Use and Application of the Principle of Double Jeopardy

Introduction

As laws of Papua New Guinea protect people from being punished twice for the same offence, in most
cases, people are confused to use and apply the principle of Double Jeopardy. Like many other
principles, Double Jeopardy has its own complications. Papua New Guinea is a democratic country
which is run by politicians so a lot of problems arise within the political sphere which requires the
attention of the law. Leaders of this nation are dealt under the Leadership Code Act of 1976 and
suitable disciplinary actions are taken when there is misconduct in office. However, these sanctions are
usually less severe to equal the amount of damages done by the leaders. Thus, there is no natural
justice.

Some misconduct of the leaders can corrupt and cripple a village, district, province or even the country
as a whole and those types of misconduct deserve serious punishment. There are certain issues arise as
to whether the leaders should be subjected both the Leadership Code and the Criminal Code for
misappropriation of public funds and offences of the sort as it might amount to Double Jeopardy. This
essay would clarify the doubts that arise to the application of Double Jeopardy and elaborate on how
the principle should be used and applied.

Laws on Double Jeopardy

According to the Oxford Dictionary of Law1, Double Jeopardy is the fact of being prosecuted or
sentenced twice for substantially the same offense. The principle of Double Jeopardy is provided and
enforced in Papua New Guinea by Section 37(8) of the Constitution, Sections 16, 17, 560 and 564 of
the Criminal Code 1974 and the District Court Act.

Autrefois Convict and Autrefois Acquit

Section 564 of the Criminal Code (plea of autrefois convict or autrefois acquit) states:

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.

Autrefois convict and autrefois acquit simply means that a person can neither stand trial nor be charged
for the second time, if he has been acquitted or convicted from the same offence or any offence
relating to the first offence2. The maxim of autrefois convict would apply if the accused was charged
and punished of an offence, and the latter charge is the same as the first charge or has connection to the
first charge. The latter charge amounts to Double Jeopardy.3

In the case of Paul Saboko v Commissioner of Police and the Independent State of Papua New
Guinea,4 Cannings J stated and I exactly quote;

1
Elizabeth A Martin. Oxford Dictionary of Law. 8th Edition. Parts 2B4 in 4 vols. Reprinted Buffalo, NY 1986
from the edition of London 2003 at pp1489.
2
Section 564 of the Criminal Code Act
3
Paul Saboko v Commissioner of Police and the Independent State of Papua New Guinea (2006) N2975
4
(2006) N2975

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“This was the double jeopardy argument. Mr Kunai seemed to be drawing an analogy with the
provisions of the Constitution and the Criminal Code that prevent double jeopardy arising if a person
is dealt with by a court exercising criminal jurisdiction. These are also known as the principles of
autrefois convict and autrefois acquit. In plain language, the law says that if you have been acquitted
of an offence you can’t face court again for the same offence. The other side of the coin is that if you
have been convicted of an offence, you cannot be charged with the same offence again. The prosecutor
is allowed only one bite at the cherry.”

Difference between case struck out and case dismissed.

The maxim of autrefois acquit would only apply if the defendant or accused stand a proper trial and
the case was dismissed or acquitted by a principle magistrate in the district court for summary offences
or a judge for indictable offences in the national court5. A village court or a committal court cannot
acquit a case because they do have the jurisdiction to do so. A committal court hears cases on the
prime facie to collect sufficient evidence for the national court to prosecute an accused6.

However, if a case was struck out by a magistrate from lake of evidence, then the charge can be
reinstated and the same charge may be laid at some future time upon finding new evidences.7 If a case
is struck out and the same charge is laid in the future, then, that does not amount to double jeopardy.8
When the District Court does not dismiss the information or charge against an applicant, and if the
applicant is not tried, then he was not acquitted. Thus, no question of double jeopardy or autrefois
acquit would rise9.

In the case of State v Gaupe10, Sagu PM held and I quote;

“…The defendant did not stand trial and was not acquitted, therefore he cannot invoke the protection
under section 37 (8) of the Constitution. This provision is available to someone who has stood the
criminal trial for example, he was arraigned, plea entered , trial conducted in collecting the evidence,
court weighing the evidence and the court making a final deliberation on the guilt of the accused and
found either guilty or acquitted and is being tried for the same offence again”.

