State v Ava [2010] PGNC 180; N4161 (16 November 2010)

N4161

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR 590 OF 2008

THE STATE

V

JEFFREY AVA

Wewak: Kariko J
2010: 15, 16 November

CRIMINAL LAW – practice and procedure – commencement of new trial after a mistrial – accused to be re-arraigned.

CRIMINAL LAW – practice and procedure – motion to quash indictment – different counts charged on separate indictments - whether indictment formally defective.

CRIMINAL LAW – practice and procedure – whether an indictment can be amended after being presented and before arraignment – whether section 535 of the Criminal Code applicable – court may exercise discretion to amend.

CRIMINAL LAW – practice and procedure – indictment – where indictment presented and before arraignment, prosecution may with leave of the court withdraw indictment and present new indictment.

Cases cited:

Simili Kara v The State [1984] PNGLR 254
Review Pursuant to Constitution, Section 155 (2)(b); Application By Herman Leahy (2010) SC1018
The State v Robin Panu (2010) N4087
Charles Ombusu v The State [1996] PNGLR 335
The State v William (No 1) [2004] PNGC 212
The State v Kobobo [2006] PNGC 92
R v Toigen Tiolo [1969-1970] PNGLR 285

Counsels:

A Llyod, for the State
G Pipike, for the Accused

RULING

16 November, 2010

1. KARIKO J: Introduction: The accused pleaded not guilty to a charge of deprivation of liberty (section 355, Criminal Code) and a charge of rape (section 347, Criminal Code) when his trial came before Manuhu J last December. However, the trial was abandoned. The relevant endorsement on the court file is dated 14 December 2009 and includes the following:

1. Trial declared a mistrial.
   
2. His Honour disqualifies himself as the accused is related to his relatives @ 9th Street at Nuwigo...
   

2. Before me, the accused filed an affidavit dated 15 November 2010 by his then counsel from the Office of the Public Solicitor, which elaborates on the court file endorsement. The affidavit discloses that during cross-examination of the alleged victim, His Honour ascertained that he was acquainted with relatives of the accused who reside at Nuigo village, Wewak where the witness and the accused also resided. His Honour had visited these relatives during the circuit. He therefore disqualified himself from further hearing the case and declared a mistrial.

3. After the case was called for trial before me yesterday, the State made application to amend the indictment while the accused moved a motion to quash the indictment.

4. Given that this matter has arisen on circuit in a regional town and with new counsels in charge, particularly where legal representation for the accused has changed, I waived the requirement of Order 1 rule 11 for applications to be by way of Originating Summons and allowed oral applications.

Consequence of a mistrial

5. Before considering the applications, I think it important to decide the consequence of a mistrial, more particularly how the new trial is to commence:

(a) should the indictment be presented again; or

(b) is the accused to be re-arraigned; or

(c) must the State again open and present its case.

6. I agree with the submissions by counsels that the accused must be re-arraigned. Pursuant to section 557 of the Criminal Code, a trial commences when an accused person is called upon to plead guilty or not guilty to an indictment; Simili Kara v The State [1984] PNGLR 254. The trial before Manuhu J commenced when the accused was arraigned. As the trial was abandoned, it necessarily means that what followed from his arraignment onwards was invalidated. Section 557 must again be applied for the trial to be recommenced.

Application to amend indictment

7. The State moved its application for amendment of the indictment under section 535(1) of the Criminal Code which provides:

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. (Underlining for emphasis)

8. This section is clearly not applicable because the trial of the accused is yet to begin. The prosecution may with leave of the court amend an indictment after presentation and before arraignment. It is a matter of discretion for the Judge before whom the application for amendment is made, and the Judge may have regard to but is not bound by the matters prescribed by section 535 of the Criminal Code; Review pursuant to Constitution, Section 155(2)(b) Application by Herman Joseph Leahy (2010) SC1018. Although this Supreme Court decision relates to an indictment laid under section 526 of the Criminal Code or what is commonly referred to as an "ex-officio indictment", the principles equally apply to an indictment laid under section 525 of the Criminal Code.

9. The amendments sought by the State are:

(1) To extend the period (the dates) during which it is alleged the two offences occurred – from "between 6th and 20th day of January 2008" to "between 6th and 28th day of January 2008".

(2) To add circumstances of aggravation to the charge of rape.

(3) To add a witness (one did not give evidence in the committal court) to the list of witnesses.

10. The State submitted that applying the considerations set out in section 535(1)(c) and (d) of the Criminal Code, the application should be allowed as the proposed amendments:

(1) are not material to the merits of the case; and

(2) the accused person will not be prejudiced in his defence on the merits.

11. The State reasoned that the period of the alleged offences is simply extended by a week; the circumstances of aggravation are obvious on the witnesses' statements; and the statement of the additional witness was served on the accused's lawyer last week. Mr Lloyd concluded there were no surprises and the amendments are necessary in the interest of justice.

12. The Defence objected to the State's application so far as it relates to the first two proposed amendments. It does not take issue with the third amendment sought, and correctly so. Where a witness to be called by the prosecution has not given evidence in the committal proceedings, the prosecution is obliged to provide that witness' statement to the Defence within reasonable time before trial.

13. The objection is to the proposed extension of the dates. Mr Pipike responded that this extra week would affect the defence of the accused in that it would change from general denial to include alibi as the accused has instructed that he was elsewhere during that further week. The amendment would result in the accused being unable to comply with the 14 days service requirement of a notice of alibi and he would not be in a position to have the alibi witnesses interviewed before trial.

