State v Gene [1991] PGNC 45; [1991] PNGLR 33; N940 (8 January 1991)

N940

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

GENE

Kundiawa
Brunton J

25-26 September 1990
7-9 November 1990
12 November 1990
8 January 1991

CRIMINAL LAW - Particular offences - Misappropriation of property - "A legal or equitable interest or claim to the property" - Requires proof of proprietary rights - Officer bearer of unincorporated association - Money held on condition of use for project - Nature of interest - Criminal Code (Ch No 262), s 383a.

CRIMINAL LAW - Practice and procedure - Indictments - Amendment of - At trial - where variance between indictment and evidence - Whether "material to merits of case" - Whether prejudice to accused - Misappropriation of property - Rights to property defectively charged - Amendment after case closed not allowed - Criminal Code (Ch No 262), s 535.

The Criminal Code (Ch No 262), s 383a(1)(a), provides:

"(1) A person who dishonestly applies to his own use or to the use of another person:

(a) property belonging to another; or

(b) property belonging to him, which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person.

is guilty of the crime of misappropriation of property ...

...

(3) ...

...

(d) persons to whom property belongs include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who, immediately before the offender’s application of the property, had control of it."

Section 535 permits amendment of indictments where the court is satisfied that: "(c) the variance, omission or insertion is not material to the merits of the case; ..."

Held

(1) The words in s 383a(3)(d) of the Criminal Code, "any person having a legal or equitable interest in or claim to the property", refer to persons who have proprietary rights in property, such as bailors, mortgagees, lessors, trustees, etc: Semble, they can also refer to choses in action.

Lawi v The State [1987] PNGLR 183, distinguished.

(2) Accordingly, where money was granted by the State to persons who represented an unincorporated provincial youth council on condition that the money be used for a particular purpose, namely, a bookkeeping project, an allegation in the indictment charging misappropriation under s 383a that the money was "the property of the State" was at variance with the evidence.

(3) The variance between the indictment and the evidence was "material to the merits of the case" within s 535.

(4) An amendment made after the court had heard all of the evidence and the case was closed to reflect the proprietory rights revealed by the evidence would prejudice the accused in his defence on the merits and should be refused.

R v Smith [1950] 2 All ER 679 at 682, applied.
R v Gregory (1972) 56 Cr App R 441, considered.

Discussion of the power of the court to amend indictments and the functions of counsel in relation to defective indictments.

Cases Cited

Honeywill & Stein Ltd v Larkin Bros (London’s Commercial Photographers) Ltd [1934] 1 KB 191; [1933] All ER Rep 77.
Lawi v The State [1987] PNGLR 183.
R v Bonner [1974] Crim LR 479.
R v Collison (1980) 71 Cr App R 249.
R v Gregory (1972) 56 Cr App R 441.
R v Hall [1968] 2 QB 787; (1968) 52 Cr App R 528.
R v Johal [1973] 1 QB 475; (1972) 56 Cr App R 348.
R v Radley (1973) 58 Cr App R 394.
R v Smith [1950] 2 All ER 679.
R v Thomas [1983] Crim LR 619.

Trial

This was the trial of an accused on a charge of misappropriation of property contrary to s 383a of the Criminal Code (Ch No 262).

Counsel

J Kesan, for the State.
F Terra, for the accused.
Cur adv vult

8 January 1991

THE INDICTMENT

BRUNTON J: The accused was charged with three counts of misappropriation contrary to s 383a of the Criminal Code (Ch No 262), and pleaded not guilty to each count.

The amended counts were:

1st count: Francis Kumo Gene of Kupau Village, Pari, Chimbu Province is charged that he between the 8th and the 15th day of December 1988 at Kundiawa in Papua New Guinea dishonestly applied to his own use the sum of K225, the property of the State.

2nd count: And Also the said Francis Kumo Gene is further charged that he between the 7th and the 24th day of August 1989 at Kundiawa in Papua New Guinea dishonestly applied to his own use the sum of K700 the property of the State.

3rd count: And Also the said Francis Kumo Gene is further charged that he on the 1st day of September 1989 at Kundiawa in Papua New Guinea dishonestly applied to his own use the sum of three thousand kina (K3,000) the property of the State.

