Unreported National Court Decisions
N10B
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
TANEDO
Port Moresby
Prentice DCJ
13 October 1975
15-17 October 1975
20-24 October 1975
27-28 October 1975
31 October 1975
FOURTH INTERLOCUTORY JUDGMENT
PRENTICE DCJ:
SUMMARY OF EVENTS LEADING TO PRESENT APPLICATION
At the close of the State’s case herein, Mr. Wall submitted that there was no case to answer on the indictment and the particulars given thereunder. It was contended that the State had restricted itself to alleging the formation of a conspiracy (furthered by overt acts in succeeding months) on 13th September, 1974. Mr. Wall’s argument was to the effect that the evidence could not establish either conspirational intention or agreement by both parties on that date.
There are two counts in the indictment alleging conspiracy to (1) defraud the Government by fraudulently inducing it to pay money to one Tyszkiewicz (in consideration of the transfer of a stereogram); and (2) bring about the award of contracts to Tyszkiewicz contrary to proper and lawful procedures (for the same consideration).
As is pointed out in Archbold (38 ed.) at para 4054, some conspiracy cases can be expected to be complicated and lengthy, and require pre-trial procedures involving perhaps conference with the trial judge, and the supply of particulars if sought, and special arrangements as to listing.
On the second day of this trial, after a motion to quash the indictment had been refused; the State had opened its case. At the conclusion of the opening address, I asked the then defence counsel Mr. Nwokolo, whether he had sought particulars. He indicated that he had not done so; and sought them there and then. Mr. Ryan for the State, indicated that he could supply the particulars sought immediately. I cautioned him, and I quote from the transcript. “You should give a little thought to the fact that they are in order”. After an adjournment of some half hour, particulars were supplied in the handwriting of the Public Prosecutor; and read into the transcript. Inter alia those particulars stated “it is alleged that a conspiracy under either count in the alternative, was entered into on the morning of 13th September, 1974 at that point of time when Tyszkiewicz handed to the accused the stereo-player ...”
On the fourth day of the trial, the Public Solicitor appeared on behalf of the accused, and asked for an adjournment of two days, which was granted. On the resumption of the trial, on the fifth day, Mr. Wall first appeared for the defence. He is reported in the transcript as asking Mr. Ryan “to indicate whether the particulars mean that in fact, the allegation in the two counts that the offence occurred in the month of September is now confined to only the 13th. In other words whether the particulars provided supplant the indictment or amount to an implied amendment of the indictment”. Mr. Ryan is reported as saying “That is in fact the case. It is alleged that the conspiracy was entered into on the morning of 13th Sept. 1974”. This report does not correctly indicate the whole substance of Mr. Ryan’s remarks. I have it noted that he stated “The thirteenth of September is the starting point”. His junior also has a note in this form.
The trial proceeded for some days; and on the morning of the 27th October, I gave judgment allowing the calling of witnesses to speak as to alleged “similar facts”. Before these witnesses were called, I pointed out to Counsel the discrepancy between my notes and the transcript (which as to the first few days of legal submissions had not been checked in the mornings) which I had noticed over the weekend. The subsequent statements of Mr. Wall and Mr. Ryan, I was not able to note fully. But Mr. Ryan stated inter alia “it is not my intention to say ... not relying on subsequent events ... they are a continuance of, furtherance of the conspiracy” and later “the evidence of what occurred subsequently is continuance of conspiracy which occurred or was entered into on 13th Sept”.
It appeared to me that Mr. Ryan might not even then have been aware of the submission which it seemed to me Mr. Wall had been building up to. I invited Mr. Wall to state whether he wished any witnesses recalled at this stage. He indicated he was content to rely on the evidence as it then was. The “similar facts” evidence was then called; and submission thereafter made of “no case to answer”. The submission continued for some short time after the luncheon adjournment. At its conclusion Mr. Ryan (at what Mr. Wall informs me was ten minutes’ notice to him) applied to amend both counts of the indictment by substituting for the words “in the month of September 1974.” - the words “between the months of September 1974 and March 1975 inclusive”.
