Little, Regina v [1967] PGSC 28; [1967-68] PNGLR 63 (29 May 1967)

Papua New Guinea Law Reports - 1967-68

[1967-68] PNGLR 63 - Regina v  Little

[1967-68] PNGLR 63

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

LITTLE

Port Moresby

Minogue J

25 May 1967

29 May 1967

CRIMINAL LAW - Whether joinder of separate charges in information - Validity of committal - Indictment - Motion to quash - The Criminal Code (Queensland, adopted), ss. 568(2)^*[c]¹, 571, 572, 596^*[ci]^2*, 598 - District Courts Ordinance 1963-1965, ss. 37^*[cii]^3**, 102.

A motion made before plea in which the accused seeks to assert that there is no indictment upon which he may be tried on the ground that the indictment presented is based on an invalid committal may be entertained.

De Faro v. Rankin [1899] VicLawRp 107; (1899), 25 V.L.R. 170; Ex parte Cousens; Re Blacket [1946] NSWStRp 36; (1946), 47 S.R. (N.S.W.) 145; R. v. Gee, [1936] 2 All E.R. 89; R. v. Burusep, [1963] P. & N.G.L.R. 181, referred to.

Upon an information alleging that the accused, between 13th March, 1966, and 10th March, 1967, had stolen various goods, the property of P.D.C. Constructions (New Guinea) Pty. Ltd., the accused was committed for trial. The information contained no specific allegation that the goods were stolen on a date unknown or that they were stolen at different times between the two dates set out therein, and the depositions taken upon the hearing of the information did not indicate that what was really alleged against the accused was a series of stealings extending over a period of twelve months or more than three acts of stealing extending over a period of six months. The indictment alleged that on an unknown date between 1st March, 1966, and 10th March, 1967, he stole a specific item, the property of P.D.C. Constructions (New Guinea) Pty. Ltd.

Held:

N1>(1)      The information, capable of the construction that it alleged a single act of conversion or taking between the dates shown, was valid.

N1>(2)      As nothing had emerged during the District Court hearing to affect the validity of the information or the committal the indictment presented pursuant to the committal could not be quashed on these grounds. Powers of Supreme Court to review exercise of a District Court’s discretion to commit for trial considered.

R. v. Gee, [1936] 2 All E.R. 89; Ex parte Cousens; Re Blacket, [1946] NSWStRp 36; (1946), 47 S.R. (N.S.W.) 145; and R. v. Burusep, [1963] P. & N.G.L.R. 181, referred to.

N1>(3)      The indictment was not objectionable for any of the reasons specified in s. 596 of the Code and the motion must be refused.

Motion.

By an indictment presented on 25th May, 1967, Kenneth Thomas Little was charged that on an unknown date between 1st March, 1966, and 10th March, 1967, he stole one Cumalong valued at $20.95, the property of P.D.C. Constructions (New Guinea) Pty. Ltd. Before plea, the accused moved to quash the indictment under s. 596 of The Criminal Code objecting that the indictment was formally defective in that it was based on an invalid committal for trial. The course of the committal proceedings is sufficiently described in the reasons hereunder.

Counsel:

Shaw (with him Grastins), for the Crown.

Broadley, for the accused.

Cur. adv. vult.

29 May 1967

MINOGUE J:  On 25th May, 1967, an indictment was presented to me charging Kenneth Thomas Little that on an unknown date between 1st March, 1966, and 10th March, 1967, he stole one Cumalong valued at $20.95, the property of P.D.C. Constructions (New Guinea) Pty. Ltd. The accused was in Court when the indictment was presented.

Before the accused was called upon to plead to the indictment Mr. Broadley, who appeared for the defence, moved to quash it under s. 596 of The Criminal Code (Queensland, adopted). His submission was that the indictment is formally defective in that it is based on an invalid committal for trial.

From a perusal of the indictment I cannot see how it is formally defective, particularly when regard is had to s. 571 which purports to set out what are formal defects. But if the committal is alleged to be invalid and so there is no warrant in law to frame an indictment based on it, it seems to me that this Court must be able to inquire into such an allegation. It may be that there are other ways in which a challenge to the validity of a committal could or should come before the Court. For instance, prohibition may lie although this is not at all clear, e.g. see DeFaro v. Rankin[ciii]⁴ and Ex parte Cousens; Re Blacket[civ]⁵. Or again habeas corpus may be available. It has still to be decided how far a duty rests on the judges of this Court, to consider and, if necessary, quash a committal by virtue of the provisions of s. 12 of the Criminal Procedure Ordinance 1889 (Papua). In R. v. Gee[cv]⁶ the Court of Criminal Appeal thought that the objection to the validity of a committal taken before the Recorder at Oldham Quarter Sessions was properly taken and should have been allowed. My brother the Chief Justice in R. v. Burusep[cvi]⁷ held that s. 596 neither applies to nor limits an application to deal with an indictment which is bad in substance and he entertained a motion to quash the indictment in that case prior to the trial of the accused. No objection was raised by the Crown to the competence of the motion before me and the argument proceeded on the validity of the committal. Although I have some doubts as to whether the combined effects of ss. 571, 572, 596 and 598 of the Code is to prescribe and limit the way in which a motion to quash may be made, I have come to the conclusion that I can entertain this motion in which the defence seeks to assert that there is no indictment before me upon which the accused can be tried.

There is no such indictment, it is said, because there is no lawful committal. And there is no lawful committal because the committing magistrate has gone beyond the statutory powers which enable him to commit. As the jurisdiction exercised by the magistrate must be found within a statute any action taken outside that statute cannot be according to law and so must be unlawful. The way in which it was submitted he exceeded the statutory limits of his power is that he entered upon an inquiry into an information for an indictable offence which did not comply with the provisions of s. 37 of the District Courts Ordinance 1963-1965. Accordingly the information was bad or, as has been said, was no information at all. No question of amendment arose before him and he committed the accused for trial on and in the terms of that information.

Section 37 requires that an information shall be for one matter only, except that in the case of indictable offences if the matters of the information are such that they may be charged in one indictment, those matters may be joined in the same information.

To understand the relevance of this section in this case it is necessary to refer to s. 568 of the Code. Subsection (1) of that section allows, in the case of an indictment against a person for stealing money, the accused person being charged and proceeded against for the amount of a general deficiency notwithstanding that such general deficiency is made up of any number of specific sums of money, the taking of which extended over any space of time. By sub-s. (2) in an indictment against a person for stealing he may be charged with two or three distinct acts of stealing the property of the same person committed by him within the space of six months from the first to the last such acts. So that in such cases as are comprised in these subsections an information may be for more than one matter. Mr. Broadley urged upon me that the information here could not be supported because on its proper construction it alleged a series of takings over the space of almost a year.

To understand this contention I now turn, as I think I must, to the information on which the accused was brought before the committing magistrate, the depositions taken before that magistrate and the committal made by him thereon. The information was sworn by Sub-Inspector McPherson of the Royal Papuan and New Guinean Constabulary and alleged that the accused, between 13th March, 1966, and 10th March, 1967, stole goods set out in a list annexed to the information, such goods being the property of P.D.C. Constructions (New Guinea) Pty. Ltd., valued in all at $3,186.20. The information contained no specific allegation that the goods were stolen on a date unknown nor that they were stolen at various times between the two dates set out therein. The list annexed which took up seventeen foolscap-size pages, contained a vast number of items ranging from a half-pound of hardboard nails through large quantities of electrical stores and maintenance equipment and tools to drills and grinders, the most expensive of which was valued at $70.00. The majority of the items were contained in three large packing cases, a patrol box and a number of tool boxes. Two pages of the list referred to items found loose in a room occupied between about 13th March, 1966, and 10th March, 1967, by the accused in quarters provided for him by his then employers P.D.C. Constructions (New Guinea) Pty. Ltd. I shall henceforth refer to this company as “the company”.

From the depositions it appeared that the accused was employed by the company for some time prior to 10th March, 1967, as a maintenance electrician and that on that date he left Port Moresby and went to Wewak to work for it. He was not given any permission to transfer any of the company’s equipment from Port Moresby to Wewak. On 10th March prior to his leaving, he had a conversation with one Strachan, a camp superintendent employed by the company and apparently responsible for the supervision of the quarters which the accused had been occupying. In the course of this conversation the accused asked Strachan whether he would procure a four foot square box and pack the remainder of his gear in his room into such box and then take it with all the other gear in his room belonging to him to the army barge and have it shipped to Wewak. On the following Monday, 13th March, Strachan opened up the room formerly occupied by the accused and there saw the three large packing cases and the other boxes to which I have referred, all marked with the name “K. T. Little, P.D.C., Wewak”. There was, as he said, a lot of electrical equipment in cupboards and this, I assume, is the gear which the accused had requested him to pack into the four foot square box. Apparently alarmed at the quantity of material which he was asked to ship to the accused Strachan saw his superior officers and subsequently a search warrant was secured and the contents of the boxes examined and listed.

Nothing appeared in the depositions to show that any of the items listed had been missed from any depository or store of the company. Evidence was given that a linesman’s Cumalong found amongst the other allegedly stolen goods and which I assume to be the subject of the indictment presented to me, was painted with red paint similar to that with which all tools were branded by the company. One McKenzie, the general foreman of the company, gave evidence that he saw in the accused’s room a good deal of equipment which was similar to parts that had been ordered by the company but he could not say that this was the property of the company. One Graf who was in charge of all electrical and mechanical projects being carried out for the army expansion programme in Papua and New Guinea by the company identified some Sterlic de-humidifiers as being the property of the company and he further identified some eye reflector floodlights and holders as being the actual articles imported by the company into the Territory and as having seen such holders in the company’s store. He further identified other items as belonging to the company because they corresponded with items contained in invoices from suppliers which were in his possession.

He also stated that on Wednesday 8th March, he gave instructions for the transfer of the accused from Port Moresby to Wewak where he was to work for the company.

A warrant was also issued for the arrest of the accused and Sub-Inspector McPherson travelled to Wewak on 15th March and had a conversation with him. In the course of the conversation the accused admitted that he had been occupying the room in which the cases and boxes were discovered and when asked whose property was in his possession there, and after having stated that some was his and some belonged to the company, the following conversation ensued:

“Sub-Inspector McPherson: ‘What was P.D.C. property doing in your boxes?’—Accused: ‘I was bringing it up here to work.’ Sub-Inspector McPherson: ‘Did anyone give you authority to bring P.D.C. property to Wewak?’—Accused: ‘No, not authoritatively.’ “

The sub-inspector then read the warrant for his arrest to the accused and arrested him. He then cautioned him and asked him if there was anything he wished to say to the charge to which the accused replied that as he was being brought back to Port Moresby he would save his talk until he could see a solicitor.

After the depositions had been taken the magistrate, in accordance with s. 103 of the District Courts Ordinance, read the charge to the accused and said to him the words set out in that section. I will assume that he in fact formed the opinion required by s. 102(2). The accused said nothing and reserved his defence. The magistrate then committed him for trial for the offence as charged before him.

Mr. Broadley’s submission is that the information is bad because it alleges a number of acts of stealing spread over a space of a year instead of either one act of stealing or no more than three such acts confined within the space of six months, and the committal is bad because it is based on and is in the terms of this information. No amendment was sought nor was any suggested by the magistrate. In my opinion the information is poorly and imprecisely framed and it is a pity that the magistrate allowed it to stand in the way it was presented to him, and that he did not, particularly as the accused was unrepresented, seek to ascertain what exactly was the case against the accused. But that is not to say it is bad in law. If on a fair reading it is capable of a construction which will bring it within the provisions of s. 37 then I think it should be held sufficient. It is not necessary that any subsequent indictment should be framed in the terms of the information. Indeed, an indictment can be framed for any offence which appears open on the evidence contained in the depositions. In my view albeit with some hesitation the information before the magistrate is capable of the construction that it alleges a single act of conversion or taking at some time between the dates shown. It is to be observed that under the Code stealing is defined to comprise both a fraudulent taking and a fraudulent conversion.

I now look at the evidence given in support of the information to see whether there is anything in the case presented to indicate that what is really alleged is a series of stealings extending over a period of twelve months or more than three acts of stealing extending over a period of six months. I do not think that there is. The case as presented is meagre and it is difficult to see whether taking or conversion is the basis of the charge. However, in my opinion the inferences are open on the depositions either that the major part of the material on the list was boxed between 8th and 10th March or that at any rate it was marked as the accused’s property at some time after he was told by Mr. Graf on 8th March that he was to proceed to Wewak and before he actually vacated his room on the early morning of 10th March. I note that evidence was given that two of the tools identified were said to have been handed by employees of the company to the accused for repair and these were either packed or to be packed in boxes bearing his name and consigned to him some hundreds of miles from Port Moresby. These matters could afford some evidence of a single act of fraudulent conversion. Whether I would be prepared to draw such an inference is not to the point in this application, nor did the magistrate have to draw it. His function was not to decide upon the guilt or innocence of the defendant before him. He had merely to form the opinion that the evidence was sufficient to put the defendant upon his trial. And so I conclude that there was nothing which emerged during the hearing to affect the information or the committal.

No other defect in the statutory procedure has been alleged by Mr. Broadley so as to bring this case within the authority of R. v. Gee[cvii]⁸. For myself I was somewhat concerned as to the extent to which this Court can examine the opinion formed by the magistrate in accordance with s. 102 of the District Courts Ordinance. In R. v. Burusep[cviii]⁹ the Chief Justice was able to come to the conclusion that the magistrate had not carried out the statutory procedure in that, as I understand his reasons he could not and therefore did not form the opinion that there was evidence sufficient to put the defendants on their trial. In his view there was no such evidence. I have had his reasons in mind when considering my decision in this case but I am troubled as to the extent to which this Court can review the exercise of what has been described by Jordan C.J. in Ex parte Cousens; Re Blacket[cix]¹⁰ as an executive function. As I have reached the conclusion in this case that there was evidence from which an inference of a conversion could be drawn I do not need to pursue this matter further. However, I am not to be taken as saying that this Court can in any way act as a Court of Appeal from a decision of a magistrate to commit for trial and I leave open the question of the limits of the Court’s powers.

For the reasons I have given I refuse the motion before me. The accused must plead to the indictment before the Court.

Motion to quash indictment refused.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitor for the accused: W. A. Lalor, Public Solicitor.

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[c]* Section 568(2) of The Criminal Code (Queensland, adopted) provides: “In an indictment against a person for stealing he may be charged with two or three distinct acts of stealing the property of the same person, committed by him within the space of six months from the first to the last of such acts ....”

[ci]** Section 596 of the Code provides: “The accused person may before pleading apply to the Court to quash the indictment on the ground that it is calculated to prejudice or embarrass him in his defence to the charge, or that it is formally defective ....”

[cii]*** Section 37 of the District Courts Ordinance 1963-1965 provides: “An information shall be for one matter only, except that—(a) in the case of indictable offences, if the matters of the information are such that they may be charged in one indictment .... those matters may be joined in the same information.”

[ciii](1899) 25 V.L.R. 170.

[civ](1946) 47 S.R. (N.S.W.) 145.

[cv][1936] 2 All E.R. 89.

[cvi][1963] P. & N.G. L.R. 181.

[cvii][1936] 2 All E.R. 89.

[cviii][1963] P. & N.G.L.R. 181.

[cix][1946] NSWStRp 36; (1946) 47 S.R. (N.S.W.) 145.