harm.

Sapuro Masuve v. Harold Bryant, Pirinavi Epehu v. Harold Bryant [1974] PNGLR 61 followed.

(2) Pursuant to Section 162(2) of the District Courts Act Ch. No. 40, the production by an accused person of a Certificate of Dismissal in respect to a charge of unlawful assault contrary to S.6(1) of the Summary Offences Act Ch. No. 264 issued by the District Court is a complete bar to proceedings on an indictment charging the same person with unlawfully doing grievous bodily harm contrary to Section 319 of the Criminal Code Ch. No. 262 insofar as the matter and parties to which the Certificate of Dismissal relates are the same as that to which the indictment relates.

L. Pombuses, for the State
S. Celestine, for the Accused

21st April 1994

INJIA, AJ: On 21st April 1994 the State presented an indictment charging the accused with one count of unlawfully doing grievous bodily harm to one Maria Mel contrary to Section 319 of the Criminal Code Ch. 262 (the Code). The indictment reads:

"John NUKINTS of GOKLE VILLAGE, MUGLAMB, WESTERN HIGHLANDS PROVINCE is charged that he on the 26th day of April 1993 at Waigani in Papua New Guinea unlawfully did grievous bodily harm to one Maria Mel."

The accused through his lawyer raised the plea of autrefois acquit pursuant to Section 564 of the Code. I upheld the plea and acquitted the accused for reasons which I gave orally. I indicated I would give my reasons in full in writing at a later date. I do this now.

The facts alleged by the State for purpose of arraignment were that on 26th April 1993 at about 7.00am the victim was waiting at the Gerehu Market Bus Stop to catch a PMV bus to downtown Port Moresby when she was confronted by the accused. The accused who was driving a PMV bus stopped in front of her, came out of the bus and pulled her by the collar of her "Meri blouse". However, the victim fended him off using an empty bottle as a weapon. She then got on another bus and came to Waigani Market. The accused followed her to Waigani Market and assaulted her again. They then went to the Waigani Police Station to solve the matter. A short time later they both came out of the Police Station. As the victim was walking towards the Waigani Market, the accused pulled the victim towards him and punched her mouth. As a result she sustained a lacerated upper lip, a fractured tooth and another tooth was left mobile. She bled heavily and was taken to the Port Moresby General Hospital where her injuries were medically treated. Dr Madi's medical report confirmed these injuries and stated that the lacerated upper lip was repaired with five (5) stitches.

Before I arraigned the accused, the accused's lawyer raised the plea of autrefois acquit. He submitted that on 26 April 1993 the accused was acquitted by Boroko District Court on an unlawful assault charge in respect of the same matter. To support this, he produced a copy of the District Court depositions pertaining to the matter and also produced a Certificate of Dismissal dated 21 April 1994 which was issued by the Boroko District Court. The Certificate shows that on 26th April 1993 the Court dismissed an information laid by Constable Mara Nokae of Port Moresby against John Nugints of Gokle, Western Highlands Province that he "did unlawfully assaulted another person namely Maria Mel" contrary to Section 6(1) of the Summary Offences Act Ch. 267. The information contained in the District Court depositions does not bear any endorsement of the summary of facts alleged against the accused. A copy of the same information containing the summary of facts endorsed thereon was produced before me and tendered in Court by the State. I accepted those facts set out in the information as constituting the facts alleged against the accused at the District Court proceedings.

The evidence in the Court depositions show that on 4 June 1993 the accused was called upon to plead to the charge. He pleaded not guilty. The matter was adjourned to 24 June 1993 at 1.30pm for trial. On 24 June 1993 the matter was adjourned to 16 July 1993 at 10.00am for trial. On 16 July 1993 at 10.00am, the Prosecution offered no evidence because its witnesses were not present. Consequently, the case was dismissed and accused acquitted.

The State initially objected to the plea on factual grounds and tried to establish that the factual matters in the information were different to those alleged before me. However upon a close look at the whole of the proceedings before the District Court, the State conceded later that the two statement of facts are the substantially the same, if not the same.