In respect of the first count the indictment had originally alleged an amount of K2,225; this was amended during the course of the trial, by consent, to K225. In respect of the second count the indictment originally alleged an amount of K980; this was amended during the course of the trial to K700, by consent. It was alleged that the accused was the Deputy Chairman of the Simbu Provincial Youth Council, and signatory to its bank accounts, and had misappropriated the said moneys from the Council’s bank accounts by dishonestly withdrawing it and putting it to his own use.

THE FIRST COUNT

The defence called two witnesses to explain the honest nature of the appropriation by the accused of the amount alleged in this Court. The State conceded, in my view quite properly, that this evidence should be accepted by the court. The witnesses were independent and both had a good demeanour in the witness box. I accept their evidence and I acquit the accused on this count.

THE DEFECTIVE INDICTMENT

After the case had closed, and the court retired to consider its verdict, it came to my attention that in respect of each count it had been alleged that the property misappropriated was the property of the State.

On reflection, the evidence before the court did not meet that allegation.

The evidence showed:

(a) That the Independent State of Papua New Guinea had issued two cheques to the Simbu Provincial Youth Council, drawn on the Department of Finance FCB Drawing Account 2. One cheque was for K22,950 and the other cheque was for K1,866.39 (total K41,616.39). There was no direct evidence before me that the Department of Finance FCB Drawing Account 2 was the property of the State, but this could be inferred and I do so infer the K41,616.39 to have been the property of the State, before it was paid to the Simbu Provincial Youth Council.

(b) There was no evidence before the court to suggest that the Simbu Provincial Youth Council was anything other than a voluntary association, an unincorporated association which had been established informally. The Constitution of the Simbu Provincial Youth Council was not before the court. No certificate of incorporation under any corporation legislation was before the court. The court was not aware of any statute either provincial or national which gave legal personality to the Simbu Provincial Youth Council.

The evidence showed the composition of the Simbu Provincial Youth Council was an elected executive of an association, with a senior public servant appointed ex-officio — this was Mr Bonoan Polume the former Assistant Secretary, Department of Youth and Community Services in the Simbu Province. The members of the Council were the youth representatives drawn from all the districts in the province, and representatives from churches and other social groups. The evidence before the court showed that the Council was not a statutory body, and on the evidence I find as a matter of fact and law that it was an unincorporated association of a separate legal personality from the State.

(c) The Simbu Provincial Youth Council operated a number of bank accounts. The evidence disclosed that these accounts were the property of the Simbu Provincial Youth Council. They were separate and quite distinct from those operated by the State. I find that the bank accounts, Simbu Provincial Youth Council cheque account No 3136480128 titled "Simbu Youth Project Fund" at the PNGBC Bank Kundiawa, and the Simbu Provincial Youth Council Bee-Keeping Account, savings account No 0024235 at the PNGBC Bank Kundiawa, were not the property of the State. Nor were they controlled by the State, although the Council was obliged to report to the State on how the money had been spent.

(d) The total funding of K41,616.39 was given by the State for 11 youth projects. For the purposes of this trial only one project is relevant; it was described in the following terms: "6. Simbu Provincial Youth Council Bee-Keeping K4,500 Cheque No: 28-182098."

THE LEGAL NATURE OF THE BEE-KEEPING ACCOUNT

If A gives property to B then A loses all legal and beneficial right to the property. But if A gives property to B on a condition, that is known as a gift for a particular purpose, then generally the law sees that gift as absolute and the purpose as the motive for the gift. It may be that the gift, or the manner in which the gift was made raises questions as to the creation of a contract, or a trust, either expressly or by implication. These issues will be addressed shortly, after the Criminal Code (Ch No 262) is examined.

CRIMINAL CODE — MISAPPROPRIATION

Section 383a of the Criminal Code relevantly provides:

"(1) A person who dishonestly applies to his own use or to the use of another person:

(a) property belonging to another; or

(b) property belonging to him, which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person.

is guilty of the crime of misappropriation of property.

...

(3) ...

...

(d) persons to whom property belongs include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who, immediately before the offender’s application of the property, had control of it."

Applying s 383a(3)(d) to this case, the first thing that needs to be said is that the subsection is not exclusive. The word "include" indicates that property may "belong" to a person when relationships exist other than those specifically mentioned in the subsection.

KINDI LAWI’S CASE

The leading case on misappropriation under s 383a of the Criminal Code is Lawi v The State [1987] PNGLR 183.

