Mugining v The Queen [1975] PGSC 25; [1975] PNGLR 352 (21 November 1975)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 352 - Wari Mugining v The Queen 

[1975] PNGLR 352

SC88

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

WARI MUGINING

V

THE QUEEN

Port Moresby

Raine Williams Saldanha JJ

31 July 1975

1 August 1975

21 November 1975

CRIMINAL LAW - Practice and procedure - Indictments - Joinder of counts - Single accused - Same or closely related facts - Prosecution of single purpose - Misjoinder not rendering trial a nullity - Whether miscarriage of justice - Criminal Code (Queensland adopted), ss. 567[cdlxiii]¹, 568 (1)[cdlxiv]².

CRIMINAL LAW - Appeal against sentence - Cumulative sentence - Whether error in principle - General principles - Unlawfully inflicting grievous bodily harm - Assault with intent to rape - Cumulative sentences appropriate.

The appellant who was charged under four counts with:

N2>(1)      with intent to do grievous bodily harm, unlawfully inflicting grievous bodily harm (s. 317 (1) of the Criminal Code).

N2>(2)      with intent to do grievous bodily harm, unlawfully wounding (s. 317 (1)),

N2>(3)      attempting to commit rape (s. 349), and

N2>(4)      assault with intent to rape (s. 340),

was convicted under s. 320 of the Criminal Code of unlawfully inflicting grievous bodily harm, (no intention to do grievous bodily harm having been proved), acquitted on the third count and convicted on the fourth count: he was sentenced to three years’ imprisonment on the first count and to fourteen months’ imprisonment on the fourth count (the trial judge taking into account four months in custody pending trial), the sentences to be served cumulatively.

The appellant who was a native house servant threatened his female European employer with a knife and a piece of rope whilst inside her house saying “If you do not come into the house and sleep with me I will kill you with the knife”. When the woman then ran from the house and shouted to her neighbours the appellant followed and stabbed her before escaping.

On appeal against conviction and sentence:

Held

N1>(1)      Section 568 (1) of the Criminal Code has no application to the joinder of counts against a single accused: it is aimed at two or more offenders.

Reg. v. Phillips and Lawrence [1967] Qd.R. 237 at pp. 276 and 277 not followed.

N1>(2)      that the four counts could be joined against one single accused under s. 567 of the Criminal Code provided that they arose out of the same or closely related facts and were done in the prosecution of a single purpose.

N1>(3)      (Raine J not deciding) a wrongful joinder of charges in an indictment does not make a trial a nullity unless there is a miscarriage of justice.

Reg. v. Crozier, [1929] Q.W.N. 31; Dearnley v. The King [1947] St.R.Qd. 51 and R. v. Bedington, [1970] Qd.R. 353 followed.

N1>(4)      That the convictions should be upheld: (per Raine J) the counts were properly joined; (per Williams J) whether the joinder was justified or not, no actual miscarriage of justice had occurred; and (per Saldanha J) the joinder was not justified, but there had not been a miscarriage of justice nor had the appellant been prejudiced thereby.

N1>(5)      The sentence should be confirmed; there having been no error in principle in imposing cumulative sentences in the circumstances.

Tremellan v. The Queen [1973] P.N.G.L.R. 116 considered.

Appeal

This was an appeal against conviction and sentence, in respect of charges under s. 320 and s. 340 of the Criminal Code when the appellant had been indicted on four counts under s. 317 (1), s. 317 (1), s. 349 and s. 340 of the Criminal Code. Full facts and circumstances appear in the reasons for judgment of Raine J hereunder.

Counsel

C. F. Wall, for the appellant.

S. G. Cory, for the respondent.

Cur. adv. vult.

21 November 1975

RAINE J: This is an appeal by a native born man employed at Murray Barracks by a European officer and his wife as a house servant since May, 1974, against his convictions, and also against the sentences imposed following those convictions.

