SC1018

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO 1 0F 2009

REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2)(b)

APPLICATION BY
HERMAN JOSEPH LEAHY

Waigani: Batari J, Cannings J, Kariko J
2009: 27 October
2010: 29 March

CRIMINAL LAW – practice and procedure – whether an indictment presented under Criminal Code, Section 526 can be amended after being presented to the National Court – whether preconditions in Criminal Code, Section 535 must be satisfied.

The applicant applied for review under Constitution, Section 155(2)(b) of an order of the National Court to amend an indictment presented under Section 526 (indictment without committal) of the Criminal Code. Three grounds of review were relied on to argue that the order should be quashed: (1) that, once presented, there is no power to amend a Section 526 indictment; (2) that, if there is power to amend, the preconditions to its exercise under Criminal Code, Section 535, did not exist; and (3) the application by the Public Prosecutor in the National Court to amend the indictment was tantamount to filing a nolle prosequi and then presenting a fresh indictment and therefore an abuse of process.

Held:

(1)	There is no prohibition against amendment of a Section 526 indictment after presentation. The question of whether an indictment should be amended is a matter of discretion for the Judge before whom the application for amendment is made.

(2)	In deciding whether and in what terms to order that an indictment be amended, the Judge may, after presentation of an indictment and before commencement of a trial, have regard to but is not bound by the matters prescribed by Criminal Code, Section 535; as Section 535 only applies after commencement of a trial, which occurs when the accused is called upon to plead to the indictment (Criminal Code, Section 557(2)).

(3)	Amendment of a Section 526 indictment after its presentation and before commencement of a trial is not necessarily an abuse of process. Whether an abuse has occurred will depend on the circumstances of each case; and in this case no abuse was evident.

(4)	None of the grounds of review had merit. The National Court did not err in law. The application for review was dismissed.

Cases cited

The following cases are cited in the judgment:
Application by Herman Joseph Leahy (2006) SC981
Application by Herman Joseph Leahy (2009) SC994
Re Leahy (2006) SC885
Simili Kara v The State [1984] PNGLR 254
Smedley v The State [1980] PNGLR 379
The State v Esorom Burege (No 1) [1992] PNGLR 481
The State v Herman Joseph Leahy (2008) N3570
The State v Pawa Kombea [1997] PNGLR 494

APPLICATION

This was an application for review under Constitution, Section 155(2)(b) of a decision of the National Court ordering an amendment to an indictment that had been presented under Section 526 of the Criminal Code.

Counsel

I Molloy and S Nepel, for the applicant
P Kelly and A Bray, for the respondent 

1. BY THE COURT: Herman Joseph Leahy seeks review by the Supreme Court of a decision of the National Court constituted by Justice Kirriwom. His Honour decided to grant leave to the Public Prosecutor to amend an indictment against Mr Leahy that had been presented under Section 526 of the Criminal Code (The State v Herman Joseph Leahy (2008) N3570).

2. The application for review is made under Section 155(2)(b) of the Constitution, which gives the Supreme Court an inherent power to review all judicial acts of the National Court. We granted leave for the review as the applicant, Mr Leahy, had no right of appeal against Kirriwom J's decision, there was no other way he could bring the matter to the Supreme Court, and he has raised important points of law that are not without merit (Application by Herman Joseph Leahy (2009) SC994).

3. Mr Leahy's application for review contains six grounds of review but some overlap and we consider that they can fairly be reduced to three:

1	that, once presented, there is no power to amend a Section 526 indictment;

2	that, if there is power to amend, the preconditions to its exercise under Criminal Code, Section 535, did not exist; and

3	the application by the Public Prosecutor in the National Court to amend the indictment was tantamount to filing a nolle prosequi and then presenting a fresh indictment and therefore an abuse of process.