The facts in the case before me are distinguishable from the facts in Lawi v The State. In Lawi’s case the State made a grant to Lawi conditional upon him using the money for a specified public purpose. The judgments of the Supreme Court were as follows (per Kidu CJ, at 187):

"With respect to the K10,000, evidence clearly shows that he applied for the money and was granted the K10,000 for a particular road project. Once again there is no doubt that he knew that the money was to be used for that project and nothing else. In respect to both sums of moneys the State had a legal interest in them and could have sued him for their return. So it is without question that the appellant applied State or Government property to his own use ..."

Amet J said (at 190-191):

"There cannot be any doubt that the moneys were grants for particular public purposes, with the implied conditions that they be expended on those public purposes. The moneys were most definitely not the appellant’s private property to expend on his own purposes or anybody else’s as he desired. The two amounts of money were National Government grants and in my view the National Government had a legal and an equitable proprietary interest in them until they were expended on the purposes for which they were granted. Indeed, it is this very argument that this section was enacted to overcome, following the case of John Kasaipwalova v The State [1977] PNGLR 257. This is specifically provided for in subs (3)(d):

‘(d) persons to whom property belongs include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who, immediately before the offender’s application of the property, had control of it ...’

This argument therefore fails, the property in the moneys belonged to the National Government ..."

Cory J said (at 197-198):

"... but in any event it is covered by subs (3)(d) [of s 383a of the Criminal Code], the Government of Papua New Guinea would be ‘a person having a legal interest in or claim to the property’ and was also ‘the person who, immediately before the offender’s application of the property had control of it’."

WHAT WAS THE PRECISE CHARACTER OF THE "INTEREST" IN LAWI’S CASE?

Clearly, in Lawi’s case some legal obligation may have been attached to the transfer, although it is perhaps not too clear as to what the precise character of the transaction was. Lawi can perhaps be based upon s 383a(3)(d) in that immediately before the appellant’s application of the property, the State had control of it.

In the judgment of the Chief Justice the State could have sued — this indicates a chose in action as being the precise character of the legal interest. Amet J saw the State as having a legal and an equitable proprietary interest in the money but did not specify the nature of these interests. Cory J referred to a legal interest in or a claim to the property. This may indicate a chose in action.

In the case before this Court the grant was made, not to the accused, but to an intervening party, an unincorporated association. The accused applied the property after it had come into the hands of the Simbu Provincial Youth Council. Can s 383a(3)(d) be applied in these circumstances?

THE LEGAL CHARACTER OF THE TRANSACTION

What then was the legal character of the transaction by which the money came into the hands of the Simbu Provincial Youth Council?

First, it cannot be said that, legally, property rested with the State — because the State had transferred the property to another person; that was clear from the evidence.

WAS IT A BAILMENT?

The nature of the transfer from the State to the Simbu Provincial Youth Council was more in the nature of a gift than a bailment. "The term ‘bailment’, according to its ordinary legal sense, ‘relates to something which is in the hands of a person who is to return it in specie’" Stroud’s Judicial Dictionary (4th ed, 1971), Vol 1, p 246. There was no evidence before the court of an obligation to return the property in specie.

WAS IT A DEBT?

Had the State merely loaned the money to the Simbu Provincial Youth Council? The evidence did not point to a loan. There were no terms used familiar to a loan — no interest, no stipulated period of the loan, no terms of periodic repayment, nor was there any obligation to repay the sums given.

WAS IT A GIFT FOR THE PARTICULAR PURPOSE?

The transfer was conditional. The money was given for a particular purpose. Halsbury on the subject of gifts for particular purposes says in Halsbury’s Laws of England (4th ed, 1978), Vol 20, par 26:

"26. Gifts for particular purposes. Where a person obtains an absolute conveyance or gift for a particular purpose, and afterwards makes use of it for another purpose, the court will interfere on the ground of fraud, but the mere expression by the donee of his intention to use it in a particular way, without a contract (express or implied) that he will so use it, does not prevent him from using it in another way. Thus if a gross sum or the whole income of property is given, and if a special purpose is assigned for that gift, the court regards the gift as absolute and the purpose as merely the motive of the gift; and therefore the court will hold that the gift is good even though it may no longer be practicable to give effect to the declared purpose of the gift. A donor cannot by any declaration as to his intention prevent an absolute gift falling within the operation of any covenant or bargain made by the donee in regard to it, such as a covenant in a marriage settlement to settle after-acquired property ..."