On 19th November, 1974 the officer’s wife, Mrs. Henrys, was alone in her house with her children. Her husband was away in Manus. The appellant would have known this. At 9.30 p.m. Mrs. Henrys prepared to go to bed and, noticing the light off in the second bedroom, she turned it on, searched the room, and found the appellant under the bed. She spoke to him, he did not reply. Alarmed, she went to the kitchen and got a bread-knife. The appellant came out. She tried to persuade him to leave. He produced a knife and some nylon rope and said, “If you don’t come back and sleep with me (meaning sex) I’ll cut you with the knife”. She tried to calm him, reminding him he was a churchgoer, but he threatened to kill her. She ran down the back steps, screamed at him “Don’t go near my kids”, (who are aged six and three) and called for help. The appellant ran down after her, there are a number of steps, the house being on stilts. Fortunately the neighbour of Mrs. Henrys heard her call, and asked what was wrong. It seems that by then Mrs. Henrys was down the steps and running across the yard. The appellant stabbed her in the back of the left arm with his small knife, the doctor who gave evidence was shown the knife and said it must have virtually gone into the upper arm up to the hilt, and that considerable force would have been necessary, it went into muscles an inch or two down from the shoulder. There is no permanent injury, just a small scar.

The appellant then struck the woman on the back of the head with the knife, it went into the skin, and she fell, and says she felt the knife again on the head, and also a duller blow.

The appellant, apparently alarmed when he became aware of the neighbour, fled the scene.

The medical evidence shows that there was a serious blood loss. It is possible that Mrs. Henrys could have bled to death if untreated. Of course, as things were, there was no danger of this, and she was taken to hospital, which is nearby. However, had her neighbour not been home and had she been rendered unconscious, who knows? Mrs. Henrys needed one litre of blood the following day, as she had an estimated 20% to 30% blood loss. She suffered shock, a fall in haemoglobin, she also had intravenous fluid administered, and she was in hospital for six days. Nerves in her head were cut, so Mrs. Henrys had a numb sensation in the top of the head. Fortunately it seems the nerves are regrowing, for she is now getting a tingling sensation, which is indicative of regrowth, and a degree of recovery. The blow needed to inflict the head wound required moderate force. This woman underwent a terrifying experience. Fortunately she came out of it very well, both physically and emotionally. But it was fortuitous that this was so. She was lucky.

The appellant told a good many rather imaginative stories, but his Honour the trial judge was obviously unimpressed by all or any of them, and, in any event, as will be seen, no attack is made on the findings, and the convictions, in a factual sense.

The appellant was charged under four counts with:

N2>(1)      That with intent to do grievous bodily harm to Mrs. Henrys he unlawfully inflicted grievous bodily harm (s. 317 (1)).

N2>(2)      That with intent to do grievous bodily harm to Mrs. Henrys he unlawfully wounded her (s. 317 (1)).

N2>(3)      That he attempted to commit rape upon Mrs. Henrys (s. 349).

N2>(4)      That he assaulted Mrs. Henrys with intent to rape her (s. 340).

The learned trial judge was not satisfied that the intention to do grievous bodily harm was made out under the first count, and only convicted the appellant, under s. 320, of unlawfully inflicting grievous bodily harm, the maximum penalty for which is seven years in hard labour. Thus, the second count need not be considered. His Honour acquitted the appellant of attempted rape (third count) but convicted him of the charge contained in the fourth count. The maximum penalty under s. 340 is three years imprisonment with hard labour.

His Honour sentenced the appellant to three years under s. 320 (first count) and to fourteen months under s. 340 (fourth count), and made the sentences cumulative.

The appellant had been in custody awaiting trial for a day or so over four months, so that it could be said that the effective sentence was about four and a half years, and I approach the appeal on this basis. The very real distinctions, in Australia, between remand detainees and convicted prisoners, does not obtain here to any great extent. Thus, as we cannot date a sentence back, we generally treat time served in custody awaiting trial as imprisonment, and deduct it from the overall penalty deemed proper.

I now come to consider the arguments advanced by Mr. Wall of counsel for the appellant.

N1>1.       It is submitted that neither by s. 567 nor by s. 568 (6) was it permissible to join, in the one indictment, the charges grouped in counts 1 and 2, with 3 and 4, nor was it permissible to group either of the charges in counts 1 and 2 with either of those in 3 and 4.

Because, in my respectful view, notwithstanding much authority to the contrary, s. 568 (6) has absolutely nothing to do with this, or any similar case, I will deal with it first.

The sub-section reads:

N2>“568.   ...

(6)      Any number of persons charged with committing different or separate offences arising substantially out of the same facts or out of closely related facts so that a substantial part of the facts is relevant to all the charges may be charged in the same indictment and tried together.” (The underlining is mine.)

I simply cannot conceive that this sub-section envisages a case where one, and one only, offender is involved.

Mr. Cory, who appeared for the Crown, was at pains to submit to the court how useful the section was, in the pack rape situation. I agree, but this comprehends a situation where more than one accused is involved. The words I have underlined make this abundantly clear.

There is no doubt in my mind that the section is aimed at two or more offenders. Surely it cannot be otherwise. How can a single man charged be “tried together”?

The learned trial judge, sitting as a single judge, very naturally, followed the strong line of authority which indicated that the section applied in the case of a single accused. His Honour saw the point very clearly, the words I underlined when I quoted the section were not lost upon him. At p. 25 of the Appeal Book the trial judge said, after quoting the sub-section:

“At first reading this would appear to be directed towards joinder of persons rather than of counts against a single accused. However the view appears to have been established in Queensland that the phrase, ‘any number of persons’ includes the case of a single person. Such a view seems to produce a strained meaning of the phrase ‘may be charged in the same indictment and tried together’ — the last three words perhaps becoming meaningless in the case of a single person being charged. But in any event the construction adopted by the Queensland Court would appear warranted by s. 9 of the Acts Interpretation Act of Papua.”

In my respectful opinion s. 9 of the Acts Interpretation Act cannot be applied to s. 568 (6). In my opinion s. 9 was never designed to deal with a situation like the present one.

In my opinion s. 567[cdlxv]3 is applicable, provided that the facts support its application in a particular case.

Mr. Wall of counsel for the accused submits very strongly that the facts here do not bring the case, as the Crown would suggest, within the section. He submits that the incidents within the house, which clearly indicate that the accused was minded to rape Mrs. Henrys, or make some sort of sexual attack upon her, witness the knife, the length of nylon rope, the words that he directed at her, and his very presence, and the later stabbing incident, are disjunctive. He submits that everything points to the stabbing near the top of the stairs leading down into the yard being no more than a stabbing directed at escape, motivated by fright and a desire to get away, because Mrs. Henrys was calling out to neighbours, and the accused, being her house servant, would have been aware that the names she was calling out were the names of people living close by. I do not think that Mr. Wall advanced this, but I suppose it could also be suggested that the stabbing arose out of anger or frustration when Mrs. Henrys clearly indicated to the accused that she wanted nothing to do with him in a sexual sense. During Mr. Wall’s address I must own to having been attracted by this argument. However, because of pressure of work, I had not, as I usually do, read the Appeal Book closely before coming into court, but had only skimmed through it. I have now read it very closely indeed and I am of opinion that the stabbing can be linked with all that went before, even though a separate and distinct offence, and that the trial judge was perfectly entitled to make the findings that he did, and convict the accused. The accused had no need to use a knife to escape, Mrs. Henrys was not resisting him, she had moved outside and was obviously proceeding on her way down the stairs. The accused was a man, she was a frightened woman. He could have easily pushed her aside or simply run past her. In my view the appeal against conviction must fail.

N1>2.       Should the sentences have been expressed to be served concurrently rather than cumulatively?

As I have already indicated the learned trial judge sentenced the appellant to three years’ imprisonment with hard labour under the first count (s. 320) and to fourteen months under the fourth count (s. 340 (1)) and made the sentences cumulative.

