UNIVERSITY OF PAPUA NEW GUINEA
School of Business & Public Policy
Strategic Management Division
3.10801 PRINCIPLES OF
STRATEGY
Major Group Assignment
SEMESTER 2, 2022
Course
Number
3.10801 Course
Name
Principles of Strategy
Due Date
15th August, 2022 Time
11:59 pm
Full Name
TAKISEN Karen Student
ID
202130335
Number
Full Name
BON Marcellina Joy Student
ID
202150061
Number
Full Name
MANUGEI Rawa Student
ID
202150042
Number
Full Name
PUY Madonna A Student
ID
20060276
Number
Full Name
PAWA Gabriella Nou Student
ID
202150186
Number
COURSE
COORDINATOR
Mr. Kenneth Baliwasa
Word count:
Page 1 of 8
Double Jeopardy in Papua New Guinea
You are to:
critically analyse the principle of double jeopardy
its applicability in PNG using decided case laws/judgments and other primary and
secondary reference materials
illustrate as to what circumstances and cases constitute double jeopardy
Introduction
Define generally
Define per legislation (Interpretations Act)
Give a brief history of the principle
Give outline of points to be discussed
Body
1. Firstly, provide the legal basis and other supporting material for DJ.
2. Divulge on its meaning by showing practical application.
a. Firstly, on what and how it is applicable.
b. Secondly on how it is not and give examples.
3. Emphasize the difference by restating the practical examples used.
4. Give assessment of the proposition to include leadership code in the definition of dj
a. apply example of LBS case
Conclusion
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Double jeopardy is an ancient common law principle that protects individuals from being tried more
than once for the same offence. It was traditionally restricted to criminal proceedings to shield a
defendant from repeated attempts at conviction by the state as a matter of fairness. However, there
have been inquires as to how far this safeguard of justice extends with regards to civil, administrative
and disciplinary proceedings. This paper will critically examine the use of the principle, double
jeopardy in Papua New Guinea and the circumstances that qualify, as well as the limit of its
application. And as there have been recent suggestions to include leadership code sanctions in the
definition of double jeopardy we will also provide an assessment of the proposition.
The legal basis
According to Section 16 (1) of the Criminal Code Act,
“A person cannot be punished twice under the provisions of this code or under the provisions of any
other law for the same act or omissions.” In the case of Thomas v The State, the accused was
charged of two different offences arising from the same act. The act was sexual intercourse that
brought about the two charges of rape and unlawful carnal knowledge of the girl being below 16
years of age. He was convicted and sentenced to be served concurrently. The defendant appealed
against the conviction and sentence of unlawful carnal knowledge, on the grounds that the second
count being an alternative count. He was successful in using the defense of double jeopardy because
it was based upon that one act, that the two offences arose. As seen in the above case, a person can
use the defense of double if they are charged with two different offences arising from the same act.
Section 37 (8) of the Constitution gives life to this legal principle by stating that,
“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 offence of
which he could have been convicted at the trial 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.”
This can be seen in the case of State v Nugints1, the accused was charged and acquitted on unlawful
assault at District Court subsequently The State presented an indictment charging him with doing
Grievous bodily harm to the same victim. The accused through his lawyer plead for autrefois acquit .
1
[1994] PNGLR 650; PNGLR 493
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Injia J held that the accused has already been acquitted and tried beyond reasonable doubt therefore
the plea was granted.
The defence of Double Jeopardy is usually raised when the accused is allowed to plead in court or in
other words respond to the charge(s)2. That is the time when the accused usually pleads either guilty
or not guilty, but he or she can also plead ‘Autrefois Acquit’ or ‘Autrefois Convict’. Autrefois
Convict and Autrefois Acquit are legal terms which defence counsels use to raise the defence of
Double Jeopardy. The former means ‘already convicted’ while the latter means ‘already acquitted’3.
Once Double Jeopardy is raised as a defence, the burden is up to the accused to prove that he or she
has already been dealt with by the court for the same offence4. The court has to be satisfied to decide
that to prosecute a case would be Double Jeopardy.