DID THE "GIFT" CREATE A CONTRACTUAL RELATIONSHIP?

If, as indicated in Halsbury, a gift may be for a particular purpose, in the circumstances of this case, did the conditions attached to the gift manifest an intention to create a contractual relationship? If so, what was the nature of the contractual relationship? Did it create vested proprietary rights either legal or beneficial? Or did it create merely a chose in action, as with a right to sue for specific performance or damages? If contractual relationships were created what was the nature of the contract — was it a contract of employment, or a contract for employment, or a matter of agency?

THE DIFFERENCE BETWEEN PROPRIETARY RIGHTS AND CHOSES IN ACTION AND S 383 A(3)(D) OF THE CODE

Proprietary rights are rights of ownership — be they legal or equitable. A chose in action is a right to proceed in a court of law to procure the payment of a sum of money, to recover damages, or to obtain specific performance. In my view, the words in s 383a(3)(d) of the Criminal Code "any person having a legal or equitable interest in or claim to the property" refer to persons who have proprietary rights in property such as bailors, mortgages, lessors, trustees etc. The phrase "or claim to the property" also indicates a proprietary nature, in the context of the foregoing phrase.

The question arises as to whether these words can refer to a chose in action. Parts of the judgment in Lawi v The State indicate that they can. But do they really include choses in action such as debts or the rights to sue on a contract? This appears to be what the law says.

WAS THERE A TRUST, OR BENEFICIAL INTEREST?

The State had granted the money to the persons who constituted Simbu Provincial Youth Council on a condition that it be used for a specific purpose. After the grant the State was not an owner of the property or a part owner. Having made the grant, the State did not have a legal interest in the money. It had merely made a gift on condition that it be used for a particular purpose.

Did the State have an equitable interest in, or a claim to the property? Surely if there was a trust the beneficial interest in the money, passed with the grant, to the objects of condition — the use — or trust? In such a case the beneficiaries would be the members of the Simbu Provincial Youth Council and those the Council members represented. If the grant was misused the beneficiaries could enforce the trust against the trustees. But the grantor who has made the grant has no equitable interest in, or claim to the property although he or she may have a chose in action for fraud.

There was no trust deed put in evidence, nor could the evidence be construed in such a way as to show an intention to establish the Simbu Provincial Youth Council as a trustee, either for named beneficiaries, or for a particular object. On the whole the evidence did not point to the creation of a trust.

WAS THERE AN AGENCY?

Was there an implied term in the "gift" which created the relationship of principal and agent. In my view, the evidence does point more to the creation of an agency on the part of the State in the Simbu Provincial Youth Council, than it does to the creation of a trust relationship. An agent acts for another; a trustee holds property for another. Bowstead on Agency (15th ed, 1985), p 17, says:

"Thus a trustee holds money or property for another, to which he has the legal title, but which belongs in equity to the beneficiary, whose rights are largely enforceable on a proprietary rather than on a personal basis. As such, a trustee may have no agency functions at all. Furthermore, a trustee is not normally subject to control by the beneficiary, nor to revocation by him of the trust. Lastly, the position of express trustee is a well-recognised and specialised one to which various forms of statutory regulation apply.

An agent, on the other hand, may often hold no money or property for his principal at all; if he does receive money from or for his principal, he may merely be in the position of debtor to his principal in respect of it and if he receives goods he may hold them as bailee only. As such, therefore, an agent may have no trustee functions or liabilities at all. He may well be subject to control by his principal, and his authority can normally be revoked. His function is far too varied in the many spheres in which it may operate to be the subject of general statutory regulation, though statutes may affect particular types of agent or agency situations.

But of course a trustee may also in appropriate circumstances have agency powers. And an agent may hold as trustee: the principal may well seek to secure this in order to achieve protection should the agent become insolvent. And an agent is subject to fiduciary duties which frequently (but not always) lead to money which he receives improperly being regarded as money of the principal held upon constructive trust, and hence subject to a proprietary claim.

Thus the two functions, though conceptually distinct, may be difficult to differentiate: one person may have both capacities in relation to another."

The evidence points towards the State giving the Council a sum of money to carry out some work, and to account, through the Provincial authorities for how the money was spent. The Council may have been the agent of the State.

WAS THE COUNCIL AN INDEPENDENT CONTRACTOR?

But the evidence also shows that the Council had complete discretion as to how particular projects were to be executed. This points more towards the Council being an independent contractor. When distinguishing between employers of servants and employers of independent contractors the English Court of Appeal has said in Honeywill & Stein Ltd v Larkin Bros (London’s Commercial Photographers) Ltd [1934] 1 KB 191 at 196; [1933] All ER Rep 77 at 79, per Slessor LJ:

"The determination whether the actual wrongdoer is a servant or agent on the one hand or an independent contractor on the other depends on whether or not the employer not only determines what is to be done, but retains the control of the actual performance, in which case the doer is a servant or agent; but if the employer, while prescribing the work to be done, leaves the manner of doing it to the control of the doer, the latter is an independent contractor."

The essence of an independent contractor is one who undertakes to produce a given result, and in the actual execution of the work is not under the orders or control of the person for whom the work is done, and may use his discretion in things not specified beforehand: Bowstead on Agency (15th ed, 1985), p 18. This, it seems to me, may be nearer the situation of the relationship between the State and the Simbu Provincial Youth Council. The State wanted some work done (in bureacratic language, "a project to be completed"). The work was to involve youth; in this case the specific nature of the work was described as "Simbu PYC Bee-Keeping K4500". This was in essence the totality of the formal legal intention of the parties. No other documentation specifically relating to the legal nature of the bee-keeping project is before the court. The testimony indicated that the State had set out accounting procedures to be followed by the Council, but that the work on the project was to be carried out by the Council, that is the whole of organised Simbu Youth. In order to get the work done, the money was advanced to the Council. From the evidence it is not possible to say beyond reasonable doubt what the true nature of the legal relationship between the State and the Simbu Provincial Youth Council was. It was probably that of employer and independent contractor. But the documentation of the project was so poor that I am hesitant to say even that. That apart, the State carries the onus. It is not for the court to divine the facts. The State must prove its case.

One thing that can be said with certainty is that the State has not shown that the property alleged in the indictment was the property of the State to the requisite standard of proof. It is for more likely that the property was that of the accused, who was a member of the Council, but subject to a condition.

AMENDMENT OF THIS INDICTMENT?

Is it too late to amend the indictment?

Section 535 of the Criminal Code reads:

"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, the same consequences ensue 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 legal questions that arise are:

1. Can it be said that the variance between the indictment is not material to the merits of the cases?

2. Can it be said that the accused person will not be prejudiced in his defence on the merits?

The first matter that should be addressed, before the Court answers these questions, is why should the Court on its own initiative at this late stage of proceedings seek to amend the indictment?

The English Common Law put the responsibility for the correctness of an indictment on counsel for the prosecution, not on the court. If an amendment was required, application to amend should be made before the accused was arraigned and not at the close of the case for the Crown; such a late amendment might be oppressive and embarrassing to the accused: see R v Smith [1950] 2 All ER 679.

In that case, the English Court of Criminal Appeal said (at 682):

"A feature of this case which obviously troubled the learned judge, as it does this Court, is the omission from the indictment of any charge framed on the language of s 32(1) of the Larceny Act 1916 (UK), which was expressly inserted, as it seems to us, in order to meet such a case as the present ... In opening the appeals, counsel for the appellant, Pople, stated frankly that the case of his client was devoid of merits, and that he relied on the defects in an indictment which was badly drawn in the first place and was made worse by subsequent amendments. The court was not informed whether the indictment in this case was drawn in the office of the clerk of assize. (The indictment was drawn by counsel and not in the office of the clerk of assize for the Western Circuit) or whether it was submitted to counsel for revision before being signed, but we think it desirable to point out that the responsibility for the correctness of an indictment lies in every case on counsel for the prosecution and not upon the court. No counsel should open a criminal case without having satisfied himself on that point. If, in his opinion, the indictment needs amendment, the necessary application should be made before the accused are arraigned and not, as in this case, after all the evidence for the prosecution has been called. There may well be amendments which would be properly made at the commencement of a trial which would be oppressive and embarrassing to the accused if made at the close of the case for the prosecution.

This was a badly drawn indictment. As soon as the learned judge heard the first count read he rightly directed an amendment of the statement of the date intended to be charged. The amendments made at the close of the prosecution did not improve matters. These mistakes have resulted in great loss of time and expenditure of money, and it is to be hoped will not occur in the future."