Mr. Wall contends very strongly that his Honour erred in making the sentences cumulative and counsel relies heavily upon the decision of the Full Court in Tremellan v. The Queen[cdlxvi]⁴. Counsel also referred to decisions of other courts. The facts in Tremellan[cdlxvii]⁵ were quite dissimilar to the facts in the present appeal, but Mr. Wall submits that the principles set out in the majority joint judgment of the Full Court apply here. Tremellan pleaded guilty to three counts of larceny as a servant, and to four counts of making false entries in the accounts of his employer with intent thereby to defraud. He also asked that a number of other matters of a similar nature be taken into account and this was done. The result was that the trial judge had before him for consideration, thirteen charges of stealing as a servant, and twenty-five charges of making false entries, and the offences were spread over a period of six months. The employer concerned in the various offences was the same employer throughout and the system was the same. In the joint majority judgment of the court, delivered by Minogue CJ and Frost S.P.J (as he then was) at pp. 119 and 120 this was said:

“It cannot be said that the cases show any clearly discernible principle governing the making of sentences cumulative or concurrent. So much depends upon the facts of each particular case and the way in which the judge approaches the imposition of sentence. However, we feel that generally speaking sentences should be made concurrent where a congeries of offences is committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts. This was the view taken by Hart J in Reg. v. Phillips and Lawrence ([1967] Qd.R. 237 at p. 289). At the same time that learned Judge thought it neither desirable nor possible to lay down any all-embracing rule as to when sentences for two or more convictions should be made concurrent. Similarly, in Reg. v. Melville ((1956) 73 W.N. (N.S.W.) 579) the New South Wales Court of Appeal thought that two offences were both so connected that they could be regarded as part of the one incident and so merited the sentences being made concurrent. In this case, however, in effect there were thirteen separate offences of stealing spread over six months with twenty-five associated offences of falsification necessary to make the stealing possible. It could not be said that an over-all sentence of 12 months for the stealing offences was excessive whether such a sentence was imposed by way of a number of concurrent terms or by the addition of cumulative terms amounting in all to 12 months or thereabouts. The stealing was a calculated process albeit a not very clever one as it was bound to be detected on audit. On the other hand it was a process apparently borne of desperation and not done simply for the purpose of making easy money or to indulge in highliving or expensive tastes. Had the falsifications been made not for the purpose of stealing but for some other unlawful purpose it might also be said that an over-all sentence of 12 months on those counts was beyond criticism. But in our view in this case each act of stealing and its attendant falsification or falsifications were so connected that they should be regarded as part of the one incident.”

With great respect, I would not wish to contest the broad principle laid down by their Honours in relation to offences like those committed by Tremellan. In that class of case the moment that the first step has been taken one almost invariably finds a second step and then a third step is taken subsequently, and one sees the same sort of thing when a solicitor, at a time of financial crisis, weakly takes money out of his trust account. In many such cases I think that it is proper to regard all the offences together, and I think that it is better in those cases to impose concurrent sentences, but, of course, the penalty is harsher than would have been the case had the offender broken the law on one occasion only.

But is Tremellan’s case[cdlxviii]⁶ applicable in a case like this? I do not believe that there was any error made by the learned trial judge here. Although I have already expressed the view that the stabbing was one of “a series of acts done ... in the prosecution of a single purpose”, nevertheless I feel that the facts separating the convictions under the first and fourth counts are distinct. I can conceive cases where the view I took would be different.

I appreciate what the majority of the Full Court said in Tremellan’s case[cdlxix]⁷ about the judgment of Hart J in R. v. Phillips and Lawrence [cdlxx]⁸. It seems to me that Hart J was speaking in very general terms. At p. 267 Hanger J said, “I think, too, that the sentences for indecent assault, although they were clearly separate and distinct offences, should, in the circumstances, be served concurrently with the other sentence; to make any of the sentences cumulative would, in my opinion, bring them within the authority of this court as being manifestly excessive”. Thus, it seems to me, that Hanger J was not seeking to lay down any principle of law, but merely discussing the question of cumulative sentences in the light of the facts of the particular case, and his Honour felt that the totality of the cumulative sentences resulted in an overall period of imprisonment that was excessive. Mack CJ, on the other hand, was not opposed to the cumulative sentences awarded by the trial judge, either as a matter of law, or as being too severe, and Hart J agreed with the Chief Justice.

In my opinion his Honour did not err in imposing these cumulative sentences. I would dismiss this appeal.

WILLIAMS J: The facts surrounding this matter are set out in the judgments of Raine and Saldanha JJ, which I have had the advantage of reading in draft form.

The first ground of appeal is that the charges of unlawfully doing grievous bodily harm and assault with intent to rape should not have been joined in the one indictment, but that the Crown should have been required by the learned trial judge to elect on which of the charges it would proceed.