Joinder

Section 29 of the District Court Act 1963 in the case of indictable offences, if the matters of the
information are such that they may be charged in one indictment; and hose matters may be joined in
the same information. However, these matters can be held independently with the intention and
agreement of the defendant and this would not amount to double punishment.11

5
State v Gaupe [2018] PGDC 35; DC3092
6
Ibid
7
Professor M. Matui. Trial Practice and Criminal Procedures in Papua New Guinea. 1st Edition. Published by
UPNG Press and Book Shop. National Capital Papua New Guinea. 2017.pp75-76.
8
Ibid
9
Review pursuant to Constitution, section 155(2)(b) Application by Herman Joseph Leahy SCR NO 34 0F
(2005) SC855. p44.
10
[2018] PGDC 35; DC3092
11
Professor M. Matui. Trial Practice and Criminal Procedures in Papua New Guinea. 1st Edition. Published by
UPNG Press and Book Shop. National Capital Papua New Guinea. 2017.pp75-76.

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Criminal Offences and Disciplinary Offences

The disciplinary code of a particular organisation and the state laws that govern us all as a country are
two very distinct laws. Breach of one set of laws may or may not amount to breach of the other set of
laws as per held in Paul Saboko v Commissioner of Police and the Independent State of Papua New
Guinea12. In this case, a policeman was charged under the Criminal Code for stealing five pay cheques
and was tried in the District Court which the court acquitted the case. He was then charged under the
disciplinary offence where he was found guilty of one out of five charges and was dismissed from the
Police Force. He then sought judicial review in the matter where the actions amounted to double
jeopardy but, this argument was dismissed. However, the court held that, given all the circumstances,
the plaintiff’s removal from the Police Force was unreasonable as well as it was harsh and oppressive
so the court ruled in favour of the plaintiff.

In the Judicial Review, when handing down decision, Cannings J stated;

“….the criminal laws that apply to all persons in the country, and the disciplinary code for members
of the Police Force, which apply only to members of the Police Force, are independent, parallel sets of
laws. Breach of one set of laws may or may not amount to breach of the other set of laws. The same
principle applies to the Criminal Code and the Leadership Code. The Criminal Code applies to
everybody. The Leadership Code applies only to leaders (as described by Section 26 of the
Constitution). A leader who is dealt with under the Criminal Code can also be dealt with under the
Leadership Code.”

The case of Barrack (Niugini) Limited v Beverley Doiwa and Taki Pakapi13 is also a classic example.
In this case the Complainant was charged for being in possession of stolen property belonging to PJV
and was remanded to appear in Court. This matter was then dismissed by the Court and simultaneously
ordered reinstatement as Police failed to prosecute. He was then advised after an appeal that he was
terminated for removing Company property without authorization. The district court held that as
double jeopardy and stated that an employer cannot try an employee for one offence and where it does
not hold the employer then tries the employees for another offence.

This decision however was quashed by the National Court stating that the failure by the first defendant
to differentiate between a criminal offence and a disciplinary offence appears to have been the reason
why the district court described the termination of the second defendant for committing a disciplinary
offence as double jeopardy. When handing down the judgement Nanu J stated;

“In any case, there was no double jeopardy because the second defendant could not be said to have
been punished twice as there was no conviction and punishment by the Porgera District Court. Even if
the second defendant had been convicted and punished by the Porgera District Court there still could
not be double jeopardy because the plaintiff could not in law be barred from taking subsequent
disciplinary action against the second defendant for committing a disciplinary offence. The first
District Court therefore fell into error when it found that the termination amounted to double
jeopardy”.

Civill Remedy and Criminal Remedy in relation to Double Jeopardy

To determine double jeopardy, one must take into consideration the difference between a civil remedy
and a criminal remedy as they are two totally different offences and attracts different punishments, has

12
(2006) N2975
13
(2008) N4322

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two distinct courts, and has their own standard of proofs. In civil cases, one has to be proven on the
balance of probabilities and in criminal cases, one has to be proven beyond reasonable doubt.14

Section 623 of the Criminal Code Act provides;

Except when expressly provided, the prosecution or conviction of a person for an offence does not
affect any civil remedy that any person aggrieved by the offence has against the offender.

This in other words state that a person convicted or prosecuted of an offence can also be liable for any
civil remedies laid on him and that particular action would not amount to Double Jeopardy.

Committing another Offence of the Similar Nature

A person cannot claim the defence of Double Jeopardy by committing another offence that is similar to
the first offence that he has committed.15 To claim Double Jeopardy, the accusation laid on him must
be connected to the first offence that he has committed16. For example, a person who was charged for
attempt rape cannot claim the defence of Double Jeopardy for attempting to rape another person or the
same person that he had attempted to rape before.

Section 37(8) of the Constitution (protection of the law) states:

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.

Pursuant to section 37(8) of the Constitution, no person can be charged for the same offence that he
has been convicted or acquitted of. However, these sections does not protect the people who commit
another offence of the same nature or in other words, the same offence again, once they are acquitted
or convicted of the first offence as per heard in the case of Madang Cocoa Growers Export Company
Limited v Noilai Gnnar, Gee Gunar and the Madang Provincial Government17. In this case, the
National Court made various orders for the defendants to vacate a building they were occupying and
pay compensation to the plaintiff forthwith. Even though the defendants were complying with the
order, they were still occupying the building, exceeding the date that they were supposed to vacate, so
the plaintiff sued the defendants for failure to comply with the first order. The court agreed to hear the
case on its own merit stating that the second action does not amount to a double jeopardy. The latter
action amounted to a fresh offence being committed.

