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State v Hendro [2006] PGDC 16; DC558 (16 November 2006)

DC558

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE SITTING
IN ITS GRADE FIVE CRIMINAL JURISDICTION]

GFCr 906-907 OF 2006

BETWEEN

STATE
Informant

v

HENDRO HENDRO
1st Defendant

AND

ALPHINE JULIUS
2nd Defendant

Wewak: D Susame
2006: November 16

CRIMINAL – Summary Offences Act – Possession of Pornography Materials s. 25 A, Firearms act – Possession of Ammunitions without a Valid License – s. 65 A.
Circumstances where Multiplicity of Charges arise.

Cases Cited
Gregory Kasen –vs- The State (2001) N2133

References

Counsel
Mr Richard Suranduo , For The State
Mr Matthew Tamutai, For The Defendants

November 16 2006

RULING

D SUSAME: This Court has been asked by the defence to dismiss the charges against the defendants Hendro Hendro and Alphine Julius on the grounds that charges are bad for multiplicity. Defence relies on an authority of an unreported National Court judgement of His Honour Justice Kirrowom in the case of Gregory Kasen –vs- The State (2001) N2133.

2. In a nutshell the defence argument is that charges against his clients stem from a single transaction or one act of possession which occurred at the same time and place. The prosecution opted to proceed with the charges in the current form and manner. Therefore the court has no jurisdiction to hear the charges as they are bad for multiplicity and ought to be dismissed. Even if this Court proceeds to hear the charges this will amount to an abuse of process and an unfair trial to the Defendants.

3. The Council representing the Informant and the State argued the charges are not bad for multiplicity. He argued, defendant Alphine had been charge with two separate charges. One is for possession of 11 pornographic CDs and the other charge is for possession of pornographic magazine. He argued video CDs require a computer to be viewed whilst the magazine does not require a computer.

4. With respect to defendant Hendro he has also been charged with two separate charges. One he has been charged with possession of cartridges and the other is that he has been charged with possession of ammunitions. The charges have been preferred or separated because ammunitions are discharged by two different weapons, a shotgun and a pistol. Therefore charges are not bad for duplicated and the Court should proceed to hear them.

5. The law on duplicity and multiplicity of charges or information is well settled at law and has been well discussed again by His Honour Justice Kirriwom in the case the defence relies on. Situation where charges are bad duplicity is different from situation giving rising to case where charges are bad for multiplicity.

6. The position at law where a case of duplicity of charges arises has been expounded by His Honour Kirriwom at Page 10 of his judgement. I need not elaborate further on the principles.

7. Just to restate the principle of law on multiplicity, the situation arises where multiple charges are being laid and presented to the Court by Informants from one single transaction on a same date, time and place.

8. In other words multiplicity refers to a practise of charging of defendants in the commission of a single offence in several courts. At law “this practise is prohibited because a single wrongful act cannot furnish basis for more than one criminal prosecution.”(See paragraph 1 at page 7 of His Honour’s judgement).

CIRCUMSTANCES OF THIS CASE

The charges with respect to defendant Hendro read;

8.1 On 19th October 2006, at Wewak Hill, Mr Hendro had in his possession live ammunitions to wit 12 gauge cartridges without being a holder of an ammunitions license, thereby contravening s. 65 A (a) of the Firearms Act, Chapter 310.

8.2 On 20th October 2006, at Wewak Hill, Section H, Lot 4 Hendro Hendro had in his possession live ammunitions to wit 50 x 9 mm calibre cartridges without being a holder of an ammunitions license, thereby contravening s. 65 A (a) of the Firearms Act.

The Charges against defendant Alphine Julius read;

8.3 On 19th October 2006, at section H Lot 4, Wewak Hill, Alphine Julius had in his possession articles namely 11 pornographic movie CDs that grossly offend against accepted standards of decency, thereby contravening s. 25A (1) of the Summary Offence Act, Chapter 264.

8.4 On 19th October 2006, at section H Lot 4, Wewak Hill, Alphine Julius had in his possession an article namely a pornographic magazine titled ‘Playboy Nudes’ that grossly offends against accepted standard of decency, thereby contravening s 25A of the Summary Offences Act, Chapter 264.

9. The ammunitions and the pornographic materials were confiscated by police during the search of the premises where the defendants live at Section H, Allotment 4, Wewak Hill. Having laid out the charges it would seem the police conducted two separate searches, the first on the 19th October and the other on the 20th October, in which 50 x 9 mm calibre cartridges were allegedly found.

10. It may have been that a single search was conducted on the 19th October during which all the ammunitions and pornographic materials were confiscated.

11. In my view the prosecutions argument is clearly misconceived and cannot be accepted. It was not the numerical volume or quantity of the items per see that created the number of several different offences under the same or single transaction as His Honor Kirriwom J puts it.

12. It was not in what form the pornographic materials were in or what calibre of rifle the ammunitions are discharged that created the offences, No, The offences that the law created were for possession of pornographic materials and possession of ammunitions without a valid license under the respective Acts.

13. The defendants may have been in possession of different types of pornographic materials and variety of firearm ammunitions. But the Arresting Officer cannot separate the different types of pornographic materials and ammunitions and come up with multiple charges as was in this case. Such a practice is prohibited by law under the multiplicity principle.

14. The offences were allegedly committed on the same date and place. Therefore, a single charge for possession of pornographic materials and possession of ammunitions should have been laid and presented to the Court against each of the defendants.

15. Multiple charges have been prepared and pursued by the prosecution, all arising from one single transaction. The Court doing justice and upholding the rule of law cannot on its own volition choose which charge to proceed with. That is for the prosecution to decide. For the Court to do so would be prejudicial to the defendant’s case to be tried in a fair and impartial court.

16. With these uncertainties the Court orders that all the charges against both defendants are dismissed.

17. The Court further orders that:

The Defendant’s cash bail is refunded forthwith.
The ammunitions and pornographic materials are to remain in custody of Police.
Defendant Alphine Julius passport be returned to him forthwith.

Lawyer for the First Complainant Mr Richard Suranduo
Lawyer for the Respondents: Mr Mathew Tamutai