For the joinder to be justified it must be justified under either s. 567 or s. 568 (6) of the Code and a very careful argument was addressed to the court by counsel for the appellant that the joinder was justified by neither section.

Upon a consideration of the matter I do not think it is necessary to embark upon a detailed examination of the difficult questions of law raised on the question of joinder. I say this because I have reached the clear view that, whether joinder was justified or not, in the result no actual miscarriage of justice occurred. Thus it seems to me the question concerning joinder becomes academic. I might add in passing that I am in general agreement with the views reached by Raine and Saldanha JJ that s. 568 (6) has no application to this case. There is Queensland authority which suggests to the contrary but, with all respect to the views expressed therein, the literal words of the section are such that I have difficulty in applying them to a case in which a single accused is charged with an offence. It seems to me that the section was designed to permit joinder in cases where there are multiple accused.

It was contended by counsel for the appellant that if the joinder of the charges were not justified then a resulting trial was a nullity. In this respect I am content to follow the Queensland decisions which are concerned with joinder of charges under the Criminal Code, namely, R. v. Crozier [cdlxxi]⁹, Dearnley v. The King [cdlxxii]¹⁰, the decision of Hart J in Reg. v. Phillips and Lawrence[cdlxxiii]¹¹ and R. v. Bedington [cdlxxiv]¹². These authorities indicate that a wrongful joinder of charges against one accused in an indictment amounts to an irregularity and is not a ground for setting aside a conviction unless there has been a miscarriage of justice.

The incidents giving rise to these charges occurred over a very short period of time, and it seems to me patent that had separate trials been had then evidence relating to all of the incidents would properly and necessarily have been led on each charge in order to put the matter in its proper perspective. I am quite unable to see, particularly in a proceeding conducted by a judge and not a judge sitting with a jury, how any prejudice was occasioned to the appellant, and on this ground I would dismiss the appeal against conviction.

The second ground of appeal related to sentence and in this respect it was contended that the learned trial judge erred in ordering that the sentences be served cumulatively. Reliance was placed on the majority decision of the Full Court in Tremellan v. The Queen [cdlxxv]¹³. I do not understand the majority decision in that court to lay down any inflexible rule. Thomas on The Principles of Sentencing states at p. 50, “The fact that two offences occur close together in time does not necessarily mean that they will be treated as part of one incident if they are essentially different in character and involve different subject matter.” It seems to me that whether or not sentences should be made cumulative must depend upon the circumstances of each particular case, and that there is no hard and fast inflexible rule in relation to the matter. In the circumstances of this case I do not see that the learned trial judge erred in principle in ordering the sentences to be cumulative.

The sentences imposed involve an effective deprivation of liberty for four and a half years. It cannot be doubted that the case was a very serious one, involving a premeditated invasion of the complainant’s home with intent to commit a most serious crime in circumstances where the appellant was aware that her husband was absent from Port Moresby. I see no proper ground for disturbing the sentences imposed and would dismiss the appeal against sentence also.

SALDANHA J: This is an appeal against conviction without leave and against sentence with leave. I would give leave to appeal against sentence.

The appellant, Wari Mugining, was indicted on four counts. The first count alleged that he did grievous bodily harm to the complainant, one Judith Ann Henrys, with intent to do such harm. This was alternative to the second count which alleged that he unlawfully wounded the complainant with intent to do her grievous bodily harm. The third count alleged that he attempted to commit rape upon the complainant and was alternative to the fourth count which alleged that he assaulted the complainant with intent to rape her.

The facts which emerge from the evidence, and, which are not now in dispute, are briefly as follows. The complainant and her husband, who was an Army captain, lived in the Army barracks at Taurama. They employed the appellant as a houseboy. On the day of the incident the complainant was alone in the house. Before going to bed a little after 9.30 p.m. she found the appellant concealed under a bed in the spare room. She armed herself with a bread-knife from the kitchen, opened the back door and asked the appellant to leave. The appellant refused. He said he wanted to sleep with her. He produced a knife and a piece of rope. The complainant told the appellant that she was a married woman and could not accede to his request. But the appellant threatened her. He said: “If you do not come into the house and sleep with me I will kill you with the knife.”