Two principles are apparent. First, in a criminal trial there are limits beyond which a court should not go; it should not descend into the forum; the parties carry the burden of litigation. The court has the role of the umpire — to see the parties obey the rules — to see that justice is done according to the law.

This does not mean that the court can be rigidly technical to the point of making nonsense of the word "justice". What is meant by not descending into the forum is that the rules should be applied to reflect their social validity. If a rule has no social validity, it is a mere technicality, then its application is unlikely to do justice according to the law.

The social validity of a rule which casts the onus on the State to make sure the indictment is correct is a reflection of the power of the State in relation to an individual accused. The idea of criminal justice according to the law pits the almost infinite resources of the State against a single person. A rule of law which insists that it is a State function, rather than the function of the court to tailor the indictment to the evidence promotes the impartiality of court, and balances the relative power of the parties.

Some may say that this is an inappropriate approach in the circumstances of Papua New Guinea. Here, the criminal bar is relatively young and inexperienced. Mistakes occur not infrequently in advocacy and the presentation of cases at times leaves much to be desired. There is an argument for the court to be more interventionist, to correct errors and to prevent injustices arising from inadvertence, inexperience and mistakes.

Against this it may be thought that any weaknesses in the State’s ability to prosecute are only temporal. Silk, who hold practising certificates in this country, have been involved in the successful prosecution of former cabinet ministers for offences of misappropriation in Queensland. If the State uses inexperienced counsel in a particular case, that is a matter of choice. The criminal bar will not always be young. There are able counsel in this country now. The first principle in R v Smith transcends temporary unevenness in the presentation of cases, and in my view is valid in this country. It is part of the underlying law being both applicable and appropriate to the circumstances of the country: see Constitution, Sch 2.2.

The second principle in R v Smith is that the longer the State waits to amend an indictment in the trial process, the more likely it is to be oppressive or embarrassing to the accused.

If the court amends the indictment, changes the nature of the charge, after both sides have closed their cases, then the potentiality for oppression or embarrassment is considerable. It may be thought that a way out of the dilemma would be to recall the lawyers, re-open the case, put the issue to them and give the parties an opportunity to address the court. This course has been followed. Proper trial administration and the public interest value finality in the court process. There is value in having cases properly prosecuted. There is value in due process. There is value in finality. But there is also value in having both sides express their views on complicated legal issues.

In an offence of dishonesty, the amendment of an indictment because of a variance between the alleged ownership of property and the evidence is not a matter of surplusage or rigid formality. In R v Gregory (1972) 56 Cr App R 441 at 448-449, the English Court of Appeal said:

"There is no doubt authority for the proposition that in many cases it is unnecessary in the particulars of a charge similar to the one with which we are now concerned to specify the owner of the property concerned: see the observations of Lord Goddard CJ in Hibbert v McKiernan [1948] 2 KB 142. But where the property is of a common and undistinctive type (as is the case with Francis Kumo Gene), in order that the accused person may know exactly that with which he is charged, it may well be necessary to name the owner.

Cases can arise where, unless that ownership be assigned in the particulars of the charge, the accused may be at a loss to understand fully the nature of the case which he has to meet. Undoubtedly in some cases, as Lawton LJ said in the course of counsel’s submissions, such as those concerning outstanding works of art which it is common knowledge belong to some person or institution, it may be unnecessary to particularise the ownership, but this is not one of those cases. This is a case about a perfectly ordinary starter motor and, from the outset, it was conducted by the Crown on the basis that the motor belonged to Mr Wilkes and to no one else.

We do not agree with the view of the learned Recorder that in the present case the assertion as to ownership contained in the particulars of count 8 was mere surplusage. It was desirable that the words should have been inserted, they were properly inserted, and they informed the defence of the nature of the case and the only case that the Crown set out to establish, a case which (for the reasons we have already indicated) later dissolved into thin air.

Accordingly, we do not think that the learned Recorder was justified in allowing the amendment to be made, although it is true that a very extensive power of amending is conferred upon the court by s 5 of the Indictments Act 1915 (UK). But, quite apart from the question as to whether the amendment permitted in this case was a proper one or not, this Court is strongly of the view that to allow it at so late a stage was to run the risk of injustice being done, although we know full well that nothing was further from the learned Recorder’s mind than that.