Double Jeopardy can be used as a defense only if the defendant was already convicted or acquitted.
When courts use terms such as Aquit, Convict and Case Dismissed it means that the case is closed
and cannot reopen, only until sufficient evidence is found in regards to the case, can the court reopen
the case. On the other hand, if a case is Struck Out or Withdrawn, the matter can still be pursued in
the courts later- in any such circumstance this would not be Double Jeopardy. This is clarified by the
decision of the National and District Courts in the cases of The State v Nugintsi and The State v
Gaupe5 respectively. In the former case, the accused raised the plea of autrefois acquit and was
successful while in the latter case, the defendant pleaded autrefois acquit but was unsuccessful. The
difference between these cases as per the courts ‘reasoning was that; in the case of The State v
Nugints the National Court found that the accused was acquitted by the District Court beyond
reasonable doubt and hearing the case again would constitute Double Jeopardy. On the other hand,
the District Court held, in the case of The State v Gaupe, that;
“The defendant … was not acquitted; therefore, he cannot invoke the protection under
section 37(8) of the Constitution”.
2
Papua New Guinea – Magistrates’ Manual, Chapter 7 – Criminal Responsibility and Defences, at p.5
3
Ibid, at p.5; Refer also to s. 564 of the CCA, 2002.
4
Ibid.
5
[2018] PGDC 35; DC39092
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It is clear, in this case, that no conclusion was reached by the court previously and so the defendant
was unable to sustain a defense of Double Jeopardy.
Double Jeopardy is not applicable when an action which was previously prosecuted under criminal
law is then being prosecuted under an administrative tribunal for disciplinary punishment. In PNG
this type of situations mostly affects Leaders and Public Office Holders. In other words, Leaders
who are punished under the Leadership Code, can also be held criminally liable for the same act
under the Criminal Code and Double Jeopardy would not be used as a defence. In the case of Sudi
Yaku v The Police Commissioner, Andrew J was faced with a double jeopardy argument made on
behalf of a member of the Police Force who had been convicted under the Criminal Code of
unlawful assault and subsequently charged under the Police Force Act with disgraceful conduct. His
Honour held that the police officer was not in jeopardy of double punishment. Because the defendant
was a Police Officer that was convicted of unlawful assault and then dismissed due to disgraceful
conduct, he tried to use the defense of double jeopardy because it was the same act that amounted to
two different charges, one of which was his dismissal. In summary of this case, the defense of double
jeopardy, is not applicable to Public Office Holders.
In regards to the Leadership Code, we study the case of Lelang 6, where he was called to The
Tribunal to answer to four different allegations made to him. Allegation 1 and 3 was failure to submit
annual statements to the Ombudsman Commission in accordance to Section 4(1) of the Organic Law
on Duties and Responsibilities of Leadership, thereby being guilty of misconduct in office under
Section 4(6)(a) of the Organic Law on The Duties and Responsibilities of Leadership. Allegation 2
and 4 was that the leader failed to carry out the obligations imposed by Section 27(6)(1)(b) and (c) of
the Constitution, thereby being guilty of misconduct in office under Section 27(5)(b) and (c). The
leader pleaded guilty to all four allegations, however, the accused through his lawyer raised an issue
of duplicity, the issue being that of the two additional charges laid pursuant to Section 27(5)(b) of the
Constitution. Those charges include allegations 2 and 4. He argued that, this is none other than
duplicity of the same allegations, charged in Allegations 1 and 3. This is the issue of double
jeopardy. The Public Prosecutor replied by submitting that on the issue of duplicity and double
jeopardy, the Public Prosecutor has a duty to uphold the Constitution and the Organic Law on the
duties and responsibilities of Leadership. The Tribunal gathered the submission of the counsel is that
the reference to the Public Prosecutor and the Statement of Reasons by the Ombudsman Commission
are in fact a term of reference, from which the Public Prosecutor can work from and lay charges or
allegations against the leader depending on what stems from the term of references.
6
[2013] PGLT 1; N521 (LT) (8 May 2013)
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