14. If the trial were to proceed now, I may be inclined to agree with the Defence submission. Otherwise I am unable to find that the changes in the proposed amendments are substantial and would seriously affect the merits of the case against the accused. I am of the view that the interest of the accused can be protected by allowing him time to attend to his concerns.

15. I accept the submissions by the State and balancing the interest of the accused and the interest of justice, I would grant the application to amend the indictment.

Application to quash indictment

16. Under section 558(1) of the Criminal Code an accused person may, before pleading, apply to quash an indictment on grounds that:

"(a) it is calculated to prejudice or embarrass him in his defence to the charge; or

(b) it is formally defective."

17. Upon hearing such an application, the court may uphold the application, order amendment to the indictment, or refuse the motion.

18. The Defence has submitted that the indictment before the court is defective in that it is not in the proper form and that in reality, two indictments have been presented.

19. Indictment is defined by section 1 of the Criminal Code as "a written charge preferred against an accused person." Section 528 of the Criminal Code provides for the form of an indictment and states under section 528(1) that an indictment must set out the offence charged against an accused person "in such a manner" and "with such particulars .... as is necessary to inform the accused person of the nature of the charge."

20. Order 3 Rule 2 of the Criminal Practice Rules states:

Every indictment presented in the National Court shall be entitled as in Rule l and shall be in accordance with Form 1.

21. In the present case, two Form 1s were presented, each containing one of the charges alleged against the accused. There is no issue concerning the wording of the charges, and even though the first of these Forms contains the "Count 1"and the other Form "Count 2", I must agree with the Defence that there are technically two indictments before the court. The two charges should have been joined in the same indictment as permitted by section 531(2) of the Criminal Code. Where two indictments are presented the same time, the prosecution should elect which indictment it will proceed with before arraignment. The second indictment would be a nullity if the court arraigned the accused on both indictments; see The State v Robin Panu (2010) N4087.

22. Mr Lloyd sought support for his submission that the two indictments are permissible by citing the following passage from Charles Ombusu v The State [1996] PNGLR 335 where the Supreme Court remarked:

"By analogy and extension it may be said also, that where several distinct indictable offences which are alleged to be constituted by the same acts or omissions, or by a series of acts done or omitted to be done in the prosecution of a single purpose, and are charged in separate indictments may be jointly tried, unless it appears to the Court that the accused person is likely to be prejudiced by the joint trial, in which case the Court may require the prosecutor to elect on which of the several charges he will proceed or direct that the trial of the accused person on each or any of the charges be had separately."

23. In my opinion, the court was not approving the laying of separate indictments for any indictable offence that is one of "several distinct indictable offences which are alleged to be constituted by the same acts or omissions, or by a series of acts done or omitted to be done in the prosecution of a single purpose". Rather the passage is part of the discussion in the interpretation of section 531 to determine whether where separate indictments is permitted such as where wilful murder and rape are charged, the indictments can be heard together. The court ruled that such indictments cannot be heard jointly and the prosecution must elect which indictment to proceed with first.

24. To allow multiple indictments as suggested by the State would result in mischief and a convoluted procedure. Take the example of say 10 charges of distinct fraudulent offences committed over a period of time. The State's submission would permit 10 indictments being laid.

25. I conclude that the two indictments are not defective but the trial cannot proceed on both of them. The State must elect which indictment to prosecute. The other indictment would be a nullity as not permitted by law. I therefore refuse the application by the accused.

Courses open to the prosecution

26. Apart from amending the indictment, there is another option available to the prosecution. Where an indictment has been presented but before arraignment, the State may with leave of the court withdraw the indictment and present another indictment; see The State v William (No 1) [2004] PNGC 212. The accused would not be prejudiced by the withdrawal of the indictment as he has not been called upon to plead to the indictment; The State v Kobobo [2006] PNGC 92.

27. If I allowed the State to elect and proceed on one of the indictments and amended it in terms of its application, it would be a very messy exercise given the form of the indictment already before the court. The wording of the charge on the indictment (whether count 1 or count 2) simply leaves no room to clearly and in a orderly legible fashion include the amendments. In the circumstances, I would grant leave for the State to withdraw the indictments and present a new indictment containing the proposed amended charges. To ensure the right of the accused to a fair trial is protected, the case should then be adjourned for the relevant notice of alibi to be properly served and the alibi witnesses interviewed.

Further remarks

28. Where multiple charges are alleged to arise from the same facts and circumstances, they may be set out in the one indictment (one Form 1), subject to the provisions of the Criminal Code that prohibit joinder of counts such as section 531(3) and (4).

29. While I appreciate that being on circuit in a small town offers certain limitations in preparation for a case, including the drafting of an indictment, the prosecution duty to properly indict must be discharged with great care and diligence. This important task cannot be rushed and there can be no short-cuts. The indictment may be in writing; R v Toigen Tiolo [1969-1970] PNGLR 285, and if there is insufficient space to include all charges on the pro-forma that is carried by prosecutors on circuit, then the prosecutor should write up the complete indictment or better still seek assistance from the court staff or the Police to have the indictment typed up.

Orders:

30. The formal orders of the court are:

(1) The motion to quash the indictments presented on 14 December 2009 is refused.

(2) Leave is granted to the State to withdraw the indictments presented on 14 December 2009 and present a new indictment containing the same charges amended in terms of its application to amend.

(3) The State shall serve a copy of the new indictment upon the lawyer for the accused by Friday 19 November 2010.

(4) The case is adjourned to the next sittings of the National Court at Wewak, to be listed as a priority matter.

(5) The accused is remanded in custody until then.

_____________________________________

Acting Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused