[1971-72] PNGLR 476

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

REGINA

V.

ONGASI WOSIS

Mendi
Kelly J

17 February 1972

CRIMINAL LAW -Indictment - Form of - Formal defects - Whether quashable - Indictment handwritten - Indictment not under seal - Whether Crown Prosecutor duly appointed to present indictment - Omnia praesumuntur rite esse acta - The Criminal Code (Queensland, adopted), ss. 560[dxviii]1, 564[dxix]2 - The Schedule to The Criminal Practice Rules of 1900 (Queensland, adopted) - The Criminal Procedure Ordinance of 1889 (Papua, adopted), s. 6[dxx]3; and form I in the Schedule thereto - The Criminal Amendment Ordinance of 1909, ss. 1 and 2[dxxi]4 .

An indictment presented was objected to as being formally defective on the grounds that it was handwritten, did not bear the seal of the Court, and that the Crown Prosecutor should establish that he was a person who could sign and present the indictment. Upon a motion to quash the indictment:

Held:

(1)      That an indictment is not formally defective because it is handwritten.

(2)      That s. 564 of The Criminal Code and the form of the indictment in the Schedule to The Criminal Practice Rules of 1900 (Queensland, adopted) have the effect of amending or repealing s. 6 of The Criminal Procedure Ordinance of 1889 (Papua, adopted) and form 1 in the Schedule thereto, with the consequence that it is the former at which it is necessary to look for the form of document containing the charge when pursuant to s. 560 of the Code it is reduced to writing in a document which is called an indictment.

Reg. v. Angoro Evu, [1969-70] PNGLR 274, followed.
Reg. v. Ebulya, [1964] PNGLR 200 and Reg. v. Dwyer, [1967-68] P. & N.G.L.R. 104, considered.

(3)      That an indictment in the form provided by s. 564 of The Criminal Code is not formally defective because it does not bear the seal of the Court.

(4)      That, in the absence of proper evidence assigning specific power to a Deputy Administrator it was a proper case in which to apply the maxim omnia praesumuntur rite esse acta and to assume that the appointment of a Crown Prosecutor by a Deputy of the Administration was made pursuant to a delegation properly made to him.

(5)      That the Crown Prosecutor having been duly appointed pursuant to s. 1 of The Criminal Amendment Ordinance of 1909, s. 2 of that Ordinance operates to authorize him to present indictments.

Motion to Quash Indictment.

The facts and the relevant legislative provisions appear in the judgment of Kelly J. hereunder:

Counsel:

Laucis, for the Crown.
Andrew, for the accused.

17 February 1972

KELLY J:  The Crown prosecutor has presented an indictment in which the accused is charged with wilful murder. The indictment is on the appropriate printed form, is handwritten, signed by the Crown Prosecutor and does not bear the seal of the Court. Counsel for the accused has applied to quash the indictment on the ground that it is formally defective, firstly, by reason of the fact that it is not under the seal of the Court as required by s. 6 of The Criminal Procedure Ordinance of 1889 (Papua, adopted), secondly, because it is handwritten and not typed and thirdly, because, being signed by the Crown Prosecutor, it is necessary that he establish that he is a person who can sign and present indictments.

It will be convenient to deal firstly with the last of these matters. The Crown Prosecutor, Mr. Laucis, in answer to this objection has tendered the Papua and New Guinea Gazette of 9th July, 1970, containing an appointment of a number of persons including himself to sign indictments and present them to this Court. The notice of appointment sets out that this is made by the Administrator “by virtue of the powers conferred by Section 560 of The Criminal Code (Queensland, adopted) in its application to the Territory of Papua and all other powers me enabling, and having received the advice of the Administrator's Executive Council”.

Section 560 of The Criminal Code (Queensland, adopted) provides:

“When a person charged with an indictable offence has been committed for trial and it is intended to put him on his trial for the offence, the charge is to be reduced to writing in a document which is called an indictment.

The indictment is to be signed and presented to the Court by a Crown law officer or some other person appointed in that behalf by the Governor in Council.”