If the defence had known beforehand that the case they had to meet was one of handling a stolen starter motor, the property of a person unknown, their approach might well have been entirely different and the Recorder in his turn would have been called upon to deal with it differently. He would have had to direct the jury on the lines of such cases as R v Sbarra (1918) 13 Cr App R 118 and R v Fuschillo (1940) 27 Cr App R 193 ... In short, as we see it, the whole nature of the summing-up would have had to have been re-adjusted and taken a different form from that which was, in fact, adopted by the learned Recorder. Furthermore, the task of defending counsel would have been wholly different from that which Mr Wakerley came prepared to perform in order to meet the charge contained in count 8 as originally framed.

In these circumstances, we are driven to the conclusion that the verdict of the jury cannot be regarded as either safe or satisfactory. It follows (and we need not add more) that this appeal must be allowed and the conviction quashed."

This passage does not just reflect a matter of precedent. The validity of the rule is contained not only in the substantial nature of the ownership issue, but also because the amendment was so late as to run the risk of an injustice. In R v Gregory, the trial judge sought to amend after the close of evidence. In this case, the Court has to consider an amendment after the close of the case itself.

English precedent shows that the nearer to the end of the trial it becomes necessary to seek an amendment to the indictment, the more likely there is to be prejudice to the accused.

Amendments to the indictment before the arraignment may not result in any prejudice (see R v Hall [1968] 2 QB 787; (1968) 52 Cr App R 528); similarly with an amendment after arraignment but before the jury was empanelled (R v Johal [1973] 1 QB 475; (1972) 56 Cr App R 348). If an amendment takes place during the course of the trial (at the end of the prosecution opening) then if the amendment is substantial the arraignment should be repeated: see R v Radley (1973) 58 Cr App R 394. But, if it is not possible to say that the conduct of the defence up to the close of the prosecution case could not have been hampered in some way by the fact that the indictment did not include some amendment made to it at that point in time, an appeal court may not be satisfied that the amendment caused no injustice: see R v Thomas [1983] Crim LR 619 cited in Archbold: Pleadings, Evidence and Practice in Criminal Cases, 43rd ed (1988), vol 1, par 1.68.

Amendments which are sought at the beginning of a judge’s summing-up should not be encouraged. They should only be granted after particular care has been taken to ensure that the defence has had ample opportunity to consider whether witnesses should be recalled, or further evidence called: see R v Bonner [1974] Crim LR 479.

In R v Collison (1980) 71 Cr App R 249, an amendment was allowed after the jury had retired. However that case turned upon the particular English statute which allowed a jury to return an alternative verdict. It is a decision that is inapplicable in this country and should not be considered persuasive here.

Much of this seems to point to the need to decide whether or not the accused could be prejudiced or embarrassed by making an amendment after the court has retired to consider its verdict. In this case the defence did not raise the issue of the ownership of the property. It was conducted as if it were on the basis that the ownership of the property was not in issue. Although the defence did make formal admissions under s 589 of the Criminal Code, it did not admit that the property alleged to be dishonestly applied by the accused belonged to the State. The ownership of the property was therefore in issue and the State carried the onus of proving that element. The fact that the defence chose not to make any submissions on this element whether through inadvertence or for other reasons does not vary the onus of proof.

On the other hand, had the lawyers for the accused been faced with an allegation that the property which had been dishonestly applied, belonged to the Simbu Provincial Youth Council, it may well have been alerted to other lines of defence. It may have sought to insist that the Constitution of the Council be put in evidence; or to adopt a line of defence which showed that the accused acted with the consent of the Council.

The difference between the State and the Simbu Provincial Youth Council is substantial. They are not almost the same thing, the one is a public and constitutional entity of prime importance, the other is a group of private persons.

The position of this Court is that it is not possible to say that the conduct of the defence up to the point when the court retired to consider its verdict could not have been hampered in some way by the fact that the indictment did not include an allegation that the property alleged was the property of the Simbu Provincial Youth Council: see R v Thomas.

In my view, it is improper for this Court to close its eyes to this defect, to say — well, defence counsel did not raise it, and if we ignore it, on appeal, the Supreme Court may well say "no substantial miscarriage of justice". An accused is entitled to the protection of the law (Constitution, s 37(1)), and this includes the proper application of the rules of criminal procedure and practice. Indictments need to be carefully prepared. Counsel need to scrutinise the evidence, the deposition and other proofs, before the trial and during the trial to see that the evidence squares with the language of the statutory offence charged. Although the court does have wide powers of amendment, under the present system, it is not the court’s function to do the work of counsel for the various parties, although the court not infrequently advises parties of legal difficulties it perceives.

