N5994

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1266 OF 2013

THE STATE

V

DONALD MALDEN
Respondent

Vanimo: Geita J
2015: 10 June

CRIMINAL LAW – practice and procedure – indictment presented but accused not arraigned – trial has not commenced – 

CRIMINAL LAW – practice and procedure – whether an indictment can be amended after being presented and before arraignment by a Public Prosecutor not yet gazetted - whether section 535 of the Criminal Code applicable – court may exercise discretion to amend.

CRIMINAL LAW – practice and procedure – indictments – Public Prosecutor or his delegate has unfettered powers to apply for amendments before trial or during trial - where non gazetted Public Prosecutor is involved approval must be sought from the Public Prosecutor or his delegate. 

Cases cited:
Simili Kara v The State [1984] PNGLR 254

Publication consulted:
The Public Prosecutor's Manual 2nd Edition 2005 (Excepts)

Counsel:
Emmanuel Thomas, for the State
Renata Yayabu, for the Accused

RULING

10 June, 2015 

1. GEITA J: This is an application by the State to amend indictment on certain aspects contained therein. The accused was indicted on two counts of attempted murder and stealing pursuant to sections 304 (1) and section 372 (1) of the Criminal Code. In view of circuit State Prosecutor Mr. Thomas's inability to file indictment for lack of his gazettal the indictment before court was presented by Deputy Public Prosecutor Mr Timothy Ai on 4 June 2015. He has since returned to Port Moresby. And the matter adjourned to today for arraignment and a plea taken before trial.

2. On the day of trial and his plea, Mr Thomas applied to court to make certain amendments pursuant to section 535 of the Criminal Code. The relevant changes sought include: 1. the date stated in the indictment to be amended from 5 April 2013 to 6 April 2013 and secondly the count of stealing be abandoned as the matter has recently been concluded at the District Court. A conviction certificate was yet to be obtained and presented to the court.

3. An application for amendment of indictments are founded 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, (Underlining for emphasis mine)

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.

4. Mr Thomas submitted that since the defence on record was general denial the accused would not be greatly prejudiced by the first amendment sought. Secondly the information of his trial and conviction before the lower court has just being brought to his attention by the arresting officer. At the time of the drafting of the indictment that information was not available. 

5. He further submitted that despite his lack of non gazettal, he was a Public Prosecutor by virtue of the office he holds and is entitled to move such amendments; however such amendments must be sanctioned by the Public Prosecutor. Furthermore his proposition was supported by extracts from the Public Prosecutor's Manual 2nd Edition 2005 Part E. Trial. Chapter 7, paragraph 11 talks about amendment of indictments. In short amendments are allowed to be made however they should not alter the substance of the indictment.

6. The Public Solicitor Ms Renata Yayabu however objected to such amendments and took issue with Mr. Thomas's powers to make amendments in light of his non gazettal. The Public Solicitor argued that indictment in its current form was now defective and should be quashed. She was unable to assist court further with relevant case laws in this area. The State Prosecutor likewise. 

Issue: Whether the State Prosecutor not gazetted can make amendments to indictments.

7. State Prosecutors are appointed to those positions by virtue of their gazettal and powers given to them under section 524 (2) of the Criminal Code Act. Their gazettal as I understood from their working Manual is not required as a matter of law but is done for evidentiary purposes.

8. Almost all heads of Constitutional Office Holders are empowered by the Constitution to make rules and or policy directions to ensure the smooth running of their respective Offices. For instance The Police Commissioner, The Chief Ombudsman and The Chief Justice. The Public Prosecutor likewise has similar powers to make policy directions pursuant to Sections 176, 177 and 224 (2) (a) (b) of the Constitution to ensure the smooth running of that Institution including, providing for, to the extent of the deficiency, that are necessary or convenient for the exercise and performance of its powers, functions, duties and responsibilities. Some of his difficulties become real when his officers are on circuit assignments with others yet to be gazetted. The factual situation before me happens to be one of those practical difficulties encountered during circuits. Policy Directions issued from time to time attempts to alleviate some of those difficulties. 

9. One such Policy Direction, No.1 of 2005 touching on amendments to be made on indictments has been given to me of which I am very grateful. It outlines situations under which his officers may apply to court for amendments to be made. It follows therefore that Mr. Thomas can apply for and make amendments only with the consent of the Public Solicitor and to an extent that such amendments must not alter the substance of the indictment. The amendments sought by a Public Prosecutor not formally gazetted in my view are not fatal and will not render the indictment defective. The two amendments sought in this motion are not substantial and the accused will in no way be prejudiced. Most significant in my view is that the trial proper has not commenced and that the accused has yet to be 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.)

10. When read in its ordinary meaning Section 535 (1) Criminal Code clearly becomes inapplicable because the trial of the accused is yet to begin. (Emphasis mine). However I am of the view that the prosecution may with leave of the court amend an indictment after presentation and before arraignment. The court before whom the application for amendment is made may have regard to but is not bound by the matters prescribed by section 535 of the Criminal Code in the exercise of its discretion.

11. Notwithstanding a formal challenge by the Public Solicitor before arraignment on the standing of the State Prosecutor i.e. his non gazettal, I do not see how her client will be prejudiced. The eventual outcome achieved in my view would be to have the case prolonged unnecessarily and wait for a gazetted Prosecutor to file amendments. That in my considered view is tantamount to unnecessary delays resulting in great expense to the State and the accused, if privately represented. 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. 

12. 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. Since the accused is yet to be arraigned the court will allow the amendments sought and call the accused to plead. 

Orders:

13. The formal orders of the court are:

(1) Leave is granted to the State to make amendments to the indictments presented on 4 June 2015 in terms of its application to amend. 

(2) The motion to quash the indictment presented on 4 June 2015 is refused.

(3) The case will precede to trial this circuit. 

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused