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Papua New Guinea Law Reports |
[1975] PNGLR 395 - The State v Tanedo
[1975] PNGLR 395
N10E
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
TANEDO
Port Moresby
Prentice DCJ
13 October 1975
15-17 October 1975
20 October 1975
24 October 1975
27-28 October 1975
31 October 1975
3 November 1975
25-26 November 1975
CRIMINAL LAW - Ex officio indictments - Validity of - Irregularity alleged in committal proceedings - Criminal Code (Queensland adopted), s. 561[dlxxxvi]1.
An ex officio indictment, which may be presented whether a person has been committed for trial or not, does not depend for its validity upon the regularity or irregularity of committal proceedings; a fortiorari, an ex officio indictment may be presented where there has been a purported committal, even if the proceedings were invalid.
Reg. v. Ebulya, [1964] P. & N.G.L.R. 200 applied.
Per curiam, to the extent that s. 561 of the Criminal Code may be inconsistent with s. 3 of the Criminal Procedure Act 1889, the adoption in 1902 by the Criminal Code Act of that Queensland Code, worked an implied amendment to the 1889 Act whereby an enlargement of the powers of the Law Officers to lay ex officio indictments was worked.
(Ruling of 15th October, 1975, p. 399).
CRIMINAL LAW - Particular offences - Conspiracy - Co-conspirator - Evidence - Entry of nolle prosequi against co-conspirator - Undertaking not to prosecute given to co-conspirator - Whether acquittal to be inferred - Whether other offender can be tried - Whether co-conspirator may give evidence against other offender.
The entry of a nolle prosequi against and/or the giving of an undertaking not to prosecute to one co-conspirator, are not to be regarded as an acquittal of that co-conspirator; and will not prevent a court proceeding to the conviction of the other alleged offender, nor will it prevent a court receiving evidence from the co-conspirator.
R. v. Shannon, [1974] 2 All E.R. 1009 considered. Davis v. Gell [1924] HCA 56; (1924) 35 C.L.R. 275, and Federal Steam Navigation Co. Ltd. and Anor. v. Department of Trade and Industry, [1974] 2 All E.R. 97 referred to.
(Ruling of 16th October, 1975, p. 402).
CRIMINAL LAW - Practice and procedure - Indictment - Amendment of - Whether can be amended after submission of no case to answer made - Variance between indictment and evidence - Whether amendments such as to prejudice “defence on merits” - Whether “variance not material to merits of case” - “Merits of case” - Whether amendment contrary to the Constitution (formerly Human Rights Act 1972) - The Constitution, s. 37 (3) - Criminal Code (Queensland adopted), s. 572[dlxxxvii]2.
WORDS AND PHRASES - “Defence on merits” - “Merits of case” - Criminal law - Criminal Code (Queensland adopted), s. 572[dlxxxviii]3.
The accused was charged before a magistrate with an offence under s. 87 of the Criminal Code; he was sent for trial by the magistrate on charges under s. 541 and s. 543 of the Criminal Code; he was then indicted on two counts of conspiracy under s. 430 and s. 543 of the Criminal Code; namely (1) defrauding the Government by fraudulently inducing it to pay money to one T. (in consideration of the transfer of a stereogram); and (2) bringing about the award of contracts to T. contrary to proper and lawful procedures (for the same consideration). At the conclusion of the opening by the State, particulars were given stating, inter alia, “it is alleged that a conspiracy under either count in the alternative, was entered into on the morning of 13th September 1974 at the point of time when T. handed to the accused the stereo-player”. After a submission of no case to answer was made, the State sought 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”.
Held
(1) An indictment may be amended after a submission of no case to answer and before the defence case has been heard.
R. v. Burns [1920] NSWStRp 21; (1920), 20 S.R. (N.S.W.) 351 referred to.
(2) The proposed amendments were not such as would prejudice the accused’s “defence on the merits”: “his defence on the merits” as distinct from “the merits of the case”, involving an assertion not that the State had failed to show a conspiracy completed on a particular day, but that it had failed to establish against him a course of corrupt dealing which was said to have at some stage either on 13th September or subsequently, certainly become a conspiracy.
(3) The “merits of the case” within s. 572 of the Criminal Code were the right (and duty) of the State to prove that the relevant alleged events amounted to a conspiracy, if it could; and 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.
(4) The phrase “the variance is not material to the merits of the case” within s. 572 of the Criminal Code means — that the occurrence of the variance does not detract from or prevent the merits of the case being considered; 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 the 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.
(5) The Court is not debarred by s. 37 (3) of the Constitution of the Independent State of Papua New Guinea (reproduced from s. 16 (2) of the Human Rights Act 1972) from making the amendments sought: the insertion of the words proposed in the indictment would not amount to a refusal to afford “a fair hearing within a reasonable time” of the charge preferred, nor extend its determination by an unreasonable time.
Reg. v. Mitchell and Ijahujo; Ex parte Alios Wafing, [1973] P.N.G.L.R. 461 referred to.
(6) Accordingly the proposed amendments should be allowed. (Ruling of 31st October, 1975, p. 408.)
CRIMINAL LAW - Practice and procedure - Reservation of question of law - Whether adjournment of trial pending decision required - Supreme Court Act 1975, s. 20[dlxxxix]4.
Where a question of law arising on a trial is reserved for the consideration of the Supreme Court pursuant to s. 20 of the Supreme Court Act 1975, an adjournment of the trial pending decision of the reference is not required by law.
(Ruling of 31st October, 1975, p. 408.)
CRIMINAL LAW - Particular offences - Conspiracy - Nature of offence - Particular circumstances - Conspiracy to defraud government - Sentence of 18 months’ imprisonment - Criminal Code (Queensland adopted), s. 430 and s. 543.
The accused was charged on indictment with two counts of conspiracy laid in the alternative, under s. 430 and s. 543 of the Criminal Code (Queensland adopted) namely (1) conspiracy between the months of September 1974 and March 1975 inclusive to defraud the Government by fraudulently inducing it to pay money to one T. (in consideration of the transfer of a stereogram) and (2) conspiracy between the months of September 1974 and March 1975 inclusive, to bring about the award of contracts to T. contrary to proper and lawful procedures (for the same consideration). The conspiracy was alleged to have been entered into with one T. and he alone. The evidence for the prosecution was given principally by T. the alleged co-conspirator and evidence of “similar facts” by several others. The evidence of T. was given by him in reliance upon an undertaking given to him in writing by the Secretary for Law that he would not be prosecuted. This evidence was that T. had purchased a stereogram and delivered it to the accused on 13th September, 1974, at which time the accused said to T. “Thanks very much for the stereo I will fix you up with jobs and contracts”. T. never asked for payment and was never paid. Subsequently T. obtained a number of jobs and contracts with the P.W.D. frequently at a price above that at which he quoted, and authorized by T. as D.W.E. Mt. Hagen.
Held
(1) That the events of 13th September, 1974 were intended by the accused to initiate a corrupt practice between himself and T., that in consideration of the gift of the stereogram he intended to defraud the government on T.’s behalf, and in fact did so, that T. and the accused were in agreement from 13th September or very shortly thereafter and accordingly that the accused had conspired in the fashion alleged in the first and second counts.
(2) The counts being laid in the alternative, the accused should be convicted on the first count.
(3) That in view of the reservation of the question of law under s. 20 of the Supreme Court Act 1975, it was desirable to pronounce judgment on the conviction and respite execution of the sentence.
(4) The accused should be sentenced to eighteen months’ imprisonment. (Final judgment at the trial, p. 417.)
Trial and Interlocutory Rulings
The accused was arraigned and pleaded not guilty on two charges of conspiracy to defraud the government. The conspiracy was alleged to have been entered into with one T. and he alone. On presentation of the indictment, counsel for the accused moved under s. 596 of the Criminal Code that the indictment be quashed and the ruling of 15th October, 1975, p. 399 relates thereto. After the prosecutor’s opening it was sought to call T. as the first witness and a document purporting to be an undertaking not to prosecute T. was tendered. The ruling of 16th October, 1975, p. 402 was made on the objection to the giving of evidence by T.