THE APPLICATION TO AMEND THE INDICTMENT
After hearing Mr. Ryan’s submissions in regard thereto, I allowed Mr. Wall an adjournment of the rest of the afternoon to consider what submissions he would wish to make against the application being granted.
I have now received Mr. Wall’s submissions on this subject, which have covered an extensive review of the case law in regard to amendments to indictments generally, and the applicability of it to cases of conspiracy in which particulars are usually called for. He contends that the amendment sought would work an alteration to the substance of the charge. Whereas the accused, he says, was initially charged before the learned magistrate with an offence under s.87(1) of the Code; he was sent for trial by the magistrate on charges under s.541 and s.543. The indictment of 8th October however, charged other conspiracies again - under ss. 430 and 543. By particulars given at the trial he says, the conspiracy was said to have been entered into by an agreement come to on 13th September. Now the State seeks to charge a conspiracy entered into (that is intended and agreed upon) by the two parties between September 1974 and March 1975. He suggests that it is beyond the limits of decency, that the State cannot make up its mind as to the ground it wishes to occupy.
The power which I am asked to exercise is to be found in s.572 of the Code. It is agreed by Counsel that the amendment is sought to counter a variance between indictment and the evidence. As relevant therefore, the Section may be read as follows:
“If, on the trial of a person charged with an indictable offence, there appears to be a variance between the indictment and the evidence, ... the Court may, if it considers that the variance, ... is not material to the merits of the case, and that the accused person will not be prejudiced thereby in his defence on the merits, order the indictment to be amended, so far as it is necessary, on such terms, if any, as to postponing the trial, ... as the Court may think reasonable.”
No other power of amendment has been contended for. It is not without significance that under the same Section power is given to allow the omission or insertion of words.
THE CASE LAW
Mr. Wall contends that the variance here is very material to the merits of the case; and he prays in aid of the proposition that the accused will be prejudiced in his defences on the merits, the words of Ashworth, J. in the Court of Criminal Appeal in R. v. Johal[l]1 - I quote:
“amendment of an indictment during the course of a trial is likely to prejudice an accused person. The longer the interval between arraignment and amendment, the more likely is it that injustice will be caused,”
Johal’s case[li]2 (supra) is one in which new counts of different offences were added between arraignment and opening of the Crown case. The Court held specifically that there was no rule of law against adding a new count. It was exercising power under the Indictments Act 1915 (U.K.) which allows amendments “before trial, or at any stage of the trial, ... to meet the circumstances of the case, unless having regard to the merits of the case, the required amendments cannot be made without injustice . . .”
In Smith’s case[lii]3 Humphreys, J. for the Court of Criminal Appeal pointed out that amendments should normally be sought before arraignment; but nevertheless held that an amendment at the close of the prosecution case of some twelve days, was allowable. The amendment substituted - “obtaining valuable security by false pretences” - for an offence of “obtaining money by false pretences”. It was pointed out that in substance the charge was the same, the defect calling for an amendment, being one of description of the thing obtained.
That the circumstances and the nature of the charge involved alter the Court’s approach in each case; is illustrated by Gregory’s case[liii]4 where the elimination a surplusage, of words “the property of W.A.W.” and the subsequent direction to the jury that they might convict of being in possession of a stolen starter “belonging to some unknown person” was held impermissible. The defence’s approach if the charge had related to goods of a person unknown, might have been different, and the recorder’s direction to the jury, different, the Court of Criminal Appeal said.
Benson’s case[liv]5 held that a charge of incurring a debt by means of fraud could not be substituted for one of obtaining credit by false pretences. But this was argued on the powers of amendment that lay in the U.K. prior to 1915 under the Criminal Procedure Act of 1851, which allowed amendment “in the name or description of any matter or thing whatsoever”. Though Alverstone, C.J. stated therein:
“The principle involved is very important, because if the Court, by means of the amendment, allowed the prisoner during the trial to be charged with an offence different from that for which he was originally indicted, the power to amend would be considerably strained”;
that case with respect, does not greatly assist I consider, the construction of the Queensland Code. Mr. Wall however asks me to note that His Lordship went on to say:
“The fact that the evidence may be the same to establish both cases is immaterial.”
In R. v. Hult[lv]6 Stone, C.J. expressed the view that s.569 of the W.A. Code (equivalent to s.572 of that of Queensland), does not give power to include any other offence than that with which the accused is charged - you cannot amend in respect of two distinct offences. In that case a magistrate, without amending an information in regard to stealing, had gone on to convict the accused of receiving.
In Jenning’s case[lvi]7 one of false pretences, the Court of Criminal Appeal allowed an appeal where words describing one document (a ration book of 1948) were struck out of an indictment during a trial and supplanted by words referring to a leaf from a ration book of an earlier year. The Court held that the offence charged under the amendment was a totally different offence - and that the amendment should not have been made.
Mr. Wall pointed out that it can be particularly prejudicial to the defence to allow amendments in conspiracy cases; because such charges are usually the subject of orders for particularisation. The very giving of particulars, he says, renders greater the chance of a variance being material to the merits. The importance of the giving of particulars to the preparation of a defence is emphasized by the judgments of the High Court of Australia in Weaver’s case[lvii]8 (in the judgment of the majority at page 333; and of Evatt, J. at page 351); and that in Partridge’s case[lviii]9; and of Mitchell, J. in Godbee v. Samuels[lix]10. The Courts have not favoured citizens being charged with conspiracy to commit crimes instead of being charged with the crimes themselves. There are obvious dangers of surprise and of the accused being put at an unfair advantage. The judgment of Humphreys, J. speaking for the Court of Criminal Appeal in Rex v. West. Rex v. Northcott. Rex v. A. Weitzman. Rex. v. White[lx]11 to that affect, has many times been adopted by Judges and textbook writers, with acclaim.
The case of Reg. v. Phil Maria[lxi]12 which was cited, was not a case of an amendment of an indictment, but illustrates that the actual conspiracy charged must be the one proved. That the facts proved support another conspiracy than that charged, is not sufficient to allow a jury to bring in a verdict of guilt as to that second conspiracy. There, the charge involved obtaining money from V and P - the jury’s verdict being that money was obtained from P alone. The conviction was quashed.
Mr. Wall has also directed my attention to the rule laid down as a matter of practice by Vaughan Williams, J. in 1853 in the case of R. v. Rymes[lxii]13 that amendment to an indictment would not be allowed after defence counsel’s address to the jury. The reasons for such a rule of practice are obvious; but the case is I think, different from that of an application made after a submission of no case and before the defence case has been heard.
I have also been referred to, and have considered R. v. Hill & Ors.[lxiii]14 and the cases noted in Vol. 8 in the Australian Digest, and Vol. 14 of the English and Empire Digest under “Amendment”.
I find the case of R. v. Burns[lxiv]15 to be in point. In that case a man was charged with false pretences with N; the evidence as it unfolded disclosed false pretences to either A or W but not to N. He was convicted on the indictment. The Court of Criminal Appeal found itself without power to amend the indictment at that stage of the proceedings, namely, the appeal to it; so as to cover the case disclosed by the evidence. But all its members were of the opinion (Cullen, C.J. at page 354, Gordon, J. with whom Pring, J. agreed at page 358) that the Court of Quarter Sessions might have before verdict (emphasis mine), amended the indictment so as to cover the case made by the evidence.
ARE THE PROPOSED AMENDMENTS SUCH AS WOULD PREJUDICE THE DEFENCE ON THE MERITS
It has been clear from the State’s opening and the particulars, and indeed it must have been through the committal proceedings, that it was being alleged that the accused was engaged in corrupt dealing between September 1974 and the early months of 1975, of such a nature as to amount to a conspiracy between himself and Tyszkiewicz. The evidence has covered this period. As adverted to in my third interlocutory judgment herein, the charges have been met in cross-examination by denials that a stereogram was given to the accused; by denials of the conversations from which the conspiracy is said to have derived; by denials that thereafter improprieties and favoured dealings occurred; by allegations of victimisation. These defences relate to the whole period, not merely to the events 13th September. Very forcefully and ably, Mr. Wall has developed another defence out of what I shall refer to as the prosecutor’s incautious particularisation. That defence says in effect; if the Court accepts the evidence of the co-conspirator as true; it should accept as true also his statement that when he left the accused after handing him the stereogram, he was uncertain as to the implications and effect of what had happened, and of what had been said. The necessary inference is, as I understand the defence to have been developed, the Court could not be satisfied that an intent to conspire (as alleged in the indictment) had been formed by Tyszkiewicz at that point of time; that an agreement to further a common intention had been formed by both alleged conspirators at that point of time (13th September, 1974); therefore the charge as laid and as restricted by the particulars, must fail.