GROUND 1: NO POWER TO AMEND A SECTION 526 INDICTMENT

4. This was Mr Leahy's principal contention. He points out that on 21 September 2004 the District Court discharged him from various conspiracy and misappropriation charges. The Public Prosecutor then on 16 May 2005 presented an indictment under Section 526 of the Criminal Code against him to the National Court, constituted by Justice Mogish. Section 526 is the provision that allows the Public Prosecutor to present an indictment – sometimes called an ex officio indictment – where the District Court has refused to commit a person for trial.
5. The indictment contained three counts, which can be summarised as follows:

•	count 1: conspiracy with other persons to defraud the National Provident Fund of K2.5 million;

•	count 2: dishonest application to the use of another person of K2.5 million, the property of Kumugai Gumi Ltd;

•	count 3: dishonest application to the use of another person of K70,000.00, the property of Kumugai Gumi Ltd.

6. Mr Leahy raised an objection to the indictment which Mogish J on 8 June 2005 dismissed.

7. Mr Leahy then sought and was granted leave by the Supreme Court (Kapi CJ, Cannings J, David J) to review Mogish J's decision but the review was dismissed (Re Leahy (2006) SC885). Between the hearing of that application and the delivery of judgment, an application for disqualification of one of the members of the Court on the ground of apprehended bias was also dismissed: Application by Herman Joseph Leahy (2006) SC981. The case eventually returned to the National Court, with the 16 May 2005 indictment intact.

8. During 2008 the case came before Kirriwom J for a pre-trial status conference. The Public Prosecutor applied by motion for an order to amend the 16 May 2005 indictment in three respects:

Count 1 – by adding the words "Board of Trustees" after "National Provident Fund" and by increasing the amount of money from K2.5 million to K2.65 million;

Count 2 – by adding the phrase "to his own use", in describing how the money was applied;

Count 3 – by deleting this count.

9. Mr Leahy opposed amendment and argued that the Public Prosecutor had no power to amend the indictment and the National Court had no power to grant leave for an amendment. Having presented the indictment on 16 May 2005 the Public Prosecutor was obliged to prosecute it on its terms, without any amendment. An indictment under Section 526 can only be presented after the District Court has refused to commit a person for trial. It is an exercise of great power. The Public Prosecutor is allowed only one bite at the cherry. Section 526 does not permit a plurality of indictments, it was argued.

10. Mr Molloy, for Mr Leahy, submitted before Kirriwom J, as well as before us, that authority for those propositions lies in the decision of the Supreme Court (Wilson J and Pratt J, Kearney DCJ dissenting) in Smedley v The State [1980] PNGLR 379 and the decision of the National Court (Lenalia J) in The State v Pawa Kombea [1997] PNGLR 494.

11. In Smedley, the Public Prosecutor presented a Section 526 indictment, following a refusal to commit by the District Court. He then presented a nolle prosequi under Section 527 of the Criminal Code; and then presented, without seeking or obtaining the leave of the Court, a new indictment under Section 526. This was held to be impermissible. An appeal against a conviction entered after a trial on the second indictment was upheld.

12. In Kombea, a State Prosecutor wrongly signed and presented a Section 526 indictment to the National Court (such an indictment can only be signed by the Public Prosecutor: The State v Esorom Burege (No 1) [1992] PNGLR 481). After the error was discovered, the State Prosecutor sought to present a new indictment, signed by the Public Prosecutor. Lenalia J refused to accept the second indictment, stating:

There are two main types of indictments in our jurisdiction. There are those taken under Section 525(2) following committal proceedings. … The second type is under Section 526(2) where there has been a refusal to commit by the committal magistrate for insufficiency of evidence ... I am more inclined to think that once having decided to reduce the charge into writing and then that [Section 526] indictment is in fact presented to the Court, that in my reading of Sections 524, 525(2) and 526(2) is the end of the matter and the prosecution cannot thereafter seek to amend by a substitute, and an amended indictment. I must therefore agree with the defence counsel that, the State had already presented the indictment … and I must refuse acceptance of the amended … indictment proposed by the State Prosecutor.