At the conclusion of a submission of no case to answer, the State sought to amend both counts of the indictment and the ruling of 31st October, 1975, p. 408 relates thereto. Following the rejection of the submission of no case to answer, counsel for the accused requested a reference be made to the Supreme Court under s. 20 of the Supreme Court Act 1975 of the question whether the amendments made to the indictment should have been made as a matter of law, and further sought an adjournment pending a decision of the reference. The ruling of 31st October p. 408 relates to the decision on the request for the adjournment. The balance of the report includes the judgment on trial (25th November, 1975, p. 417) and the trial judge’s remarks on sentence, (26th November, 1975, p. 429).
Counsel
B. M. Ryan and B. T. J Sharp for the State, until 16th October, 1975.
L. W. Roberts-Smith for the State, from 17th October, 1975.
I. Nwokolo, for the accused, until 16th October, 1975.
C. F. Wall and A. J Alpine, for the accused from 17th October, 1975.
Ruling of 15th October, 1975 on motion to quash indictment.
PRENTICE DCJ: Upon presentation of indictment herein, Mr. Nwokolo for the accused has moved under s. 596 of the Criminal Code that the indictment be quashed. A number of reasons were urged why this should be done — all arising from alleged irregularities in the committal proceedings. The matter was before me on 6th October on which day I fixed the date for hearing. I am now advised that the form of, and counts in, the indictment now presented, were put before Mr. Nwokolo, who had appeared for the accused during the lengthy committal proceedings, only last Wednesday, 8th October. This is sufficiently surprising; but no point has been taken on it. No fresh application for a further delay in the trial was made. Neither at that time, before, nor since, has defence counsel intimated that he wished to challenge the State’s right to proceed further against his client. The result is that the prosecutor has come to court completely unprepared to argue a point, which has considerably troubled the court, when raised previously in Papua New Guinea. I deprecate that defence counsel should have taken this point without notice to the prosecution. I remind defence counsel of his obligation as an officer of the Court to assist the Court as well as his client. The matter of justice to the State as well as to the individual is not something that should be treated in this cavalier fashion. The difficulty in meeting such a point, unprepared, is underlined by the fact that despite the intervention of a luncheon adjournment of one and a half hours and the presence of the Public Prosecutor himself in Court throughout the defence argument, prosecuting counsel found himself obliged to ask for a further adjournment to consider the matter. Even after this adjournment he had available to him only one of the relevant Papua New Guinean cases — one which I had mentioned to him. It is disturbing to me to think that Mr. Nwokolo has supported his argument by reference only to the decision of Mann CJ in Burasep’s case[dxc]5 a decision from which his Honour partly resiled later in Ebulya’s case[dxci]6. As a former lecturer in law at the University of Papua New Guinea he should have been aware of the other cases in which this point has been discussed and I would have expected him to assist the Court by bringing them forward and making submissions in regard to them.
The indictment as presented is an ex officio one, enumerating counts under s. 430 and s. 543 of the Code for conspiracy. The original charges laid against the accused were under s. 87. At the conclusion of the committal hearing in the District Court the learned magistrate expressed the opinion that the evidence was sufficient to put the accused upon trial, and committed him on two charges under s. 541 and s. 543.
The argument in support of the motion to quash has three heads.
Firstly it is said that the magistrate having found there to be insufficient evidence to support the charges as intially laid, was in effect, functus officio — he could not commit for trial on any other charge. It will be seen that this submission, if correct, has alarming implications, in that it will require persons originally laying charges to be of the highest ability and critical discernment, and possessed of almost magical power of prediction as to what evidence will be forthcoming, and regarded as credible, in the committal proceedings.
Secondly, it is said that irregularities occurred in the committal proceedings such as would render the committal invalid. These involve the failure to have the evidence of the witnesses read over in the hearing of the accused. The third submission is to the effect that the evidence on committal was insufficient to justify the accused’s being put on trial for the offences for which the magistrate actually committed. I am thereunder invited to make a preliminary scrutiny of the evidence on committal (which may not be that forthcoming on the trial) to see whether the magistrate has properly carried out his duty. That is to say, on the defence argument, that this Court must first conduct an appeal in effect from the finding and order of the magistrate.
All points are made in reliance upon the decision of Mann CJ in Burasep’s case[dxcii]7 to the effect that irregularities in committal proceedings would invalidate a subsequent indictment. The indictment presented in that trial purported to be an ex officio one; but Mann CJ was then of the opinion that s. 561 of the Code did not apply in New Guinea, and the only exceptions to there being initially valid committal proceedings were to be found in the provisions of s. 3 of the Criminal Procedure Act of 1889, these exceptions being of a very limited order, and having relation to ancient practice in England. As the circumstances there obtaining did not come within these limits, his Honour apparently considered the indictment could not be laid ex officio.
It appears to me that this application cannot succeed. The proceeding in this Court is by way of ex officio information of the Law Officer. I am of the opinion that as such it cannot depend for its validity upon the regularity or irregularity of the committal proceedings, in fact carried out in this case before a District Court magistrate.
In Burasep’s case[dxciii]8 the then Chief Justice held that failure to comply with s. 104a of the then District Courts Act invalidated committal proceedings. As pointed out above, the indictment presented before him was an ex officio one but Mann CJ was of the opinion that such an indictment could not be presented unless there had been a proper preliminary investigation. He regarded s. 560 and s. 561 of the Code as not part of the law of New Guinea. His Honour was called upon to make his decision at a time when there was no appeal from a single judge except by leave to the High Court of Australia. In Reg. v. Ebulya[dxciv]9 his Honour resiled somewhat from the position he had taken in Burasep’s case[dxcv]10 as to s. 561. It is noteworthy that he had said in Burasep’s case[dxcvi]11:
“Whether the accused were validly committed for trial or not, an authorized representative of the Crown has in Queensland a statutory right to bring them to trial if s. 561 is applicable.”
The opinions of Smithers J and Minogue J (as he then was) in that case, were that the ex officio indictment procedure under s. 561 remained open. Ollerenshaw J formed an opinion similar to that of the Chief Justice. In Reg. v. Dwyer[dxcvii]12 Frost J (as he then was) was of the opinion that s. 561 of the Code and s. 3 of the 1889 Act had to be read together and apparently at that time was prepared to adhere to the views of Mann CJ and Ollerenshaw J That s. 561 was available to support ex officio indictments was assumed by Kelly J in Reg v. Topulumar & Ors.[dxcviii]13 and specifically decided by him in Reg. v. Toigen Tiolo & Ors.[dxcix]14. Minogue CJ in Reg. v. William Taupa Tovarula & 13 Ors.[dc]15 adhered to the views he had expressed in Ebulya’s case[dci]16 and ruled that s. 561 was available to support ex officio indictments. He was of the view that the adoption of the Code should be regarded as ambulatory, that as conditions changed provisions would be able to take effect and form part of the law. Since the lastmentioned decision in February 1972, it is my understanding that all the judges of the then Supreme Court accepted ex officio indictments without demur. There must have been many dozens of them — such are the inadequacies of the legal framework in Papua New Guinea and the difficulties presented by geography, that the ex officio indictment seems to have become recognized as an essential part (perhaps regrettably), and certainly a useful part of the practice of the law.
If, as I think has been assumed to be the position by the judges for some years, s. 561 is applicable, then an ex officio indictment may be presented whether a person has been committed for trial or not. A fortiori I would infer that the procedure may be used where there has been a purported committal, even if the proceedings were invalid. I adopt with respect, the decisions of Smithers and Minogue JJ in Ebulya’s case[dcii]17 and would if necessary form the conclusion that to the extent that s. 561 of the Code may be inconsistent with s. 3 of the 1889 Criminal Procedure Act — the adoption in 1902 by the Criminal Code Act of that Queensland Code, worked an implied amendment to the 1889 Act, whereby an enlargement of the powers of the Law Officers to lay ex officio indictments was worked.
For these reasons I would discharge the motion.
In deference to the argument of counsel I think I should nevertheless express my opinion on the matters put.
[His Honour then dealt with submissions on the validity of the committal proceedings and concluded.]:
In summation I am of the opinion that even if it were open so to challenge an ex officio indictment, the grounds taken are without substance. The motion is dismissed.
