Papua New Guinea Law Reports - 1990
[1990] PNGLR 302
SC388
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SAPAU
V
THE STATE
Waigani
Amet Hinchliffe Konilio JJ
28 November 1989
1 June 1990
4 July 1990
CRIMINAL LAW - Practice and Procedure - Indictment - Application to quash - Right to make proper application - Refusal of proper application is error of law - Criminal Code (Ch No 262), s 558.
The Criminal Code (Ch No 262), s 558, provides:
“Motion to quash indictment
(1)      The accused person may, before pleading, apply to the court to quash the indictment on the ground that:
(a)      it is calculated to prejudice or embarrass him in his defence to the charge; or
(b)      it is formally defective.
(2)      On a motion under Subsection (1), the court may:
(a)      quash the indictment; or
(b)      order it to be amended in such manner as the court thinks just; or
(c)      refuse the motion.”
Held
Refusal to allow an accused to make a proper application to quash an indictment under s 558 of the Criminal Code amounts to an error of law warranting a new trial before another judge so that a proper application can be made and an order made thereon.
Cases Cited
R v Nakarin Mandiam [1973] PNGLR 135.
Appeal
This was an appeal against conviction and sentence on a charge of being found armed with intent to commit a crime.
Counsel
S Kemaken, for the appellant.
The appellant in person on and after 1 June 1990.
S Soi, for the respondent.
Cur adv vult
4 July 1990
AMET HINCHLIFFE KONILIO JJ: On 13 April 1989, in the National Court at Mt Hagen, the appellant was convicted under s 402(1)(b) of the Criminal Code (Ch No 262). The wording in the indictment went as follows:
“Alphonse Sapau of Ambunti is charged that he on or about the 18th day of February 1988 at Kindeng in Papua New Guinea being armed with a dangerous weapon namely a shotgun with intent to break and enter into Sullivan Co Ltd bulk store to commit a crime therein.”
Even though s 402(1)(b) includes the words “by night” we note that those words are not included in the indictment. There appears to have been no objection or application to amend the indictment and in fact the trial judge (at p 40 of the transcript) mentions the word “night” when referring to the charge in his judgment of 13 April 1989. We can only assume that all parties accepted that by inference the words “by night” were included in the indictment.
Amongst many grounds of appeal the appellant has stated that his lawyer at the trial was not permitted by the trial judge to question the committal proceedings. This appears to be so because the judge’s notes read as follows at p 1 of the transcript:
“Indictment presented under s 402 of the Criminal Code for being armed with intent to break and enter.
Mr Teine for accused made a preliminary application to question the committal proceeding. I refused to review the committal proceeding at this stage. Now that an indictment has been presented it is possible to see all the evidence.”
It may not have been made precisely clear to the trial judge under which section of the Code the lawyer was making his application because, if his Honour had been referred to s 558, then we would have thought that he would have entertained the application.
Section 558 provides as follows:
“558.   Motion to quash indictment
(1)      The accused person may, before pleading, apply to the court to quash the indictment on the ground that:
(a)      it is calculated to prejudice or embarrass him in his defence to the charge; or
(b)      it is formally defective.
(2)      On a motion under Subsection (1), the court may:
(a)      quash the indictment; or
(b)      order it to be amended in such manner as the court thinks just; or
(c)      refuse the motion.”
Even though his Honour stated, “I refused to review the committal proceeding”, it does seem, from what the appellant said in this Court, that Mr Teine was permitted to address briefly on the committal proceedings but was cut short by the trial judge. The appellant went on to say that the State neither addressed nor was called on to address the trial judge regarding the committal proceedings. No matter what actually did or did not occur there is nothing in the transcript about it. All the trial judge has said is that he “refused to review the committal proceeding”.
Clearly his Honour has made an error in law. Section 558 of the Criminal Code is clear and the appellant should have been permitted to make a proper application in an effort to have the indictment quashed. This Court does not know what the full application would have consisted of but, from what the appellant said, it would have been based on the said s 558(1)(b). As to whether or not the proposed application had any merit is something, for obvious reasons, we do not know. Certainly the defence lawyer was entitled to submit that the indictment was defective because if irregularities in committal proceedings are so defective that there has been no lawful committal, then no lawful indictment could be based upon it: see R v Nakarin Mandiam [1973] PNGLR 135.
There is nothing before us to say to what extent the committal proceeding was defective but as we have said, the appellant was entitled by law to make the submission. He has been denied that entitlement and we are of the view that the error is serious and it should be rectified.
Section 28 of the Supreme Court Act (Ch No 37) provides as follows:
“28.    New Trial
(1)      If on an appeal against conviction, the Supreme Court thinks that:
(a)      a miscarriage of justice has occurred; and
(b)      having regard to all the circumstances, the miscarriage of justice can be more adequately remedied by an order for a new trial rather than by any other order that the Court has power to make,
the Court may, of its own motion or on the application of the appellant, order a new trial in such manner as it thinks proper.”
We are satisfied that a miscarriage of justice has occurred in that the appellant was not permitted properly to advance his argument pursuant to s 558. We are further satisfied that the proper way to rectify the miscarriage is to order a new trial so that the application to quash the indictment can be presented in full before another judge who can then rule on the application according to law.
We therefore make the following orders:
1.       Appeal upheld.
2.       Conviction and sentence quashed.
3.       A new trial to be conducted.
4.       The matter to be placed back into the Mt Hagen National Court criminal list to be mentioned at the next call-over.
5.       Bail fixed in the sum of K500 in the appellant’s own recognisance and he is to appear at the next call-over of the National Court in its criminal jurisdiction at Mt Hagen.
Orders accordingly
Lawyers for the appellant: Karingu, Sitapai, Kemaken & Associates.
Lawyer for the respondent: Vele Noka, Acting Public Prosecutor.