13. We consider that the facts in both those cases are distinguishable from those in the present case. In Smedley there was a nolle prosequi, the effect of which was to discharge the accused from any further proceedings on the indictment to which it related. In the present case, however, no nolle prosequi was filed. In Kombea, as in Smedley, two separate indictments were presented, whereas in the present case only one indictment (the one presented before Mogish J on 16 May 2005) has been presented. No nolle prosequi has been filed and no attempt has been made to withdraw the 16 May 2005 indictment and replace it with a new one.

14. We agree that the discretion given to the Public Prosecutor to present an indictment after the District Court has refused to commit an accused to trial involves an exercise of great power. We also agree that the Public Prosecutor may, as Wilson J stated in Smedley, [1980] PNGLR 379, at page 393, "as of right, present only one indictment (and one indictment only) as a result of one committal". We agree with Pratt J in Smedley who stated at [1980] PNGLR 379, page 408, that "having presented the first indictment, the Public Prosecutor had exhausted his powers under the Criminal Code and there was no power in him to write out and present a second indictment".

15. However, neither Smedley nor Kombea stand for the proposition that, once presented, a Section 526 indictment cannot be amended. And we are not convinced that there is any good reason that such amendments should as a matter of law be prohibited.

16. It might be that in the circumstances of a particular case an application to amend a Section 526 indictment would be an abuse of process. That is the argument made under the applicant's third ground of review. For present purposes, we are considering the applicant's principal contention – that there is no power to amend a Section 526 indictment – and we reject that contention. We conclude that the Public Prosecutor, having presented a Section 526 indictment, can properly apply for the leave of the National Court to amend it. The question of whether the indictment should be amended is a matter of discretion for the Judge before whom the application for amendment is made.

17. The primary Judge committed no error of law by entertaining the application to amend and by finding that the National Court had power to allow and order an amendment. The first ground of review is rejected.

GROUND 2: PRECONDITIONS TO EXERCISE OF POWER UNDER SECTION 535 DID NOT EXIST

18. This was an alternative argument which we need to consider as we have rejected Mr Leahy's principal contention. The argument is that if there is power to amend a Section 526 indictment, this can only be exercised under Section 535 (amendment of indictments) of the Criminal Code but the preconditions set out in that provision did not exist in this case.

19. Section 535(1) states:

If on the trial of a person charged with an indictable offence—

(a)	there appears to be a variance between the indictment and the evidence; or

(b)	it appears that—

(i)	any words that ought to have been inserted in the indictment have been omitted; or

(ii)	any words that ought to have been omitted have been inserted,

the court may, if it thinks that—

(c)	the variance, omission or insertion is not material to the merits of the case; and

(d)	the accused person will not be prejudiced 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 thinks reasonable.

20. Mr Molloy submitted that neither Section 535(1)(a) nor Section 535(1)(b) applied. Section 535(1)(a) did not apply as there was not shown to be any variance between the indictment and the evidence. That could not be shown because there was no evidence before the National Court. Section 535(1)(b) did not apply as the proposed amendments did not involve the insertion of words that ought to have been inserted or the omission of words that ought to have been omitted.

21. Furthermore, Mr Molloy submitted, the preconditions set out in Sections 535(1)(c) and 535(1)(d) did not exist: the State did not discharge the onus of establishing that such variance (Section 535(1)(a)), omission or insertion (Section 535(1)(b)) was not material to the merits of the case and that the accused would not be prejudiced in his defence on The merits.

22. We agree generally with Mr Molloy's interpretation of Section 535(1). For a valid exercise of the power of amendment under this provision either (a) or (b) must be satisfied, plus (c) and (d). Thus:

[(a) or (b)] + (c) + (d) = power to order amendment.

23. However, these preconditions only apply upon and after commencement of a trial. Section 535(1) begins with the words "If on the trial of a person charged with an indictable offence". A trial commences, according to Section 557(2) of the Criminal Code when the accused is called on to say whether he is guilty or not guilty of the charge (Simili Kara v The State [1984] PNGLR 254).