Is this defence to be considered “his defence on the merits” (as distinct from “the merits of the case); or is it to be considered rather as a defence of a technical nature arising perhaps from the able use of the prosecution’s incaution, election, or obstinacy - whatever it might be. I incline to the view that “his defence on the merits” rather involves the disputation of the points I have mentioned earlier, whereby he can assert not that the State has failed to show a conspiracy completed on a particular day; but that it has failed to establish against him a course of corrupt dealing which is said to have at some stage either on 13th September or subsequently certainly, become a conspiracy.
I do not consider that his defence on the merits will be prejudiced by the allowing of the amendment sought.
IS THE VARIANCE MATERIAL TO THE MERITS OF THE CASE
But can it be said that the variance “is not material to the merits of the case”? If the amendment is not allowed, the merits of the case as I see them (the right (and duty) of the State to prove that the relevant alleged events amounted to a conspiracy - if it can; the right of the defence to show that the alleged events did not occur and that if they did occur they did not amount to a conspiracy) may not be canvassed in this hearing at all. If the amendment is allowed - can the variance be said to have been “material on the merits” in that the amendment might have been the means whereby the merits (as I have described them) were enabled to be decided.
As with so many Sections of the Code, s.572 does not appear to have received a great of judicial interpretation. I am told by Queensland Judges, that in regard to many points of the Code there are decisions on matters of criminal procedure that do not find their way into the textbooks, because criminal matters in that State are not extensively reported. Be that as it may, I can find no decided cases upon the meaning and effect of the phrase “if it considers that the variance ... is not material to the merits of the case”.
I consider the over-all intention of the Legislature however, to be plain on a reading of the Section as a whole. I think it to be that the Court may be enabled to deal with the real issues in a case, the “merits” as between the State’s right to prosecute for alleged wrongdoing, and the accused’s right to defend by requiring adequate and proper proof of the offence alleged; and that the Court not be distracted from a decision on the merits by what the layman would no doubt describe as “technicalities”.
The Section speaks of the “variance” not being material. It does not speak of the proposed amendment not being material. It seems to me that the phrase “the variance is not material to the merits of the case” is to be considered as meaning that the occurrence of the variance does not detract from or prevent the merits of the case being considered. I would conclude that the fact that the making of the amendment would allow the merits to be considered, whereas a refusal of it would perhaps prevent their being considered; does not mean that the variance, in respect of which the amendment is sought, “is material to the merits of the case” within the meaning of the Section. Another way of putting my interpretation would be that the phrase was intended to show that the correction of the record required by the variance might be made if its making would not affect the merits of the case being considered.
I do not see the effect of allowing the amendment as being the substitution of “another offence”. The facts relied on are the same, the offence charged remains that of conspiring to do certain stated things, under the amendment the offence charged is not of a differing nature. The change is in the particularisation of the date. I appreciate that in some cases a change in the particularisation of date or time may well go to the merits of the case and the merits of the defence (one thinks immediately of a case involving an alibi). But I should think that in many, perhaps the majority of cases, it would not.
THE HUMAN RIGHTS ACT
Lastly it was argued that s.16(2) of the Human Rights Act requires that an amendment be disallowed.
This Section is in the following terms:
“A person charged with an offence shall, unless the charge be withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court established by law.”
Mr. Wall relies on the decision of The Queen v. Abia Tambule & 11 Ors.[lxv]16 in which it was held by the majority of the Court (though it appears to have done so without reference to the prior decision of The Queen on the Prosecution of Alios Wafing v. Terrence Mitchell and Ohuma Ijahuja[lxvi]17), that it was by virtue of this Section impermissible for the prosecution to enter in nolle prosequi at the close of the prosecution case; for to do so would prevent a determination on the issues - the completion of a “fair hearing”.