The Criminal Code of Queensland was adopted in Papua by The Criminal Code Ordinance of 1902 and by s. 1 of that Ordinance it is provided, inter alia, that: “Any references in the Code to Queensland or to persons places or subjects in Queensland shall be taken as references to the possession or corresponding or analogous persons places or subjects in the possession.”

I would consider that for the purpose of s. 560 the reference to Governor in Council should be taken as a reference to the Administrator acting with the advice of the Administrator's executive council. Whilst there are certainly differences in the constitutional position of the Governor of Queensland and the Administrator of Papua New Guinea and the functions performed by each, nevertheless in this context the Administrator can properly be regarded as a corresponding or analogous person to the Governor.

Mr. Laucis has been duly appointed by the Administrator with the advice of the Administrator's executive council to sign and present indictments and so he may properly present an indictment to this Court.

On the second matter raised by counsel for the accused I was not referred to any provision, statutory or otherwise, which requires that an indictment be typed, nor was any authority advanced for such a proposition. Section 564 of the Code which deals with the form of indictment, whilst obviously contemplating that the indictment be a written document, does not prescribe any particular form of writing. Likewise in s. 6 of The Ordinances Interpretation Ordinance 1949-1969 “indictment” is defined as meaning a written charge preferred against an accused person in order to bring his trial before the Supreme Court, but without any limitation as to the form of writing. I can see no reason which would compel me to hold that an indictment which is otherwise in proper form should be treated as being formally defective because it is handwritten. In taking this view I would certainly not wish to be understood as encouraging the practice of presenting handwritten indictments, as it is obviously desirable that such a document should be typewritten. However, in the circumstances which occur from time to time on circuit the situation may well arise where it is unavoidable that an indictment presented by a Crown Prosecutor be handwritten. Whilst I am not aware of the reason for this course being adopted in the present case it is not material to the principle involved which is that an indictment is not formally defective because of the fact that it is handwritten.

The substantial matter for consideration is then whether an indictment which does not bear the seal of the Court is formally defective. As already indicated, the form of indictment is dealt with in s. 564 of the Code which was inserted in its present form in 1964 in substitution for the section as it stood at the time of the adoption of the Code in 1902. There is no reference in that section either in its original or amended form to the sealing of the indictment and in the form of indictment in the Schedule to The Criminal Practice Rules of 1900 (Queensland, adopted) there is likewise no indication that the indictment should bear a seal.

Counsel for the accused relies on s. 6 of The Criminal Procedure Ordinance of 1889 which provides: “All crimes and offences cognizable in the Central Court shall be prosecuted by charge under the Seal of the Court and every such charge when laid shall in the Possession be as valid and effectual in all respects as an indictment would be in England.” The reference to the Central Court is now to be read as a reference to this Court. In Reg. v. Angoro Evu[dxxii]5 I had occasion to consider the operation of The Criminal Code Ordinance of 1902 with The Criminal Procedure Ordinance of 1889 and I there said: “I have read the judgments in Reg. v. Ebulya[dxxiii]6 and I have also been referred to part of an unreported judgment by Frost J. in Reg. v. Dwyer[dxxiv]7. From my reading of this material and from such consideration as I have been able to give the matter myself on the material available here, I must say with respect that I prefer the reasoning of Smithers J. as to the effect of The Criminal Code Ordinance of 1902 on The Criminal Procedure Ordinance of 1889 and I agree with his conclusion that where the Code enacted in 1902 conflicts with The Criminal Procedure Ordinance it amends or repeals that Ordinance (see especially at p. 243).” I have since had the opportunity of giving further consideration to this matter and I would adhere to what I said in Reg. v. Angoro Evu (supra). I was there considering s. 3 of The Criminal Procedure Ordinance of 1889 but applying the same reasoning I would consider that s. 564 of the Code and the form of indictment provided in the Schedule to The Criminal Practice Rules of 1900 adopted by The Criminal Forms Rules, 1922 made pursuant to s. 9 of The Criminal Code Ordinance of 1902 have the effect of amending or repealing s. 6 of The Criminal Procedure Ordinance of 1889 and form I in the Schedule to that Ordinance and should accordingly prevail. Consequently it is to s. 564 and the relevant form in the Schedule to The Criminal Practice Rules of 1900 and not to s. 6 of The Criminal Procedure Ordinance of 1889 and the Schedule to that Ordinance that it is necessary to look for the form of document containing the charge when pursuant to s. 560 of the Code it is reduced to writing in a document which is called an indictment.