She saw the appellant make a move as if to go further into the house, and, fearing for the safety of her children, who were asleep, she stepped outside and shouted to her neighbours, Janet and Chris Peacock. The appellant stabbed her in the arm and the back of the head, and, after she fell down struck her another three blows at the back of the head. He then escaped.

The complainant was taken to Port Moresby Hospital where she was given first aid and later removed to Taurama Hospital from which she was discharged after six days.

The learned trial judge found the appellant guilty on count one of the offence of unlawfully doing grievous bodily harm but without the intent, and, on count four of the offence of assault with intent to rape. He sentenced the appellant to three years’ imprisonment on count one and fourteen months’ imprisonment on count four, cumulative. The appellant had been four months in custody, thus making the effective sentence one of four years and six months.

At the trial counsel for the appellant objected to the joinder of the charges in counts one and two with the charges on counts three and four on the ground that such joinder was not permitted by either s. 567 or s. 568 (6), these being the two sections upon which the Crown was relying. Alternatively, relying upon s. 567 and s. 596 he alleged that the joinder was likely to prejudice the appellant in the conduct of his defence. He asked that the two sets of charges be severed and tried separately. His Honour the trial judge ruled against the appellant and the trial proceeded on the indictment as presented by the Crown. Counsel for the appellant now contends that the convictions ought to be quashed on the ground that the misjoinder rendered the proceedings a nullity.

His Honour the trial judge adopted the view established in Queensland that the words “any number of persons” in s. 568 (6) include the case of a single person and found support for this view in s. 9 of the Acts Interpretation Act of Papua which provides that words in the plural include the singular. He held that joinder of the charges was justified under s. 568 (6) and cited the following passage of Mack CJ in Reg. v. Phillips and Lawrence [cdlxxvi]¹⁴:

“It seems to me that s. 568 (6) supplies its own tests and has the effect of enlarging the number of offences which may be joined against one individual just as the other sub-sections of s. 568 enlarge the scope of s. 567. One looks at s. 568 (6) not only to ascertain how many persons may be joined in the same indictment but also to ascertain the scope of the charges.”

He also cited the following passage of Hart J in the same case at pp. 276 and 277:

“I think the answer to this argument is that the words of s. 568 (6) are in themselves wide enough to cover the joining of offences against the same person which could not be joined under s. 567.”

“The whole of s. 568 is directed towards extending the provisions of s. 567 and some of its provisions are directed towards extending the charges that can be joined against the same individual in the same indictment.”

It seems to me that to construe s. 568 (6) in this way is to strain the plain meaning of the language used. Where a single person is charged the words “and tried together” become meaningless. I prefer the view adopted by Hanger J, in the same case when he held that while the charging of the prisoners in the same indictment was justified by s. 568 (6) the joinder of the charges against each was justified by s. 567. He said at p. 256:

“I think, therefore, that if the indictment is considered only in reference to charges against one individual, the charges against each of the accused could be justified by s. 567.”

“In my opinion the joinder of the accused was justified by s. 568 (6).”

With respect to his Honour the trial judge I am of the opinion that in the instant case the joinder of the charges could not be justified under s. 568 (6).

In order to be justified under s. 567 the distinct indictable offences must 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. The allegation that the appellant did grievous harm was based upon the appellant’s stabbing the prosecutrix with a knife. The allegation that the appellant attempted to commit rape, or alternatively, assaulted her with intent to commit rape was based upon the appellant’s approaching the prosecutrix with a knife and rope and threatening to kill her if she did not permit sexual intercourse. In my view although closely related in time and space these are two separate and distinct acts, and, therefore, it cannot be said that the two sets of offences were constituted by the same acts.

Were these acts done in the prosecution of a single purpose? It is clear that the appellant’s main purpose was rape upon the complainant. But when the appellant stabbed the complainant did he still have rape in mind? It would not be surprising if in arming himself with a knife the appellant had intended killing the complainant after raping her. How else could he have concealed his identity whether or not he had succeeded in the rape? His Honour mercifully found that the appellant had formed neither the intent to kill nor the intent to cause grievous harm but an intent to do bodily harm less than harm of a grievous nature. But by this time the complainant was outside the house and she had roused the neighbours. The appellant must have realized that the game was up. At this stage whatever the intent and whatever other purpose he may have had in mind it was not the commission of rape. I find therefore that the two acts although closely related in time and space were not done in the prosecution of a single purpose, and, therefore, the offences in respect of those acts could not properly have been joined in one indictment.

