Evu, Regina v [1969] PGSC 16; [1969-70] PNGLR 274 (10 June 1970)

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CRIMINAL LAW - Procedure - Papua - Indictment - Offence other than that for which the accused committed - The Criminal Code, ss. 560, 561 - Criminal Procedure Ordinance of 1889, s. 12.

An indictment presented under The Criminal Code, s. 560 (in circumstances where s. 561 is not invoked) containing a count of an offence different from and of a graver nature than the offence on which the accused has been committed for trial is formally defective.

Opinion expressed that The Criminal Code, s. 561 is in force in Papua so that a Crown Prosecutor is empowered to present an ex officio indictment, and observations upon its use where depositions taken in the committal proceedings contain available evidence of an offence different from or additional to that for which the accused has been committed for trial.

Angoro Evu, having been committed to take his trial upon a charge that he unlawfully did grievous bodily harm, was indicted on two counts, one of unlawfully doing grievous bodily harm with intent so to do, and the other of unlawfully doing grievous bodily harm. The accused moved that the indictment be quashed on the ground that it was formally defective in that it was presented contrary to The Criminal Code, s. 560. Such facts as are necessary appear in the ruling of Kelly J.

KELLY J: Mr. Hoath has moved to quash the indictment pursuant to s. 596 of the Code on the ground that it is formally defective in that, whereas the accused was committed for trial on the charge that he unlawfully did grievous bodily harm, he has now been indicted on two counts, one of unlawfully doing grievous bodily harm with intent so to do (s. 317 of the Code) and the other of doing grievous bodily harm simpliciter (s. 320 of the Code) which was the charge on which he was committed. Mr. Hoath submits that, by reason of s. 560, an accused person may only be indicted for the offence for which he has been committed for trial.

Against this it is submitted that, having regard to s. 3 of the Criminal Procedure Ordinance of 1889, this result would not follow as the terms of that section are such as to enable an indictment to be presented for an offence other than that for which an accused person was committed for trial (provided of course that it is an offence indicated by the evidence before the magistrate), the only requirement being that he should have been committed.

I have read the judgments in Reg. v. Ebulya[ccclxxvii]¹ and I have also been referred to part of an unreported judgment by Frost J. in Reg. v. Dwyer[ccclxxviii]² . From my reading of this material and from such consideration as I have been able to give the matter myself on the material available here, I must say with respect that I prefer the reasoning of Smithers J. as to the effect of the Criminal Code Ordinance of 1902 on the Criminal Procedure Ordinance of 1889 and I agree with his conclusion that where the Code enacted in 1902 conflicts with the Criminal Procedure Ordinance it amends or repeals that Ordinance (see especially [1964] P. & N.G.L.R., at p. 243).

I therefore consider that s. 3 of the Criminal Procedure Ordinance must be read subject to s. 560 of the Code which is of later date and that s. 3 does not have the effect, as it were, of enlarging s. 560 and does not support the proposition that it is sufficient to have an investigation by a magistrate and a committal for trial for an offence, whether or not the offence for which the accused is indicted.

So far as s. 560 is concerned I consider that on its proper construction it permits only of an indictment for an offence for which the accused has been committed, as I consider that the words “the offence” occurring in the third line should be read as referring to the offence for which he has been committed for trial. I am unable to agree with the construction which Mr. Laucis urges, namely, that those words should be read as referring only to the offence set out on the indictment. The section appears to me to deal with the situation in chronological sequence, namely: (i) a charge of an indictable offence, (ii) committal for trial on that charge, (iii) an intention to put him on trial for that charge, and (iv) reduction of the charge to writing in an indictment. That being so, it seems to me that at the point of time referred to in the section, where there is an intention to put the accused on his trial for “the offence”, there is not yet an indictment so that “the offence” is that on which he has been committed for trial. There is some support for this view from the words of s. 695 where, in dealing with the practice to be applied on ex officio informations, it is provided:

“When an indictment is presented in the Supreme Court by a Crown Law Officer against any person who has not been committed for trial for the offence charged in the indictment (the emphasis is mine), the Crown may proceed thereon in the manner prescribed in this Chapter with respect to informations filed by private prosecutors, except that no security shall be required.”

It is somewhat strange that this matter has not been the subject of direct authority but none has been cited to me and, on the references available to me here, it has not been possible to find any authority of assistance in the interpretation of s. 560. I appreciate that the view which I take of the section means that, unless resort were to be had to the procedure of ex officio indictment under s. 561 or unless s. 12 of the Criminal Procedure Ordinance of 1889 could operate, it would not be possible, in the Territory of Papua at all events, to present an indictment for an offence lesser in nature than that for which the accused person has been committed and this might be thought to have inconvenient results. Furthermore, I am informed that the practice is in certain cases to have alternative counts in the indictment in descending order of gravity from the offence for which the accused has been committed for trial. However, an argument of inconvenience cannot prevail in the interpretation of a statute provided that it is unambiguous and its wording clear. Moreover, in this instance I am not called upon to consider that case and I will confine myself to the matter on which I am required to rule, namely, whether an indictment presented under s. 560 containing a count of an offence different from and of a graver nature than the offence on which the accused has been committed, is formally defective. I merely observe in passing that it may well be that it is because the opposite situation, that is where the indictment is for a lesser offence (either solely or as an alternative count) than that for which the accused was committed, would not normally be disadvantageous to the accused—rather the reverse, that the question of a defect in the indictment would not be likely to be raised by defence counsel in such a case.