With respect, it may be necessary at some future time for the Supreme Court to consider whether the decision in Abia Tambule’s case[lxvii]18 (supra) of the Full Court was come to per incuriam. Without purporting to decide whether a decision of the former Full Court in Papua New Guinea is binding on a Judge of the National Court of (Independent) Papua New Guinea; I consider I must regard that decision of at least the most persuasive effect.
Mr. Wall says, as I understand him, that by analogy with the nolle prosequi case, no amendment should be allowed which prevents the determination of the issues (the completion of a fair hearing) raised by the indictment as presented. If this argument be applicable to the facts of this case, consideration would again be required I imagine, of the operation of s.5(1) of the Human Rights Act (The Queen on the Prosecution of Alios Wafing v. Torrence Mitchell and Ohuma Ijahujo[lxviii]19) (supra), and as to whether the Human Rights Act could over-ride the powers purportedly vested in the Court by s.572 of the Criminal Code.
I am unable to see however, that the insertion of the words proposed in the indictment, can be said to amount to a refusal to afford a fair hearing within a reasonable time of the charge of an offence. Indeed, insofar as such a proceeding if permitted could obviate the necessity of the accused’s facing further proceedings arising out of the same facts, (and counsel agree that a ruling in the defence’ favour on the no case to answer would not prevent further proceedings on the same evidence); such an amendment could be seen as speeding up the finalisation of the hearing. The Section is concerned with two elements, the securing of a fair hearing and the avoidance of delay therein. As I see it, the granting of an amendment would neither affect the fairness of the hearing of that charge being preferred, nor extend its determination by an unreasonable time. I would therefore hold that this Court is not debarred in this case by s.16(2) of the Human Rights Act from making the amendments sought.
I have indicated in an earlier judgment in this case that the Court is conscious of the present difficulties in the administration of the Law in this country. But it ought not to be expected, in the interests of getting to the merits of cases and avoiding technicalities, that it will continually grant leniency in the rectification of difficulties attributable to the decisions of senior expatriate counsel.
There come times when lines must be drawn and indulgence refused because the administration of justice requires also that the Court insist on the highest possible standard of performance on the part of its Counsel.
For the reasons advanced above I will allow the amendment.
NOTE
Following delivery of this judgment Mr. Wall indicated that he had been unaware that the Human Rights Act had been repealed. This was done by Act No. 92 of 1975 Statute Law Revision (Independent) Act. S.16(2) of the Human Rights Act is reproduced in effect in s.37(3) of the Constitution. The Court expre that its decision in regard to fair hearing made in relation to that Section of the Human Rights Act as to which its decision is now seen to be per incuriam, would be adhered to on reference to the terms of s.37(3) of the Constitution now quoted to the Court.
Solicitor for the State: L.W. Roberts-Smith, Public Prosecutor.
Counsel for the State: B.M. Ryan, B.T.J. Sharp.
Solicitor for the Accused: N.H. Pratt, A/Public Solicitor.
Counsel for the Accused: C.F. Wall. A.J. Alpine.

[l](1972) 2 All E.R. 449 at 452
[li](1972) 2 All E.R. 449
[lii](1950) 2 All E.R. 679
[liii]46 Cr. App. R. 441
[liv](1908) 2 K.B. 270
[lv](1903) W.A.L.R. 56 at 58
[lvi]33 Cr. App. R. 143
[lvii]45 C.L.R. 321
[lviii](1930) 30 S.R.N.S.W. 410 at 412-13
[lix](1973) 5 S.A.S.R. 236 at 239
[lx](1948) 1 K.B. 709
[lxi](1957) St.R.Qd. 512
[lxii]3 Car. & K. 326 (175 E.R. 573)
[lxiii](1909) 9 S.R.N.S.W. 563
[lxiv](1920) 20 S.R.N.S.W. 351
[lxv]Unreported FC57
[lxvi]Unreported FC51
[lxvii]Unreported FC57
[lxviii]Unreported FC51