The Criminal Code and Custom

A custom cannot affect or change a court proceeding of a criminal offence to come into effect.18 The
prosecution of a criminal offence will commence as it should be despite what has been done

14
Professor M. Matui. Trial Practice and Criminal Procedures in Papua New Guinea. 1st Edition. Published by
UPNG Press and Book Shop. National Capital Papua New Guinea. 2017. Pp 74-75.
15
Madang Cocoa Growers Export Company Limited v Noilai Gnnar, Gee Gunar and the Madang Provincial
Government (2011) N4956
16
Ibid
17
(2011) N4956
18
Olmi v State [2004] PGSC 43; SC872

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customarily. However, some factors of the customs can be taken into consideration as allocutus when
the then convict stands trial19.

In the case of Olim v State, Sakora, Mogish & Lay JJ 20 held in paragraph 3 and I quote;

“…Turning to the effect of payment of compensation, the fact that it has been paid is taken into
account on sentence as a mitigating factor, but compensation can never be a substitution for the
conviction and imposition of penalty prescribed by the Criminal Code. In serious crimes of violence
the fact that compensation has been paid will not be a significant mitigating factor. There is no
correlation between the amount of compensation paid and the reduction in sentence which the Court
might allow. The deduction of a specific period from the sentence to reflect the mitigating effect of a
customary payment is not appropriate”.

Their honours further held in paragraph 10 and I quote;

“The Applicant said in his submission that he felt that he had been sentenced twice because of the
compensation payment and also the term of years. This is a misapprehension of the relationship
between the sentence and the compensation payment. The sentence imposed by the trial judge is
required by law. The compensation payment may be required by custom to restore peace and harmony
and it may amount to a detriment to the Applicants line, but it can never take the place of the
requirement of the Criminal Code to impose a proper sentence. We also have to recognize that, where
the appropriate sentence is a lengthy term of years, it is the Applicant’s line and not the Applicant who
bear the burden of the compensation payment”.

Conclusion

Double Jeopardy arises only when a person is punished twice under the criminal code for the same
offence. A disciplinary sanction laid on a person from a Disciplinary Code would not stop the person
from being prosecuted criminally by the Criminal Code as the two are totally different sets of rules.
The criminal laws that apply to all persons in the country, and the disciplinary code apply to certain
people in a certain organisation. With these being said, the leaders and the public servants of this
nation can be tried both with the Disciplinary Code and the Criminal Code and this action would not
amount to double punishment.

In a logical and a more fundamental principle of justice, any person cannot be charged for the
same offence for the principle protects against three different types of mistreatment or
abuses: the first, prosecution for the same offense after conviction or already convicted
“autrefois convict” and the second, prosecution for the same offense after acquittal or
already acquitted “autrefois acquit” and the third, punishments for the same offense.

on two grounds, the first being that the trial judge erred in law in recording a conviction on the second
count was an alternative to the first and that the learned trial judge once again erred in law by
recording a conviction and imposing a sentence on the second charge where he failed to consider that
would be a breach of the provisions set out in s. 16 of the Criminal Code

19
Ibid
20
[2004] PGSC 43; SC872 (3 December 2004)

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 Bibliography
Articles:

 Professor M. Matui. Trial Practice and Criminal Procedures in Papua New Guinea. 1st Edition.
Published by UPNG Press and Book Shop. National Capital Papua New Guinea. 2017.

Dictionary:

 Elizabeth A Martin. Oxford Dictionary of Law. 8th Edition. Parts 2B4 in 4 vols. Reprinted Buffalo,
NY 1986 from the edition of London 2003.

Legislations:

 Constitution of the Independent State of Papua New Guinea

 Criminal Code Act 1974
 Leadership Code Act of 1976
 District Court Act 1963

Case Laws:

 Paul Saboko v Commissioner of Police and the Independent State of Papua New Guinea (2006)
N2975
 State v Gaupe [2018] PGDC 35; DC3092
 Review pursuant to Constitution, section 155(2)(b) Application by Herman Joseph Leahy SCR NO
34 0F (2005) SC855
 Barrack (Niugini) Limited v Beverley Doiwa and Taki Pakapi (2008) N4322
 Madang Cocoa Growers Export Company Limited v Noilai Gnnar, Gee Gunar and the Madang
Provincial Government (2011) N4956
 Olmi v State [2004] PGSC 43; SC872 (3 December 2004)

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