In this case the State had given out substantial sums of money to an unincorporated association. As far as the Court was aware the association had no constitution. The nature of the legal relationships between the State and the association were inadequately described. There was no contractual document, or other document from which the Court could assess the legal nature of the grant — at best it looked like a contract of work, a conditional gift, or maybe even an agency relationship — but I do not feel confident even about that. All that can be said is that the State is under a general fiscal obligation to disburse funds in a legal and formal manner. If, when funds are given out, there is no proper legal document specifying the obligations of the parties, then it is to be anticipated that in criminal cases the law will be construed in favour of the subject. In its role as prosecutor, the State carries the onus.

Finally, when an indictment is formally defective, there is only so much a court can do to help the State. It is not so bad if the defect is found during the course of the trial. Adjournments can be granted; time can be given for argument to be researched; witnesses can be recalled. But once the case is closed, options are quite limited. In this case the indictment was laid under s 383a(1)(a). But the property was that of an unincorporated association of which he was a member. The property therefore belonged to the accused and was in his possession or control conjointly with other persons, subject to a condition. A charge under s 383a(1)(b) would have been more appropriate. To amend the charge now would be oppressive to the accused and for reasons given this cannot be done.

There is one thing more: there was evidence before the Court that may have established that, when the accused took the money, he did so dishonestly. There was also evidence that showed that the administration of the various bank accounts by the Simbu Provincial Youth Council during the relevant period was so lax, and so lacking in conformity with the rules of accounting, that it may have been difficult to find an honest intention. Nevertheless, in respect of the charges relating to the appropriation of moneys from the Bee-Keeping Account to attend the National Youth Council in Kupiano, there was a good deal of ambiguity. The accused undoubtedly attended the National Youth Council at Kupiano. He did so with the knowledge of both National and Provincial officials. There was evidence that the Simbu Provincial Youth Council had no available funding at all for administrative matters or for conference travel but that funds were expected to be made available at a future date. A practice was in evidence of using funds from the bee-keeping project for administrative purposes on the understanding that when general purpose funds were available the Bee-keeping Account would be reimbursed.

A public servant who indulged in this type of activity could well be found to have acted dishonestly, because a public servant can be presumed to know the rules. But the accused was not a public servant. Neither did he have a public service background. It is therefore harder to find that the accused, beyond reasonable doubt, was dishonest in his use of funding to attend the National Youth Council. He was the Deputy Chairman of the Simbu Provincial Youth Council; he did attend the council as Deputy Chairman. The use of the Bee-Keeping Account moneys may well have been procedurally improper, and subject to surcharge action under the Public Finances (Control and Audit) Act (Ch No 36), but given the role of the accused as a "non-professional", on its own, this does not necessarily imply dishonesty to the requisite standard of proof.

However, the accused gave contradicting accounts as to how the money he withdrew from the account was used.

On the second count he first said he used K200 to visit Goroka on official business. He also said he gave K200 to a Tongan volunteer who had been robbed of all his personal effects at Chuave. In relation to his use of K500 he said he used it to go to Kupiano for the National Youth Council and also that he used it to visit Lae.

On the third count, in answer to police questions on the record of interview he said it was his own money.

In answer to the next question he said the K3,000 was an "administrative matter". In evidence he told the Court that K1,500 had been used to pay back a loan from Paul Andi, a businessman, who had loaned him money for the Kupiano National Youth Council. The balance of the money had been used to buy various items of office equipment.

The evidence of the accused on the second and third counts could not be believed. He changed his story. The most likely version of events was that he used the money he withdrew to go to Kupiano and for other personal purposes. Certainly he told lies either to the police or to the court. While on the probabilities it is safe to assume he misused the funding from the Bee-Keeping Account; and that he probably did so dishonestly, the way in which the Simbu Provincial Youth Council used its funds was in such a shambles that it was not possible to say, beyond reasonable doubt, that the accused acted dishonestly, as distinct from acting carelessly or in ignorance, although I think be probably was dishonest. The fact that the indictment had to be amended before the trial, during trial, and that there was an honest explanation for the moneys alleged in count one, points to the need for caution.

For these reasons the accused is acquitted.

Accused acquitted

________________

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.