It was not sought to invoke s. 561 in this case. So far as s. 12 of the Criminal Procedure Ordinance of 1889 is concerned, even if it could be argued that this section was capable of operating alongside s. 560 of the Code and, as it were, to supplement it (which I very much doubt) it would obviously be difficult to give practical effect to that section, in its present form, in Papua.

I should have much preferred to have had the opportunity for proper research on this question before giving a ruling. However, it is necessary that I do rule so that this trial may proceed and accordingly for the reasons which I have given I uphold the contention that the indictment is formally defective, but in the exercise of the power given by s. 596 I order that it be amended by deleting the first count, so that this means that the accused will be indicted for the offence for which he was committed for trial.

Since delivering the above judgment I have had the opportunity of looking further into this matter at Port Moresby. Whilst I am unable to find any reported case which is of assistance in the interpretation of s. 560, there are three Queensland cases in which s. 561 was considered and which I consider provide some guidance in dealing with the situation which, as I see it, exists in the Territory of Papua while s. 12 of the Criminal Procedure Ordinance of 1889 remains in its present form.

In the first of these cases in the Court of Criminal Appeal, R. v. Sutton[ccclxxix]³, Henchman J. said:

“. . . I know of nothing that can prevent the Crown Prosecutor having power to exercise the discretion granted to him under s. 561 of the Criminal Code, second paragraph, which enables him, as the officer appointed by the Governor in Council, to present the indictment in a particular court of criminal jurisdiction against any person for any indictable offence within jurisdiction of the Court, whether the accused person has been committed for trial or not. As far as I can see, that provision is universal in its terms and applies to all indictable offences throughout the Code, and is not in any way limited, as has been suggested, to cases where, without any sort of preliminary inquiry, an accused person may be indicted by a Crown Prosecutor.”

The other two members of the Court (Hart A.J. and Graham A.J.) agreed with Henchman J. as to the effect of s. 561.

In R. v. Durnin[ccclxxx]⁴ where the accused had been acquitted of manslaughter arising out of the driving of a motor vehicle and the Crown Prosecutor thereupon presented an ex officio indictment for negligence causing bodily harm to another passenger in the vehicle, R. J. Douglas J. held that the Crown Prosecutor had power under ss. 561 and 562 of the Code to present such an indictment but intimated that in that case the Crown should not proceed as “otherwise you might have one jury acquitting a man of negligence and another jury convicting him on the same facts”. The Crown Prosecutor then entered a nolle prosequi.

The third case in which s. 561 was considered was Reg. v. Webb[ccclxxxi]⁵ which was also a decision of the Court of Criminal Appeal. After dealing with the history of ex officio indictments, Philp J. said[ccclxxxii]⁶:

“Although s. 561 gives the Crown an uncontrolled power of indictment without prior committal proceedings, in practice the power is used for two purposes. The first use is when a man has been committed for trial for an offence and the depositions disclose evidence of a different offence or of other offences; in such circumstances it is convenient and just that an indictment charging the different or other offences should be presented by the Crown Prosecutor. Due notice of the new charges should be given and if it be not given the judge may adjourn the trial.

“The second use which has become increasingly common is when a man consents to plead guilty to a charge in respect of which no committal proceedings whatever have been taken. To take an example—a man is committed for sentence for breaking and entering a particular house; he consents to plead guilty to breaking and entering other houses and without committal proceedings he is indicted accordingly. . . .”

Matthews J. and Stanley J. agreed with Philp J. and all three members of the Court pointed out the dangers inherent in the second use of the ex officio method referred to by Philp J., but that is not, of course, the type of case which arises here.

“Any references in the Code to Queensland or to persons places or subjects in Queensland shall be taken as references to the Possession or corresponding or analogous persons places or subjects in the Possession.”

The Criminal Procedure Amendment Ordinance of 1909 provides for the appointment of a Crown Prosecutor in whose name crimes and offences cognizable in the central court might be prosecuted by indictment in the form or to the effect set out in The Criminal Code.

In my view s. 561 of the Code is operative in Papua and, by reason of the provisions just referred to, it is possible for a Crown Prosecutor to present an ex officio indictment. Having regard to the views of experienced Queensland judges on the practice under s. 561 in that State I can see no reason why, in appropriate cases, use should not be made of it, particularly in Papua, where the depositions disclose evidence of a different offence or other offences from the offence for which the accused has been committed for trial. Due notice of the new charges should be given, as otherwise an adjournment of the trial may become necessary.

I should add that, with respect, I share the views of the members of the Queensland Court of Criminal Appeal in Reg. v. Webb[ccclxxxiii]⁷ and of members of this Court in Reg. v. Ebulya[ccclxxxiv]⁸, as to the dangers inherent in the use of ex officio indictments in cases where there have not been committal proceedings.

[ccclxxvii][1964] P. & N.G.L.R. 200.

[ccclxxviii]Unreported (Sup. Ct., P. & N.G., 4th September, 1967).

[ccclxxix] [1938] Q.S.R. 285, at p. 287.

[ccclxxx][1945] Q.W.N. 35.

[ccclxxxi][1960] Qd. R. 443.

[ccclxxxii][1960] Qd. R., at pp. 447-448.

[ccclxxxiii][1960] Qd. R. 443.

[ccclxxxiv][1964] P. & N.G.L.R. 200.

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Supreme Court of Papua New Guinea

Evu, Regina v [1969] PGSC 16; [1969-70] PNGLR 274 (10 June 1970)

Papua New Guinea Law Reports - 1969-70