State v Koivaku [1986] PGNC 33; [1986] PNGLR 217; N565 (17 October 1986)

N565

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

GELAM KOIVAKU

Waigani
Kidu CJ
17 October 1986

CRIMINAL LAW - Particular offences - Stealing - Stealing as servant - Charge that while employed by one body stole from another - Charge of stealing per se - Not charge of stealing as servant - Criminal Code (Ch No 262), s 372(1), (7).

CRIMINAL LAW - Practice and procedure - Indictments - Amendment of - After close of addresses - Should not be permitted - Amendment sought to charge offence with higher maximum penalty - Amendment not permitted - Criminal Code (Ch No 262), s 535.

The Criminal Code (Ch No 262), provides in s 372(1) for the offence of stealing per se (with a maximum penalty of three years imprisonment) and s 372(7) provides a maximum penalty of seven years, "if the offender is a clerk or servant and the thing stolen:

(a) is the property of his employer; or

(b) came into the possession of the offender on account of his employer".

An indictment charged an accused that "being a servant of Kila Kila Provincial High School, he stole a sum of money, ... the property of the Chairman and Members of the Board of Governors of the ... School".

The counsel for the defence in his closing address submitted that the indictment did not disclose an offence defined by a written law. After both counsel for the State and for the defence had concluded their addresses, counsel for the State sought to amend the indictment.

Held

(1) The indictment charged an offence of stealing per se under the Criminal Code, s 372(1) and not stealing by an employee from his employer under s 372(7).

(2) Although the Criminal Code, s 535, permits amendment of an indictment before verdict, amendments should not as a general rule be made after counsel for the accused has addressed the court.

R v Rymes [1853] EngR 330; (1853) 175 ER 573 at 574, adopted and applied.

(3) In the circumstances counsel for both parties having addressed the court it would be unfair to the accused to amend the indictment to charge an offence under the Criminal Code, s 372(7), which carries a higher maximum penalty.

(4) In the absence of evidence of ownership of the money allegedly stolen, the accused should be acquitted.

Cases Cited

R v Rymes [1853] EngR 330; (1853) 175 ER 573.

Trial

This was the trial of an accused on a charge of stealing a sum of money, brought under the Criminal Code (Ch No 262), s 372.

Counsel

M Unagui, for the State.
E Kariko, for the accused.

17 October 1986

KIDU CJ: The indictment presented against the accused is in the following terms:

"Gelam Koivaku of Mabudawan in the Daru Sub Province of Western Province is charged that he between the first day of February, 1983 in Papua New Guinea being a servant of Kila Kila Provincial High School, stole a sum of money, namely, Two Thousand and Eighty-Nine Kina and Nine Toea (K2,089.90) the property of the Chairman and Members of the Board of Governors of Kila Kila Provincial High School."

This charge is brought under s 372 of the Criminal Code (Ch No 262) and it says, amongst other things, as follows:

"372. Stealing

(1) Any person who steals anything capable of being stolen is guilty of a crime.

Penalty: Subject to this section, imprisonment for a term not exceeding three years.

...

(7) If the offender is a clerk or servant, and the thing stolen:

(a) is the property of his employer; or

(b) came into the possession of the offender on account of his employer,

he is liable to imprisonment for a term not exceeding seven years."

After both the State and the defence cases closed yesterday, counsel for the latter commenced his closing address by making a preliminary submission. He said that his client should be acquitted as he is charged with an offence not defined by a written law. I will deal with this first. This submission is based on s 37(2) of the Constitution, which says:

"Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law."

I consider that the charge contained in the indictment presented against the accused contains an offence defined by a written law. That is, the indictment charges the accused with stealing money from a body (or a body of persons) called the "Board of Governors of Kila Kila Provincial High School". This body is set up under the Education Act (Ch No 163). Mr Kariko’s submission was based on the fact that the charge alleges that the accused was employed by one body (Kila Kila Provincial High School) and stole money belonging to another body (the Board of Governors of the School). I accept his submission that if the State is to rely on s 372(7) of the Code, it (the provision) requires that the charge allege that the offender stole his employer’s money. The provision provides for a higher maximum sentence (seven years) than the three years maximum sentence for stealing per se. It does not create a different offence. So what is averred in the indictment is really stealing per se and not stealing by an employee from his employer.

Section 37(2) of the Constitution has no application. I therefore reject Mr Kariko’s preliminary submission.

Before dealing with the merits of the case I deal with an application by the State to amend the indictment to get over the problem raised by Mr Kariko. The application comes after the State and the defence have closed their cases. Usually an application to amend an indictment should be made before the State closes its case. Such an application is made under s 535 of the Criminal Code which provides:

535. Amendment of Indictments

(1) If on the trial of a person charged with an indictable offence:

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

(b) it appears that:

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

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

the court may, if it thinks that:

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

(d) the accused person will not be prejudiced in his defence on the merits,

order the indictment to be amended so far as it is necessary, on such terms (if any) as to postponing the trial as the court thinks reasonable.

(2) When an indictment has been amended, the trial shall proceed at the appointed time, on the amended indictment, and the same consequences ensure in all respects and as to all persons as if the indictment had been originally in its amended form.

(3) If it becomes necessary to draw up a formal record. in any case in which an amendment to an indictment has been made, the record shall be drawn up setting out the indictment as amended, and without taking any notice of the fact of the amendment having been made.

The provision generally allows amendment of an indictment before verdict. But as a matter of good common sense amendments should not be made if the trial has progressed close to verdict as in this case. The application was made after defence counsel made his final submission. It would be most unfair to the accused at this stage to face a charge of stealing which carries a higher maximum penalty if the indictment is amended.

I adopt, with respect, what was said by Vaughan William J in R v Rymes [1853] EngR 330; (1853) 175 ER 573 at 574:

"I shall not consider whether the indictment, if amended, would be bad or not, as I shall lay it down as a general rule, that I will not allow an indictment to be amended after the counsel for the defence has addressed the jury. The proper course is, that when the counsel for the prosecution has given all the evidence that he means to give, he should, if he wishes for an amendment, ask for it before he closes his case, and then, if the amendment is allowed, the counsel for the prisoner addresses the jury on the indictment as it is amended."

The application to amend the indictment is disallowed.

As the indictment stands the accused faces, as I have said already, a charge of stealing per se.

The State evidence shortly is that the accused collected the sum of K8,950.38 during the period 1 February 1983 and 31 August 1983 and only banked K6,858.48 of it. And it has called witnesses to show that as the accused was the only person responsible for the key of the safe where the money was kept he stole the sum of K2,089.90. This sum has been provided in an audit report. But it is incorrect. My calculations which tally with those of Mr Kariko are as follows:

Total of daily takings: K8,634.53

Moneys deposited: K6,759.58

Discrepancy: K1,974.95

I point out these errors merely to emphasise that counsel, particularly for the State, should always check figures thoroughly and not accept too readily figures calculated by others.

Whatever the correct figure might be is not important in view of the fact that the State has failed to prove beyond reasonable doubt who owned the money. Ownership of the thing stolen is an element of the offence which must be proved and proved beyond a reasonable doubt. There is absolutely no evidence as to who owned the money allegedly missing. Neither the former Headmaster nor his former Deputy nor the present Chairman of the Board of Governors of the School said anything about who owns the canteen and therefore the moneys it makes and failure by the State means only one thing and that is that the accused must be acquitted.

The accused is therefore acquitted of the charge in the indictment and is free to go about his business.

Accused acquitted

______________________

Lawyer for the State: V Noka, Acting Public Prosecutor.
Lawyer for the accused: E Kariko, Public Solicitor.

[1986] PNGLR 221 - The State v Mana Turi