A plea of autrefois acquit is provided in Section 560(2)(e) of the Code. Section 560(2)(e) provides:

"If the accused person pleads, he may plead - ... (e) that he has already been tried and convicted or acquitted of an offence committed or alleged to be committed under such circumstances that he cannot under this Code be tried for the offence charged in the indictment."

Section 564 of the Code provides for the procedural manner as to how a plea of autrefois acquit is to be pleaded. Section 564 which provides:

"In a plea that the accused person has already been convicted or acquitted, it is sufficient to state that he has been lawfully convicted or acquitted, as the case may be, of the offence charged in the indictment, or of the other offence of which he alleges that he has been convicted or acquitted, and in the latter case to describe the offence in any way in which it is commonly known."

A plea of autrefois acquit is a complete defence to a charge, whether the charge be by way of indictment or information. The defence would operate in a situation where the second offence or the facts in support of the second offence with which a person is charged is the same as the first offence on which the same person is convicted or acquitted. I would adopt the test of unity in offence or unity in evidence as set out by Clarkson, J. in Sapuro Masuve v. Harold Bryant, Pirinavi Epehu v. Harold Bryant [1974] PNGLR 61 at page 65.

"It then becomes necessary to consider the degree of identity between the offence which the appellants were acquitted and that with which they are now charged, that is, to apply the test which has been variously described as being whether the two offences are substantially the same or in effect the same or whether the evidence necessary to support the commission of the second offence would have been sufficient to procure a conviction of the on the first offence."

In the instant case, even though the two offences are different, the facts alleged or the evidence which would have been necessary to prove those alleged facts on a charge of unlawful assault are substantially the same, if not the same as the facts alleged or evidence which could be called to support the present charge. Therefore, I find a plea of autrefois acquit established under the second leg of Sapuro Masuve's case, supra.

There is another alternative ground on which a plea of autrefois acquit is founded. It is based on Section 162 of the District Court Act Ch. No. 40. Section 162 provides:

"(1) If the Court dismisses an information ... it shall make an order of dismissal and shall, on application, give to the defendant ... as the case may be, a Certificate of the order signed by one or more of the adjudicating Magistrates or the Clerk.

(2) A Certificate under Subsection (1) is, on its production, without further proof, a bar to any other information, complaint or legal proceedings in any Courts in the country (other than proceedings on appeal) for the same matter against the same party."

It could be argued that even though the facts alleged or evidence which could be laid in support of the information is the same, the two offences are different in the sense that they are founded on different legislations, the Courts are different and the procedures prescribed in those legislations for dealing with the offence are different.

In my view, the answer to this argument is provided by Section 162(2) of the District Courts Act Ch. No. 40. The accused through his counsel has produced to me a Certificate of dismissal in respect of the same matter involving the same victim and the same accused. Pursuant to Section 162(2) the production of the Certificate no doubt provides a bar to any legal proceedings in any Court including this Court insofar as the matter in those proceedings relates to the same matter involving the same accused.

Finally, the accused is entitled to an acquittal by virtue of Section 37(8) of the Constitution which provides:

"No person who shows that he has been tried by a competent court for an offence and has been convicted or acquitted shall again be tried for that offence or for any other offences of which he could have been convicted for that offence, except upon the order of a Superior Court made in the course of appeal or review proceedings relating to the conviction or acquittal."

In my view, S. 560(2)(e) and S.564 of the Criminal Code and S. 162(2) of the District Courts Act recognize and re-enforce the accused's right under S.37(8) of the Constitution.

For the foregoing reasons, I uphold the plea of autrefois acquit either under S.560(2)(e) and S.564 of the Criminal Code and/or S.162(2) of the District Courts Act and/or S.37(8) of the Constitution. I discharge the accused on the charge as set out in the indictment.

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Lawyer for the State: Sir Kina Bona, PUBLIC PROSECUTOR
Lawyer for the Accused: Ellenas Batari, PUBLIC SOLICITOR