24. In the present case, the indictment was presented on 16 May 2005, leave to amend it was sought in 2008 but the accused, Mr Leahy, had not been called upon to plead to any of the charges. The trial had not commenced so Section 535(1) did not apply.

25. The correct position at law is that in the period between presentation of an indictment (whether under Section 525 or 526 of the Criminal Code) and the end of the arraignment (when the accused is called on to plead to the indictment) the leave of the court is required to amend the indictment, but in deciding whether to grant leave the Court is not subject to the constraints imposed by Section 535(1). Having said that, it would be prudent to, as the primary Judge did in this case, have close regard to, without being bound by, the matters prescribed by Section 535(1).

26. His Honour did not err in his application of Section 535(1). The second ground of review is rejected.

GROUND 3: ABUSE OF PROCESS

27. The argument is that the Public Prosecutor was trying to achieve what Smedley prohibits by presenting, in effect, a new indictment under the guise of an amended indictment. He was trying to squeeze fresh charges within the amendment provisions and they did not fit. This was tantamount to filing a nolle prosequi and then presenting a fresh indictment and therefore an abuse of process, it was argued.

28. We are not persuaded by this argument. As we pointed out under ground 1 the facts of the present case are quite different to those in Smedley where the filing of the nolle prosequi extinguished the Public Prosecutor's right to present a new indictment. Here, only one indictment has been presented. There is no new indictment. 

29. Different considerations might arise if the extent of the amendment were so substantial as to unfairly prejudice the defence, and give rise to an abuse of process. However, we do not consider that such a situation exists here.

30. Kirriwom J summed up the effect of the amendments at paras 37 and 38 of his judgment in these terms:

I do accept the State argument that the proposed amendment involves nothing more than providing details of the counts pleaded in the indictment rendering them consistent with the terms of the section under which the charges are founded. Count 1 remains as one of conspiracy to defraud with the only changes being – National Provident Fund of Papua New Guinea changed to National Provident Fund Board of Trustees, K2.5 million changed to K2.65, "National Provident Fund of Papua New Guinea's Tower at Allotment 16, Section 05, Douglas Street Granville, Port Moresby" changed to National Provident Fund Tower situated at Douglas Street Port Moresby. Count 2 remains as one of misappropriation with the only changes being to align the wording of the charge consistent with the terms of the Act. This is apparent in the first indictment where the words 'to his own use" were omitted.

I am of the view that the application to amend the indictment as proposed now is consistent with the current trend of development of the law on amendment of indictments or charges or pleadings generally in all cases. Courts are more inclined to order amendment that enables the parties to see the issues clearly at the outset of the trial and even in the course of the trial than deny amendment purely on legalistic points of view so as to ensuring that justice is done.

31. We agree entirely with what his Honour has said. We also agree with his Honour that, rather than – as submitted by Mr Molloy – Mr Leahy being prejudiced by the amendments, he was actually advantaged by them. At para 32 his Honour stated:

In my view, the amendment before the trial begins places the accused in a far more advantageous position now to be able to properly prepare and defend himself. He knows exactly what the charge or charges are as precisely worded to give him no uncertainty as to the substance of the case against him.
 
32. In these circumstances the abuse of process argument must fail. Ground 3 is rejected.

ORDER

33. All grounds of review have been rejected, so we will order that:

1	the application of Herman Joseph Leahy for review of the judicial act of the National Court at Waigani on 11 December 2008, ordering the amendment of the indictment presented against him by the Public Prosecutor, is refused; and

2	the Registrar shall list the matter, CR No 835 of 2005, The State v Herman Joseph Leahy, for mention and directions, within 14 days after the date of this order before the most senior Judge sitting in the National Court Crimes Track at Waigani; and

3	the costs of the application for review (apart from the application for leave to seek review) shall be paid by the applicant to the respondent on a party-party basis, to be taxed if not agreed.

Judgment accordingly.

_____________________
Young & Williams: Lawyers for the Applicant
Public Prosecutor: Lawyer for the Respondent