RULING OF 16TH OCTOBER, 1975 ON ADMISSION OF EVIDENCE OF CO-CONSPIRATOR
The accused has been arraigned and pleaded not guilty on two charges of conspiracy to defraud the Government. The conspiracy is alleged to have been entered into with one Tyszkiewicz and he alone. Tanedo alone is charged in the indictment. After the prosecutor’s opening it was sought to call Tyszkiewicz (whom I shall call T.) as the first witness. Preparatory to doing so, a document has been tendered and marked Exhibit A. This document under the hand of Mr. Kearney, Secretary for Law, is addressed to T., and it purports to be an undertaking that T. will not be prosecuted:
“Upon any charge or charges arising out of any evidence you may give in the committal hearing, or in any subsequent proceedings flowing therefrom, in respect of a charge against one EDUARDO BONDOC TANEDO alleging that he on the twelfth day of September 1974 committed an offence under Section 87 CRIMINAL CODE (New Guinea, Adopted), PROVIDED ONLY that you testify truthfully and fully to all matters within your knowledge in relation to such alleged offence.”
The undertaking was apparently given prior to, or during, certain committal proceedings against the accused.
Mr. Nwokolo for the defence objects to the reception of T.’s evidence. It has been ruled as a matter of convenience that argument on the objection should be received at this point. It has been heard. Mr. Nwokolo’s objection is not primarily to the giving of evidence by T. His submission really rests on the consequences which he says flow from the nature of Mr. Kearney’s undertaking. He states that in law, the accused may not now be convicted. It is only secondarily, that he suggests that I have a discretion to, and should, reject T.’s evidence.
Reliance is placed upon what is said to be the ancient law, that where two only are said to have conspired together, both must be acquitted or both convicted — that when one is acquitted, the other even if he has been convicted is entitled to have his conviction set aside. The decision of Reg. v. Alley; Ex parte Mundell[dciii]18 of the Full Court of Victoria governs the point it is said; and R. v. Cosgrove[dciv]19 is to be distinguished, as that was a case where a co-conspirator had been given a royal pardon. In Cosgrove’s case[dcv]20 the Chief Justice found the law to be “that if an agreement is alleged to have been made between two persons only, then since both of them must have been parties to the crime both must be found either guilty or not guilty”. (I shall return later to this proposition and also to that of Holroyd J in Alley’s case[dcvi]21 where his Honour stated that “a charge of conspiracy must fail unless at least two persons are charged”.) Morris CJ then proceeded to consider the nature of a royal pardon, and concluded that a royal pardon is in no sense equivalent to an acquittal. His Honour distinguished Alley’s case[dcvii]22 as being one in which the discharge of one of two jointly-charged accused worked his acquittal and prevented the charge against his co-accused proceeding.
Mr. Nwokolo states that the undertaking given in this case makes it impossible to proceed against T., and that as he has also been given a nolle prosequi in respect of the original charge under s. 87 laid against him, T. has been “acquitted”. He would seek therefore the application of the law as stated by Morris CJ in Cosgrove’s case[dcviii]23 in the passage from his judgment first quoted.
I would pause firstly to state that I cannot see that the filing of a nolle prosequi against T. can bear on the problem at all. Section 563 of the Criminal Code states that upon the presentation of a nolle prosequi in respect of an indictment (then pending in Court), the accused person “is to be discharged from any further proceedings upon that indictment”. It is clearly laid down that its entry does not establish the innocence of the accused or prevent a subsequent charge being laid (Davis v. Gell)[dcix]24.
I am of the opinion that the giving of the Secretary’s undertaking, cannot be construed as an “acquittal”, any more than a royal pardon can; and it is noteworthy that the right to withdraw the undertaking is expressly reserved if T. does not testify truthfully and fully.
A reading of the old cases raises the understanding in my mind that the reason for the law (as it was thought to be) was that two apparently inconsistent findings of fact and law against two conspirators (charged with conspiracy with one another) ought not to be allowed to stand. As was explained by the Court of Appeal and the House of Lords in Shannon’s case[dcx]25, a case brought to my attention after argument was concluded, the rule of law was devised to meet the situation where no appeal lay in criminal matters in the United Kingdom (until 1907) except by writ of error on the record. On such a motion, the record only might be looked at. When two apparently repugnant decisions were seen, looking at the record only, to have been arrived at (the Court could not look at the evidence called in the respective cases), the disadvantaging decision (conviction) as a matter of prudence, should be quashed.
That the passages from the judgments of Morris CJ and Holroyd J do not fully set out the law, as it was understood in the nineteenth century, is illustrated by Thody’s case[dcxi]26, cited with approval in R. v. JS.S. Cooke[dcxii]27, where Lord Hale said,
“If one be acquitted in an action of conspiracy, the other cannot be guilty; but where one is found guilty, and the other comes not in process, or if he dies hanging the suit, yet judgment shall be upon the verdict against the other.”
The modern law of conspiracy is said to have derived from the maxim quoted in the Kings Beach in 1664 as “ne poit estre conspiracy sans aucun overt act de plusors” (Holdsworth, History of English Law, Vol. 8, p. 378).
I have given my opinion that the entry of a nolle prosequi and the giving of Mr. Kearney’s undertaking, do not amount to an acquittal, and do not therefore under the law as formerly understood, require an acquittal of this accused.
However, the law as to conspiracy involving joint trials and separate trials, has been exhaustively discussed (the judgments cover 42 pages) in R. v. Shannon[dcxiii]28, by the Court of Appeal and the House of Lords. Therein two accused were tried jointly on a conspiracy charge. One pleaded guilty, the guilt of the other the jury could not agree upon. The second person was re-tried by another jury and on being found not guilty on one charge, by consent of the prosecution a formal verdict of not guilty (which is to have by statute of the effect of an acquittal) was entered on the conspiracy charge. The House of Lords held unanimously that the conviction of the first man should stand. Lord Morris stated at p. 1034:
“I think it is very desirable, where there is a charge of conspiracy against A. and B. that they should be tried together. If however for any reasons this cannot be, then if A. pleads guilty or is found guilty I see no reason why his conviction must be set aside if B. on his later separate trial is acquitted.”
His Lordship thought the old rule that if both were tried together both should be convicted or both acquitted — should be retained. It was clear that he saw no intrinsic or fundamental objection or bar to the conviction of one only of two persons who are charged with conspiracy with each other. Lord Reid concurred in this judgment.
Viscount Dilhorne (at p. 1041) was of the opinion that if it were necessary to decide, he would hold the “old rule” (as to both guilty or both not guilty on a joint trial) — obsolete, and he stated:
“When conspirators are tried separately, it is, in my opinion, no ground for quashing the conviction of one of the two, whether following his plea of guilty or after verdict by a jury, that later his co-conspirator is acquitted or has his conviction quashed.”
as being the appropriate modern law.
Lord Simon, while pointing out that the old learning was that,
“if B. (one of two conspirators) were dead, or for any other reason could not be or had not been brought to trial, his presumption of innocence did not serve to exculpate A.,”
went on to hold that even on a joint trial in view of the differing evidence admissible against each, it would be possible for a jury to convict one and acquit the other. At p. 1047 he concluded, and I quote,
“I would therefore be in favour of a declaration that the whole body of rules whereby the acquittal of B. of conspiracy with A. must of itself be held to be inconsistent with A.’s conviction of conspiracy with B. has no subsisting validity.”
Lord Salmon was also of the opinion that the old rule (of both or neither, on a joint trial) should be pronounced dead; and was of the opinion that in the case of two conspirators separately tried, one being found guilty and one acquitted,
“B.’s acquittal will no longer, of itself, give A. the right in law to have his own conviction quashed.”
I would venture the opinion that the ruling of the House of Lords in regard to retaining the “old rule” as to joint trials, might not be applicable to Papua New Guinea under the Constitution’s reception of laws provision, in that the rule is clearly based on the existence of a jury system and the possible difficulties inherent in directing juries that on a charge of A.’s conspiring with B. (which of course requires the finding against A. that B. conspired with A.), there may be sufficient evidence to convict A., but not B. on a joint trial (questions of admissibility and confessional evidence being involved). But apart from that, the speeches of the noble Lords appear to indicate that the common law is now to be held to be such that even if the entry of a nolle prosequi and giving of an undertaking not to be prosecuted, be regarded as an “acquittal”; those facts do not prevent the Court proceeding to the conviction of the other alleged offender.
Mr. Nwokolo’s submission that a judicial discretion should be exercised against the reception of Tyszkiewicz’s evidence, was based firstly on a reference to the Acts Interpretation Act (1949-1971) which states that where in an Act of Papua New Guinea a power is conferred on an officer or person by the word “may” it shall be a permission conferred. The section goes on to pronounce “but where the word ‘shall’ is applied to the exercise of any such power the construction shall be that the power conferred must be exercised”. Section 23a he says, provides that aiders and abettors (and others) “shall be punishable accordingly”. He contends that the two sections read together amount to imposition of a duty on the Secretary for Law to prosecute Tyszkiewicz. I am unable to understand the words “shall be punishable accordingly” as meaning “shall be punished”, or as conferring any power on the Secretary for Law. They appear to me to merely enabling.
If I understand Mr. Nwokolo’s argument correctly, he contends it would be unfair or improper, and giving an appearance of injustice, that one only of the two alleged conspirators should be prosecuted. I note that in Federal Steam Navigation Co. Ltd. and Anor. v. Department of Trade and Industry[dcxiv]29, a case in which the House of Lords was concerned to construe a provision that allowed the prosecution of “the owner or the master of the ship” for pollution of navigable waters with spillage of oil, there did occur some phrases with which I think I should deal. (It is interesting to note that though Lord Reid stated, no doubt forthrightly representing Scotland, that “or” can never mean “and”, Lord Salmon who was in agreement with the majority of the Lords in the decision said “I don’t suppose that any two words in the English language have more often been used interchangeably than ‘and’ and ‘or’ ”.)
This case was cited by Lord Simon in the earlier case referred to in the 1974 reports, in support of the proposition that it is contrary to constitutional propriety that a person’s guilt should be at the choice of the Crown. I am unable to pick up with certainty the reference. The case cited might be thought to enlarge the Crown’s discretion rather than restraining it, by deciding that both parties mentioned in the Statute might be prosecuted despite the use of the disputed “or”. Lord Wilberforce stated:
“It is said that prosecutors, including the police and the Director of Public Prosecutions, have a discretionary right not to proceed against persons, or all of the persons, against whom a case has been or could be made and that the interpretation contended for here goes no further. But whatever the constitutional limits of the former discretion may be, and some limits there certainly are, there is a world of difference between it and a discretion quite uncontrolled, to fix an offence on one of two persons to the exclusion of the other.”
It will be seen that he is there arguing against a restriction of the prosecution’s powers and finds that the legislature did not require him to elect which of the two might be prosecuted.
Be this as it may; in the administration of criminal law it has always been considered necessary that the prosecution have the power to offer immunity to one of several alleged co-offenders to try to secure the conviction of another or others. “Turning Queen’s evidence” was the former popular phrase for the procedure involved. Perhaps such a proceeding may raise bitterness in the mind of the person or persons proceeded against, but State authorities no doubt have to weigh the desirability of establishing a deterrent by at least securing some convictions, where many are alleged to have offended in concert. I would assume that the Public Prosecutor has properly considered the alternatives here in such a light.
I am unable to conceive that any factor has been established here why I should exercise a discretion against the reception of Tyszkiewicz’s evidence.
I therefore rule that no bar to the accused’s conviction has been set up, and that Tyszkiewicz’s evidence may be admitted.
Ruling of 31st October, 1975 on application to amend indictment following submission of no case to answer.
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 conspiratorial 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 to contracts to Tyszkiewicz contrary to proper and lawful procedures (for the same consideration).
As is pointed out in Archbold (38th ed.) at par. 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 September, 1974”. This report does not correctly indicate the whole substance of Mr. Ryan’s remarks. I have it noted that he stated “The 13th 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 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 September”.
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 state. 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[dcxv]30 — 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[dcxvi]31 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[dcxvii]32 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[dcxviii]33 where the elimination as 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[dcxix]34 held that a charge of incurring a debt by means of fraud could not be substitued 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 CJ 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:
“That fact that the evidence may be the same to establish both cases is immaterial.”
In R. v. Hult[dcxx]35 Stone CJ 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[dcxxi]36 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 particularization. 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[dcxxii]37 (in the judgment of the majority at p. 333; and of Evatt J at p.351); and that in Partridge’s case[dcxxiii]38; and of Mitchell J in Godbee v. Samuels[dcxxiv]39. 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 R. v. West, R. v. Northcott, R. v. A. Weitzman, R. v. White[dcxxv]40 to that effect, has many times been adopted by judges and textbooks writers, with acclaim.
The case of Reg. v. Phil Maria[dcxxvi]41 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[dcxxvii]42 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.[dcxxviii]43 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[dcxxix]44 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 CJ at p. 354, Gordon J with whom Pring J agreed at p. 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 victimization. These defences relate to the whole period, not merely to the events of 13th September. Very forcefully and ably, Mr. Wall has developed another defence out of what I shall refer to as the prosecutor’s incautious particularization. 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 deal 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 particularization of the date. I appreciate that in some cases a change in the particularization 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.[dcxxx]45 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 Reg. v. Mitchell and Ijahujo; Ex parte Alios Wafing[dcxxxi]46), that it was by virtue of this section impermissible for the prosecution to enter a 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[dcxxxii]47 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 (Reg. v. Mitchell and Ijahujo; Ex parte Alios Wafing)[dcxxxiii]48, and as to whether the Human Rights Act could override 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’s 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 finalization 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 (Independence) Act. Section 16 (2) of the Human Rights Act is reproduced in effect in s. 37 (3) of the Constitution. The Court expressed the opinion 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.
RULING OF 31ST OCTOBER, 1975 ON REQUEST FOR ADJOURNMENT FOLLOWING RESERVATION OF QUESTION OF LAW
This morning I have delivered judgment allowing amendment of the indictment as requested by the prosecution.
Mr. Wall thereafter reiterated his submission of no case to answer, and alternatively, sought a ruling that the case presented was such that on the evidence no jury could reasonably convict. I ruled against him on these matters.
Mr. Wall has now asked that a reference be made to the Supreme Court under s. 20 of the Supreme Court Act 1975, of the question of whether the amendments made to the indictment, should have been made as a matter of law. I have noted his submission.
As the application has been made by counsel for the accused person before verdict, I am obliged to make such a reservation of law. Mr. Wall goes on to submit that the reference to the Supreme Court should, indeed must, be made at this stage — that the proceedings should be adjourned until the ruling of the Supreme Court can be obtained. If such a practice were established, it would of course, be highly inconvenient and could in reality, prevent trials from ever being concluded.
I have consulted with the Chief Justice in the adjournment break. He confirms my view that the practice of the former Supreme Court (pre-Independence) of Papua New Guinea was, on such an application being made, for the trial judge to go ahead and complete the trial before stating the required case.
The section presently under consideration appears on all fours with s. 26 of the former Supreme Court (Full Court) Act. A reading of the sub-sections of s. 20, compels me to the conclusion that an adjournment of the trial pending decision of the reference is not required by law. Sub-section 2 refers to a question of law having been reserved before judgment, yet a conviction ensuing. It makes provision for the judge’s powers thereafter. It appears to me that a judge of the National Court has a discretion to refer the question immediately to the Supreme Court if he thinks it proper, but is not obliged to do so. In the majority of cases I would think it highly inexpedient that he should do so.
An example of what I conceive is the correct procedure under the present section, is the case of The State v. John Mogo Wonom of Jigi[dcxxxiv]49 in which Raine J despite a challenge to the indictment, proceeded to sentence after conviction, before referring the case to the Supreme Court. The framework of the section is such that it may indeed be arguable that such a reference is to go ahead only after a conviction. This however, was not the interpretation inferentially adopted in Abia Tambule’s case[dcxxxv]50.
I indicate that I shall state a case in due course[dcxxxvi]51, but I rule that the trial will continue.
FINAL JUDGMENT AT THE TRIAL
The accused stands charged with two counts of conspiracy. They are laid as alternatives. Both allege a conspiracy between the months of September 1974 and March 1975 inclusive. Both allege that consideration in the form of a gift of a Phillips stereogram moved to the accused from one Tyszkiewicz (T.) and that the accused thereafter worked favours corruptly for T. Particulars relating to the counts were supplied initially on 15th October, before evidence was taken. Pursuant to a request dated 3rd November, 1975, further particulars were supplied when at the close of the State case, amendments to the dates stated in the indictment were allowed.
The first count is laid under s. 430 of the Criminal Code as it stood in October 1975. It alleges a conspiracy to defraud the Government of Papua New Guinea by inducing it to pay money to the said T. Section 430 as relevant to the alleged facts of this charge, may be read as follows:
“Any person who conspires with another by fraudulent means to defraud any person is guilty of a crime ...”
The second count is laid under s. 543 of the Code. It alleges a conspiracy to bring about the award of contracts contrary to the proper and lawful procedures applicable to the award of contracts by the Government. Section 543 as relevant to the facts of this charge may be read as follows:
“Any person who conspires with another to effect any of the purposes following, that is to say:
(6) To effect any unlawful purpose; or
(7) To effect any lawful purpose by any unlawful means;
is guilty of a misdemeanour, and ...
I remind myself that as to each of the constituent elements of the alleged crimes the onus lies on the State to establish them beyond reasonable doubt.
CONSPIRACY
The crime sought to be proved has been shortly stated in these terms:
“If two or more persons agree together to do something contrary to law, ... or wrongful and harmful towards another person, ... or to use unlawful means in the carrying out of an object not otherwise unlawful, the persons who so agree commit the crime of conspiracy.... So long as the design to do such an act rests in intention only it is not criminal, but as soon as two or more agree to carry it into effect, then their act becomes punishable.” (Halsbury 3rd ed., Vol. 10, pp. 310 and 311).
The prosecution must in such a case prove not only an agreement between the alleged conspirators to carry out an unlawful purpose (or a lawful purpose by unlawful means) as signified by words or other means of communication between them, but also an intention in the mind of any alleged conspirator to carry out the purpose. Their agreement may be seen as an advancement of the intention which each has conceived in his mind, which then passes from a secret intention to the overt act of mutual consultation and agreement (see Archbold 38th ed., p. 1523).
EVIDENCE OF ACCOMPLICE
In this case the evidence upon which the prosecution chiefly relies is that of T., the alleged co-conspirator. In Papua New Guinea, by virtue of and repeal of s. 632 of the Code, a court may proceed to conviction on the evidence of an accomplice alone. However, it is desirable that corroboration be available. Though matters were put to him in cross-examination suggesting this witness was lying, the accused has elected neither to give evidence in support of the allegations he made through his counsel, nor to make a statement from the dock, nor to call witnesses. This course taken by the defence, I consider, renders it less dangerous for me to rely on T.’s evidence in any aspect in which I might find it uncorroborated.
The evidence of T. was given by him in reliance upon an undertaking given him in writing by the Secretary for Law that he T. would not be prosecuted upon any charges arising out of the committal proceedings, provided he testified truthfully and fully.
IS THERE NEVERTHELESS CORROBORATION
Mr. Tanedo, following the opening of investigations into his alleged receipt of the gift of a stereogram from T., proceeded to make a series of denials that he had been given the equipment. To Mr. Goodger a senior P.W.D. officer, at an enquiry at Port Moresby on 12th February, 1975, he said he had had no dealings with T. and that he had not received a stereogram from him. He stated that he possessed one, but that it had been brought from the Philippines by his wife. On 18th February in his house at Wabag the accused repeated the same denial and story. The stereo concerned was seen then to have adhering to it a Philippines customs tag. (There is evidence that this type of machine could not have come from the Philippines). It is admitted in the report given by the accused to Mr. Kavali the Minister for Lands, of 5th March, 1975 (exhibit Y2) that he had not told (departmental enquirers) how he obtained the stereogram. He proceeded “In the beginning I did not tell them for I believed it would only create complication, but later they found how it was acquired (a statement was given to that effect)”. He went on to describe how it had been purchased by T. on his behalf and stated that he had paid for it in three consecutive payments. The reference in this report to a statement can only be to that made to T., I consider.
The circumstances in which lies as to the stereogram were told, lead me to the compelling inference that the accused had a guilty conscience about the stereogram. His denials do amount, I consider, to corroboration in a material particular of T.’s account as to the dealing involving the stereogram. The evidence of T. as to how the stereogram was purchased is corroborated by documentary evidence. T.’s evidence that he did not receive payment of the three hundred and fifty-two dollars, the amount of his cheque, is of course the only evidence given to the Court on this subject.
THE EVIDENCE
T. is an Australian of Polish origin. He gave his evidence in English. He was fluent in that language, but I gained the impression that he has not a perfect understanding of many of its usages. He himself spoke of having learned it from books. He was of a quiet demeanour. Understandably, he gave the strong impression of being wary and cautious in regard to many of the questions asked. In my assessment, subject to one matter which I wish to examine later, he was trying to be truthful, and his recollection of most events was as good as one would expect. Generally, subject to the matter above-mentioned, I accept his evidence.
The first conversation T. had with Tanedo was when the latter introduced himself as the new superintendent or new engineer of P.W.D. Tanedo then put into T.’s mind the idea of quoting for painting certain bridges in the Hagen area. Though he was at that time working for a firm, Kubor, T. did put in a quote (dated 17th September). His quote was unsuccessful.
His next conversation with Tanedo was in the P.W.D. office in relation to the purchase of a stereogram. He agreed to help Tanedo get the stereogram he wanted at twenty per cent discount, instead of at the ten per cent he, Tanedo, could have obtained. Tanedo produced a brochure and indicated which machine he wanted. T. got an L.P.O. from his firm on 12th September, and bought the designated machine with his own cheque in the amount of three hundred and fifty-two dollars. (Other witnesses establish the truth of his account as to the procedures).
On 13th he handed over the machine to Tanedo in a vehicle outside the P.W.D. office. He avers that he and Tanedo then returned to the P.W.D. office and had a cup of coffee, when Tanedo said “Thanks very much for the stereo I will fix you up with jobs and contracts”. He, T., went on “at that time I did not know what to say so I said ‘I have to go because I have work to do, I will see you later’ and left the office”. He later said “First I expected to get paid for it. When Mr. Tanedo said that I didn’t know what to say and I just left the office and needed time to think about it”.
Mr. Wall attacks T.’s credibility as to this conversation, on the grounds that each version he gave of it, differed in a word or two. The versions are not however, such as to cause me to doubt that the sentence “Thanks very much for the stereo I will fix you up with jobs and contracts” represents substantially accurately the words used by Tanedo.
T. said that he never asked Tanedo to pay him and that Tanedo never in fact paid him. I accept this to be true. It is I think, very significant that at this time (September 1974) T. was operating on a one thousand dollar overdraft. I consider it highly unlikely that he would have left three hundred and fifty-two dollars worth of equipment in the hands of a man he had known for only a few weeks, the whereabouts of whose house he was unaware without seeking repayment of the purchase price, unless he had expected to get favours in return.
The first job T. received with P.W.D. was as to manufacturing columns for the Hagen Police Station. For this he was approached by a Mr. Sisiri. He made a written quote for the job of six hundred dollars.
The next job related to one hundred and seventy pipe piers. Tanedo told him there was a job and asked for a quote. T. went home and worked out a quote of eighteen dollars per pipe, which he communicated to Tanedo. The accused later rang him and said “Go ahead with the job for twenty dollars per pipe pier and that I would receive an L.P.O. later”. The L.P.O. concerned was requisitioned by T. Appy and signed by Tanedo as Financial Delegate.
I pause here to interpolate that the evidence of Mr. McGuin the Regional Engineer is to the effect that it is, as one would expect, irregular for a P.W.D. officer to increase the price on a quote — even if he thought (as Mr. McGuin indicated he himself did in the case of the pipes at twenty dollars and those at thirteen dollars fifty) that a higher price than that quoted was justified. The Government is entitled to take the best bargain it can get, of course.
T. stated his reaction was one of happiness at getting that job at that price of three thousand four hundred dollars. I compute the excess that he received on this contract as three hundred and forty dollars.
The next job was in relation to the P. & T. office — building a fence and some guttering. The job was bespoken by a P. & T. officer when he T. was in Tanedo’s office. At Tanedo’s suggestion, he made a verbal quote; it was of three hundred and twenty dollars and seven hundred dollars respectively. He was later told by Tanedo to go ahead at prices of three hundred and seventy-five dollars and eight hundred and twenty dollars respectively, and he received an L.P.O. at these rates. Only the fencing job was in fact completed and paid for. On this he received fifty-five dollars excess. On the guttering he would have received one hundred and twenty dollars excess.