In Papua there is a further reason to be found for looking to s. 564 of the Code rather than to s. 6 of The Criminal Procedure Ordinance of 1889 and that is the operation of The Criminal Procedure Amendment Ordinance of 1909 which provides by s. 1 for the appointment of a Crown Prosecutor and then goes on to provide in s. 2: “All crimes and offences cognizable in the Central Court may be prosecuted by indictment in the name of the Crown Prosecutor in the form or to the effect set out in ‘Criminal Code’ (Queensland, adopted); it shall not be necessary in an indictment to allege with particularity the place at which the offence was committed but it shall be sufficient if the offence is alleged to have been committed ‘in the Territory of Papua’.” Despite the use of the word “may” this clearly imports the form of indictment in the Code rather than that of the charge in The Criminal Procedure Ordinance and where such a form is used there is in my view for the reasons which I have already given no requirement for the use of a seal. For the present purpose it is not necessary to consider whether “may” in this context is mandatory or merely permissive as the crime here is being prosecuted by indictment in the name of the Crown Prosecutor.

When a crime or offence is prosecuted by indictment in the name of the Crown Prosecutor pursuant to s. 2 of The Criminal Procedure Amendment Ordinance of 1909 such a Crown Prosecutor would necessarily be a person appointed pursuant to s. 1 of that Ordinance. That section refers to appointment by the Lieutenant-Governor, although this is now to be read as a reference to the Administrator: see The Ordinances Interpretation Ordinance, s. 49. In this instance Mr. Laucis has been appointed to be a Crown Prosecutor under that section by Mr. A. P. J. Newman, a Deputy of the Administrator who made such appointment “by virtue of the powers conferred by Section 1 of The Criminal Procedure Amendment Ordinance of 1909 of the Territory of Papua and all other powers me enabling”. By s. 6 of The Ordinances Interpretation Ordinance “the Administrator” means the Administrator holding office under the Papua and New Guinea Act 1949 as amended from time to time and includes an Acting Administrator and, in relation to any powers and functions which have been assigned to a Deputy Administrator, includes that Deputy Administrator. Whilst no instrument assigning specific powers and functions to Mr. Newman as Deputy Administrator is before me I consider that this is a proper case in which to apply the maxim omnia praesumuntur rite esse acta and I am entitled to presume that Mr. Newman in making the appointment as a Deputy of the Administrator was acting pursuant to a delegation properly made to him.

It follows that Mr. Laucis having been duly appointed under s. 1 of that Ordinance, s. 2 operates to authorize the indictment which he presents to be in the form provided by The Criminal Code, which as already pointed out, does not require a seal, and it is not appropriate to have recourse to s. 6 of The Criminal Procedure Ordinance of 1889.

For these reasons I hold that the indictment presented is not formally defective and I refuse the application to quash the indictment.

Motion refused.

Solicitor for the Crown: P. J. Clay, Crown Solicitor.
Solicitor for the accused: W. A. Lalor, Public Solicitor.

[dxviii]Infra p. 478.

[dxix]By s. 29 of The Criminal Code Amendment (Papua) Ordinance 1964, which provides, so far as is relevant:

“Section 564 of the Criminal Code is repealed and the following section inserted in its stead:

‘564(1)  An indictment is to be intituled with the name of the Court in which it is presented, and must, subject to the succeeding provisions of this Chapter, set forth the offence with which the accused person is charged in such a manner, and with such particulars as to the alleged time and place of committing the offence, and as to the person, if any alleged to be aggrieved, and as to the property, if any, in question, as may be necessary to inform the accused person of the nature of the charge.’ ”

[dxx]Infra p. 479. 
[dxxi]The effect of ss. 1 and 2 is set out infra at p. 480.
[dxxii][1969-70] PNGLR. 274.
[dxxiii]	[1964] PNGLR. 200.
[dxxiv] [1967-68] PNGLR 104.