At common law questions of joinder whether of offences or offenders are matters of practice and in Reg. v. Phillips and Lawrence[cdlxxvii]¹⁵ Hart J held that joinder under s. 567 or s. 568 (6) were also matters of practice, that a misjoinder did not result in a nullity but was a mere irregularity and that a conviction based on an indictment in which there had been a misjoinder should not be set aside unless there had been a miscarriage of justice.

Hanger J makes a similar observation at p. 257. He says:

“I may add that there appears to be no clear authority that a wrongful joinder of charges in an indictment makes a trial a nullity.”

R. v. Crozier [cdlxxviii]¹⁶, Dearnley v. The King [cdlxxix]¹⁷, R. v. Bedington[cdlxxx]¹⁸ are all authorities for the proposition that a misjoinder does not result in a nullity.

Had there been separate trials the whole of the evidence adduced in the instant case would have been relevant and would inevitably have been led at each separate trial. I find that the misjoinder has occasioned no miscarriage of justice. For the same reason I cannot see how it can be said that the appellant was prejudiced by the joinder particularly when he was being tried by the learned Senior Puisne Judge, a judge of wide experience who was sitting without a jury.

I would dismiss the appeal against conviction.

It is contended on behalf of the appellant that the sentences should not have been consecutive, on the ground that the two offences were part of the one incident, transaction or episode; alternatively, that they are excessive. Thomas on Principles of Sentencing states at p. 50:

“The fact that two offences occur close together in time does not necessarily mean that they will be treated as part of one incident, if they are essentially different in character and involve different subject matter.”

In my opinion the two offences although closely related were separate and distinct and arose out of two different acts. The imposition of consecutive sentences was proper, the sentences imposed by his Honour the trial judge were richly deserved and the appeal against sentence is also dismissed.

Appeal dismissed.

Solicitor for the appellant: N. H. Pratt, Acting Public Solicitor.

Solicitor for the respondent: B. W. Kidu, Crown Solicitor.

R>

[cdlxiii]Infra p. 356 footnote.

[cdlxiv]Infra p. 355.

[cdlxv]Section 567 reads:— Indictment to contain one matter of charge only. —

N1>Except as hereinafter stated, an indictment must charge one offence only, and not two or more offences:

N1>Provided that when several distinct indictable offences 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, charges of such distinct offences may be joined in the same indictment against the same person.

N1>In any such case the several statements of the offences may be made in the same form as in other cases, without any allegation of connection between the offences.

N1>But, if in any such case it appears to the Court that the accused person is likely to be prejudiced by such joinder, the Court may require the prosecutor to elect upon which of the several charges he will proceed, or may direct that the trial of the accused person upon each or any of the charges shall be had separately.

N1>This section does not authorize the joinder of a charge of wilful murder, murder, or manslaughter, with a charge of any other offence.”

[cdlxvi][1973] P.N.G.L.R. 116.

[cdlxvii][1973] P.N.G.L.R. 116.

[cdlxviii][1973] P.N.G.L.R. 116.

[cdlxix][1973] P.N.G.L.R. 116.

[cdlxx][1967] Qd.R. 237.

[cdlxxi][1929] Q.W.N. 31.

[cdlxxii][1947] St.R.Qd. 51.

[cdlxxiii] [1967] Qd.R. 237, at p. 278.

[cdlxxiv] [1970] Qd.R. 353, at p. 357.

[cdlxxv][1973] P.N.G.L.R. 116.

[cdlxxvi] [1967] Qd.R. 237, at p. 246.

[cdlxxvii] [1967] Qd.R. 237, at p. 277.

[cdlxxviii][1929] Q.W.N. 31.

[cdlxxix][1947] St.R.Qd. 51.

[cdlxxx] [1970] Qd.R. 353.