The next job related to twenty R.G.2 pipe piers. Again, while talking to Tanedo in his office he was asked to quote for this job. He did so at a price of thirty-five dollars per pipe pier (seven hundred dollars). He was told to go ahead and was told the price he was getting was forty-six dollars per pipe (nine hundred and twenty dollars). He received an excess of two hundred and twenty dollars on this contract. Both the P. & T. jobs and the twenty R.G.2 pipe piers job were signed for by Tanedo as Financial Delegate.
His next job described, was one relating to the carriage of twenty-six loads of gravel to Tambul. Tanedo told him the rate would be “eight dollars fifty an hour plus it could be mileage”. The L.P.O. for this job was delivered when the work had been done. It provided for a rate of eight dollars fifty per hour and thirty-five cents per mile. The extra amount received because of the mileage rate was seventy-eight dollars.
The next job described related to the manufacture of seventy-eight pipe piers similar to the dimensions of the one hundred and seventy previously supplied — at the same price. Tanedo said “Well you are doing one hundred and seventy pipes — you might as well do an extra thirty-four”. The excess he received over his originally quoted price on this job would be sixty-eight dollars.
A further job related to the cartage of pipes to Tambul. Tanedo agreed with him at an hourly rate of eight dollars fifty. When he received the L.P.O. he found it included a charge for thirty-five cents per mile. Mr. Tanedo’s signature does not appear on either of the L.P.Os relating to cartage.
T. obtained another job in relation to the hiring of his landrover. Mr. Codutti’s evidence suggests this was arranged by Mr. Tanedo. But as I understand it, it is not suggested that the rate was other than as quoted in the P.T.A. annual rates as to which he had submitted a “late tender”.
The next significant job was for two hundred pipe piers. Tanedo asked for a quote which T. gave a few days later at eleven dollars fifty per pipe. Later he was told by Tanedo to go ahead at a price of thirteen dollars fifty per pipe. (Two thousand seven hundred dollars). T. says “I was happy in one way to receive the job and also at the same time I knew there was a catch to it with all that extra money”.
T. then related that in January or February Tanedo asked him to give him five hundred dollars to enable him Tanedo to meet telephone and other bills which he could not afford. T. said he felt obligated to Tanedo and did as he was asked.
In the month of February Mr. Goodger came to Mount Hagen investigating. It is clear that T. denied all knowledge of any dealings with Tanedo as to a stereogram at that stage. Mr. Wall submits that any evidence relating to T.’s denials is not evidence against his client. But it is my view that denials relating to the truth of what transpired between T. and Tanedo are admissible under the rule that “evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other” (Tripodi v. The Queen)[dcxxxvii]52 once reasonable evidence of pre-concert has been shown. The conversations in question are not of the nature of admissions by one alleged conspirator which would of course be inadmissible against an alleged co-conspirator, and they appear to me to be in furtherance of a common purpose as alleged. The common object had not been completely effected nor yet frustrated — the agreement was in being and attempts being made to conceal it.
T. states that Tanedo approached him asking if Goodger had come and seen him yet. Being told “No — why should he” Tanedo replied, “He is still coming to see you about the stereo”. T. then wrote out a statement saying “that Mr. Tanedo paid for it and that all was done in goodwill”. Tanedo later rang and he and T. agreed to stick to the same statement. In this Court T. said that this statement was false.
In a statement to Inspector Tasion made on 26th February, 1975 (Exhibit K) T. stated that Tanedo had paid for the stereogram by payments of about one hundred and eighty, one hundred, and of about seventy or eighty dollars. He repeated this story in a record of interview on 25th April, 1975, but stated that he could not remember details of the payments except that the last one was under two hundred dollars — maybe a hundred and eighty, being made before Christmas. These statements are now said to be false. The witness also spoke of another conversation in Port Moresby at Tanedo’s place, in which he and Tanedo “talked about the case more or less that we had to stick together and say the same thing”. T. stated that in regard to some jobs he received the L.P.Os before he started them and as to others, after he completed the jobs.
Mr. Goodger’s evidence relates to the investigation he was instructed to carry out. On 18th February he interviewed T., after he had been to the accused’s house, and been shown a stereogram to which a Philippines customs sticker was adhering. T. denied that he had given the stereo to Tanedo and that he had given money to him. Mr. Tanedo, when asked later, said the stereogram had been brought from the Philippines by his wife.
Later at Birip, after discussions with three local Members of Parliament he asked the accused had he approached any contractors at all or used people to approach contractors suggesting certain working arrangements between him and contractors and was told no. I pause to note that this reply was completely contrary to evidence of other witnesses whose testimony was allowed as relating to “similar facts”.
Mr. McGuin established that the accused had been unofficial D.W.E. Mount Hagen from mid-July 1974 until Mr. Djurdjevich the D.W.E. left on 8th November. When this happened, he as Regional Works Engineer decided to act as D.W.E. Mount Hagen temporarily while he observed the accused’s capabilities. On l2th November he nominated the accused as Financial Delegate W.H.D. during his own absence from the district. Tanedo thereafter was signing ninety per cent of the documents until suspended on 9th February, 1975. He himself investigated transactions between P.W.D. and T.’s company “M.D.T. Transport”. His attention was directed to the gravel-haulage contract — “The normal procedure being that we cart gravel at a set hourly rate for truck hire or else we get a rate per cubic yard per mile”. He stated that the rate of eight dollars fifty per hour is a reasonable rate and the one the Department would expect to pay. He was not aware of any previous occasions of a mileage rate being added to an hourly rate. His impression of the one hundred and seventy pipe piers contract at twenty dollars each, was that the price was quite reasonable, and the contractor could have made a mistake in quoting that price. As a contractor he himself would have bid twenty-three dollars. Mr. McGuin made the point that if a contractor under-quoted — it was just bad luck for him — he would normally get the job. He would not be paid an additional amount. The price of thirteen dollars fifty for two hundred pipe piers was, he thought the right order of price for that item. His view was that the contract for the twenty four-inch pipes at forty-six dollars was high — he had obtained a quote for thirty-eight dollars sixty — the Public Works Department could do the same job for thirty-five dollars. A private contractor could do it for less than thirty-nine dollars.
Mr. McGuin questioned Mr. Tanedo why quotations were not obtained for the two hundred pipe piers — he got the reply that the accused had neglected to do so. The procedure as to the one hundred and seventy pipe piers was also irregular. There was no record that written quotes had been obtained for the cartage of pipe piers. There was no record that three written quotes had been obtained for the twenty four-inch pipes. There was nothing to indicate verbal quotes had been received for the P. & T. contract. Details of written and verbal quotes should be recorded on L.P.Os. The documentation of hire of trucks and that for the columns for Hagen Police Station appeared to be in order. In cross-examination he stated it is most unusual for notation of quotes obtained not to appear on the file. The possibility of that happening, he thought remote. He knew of no specific case where it had happened.
The evidence of Mr. Urading was to the effect that in respect of the twenty pipe piers at forty-six dollars, no quotes had been obtained by the foreman (nor indeed, he stated, by anyone). He stated in cross-examination that he did not know whether Kibefa the Works Supervisor got three written quotes and that he was directed by Tanedo to employ T. at a rate which Tanedo nominated. He proceeded to raise an L.P.O. to that effect. The witness’ understanding was that quotes were not called either for the thirty-four pipe piers for the two G.R. 1s at Hagen. He was told by Tanedo to give the job to M.D.T. Transport (T.) and to get the price from Kibefa.
This witness was about to arrange the gravel to Tambul cartage contract through P.T.A. when Tanedo approached him and said “I have a friend here who can cart this”. He was instructed to employ M.D.T. at the rate of eight dollars fifty per hour plus thirty-five cents per mile. It is clear that no quotes were called for. The witness understood no quotes to have been obtained for the pipe cartage contract also.
The Works Supervisor Kibefa spoke of Tanedo directing him to employ M.D.T. Transport (T.) at twenty dollars per pier for an order of one hundred and seventy pipe piers. He did not think any quotes were called for. He was also given the P. & T. works order by Tanedo and told to make out the orders for the amount of three hundred and seventy-five dollars and eight hundred and twenty dollars. The witness also stated that in relation to the thirty-four pipe pier job he was told by Tanedo the price of twenty dollars on an earlier lot and he gave this price to Urading for the thirty-four pipes.
The Works Supervisor Codutti spoke of a verbal order for five hundred posts from Enga Engineering being cancelled by him on Tanedo’s instructions. He was then asked by Tanedo to write out an L.P.O. for different projects leaving the company and the price blank. Regarding it as illegal to do so, he refused.
I admitted as “similar facts” evidence, that of Lazarus Walep, P. J Hynes, Kevin Maher, Robert Ashford and Philip Kane.
Lazarus Walep P.W.D. Works Foreman was asked by Tanedo to hire three vehicles — Toyota 6000 trucks belonging to a friend of his. He indicated that he was unable to use them as he had plenty available. On another occasion — a Saturday in September — Tanedo spoke to him on the phone about the hire of a truck and invited him to his (Tanedo’s) house. Tanedo used a phrase “You and myself know about this contract” or “only you and I know about the trucks being hired”.
Patrick Joseph Hynes, another Works Supervisor whose duty was to hire trucks learnt that Tanedo had been speaking to Walep and asked Tanedo why he had been ringing Walep and who owned the trucks that were to go on hire — three tip-trucks. Tanedo told him the trucks were T.’s.
Kevin Maher is a partner in Enga Engineering. Tanedo he said, took him out on the road to Teremunde and told him of his experiences in Nigeria and the Philippines. Tanedo made reference to his low wages and said “I’m interested in buying a vehicle of my own but I have no money”. Tanedo requested that he buy a machine for him at the auctions, a Ford 5000 tractor. Tanedo went on “if you buy me a tractor and trailer and you look after it for me and work it under your name until the amount paid for the truck has been received back ... after the money had been paid back I still want you to look after the tractor because I’m a government employee and am not supposed to have a sideline business”. Two weeks later Tanedo asked him if he had found him a tractor yet. He replied “No — we haven’t been to any auction yet”. At the first conversation Tanedo had said that if they (Maher and his partner) looked after him he would look after them.
R. G. Ashford a mechanical supervisor working for a private contractor, spoke of Tanedo suggesting in January 1975 that he buy some tractors and trailers — two of them and set up his own business. Tanedo went on “I’ll assure work for you with these machines and the second machine would be for my purpose — I’d receive the finance of the second machine ... the first machine would be for you and you will be assured of work at all times when I have ... the second machine will be for me”.
I am satisfied that the evidence of these lastmentioned witnesses may be properly taken as effectively discounting any suggestion that irregularities in the dealings with T. can be accounted for as innocent or arising from mistake or lack of knowledge of P.W.D. procedures.
I am satisfied beyond reasonable doubt that the events of 13th September were intended by the accused to initiate a corrupt contract between himself and T. That he accepted the delivery of the stereogram as a gift and did not thereafter pay for it. That by his remarks to T., he was intending to indicate that he would show favour to T. and would secure contracts for him through by-passing the correct lawful procedures. That in consideration of the gift of the stereogram he intended to defraud the Government on T.’s behalf. I am satisfied that thereafter the Government was defrauded by the payment of amounts in excess of quotes by T. and that correct and lawful procedures were not followed. That the award of contracts without the calling for quotes of the kinds respectively required by law, and at higher prices than had been quoted, were the effectuation of Tanedo’s corrupt intention.
But Mr. Wall, apart from relying on submissions as to what facts should be found, questions of credibility, and questions as to the admissibility of and use to which various categories of evidence, might be put, relied with great emphasis on one other crucial matter. The State, he said, had pegged its charges to the fact of the gift of the stereogram being the consideration for the entering into what was said to be a conspiracy and this was not he said, established. Nor was any agreement between T. and Tanedo established. There was no concurrence of minds pursuing the same end resulting from an agreement. Rather should the events, at their highest, be seen to show T. and Tanedo simultaneously pursuing the same object (that of benefit to each) but not in pursuance of an agreement.
This defence is founded on the replies given to many questions by T., as to his understanding of the significance of events as they happened, and as to whether an agreement had been entered into. Some of these occurred in his evidence as originally given. After the amendment of the indictment, T. was recalled, (as were other witnesses) and he was asked a series of questions in leading form, relating to the particulars as given by the State. These questions were designed to elicit the answers that the jobs obtained were not at the time considered by T. to have eventuated from the gift of the stereogram, nor were the alterations effected to his quotes resulting from that source. The questions were also designed to procure the answers that in regard to none of the incidents alleged by the State to show forth the conspiracy, was there any agreement between Tanedo and himself. These answers were given repeatedly to the effect that there was no agreement. In this cross-examination this witness did not go beyond saying “I thought something was wrong because each job I got extra money on”, “I was wondering why all the extra money that was involved”, “I thought at the end of it there had to be something that’s not right — which later on I find out”, “I thought there must have been a catch or something to it”.
I have considered this evidence carefully and all the evidence given previously. On these aspects as to his knowledge and understanding from time to time of what was happening, its effect and implication, I feel that T. was being less than frank to the Court. I think it was plain from T.’s demeanour when repeatedly answering questions as to the existence of an agreement and from the contents of his answers, that he was concerned to state that there had been no agreement in the sense of written or verbal statement in black and white on each occasion as to what was being done in T.’s favour and why it was being done. If he intended to mean, and I don’t think he did, that there was at no time any understanding of a partly-expressed, partly tacit nature that because he had made a gift of the stereo to Tanedo that Tanedo would favour and later was favouring him, by granting him contracts in breach of regulations and at improper prices, I am unable to accept his evidence in that regard.
This was the case of a man working on a large overdraft, buying with his own (borrowed) money, an expensive stereogram, and delivering it to an engineer whom he hardly knew but whom he must have expected shortly to be in a position of departmental authority. Having handed over the stereogram he is met with the statement “Thanks very much for the stereo I will fix you up with jobs and contracts”. A man who quotes in the normal way for Government jobs and against competition and without favour cannot be said to be “fixed up with jobs and contracts”. I consider these words can be of one interpretation only — that Tanedo would exercise favour to T. by not following lawful departmental procedures and would ensure that T. got jobs and contracts he might not otherwise have got. The words are directly related to an expression of gratitude for a favour which was being taken (if not being offered) as a gift worth three hundred and fifty-two dollars plus some twenty per cent. I am unable to believe that T. understood them in any other sense, from the moment of time very shortly after they were uttered. He left in a hurry. I am convinced beyond reasonable doubt that within minutes, T. must have been aware of the spirit in which the stereogram had been taken and the nature of the offer made in response. To suggest that hours later, or some days later, T. could entertain any doubts as to the nature of the proposition made by Tanedo, goes I think beyond the bounds of credibility. I am satisfied that the suffering of Tanedo’s remarks to go unchallenged followed by no questioning or demur ever afterwards, no request for payment of his three hundred and fifty-two dollars, leads inescapably to the inference that if not at that moment, certainly minutes, hours or a day or two after, T. had tacitly agreed to Tanedo’s proposition; that he and Tanedo were thereafter with a meeting of minds, pursuing the same end, resulting from an agreement that in consideration of T.’s giving Tanedo the stereogram, Tanedo would bring about the award to him of Government contracts contrary to proper and lawful procedures. This initial agreement must have been confirmed (or completed, if in fact despite my opinion to the contrary, there was yet such an incomplete understanding of the implications of their relationship that agreement had not been reached by implication), when T. saw as he must have done, that contracts were being awarded to him by Tanedo without recourse to the calling of quotes and at increased prices. That T. was certainly aware at a later point of time, of the existence of an implied improper agreement between himself and Tanedo is evidenced I feel, by his sense of obligation to give Tanedo five hundred dollars in January-February, and by his long-maintained attempts to cover up the transaction as to the stereo.
I am satisfied therefore that T. and Tanedo were in agreement as from 13th September or very shortly thereafter to arrange for jobs to be given T. contrary to lawful procedures, as charged in the second count. And I am satisfied that if that were not the correct view that nevertheless they were so agreed and acting in pursuance therefore and in receipt of the consideration of the stereo on 13th September, as from a point of time when contracts other than that for the columns for Mount Hagen Police Station, began to be given to him.
I do not find that the happenings of l3th September and of the few days thereafter bear the inference, as laid in the first count, that T. was agreeing to defraud the Government by having Tanedo induce it fraudulently to pay money to him. I think the inference inescapable however, from the conversations and succeeding events, that Tanedo then so intended.
Were I disposed to think that T. was so dense that even after his quoted prices in which one hundred and seventy pipes had on the L.P.O. of 9th December, 1974 been increased to twenty dollars, he did not even then appreciate the full extent of what Tanedo was prepared to do in consideration of the gift of the stereogram; I find the facts involved in the alteration of the quoted prices of the P. & T. contract, such as cannot fairly admit of any other inference being drawn than that by that stage T. was aware that Tanedo was intending to defraud the Government and was doing so in furtherance of his stated intention of 13th September; and that he T. tacitly agreed that this be done. By this stage, T. stood to gain five hundred and fifteen dollars more than he had sought from his quotes. At each successive stage of the L.P.Os of 16th December, 1974 (an increased price of sixty-eight dollars), 18th December, 1974 (an increase of two hundred and twenty dollars) and the job which was documented after its conclusion by L.P.O. of 13th February, 1975 (involving an increase of four hundred dollars), it becomes increasingly impossible to accept the proposition that T. had not entered into an agreement with Tanedo in terms of the first count in consideration of the initial gift and was not intentionally engaged with Tanedo in furthering that agreement.
I am satisfied therefore to the requisite degree that the evidence establishes that the accused did conspire in the fashion alleged in both the first and second counts. The counts are laid in the alternative. I convict the accused on the first count. I make no finding on the second count.
REMARKS ON SENTENCE 26TH NOVEMBER, 1975
During the course of this case, it was submitted that I had exercised my discretion wrongly in permitting an amendment of the indictment at the end of the State case, and after a submission of no case to answer had been made, and I was asked to state a case for the opinion of the Supreme Court on the subject.
Under s. 20 of the Supreme Court Act, it was open to me in the circumstances either to “postpone judgment on the conviction” (by which I take it is meant sentence) pending the hearing of the case to be stated, or to “pronounce judgment on the conviction” and respite execution of the judgment (i.e. sentence). I consider it far more desirable that the latter course be taken. I will proceed to do so.
The type of offence of which the prisoner has been convicted is the bane (one might say despair) of Asian and some African countries. The newspapers of Hong Kong, Manilla, Singapore, Kuala Lumpur, are liberally sprinkled with reports of suchlike corrupt dealings. I am informed that as far as the State Prosecutor knows, it has not previously been necessary to bring such a prosecution in Papua New Guinea. The impact of outside societies has brought many troubles to the people of Papua New Guinea, who had enough of their own when they lived isolated from the world. One hopes fervently that this particular evil will not become established here.
I am relieved of the necessity of confronting a situation of prevalence of a particular offence. But such is the menace of offences of this nature to the whole fabric of society, that it calls nevertheless for stern discouragement both to this man and to others who might be like-minded. I think I should state that if a similar offence occurs in the near future and comes before me, I should feel obliged to impose a much sterner sentence than that I now propose.
I have taken account of all the factors eloquently urged by Mr. Alpine, including those of this man’s hitherto apparently blameless record, the wreck to his professional career, his age, his state of health, and the manifold calls upon him for the support of his family, that his family is in a land strange to them. It is unfortunately the fact that offences of dishonesty result usually in punishment falling on innocent members of a man’s family who are deprived of his support.
Nevertheless I consider the least sentence I can impose on Mr. Tanedo is eighteen months’ imprisonment. In view of the state of his health as described in the committal proceedings, I direct that his imprisonment be served without hard labour.
Verdict and judgment accordingly.
Solicitor for the State: B. W. Kidu, Crown Solicitor until 16th October, 1975; L. W. Roberts-Smith, Public Prosecutor.
Solicitor for the accused: I. Nwokolo, until 16th October, 1975; N. H. Pratt, Acting Public Solicitor.
[dlxxxvi]Section 561 provides inter alia:
“A Crown law officer may present an indictment in any court of criminal jurisdiction against any person for any indictable offence, whether the accused person has been committed for trial or not.”
[dlxxxvii]Section 572 of the Criminal Code provides where relevant:—
“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.”
[dlxxxviii]Section 572 of the Criminal Code provides where relevant:—
[dlxxxix]Section 20 of the Supreme Court Act 1975 provides:—
(1) When any person is indicted for an indictable offence, the Judge of the National Court shall, on the application of counsel for the accused person made before verdict, and may in his discretion, either before or after verdict, without such application, reserve any question of law which arises on the trial for the consideration of the Supreme Court.
(2) If the accused person is convicted, and a question of law has been so reserved before judgment, the judge may either pronounce judgment on the conviction and respite execution of the judgment, or postpone the judgment until the question has been considered and decided, and may either commit the person convicted to prison or admit him to bail on recognizance, with or without sureties, and in such sum as the judge thinks fit, conditional to appear at such time and place as the judge may direct, and to render himself in execution, or to receive judgment, as the case may be.
(3) The Judge shall therefore state, in a case signed by him the question of law so reserved, with the special circumstances upon which it arose, and the case shall be transmitted to the Supreme Court.
(4) Any question so reserved shall be heard and determined as an appeal by the Supreme Court.
(5) Any question so reserved shall be heard and determined after argument by and on behalf of the prosecution and the convicted person or persons if they desire that the question shall be argued, and the Supreme Court may—
(a) affirm the judgement given at the trial; or
(b) set aside the verdict and judgement and order a verdict of not guilty or other appropriate verdict to be entered; or
(c) arrest the judgement; or
(d) amend the judgement; or
(e) order a new trial; or
(f) make such other order as justice requires, or the court may send the case back to be amended or restated.
[dxc][1963] P. & N.G.L.R. 181.
[dxci][1964] P. & N.G.L.R. 200.
[dxcii][1963] P. & N.G.L.R. 181.
[dxciii][1963] P. & N.G.L.R. 181.
[dxciv][1964] P. & N.G.L.R. 200.
[dxcv][1963] P. & N.G.L.R. 181.
[dxcvi][1963] P. & N.G.L.R. 181.
[dxcvii][1967-68] P. & N.G.L.R. 104.
[dxcviii][1971-72] P. & N.G.L.R. 320.
[dxcix]Unreported 588.
[dc][1973] P.N.G.L.R. 140.
[dci][1964] P. & N.G.L.R. 200.
[dcii][1964] P. & N.G.L.R. 200.
[dciii](1886) 12 V.L.R. 13.
[dciv][1948] Tas. S.R. 99.
[dcv][1948] Tas. S.R. 99.
[dcvi](1886) 12 V.L.R. 13.
[dcvii](1886) 12 V.L.R. 13.
[dcviii][1948] TASStRp 1; [1948] Tas. S.R. 99.
[dcix](1924) 35 C.L.R. 275.
[dcx][1974] 2 All E.R. 1009.
[dcxi](1674) 1 Vent. 234.
[dcxii][1826] EngR 607; (1826) 5 B. & C. 538, at p. 541.
[dcxiii][1974] 2 All E.R. 1009.
[dcxiv][1974] 2 All E.R. 97.
[dcxv] [1972] 2 All E.R. 449, at p. 452.
[dcxvi][1972] 2 All E.R. 449.
[dcxvii][1950] 2 All E.R. 679.
[dcxviii](1972) 56 Cr. App. R. 441.
[dcxix][1908] 2 K.B. 270.
[dcxx][1903] WALawRp 72; (1903) 6 W.A.L.R. 56, at p. 58.
[dcxxi](1949) 33 Cr. App. R. 143.
[dcxxii](1931) 45 C.L.R. 321.
[dcxxiii][1930] NSWStRp 60; (1930) 30 S.R. (N.S.W.) 410, at pp. 412-13.
[dcxxiv] (1973) 5 S.A.S.R. 236, at p. 239.
[dcxxv][1948] 1 K.B. 709.
[dcxxvi][1957] Q.S.R. 512.
[dcxxvii](1853) 3 Car. & Kir. 326; 175 E.R. 573.
[dcxxviii](1909) 9 S.R (N.S.W.) 563.
[dcxxix](1920) 20 S.R. (N.S.W.) 351.
[dcxxx][1974] P.N.G.L.R. 250.
[dcxxxi][1973] P.N.G.L.R. 461.
[dcxxxii][1974] P.N.G.L.R. 250.
[dcxxxiii][1973] P.N.G.L.R. 461.
[dcxxxiv][1975] P.N.G.L.R. 311.
[dcxxxv][1974] P.N.G.L.R. 250.
[dcxxxvi]Counsel at the conclusion of the trial withdrew the request that a point of law be reserved.
[dcxxxvii][1961] HCA 22; (1961) 104 C.L.R. 1, at p. 7.
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