Kara v The State [1984] PGSC 5; [1984] PNGLR 254 (28 September 1984)

Papua New Guinea Law Reports - 1984

[1984] PNGLR 254 - Simili Kara v The State 

[1984] PNGLR 254

SC278

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SIMILI KARA

V

THE STATE

Waigani

Kidu CJ Bredmeyer Amet JJ

28 September 1984

CRIMINAL LAW - Practice and procedure - Trial - Commencement of - Arraignment - Indictment containing several counts - Accused called upon to plead to charge not contained in indictment - Trial null and void - Criminal Code (Ch. No. 262), s. 557 - Constitution, s. 37.

CRIMINAL LAW - Practice and procedure - Indictments - Amendment of - Generally not to be amended after close of defence case - Not to be amended on appeal - Criminal Code (Ch. No. 262), s. 535.

The Criminal Code (Ch. No. 262), s. 557, provides:

N2>“(1)    At the time appointed for the trial of an accused person he shall be informed in open court of the offence with which he is charged, as set out in the indictment, and shall be called on to plead to the indictment, and to say whether he is guilty or not guilty of the charge.

N2>(2)      The trial begins when the accused person is called on in accordance with Subsection (1).”

The Criminal Code, s. 535, permits amendment of an indictment where there appears to be a variance between the indictment and the evidence or words have been either inserted or omitted which ought not to have been.

Held

N1>(1)      (Bredmeyer J. not deciding) Arraignment in a criminal trial consists of:

N2>(a)      calling the accused to the bar by name;

N2>(b)      reading the statement and particulars of the offence to him; and

N2>(c)      asking him whether he is guilty or not guilty.

N1>(2)      (Bredmeyer J. not deciding) Section 557 of the Criminal Code being a law which protects a person charged with an offence must, in accordance with s. 37 of the Constitution, be complied with strictly by the National Court.

N1>(3)      (Bredmeyer J. not deciding) Where an indictment contains several counts each count should be put to the accused separately and he should be asked to plead to each count as it is read to him.

R. v. Boyle [1954] 2 Q.B. 292; [1954] 2 All E.R. 721, followed.

N1>(4)      (Bredmeyer J. dissenting) Where an accused person is called upon to plead to a charge which is not contained in the indictment, there is a defect in the arraignment such that the trial does not legally commence under s. 557(2) of the Criminal Code, and any proceedings thereafter are null and void.

(Per Bredmeyer J. dissenting) Where an accused is called upon to plead to a charge which is not contained in the indictment the oral arraignment should prevail.

N1>(5)      As a general rule an indictment should not be amended after counsel for the defence has addressed the jury and (Bredmeyer J. not deciding) should not be amended on appeal.

R. v. Rymes [1853] EngR 330; (1853) 175 E.R. 573 at 574, followed

Cases Cited

R. v. Boyle [1954] 2 Q.B. 292; 2 All E.R. 721.

R. v. Dawson [1960] 1 All E.R. 558; (1960) 44 Cr. App. R. 87.

R. v. James Ellis (1973) 57 Cr. App. R. 571.

R. v. McVitie [1960] 2 Q.B. 483; (1960) 44 Cr. App. R. 201.

R. v. Rymes [1853] EngR 330; [1853] 175 E.R. 573; 3 Car. & Kir. 326.

R. v. Thompson [1913] UKLawRpKQB 236; [1914] 2 K.B. 99; (1914) 9 Cr. App. R. 252.

R. v. Williams [1978] Q.B. 373; [1977] 1 All E.R. 874.

Appeal

This was an appeal against conviction for an offence of robbery.

Counsel

N. Kirriwom, for the appellant.

L. Gavara-Nanu, for the respondent.

Cur. adv. vult.

28 September 1984

KIDU CJ: The appellant was convicted of the following charges:

“First Count

Ten Tore, Simili Kara and Neat Kara of Kemsa charged that they the said, Ten Tore, the said Simili Kara and the said, Neat Kara on the 8 October 1982 in Papua New Guinea stole from David John Reddiff and Linda Reddiff with actual violence a camera, a watch, a radio and foreign currencies.

And an assortment of clothes a cat and K56 in cash the property of the said David John Reddiff and Linda Reddiff.

Second Count

And that at the time afore said the said Ten Tore, the said Simili Kara and the said Neat Kara were armed with offensive weapons namely a bushknife and an axe.”

It is clear from the notice of appeal that the appellant appealed against his conviction for the second count and both sentences for the two counts (six and eight years respectively) but when the matter came on for hearing on 25 July 1984 counsel for the accused pursued the appeal against the conviction for the second count only.

It was conceded by counsel for the respondent that the second count was wrong in law and should be quashed. It is without a scintilla of doubt that the second count in the indictment had no legal basis. Section 386 of the Criminal Code (Ch. No. 262) provided at the time of the alleged offence as follows:

N2>“(1)    A person who commits robbery is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

N2>(2)      If a person charged with an offence against Subsection (1):

(a)      is armed with a dangerous or offensive weapon or instrument; or

(b)      is in company with one or more other persons; or

(c)      at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

he is liable, subject to Section 19, to imprisonment for life.”

There is no doubt that matters included in s. 386(2) are circumstances of aggravation to the crime of robbery, and do not by themselves constitute offences. But any of them, if included in a charge of robbery, attracts the higher maximum penalty of life imprisonment. However, I do not say any more than that as in my opinion the appellant never had a legal trial. This arises from the fact that the learned trial judge had arraigned the appellant as follows:

“You are charged that you with two other people on 8 October 1982 in the night went into the house of David and Linda Reddiff here in Mendi and you were armed with a weapon and you threatened to hurt David and Linda Reddiff if they called out or made any noise and you and others stole some money, some clothing, a camera, a watch and a radio belonging to those people.”

Mr Lupulrea, for the appellant, submitted that as the trial judge had arraigned the appellant on a charge not contained in the indictment contrary to s. 557(1) of the Criminal Code there had not in fact been a trial and the court should quash the convictions and remit the case to the National Court for trial according to law.

Counsel for the respondent was of the view that the arraignment reinforced his submission that the appellant had been tried and convicted on a charge of aggravated robbery (that is robbery whilst armed with an offensive weapon), and that this Court should amend the indictment by deleting the words “First Count” and “Second Count” and thus leaving the one count of robbery while armed with an offensive weapon.

I will deal with this submission first. There is, of course, absolutely nothing wrong with the first count and the conviction for it has not been challenged.

The application for leave to amend the indictment was made under s. 27 of the Supreme Court Act (Ch. No. 37). This provision is in the following terms:

N2>“27     Powers of Supreme Court in special cases.

(1)      If it appears to the Supreme Court that an appellant, though not properly convicted on some charge, or on some count or part of the charge, has been properly convicted on some other charge, or on some other count or part of the charge, the court may:

(a)      affirm the sentence passed on the appellant; or

(b)      pass such sentence in substitution for it as it thinks proper and is warranted in law by the verdict on the charge or on the count or part of the charge, on which the Court considers that the appellant has been properly convicted.

(2)      Where an appellant has been convicted of an offence and he could on the charge have been found guilty of some other offence, and the Supreme Court is satisfied as to facts that proved him guilty of the other offence, instead of allowing or dismissing the appeal the court may:

(a)      substitute for the verdict a verdict of guilty of the other offence; and

(b)      pass such sentence in substitution for the sentence passed at the trial as is proper and as is warranted in law for that other offence, not being a sentence of greater severity.

(3)      If on appeal it appears to the Supreme Court that although the appellant committed the act or made the omission charged against him he was not of sound mind at the time when the act or omission alleged to constitute the offence occurred, so as not to be responsible for it according to law, the Court may:

(a)      quash the judgment given at the trial; and

(b)      order the appellant to be kept in strict custody in the same manner as if that fact had been found under Section 592 of the Criminal Code.”

My view is that s. 27 does not invest this Court with the power to amend an indictment. Obviously counsel for the respondent had not read s. 27 properly when he made his application. If there is power to amend an indictment by the Supreme Court then it is my view that such a power is conferred by s. 6(2) of the Supreme Court Act (Ch. No. 37):

“For the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a judge exercising the jurisdiction of the National Court.”

Under s. 535 of the Criminal Code a National Court judge has the power to allow an indictment to be amended:

N2>“535.   Amendment of indictments

(1)      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:

N5>(i)       any words that ought to have been inserted in the indictment have been omitted; or

N5>(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.

(2)      When an indictment has been amended, the trial shall proceed at the appointed time, on the amended indictment, and the same consequences ensue in all respects and as to all persons as if the indictment had been originally in its amended form.

(3)      If it becomes necessary to draw up a formal record in any case in which an amendment to an indictment has been made, the record shall be drawn up setting out the indictment as amended, and without taking any notice of the fact of the amendment having been made.”

The question then is whether the Supreme Court should allow any amendment to an indictment on appeal?

Counsel did not refer to any authorities on this point. It is my view that the principle to be applied was enunciated by Vaughan Williams J. in R. v Rymes [1853] EngR 330; (1853) 175 E.R. 573 at 574:

“I shall not consider whether the indictment, if amended, would be bad or not, as I shall lay down as a general rule, that I will not allow an indictment to be amended after the counsel for the defence has addressed the jury. The proper course is that when the counsel for the prosecution has given all the evidence that he means to give he should, if he wishes for an amendment, ask for it before he closes his case, and then, if the amendment is allowed, the counsel for the prisoner addresses the jury on the indictment as it is amended.”

The reasons for the rule are obvious. For instance, after the final address by counsel for an accused person an amendment to the indictment which results in a completely new charge being substituted would be unjust to the accused for the following reasons:

N2>(a)      If an accused person is convicted on this new charge he or she would be convicted on a charge to which he was not asked to plead as required by s. 557(1) of the Code.

N2>(b)      If he or she did not plead to the new charge then the trial would be deemed not to have commenced because s. 557(2) of the Code states that a criminal trial commences when an accused person is asked to plead to the charge in the indictment.

N2>(c)      Section 37(4)(a) of the Constitution provides that a person charged with an offence “shall be presumed innocent until proved guilty according to law ...” A person convicted of a new charge in the indictment would be so convicted contrary to this constitutional guarantee.

N2>(d)      Section 37(4)(b) would have been ignored. It says that a person charged “shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged”.

N2>(e)      He or she would have been convicted without being given “adequate time and facilities for the preparation of his defence”, contrary to s. 37(4)(c) of the Constitution.

I mention only some of the irregularities and injustices that would occur if an amendment is made to an indictment after the close of the defence case (and in the Supreme Court on appeal) if the amendment results in a completely new offence being charged.

If the appeal were to be decided on this point I would have no hesitation in ruling that for reasons I have outlined the application for amendment of the indictment be rejected, the second count be quashed and the conviction and sentence thereof set aside. But I am of the opinion that the appeal be allowed for another reason.

The trial judge had arraigned the appellant on a charge not set out in the indictment. The words used by the learned judge quite clearly show that he had arraigned the appellant on a charge of robbery whilst armed with an offensive weapon. As I have already pointed out the only proper charge in the indictment was robbery (that is the first count).

Section 557 of the Criminal Code which is headed “Accused person to be called on to plead to indictment” provides as follows:

N2>“(1)    At the time appointed for the trial of an accused person, he shall be informed in open court of the offence with which he is charged, as set out in the indictment, and shall be called on to plead to the indictment, and to say whether he is guilty or not guilty of the charge.

N2>(2)      The trial begins when the accused person is called on in accordance with Subsection (1).”

The trial judge’s notes state:

“Wednesday 15 June, presented — charging robbery and robbery whilst armed with an offensive weapon.

Accused pleaded not guilty.”

So the appellant was in fact “called on to plead to the indictment” but the charge put to him was not in the indictment and s. 557(1) is quite clear, an accused person must “... say whether he is guilty or not guilty of the charge”. It is equally clear that because of this defect in the arraignment the appellant’s trial did not legally commence and s. 557(2) quite explicitly says that a “trial begins when an accused person is called upon in accordance with Subsection (1).” As there was no trial the convictions and sentences of the appellant were null and void ab initio. Grave injustice was done to the appellant in that he was convicted and sentenced during a trial which was not legally sanctioned.

Section 37 of the Constitution gives to those charged with offences the full protection of the law. Section 37 says inter alia, as follows:

N2>“(1)    Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

...

N2>(4)      A person charged with an offence:

(a)      shall be presumed innocent until proved guilty according to law ...”

Section 557 of the Criminal Code protects a person charged from being tried without being informed of the charge against him. It also protects him from being tried without being asked to plead to the charge in the indictment. So s. 557 being a law which protects a person charged with an offence must be strictly complied with by the National Court. Also a trial must be conducted according to law. The non-compliance with s. 557 in this case means that the trial was not in accordance with the law.

For the reasons I have advanced I would allow the appeal and quash the convictions and sentences of the National Court.

As there was no legal trial held I would remit the case to the National Court for a proper trial according to law.

BREDMEYER J: In this matter I have the misfortune of differing from the learned Chief Justice and my learned brother Amet J. The appellant was indicted as follows:

“First Count

Ten Tore, Simili Kara and Neat Kara of Kemsa charged that they the said, Ten Tore, the said Simili Kara and the said, Neat Kara on 8 October 1982 in Papua New Guinea stole from David John Reddiff and Linda Reddiff with actual violence a camera, a watch, a radio and foreign currencies.

And an assortment of clothes a cat and K56 in cash the property of the said David John Reddiff and Linda Reddiff.

Second Count

And that at the time aforesaid the said Ten Tore, the said Simili Kara and the said Neat Kara were armed with offensive weapons namely a bushknife and an axe.

Dated this 14 June 1983.

Gibbs Salika State Prosecutor.”

He was tried alone; his two co-accused were tried later by another judge. After receiving the indictment the learned trial judge was given a brief oral summary of the facts and he orally arraigned the appellant in these words:

“You are charged that you with two other people on 8 October 1982 in the night went into the house of David and Linda Reddiff here in Mendi and you were armed with a weapon and you threatened to hurt David and Linda Reddiff if they called out or made any noise and you and others stole some money, some clothing, a camera, a watch and a radio belonging to those people.”

The appellant pleaded not guilty. I note that he was arraigned on one charge only and only one plea was taken. I note two typing errors in it — the word “are” is omitted from the first line and the victims were a Mr and Mrs Redcliffe.

During the course of the trial David Redcliffe and his wife gave evidence that one of the robbers was armed with an axe and that another was armed with a bushknife and that the one with the axe threatened to kill Mrs Redcliffe. The trial judge was able to infer from a number of matters which I need not mention here that the masked robber was the appellant. The appellant’s counsel cross-examined Mr and Mrs Redcliffe briefly but not on the weapons. A record of interview was tendered in which the appellant said he did not go to the house but was home in his village playing darts and drinking beer at that time.

The learned trial judge commenced his reasons for decision with these words:

“The accused Simili Kara is charged on two counts one of robbery and one of robbery with circumstances of aggravation against David John and Linda Redcliffe on 8 October 1982.

It is alleged that on the night of 8 October the accused and two others entered the residence of the Redcliffe’s and with threats of violence stole a camera, a watch a radio, clothes, a cat and cash. It is also alleged that two of the intruders were armed, one with an axe and one with a bushknife. One of the three intruders was masked with a T shirt over his head. It is alleged that the accused Simili Kara was the masked intruder.”

He then went on to discuss other matters and his words of conviction contained in the final paragraph of his reasons were as follows:

“I find you Simili Kara guilty of stealing from David John Redcliffe with threats of violence various items of personal property and some money and further I find you Simili Kara was armed with an offensive weapon namely, an axe during the robbery in question.”

If I can ignore for the moment what the indictment said it is clear that the trial judge arraigned the accused on one charge only, aggravated robbery, and that he convicted the appellant of two charges, robbery and aggravated robbery. I consider it is a misleading oversimplification to say that the trial judge convicted the appellant “of the second count”. We must give full weight to the words used by the judge when announcing his decision.

Consistent with those convictions the trial judge sentenced for robbery and aggravated robbery.

His remarks on sentence begin:

“On Sentence

Robbery with the use of threats and weapons is one of the most serious of crimes as the victims are put in a very real situation not just of fear but of terror. And you burst into a private house to do this. People must be able to feel safe in their own home.

You have a long record of offences against the law. You do not seem to be able to fit properly and behave in the community. Your family and you yourself should have tried to stop you before your trouble became too serious. However you have now committed one of the most serious of crimes there are, the robbery of people in their own house and you further wielded an axe and threatened to kill them and thereby put them in real fear and terror.”

After discussing other matters he announced his sentence as follows:

“For the count of robbery I sentence you to six years imprisonment with hard labour and for the count of robbery whilst armed with a dangerous weapon I sentence you to eight years imprisonment with hard labour.”

Again I think it a misleading oversimplification to say that the trial judge sentenced on the second count which is an offence unknown to the law. From the words used I consider it is clear that he sentenced for two offences — robbery six years and aggravated robbery eight years — both of which are offences defined in the Criminal Code s. 386. Only one warrant of commitment issued. It recites that the appellant was found guilty that “he with others on 8 October 1982 stole from David John Redcliffe and Linda Redcliffe with threats of violence personal property and cash and further at the time he was armed with an offensive weapon contrary to s. 386 of the Criminal Code, and it was for six years and eight years to be served concurrently.”

The indictment can be interpreted in one of three ways:

N2>(1)      If the words in the margin “first count” and “second count” are ignored it is in the correct form for aggravated robbery. It follows the form set out in the Criminal Practice Rules 1900 of Queensland (form 243) printed in Carter, Criminal Law of Queensland (4th ed. 1974), at 763. These forms are widely followed in Papua New Guinea.

N2>(2)      If the words I have emphasised in the last three lines “And that at the time aforesaid the said ... were armed with offensive weapons namely a bushknife and an axe,” are interpreted as meaning at the time the three accused stole with actual violence from Mr and Mrs Redcliffe the items of property listed, then the indictment contains two charges: robbery (the first nine lines) and aggravated robbery (the first twelve lines). The words underlined incorporate the first nine lines into the second count.

N2>(3)      The first nine lines, “the first count” describe the charge of robbery and the last three lines, “the second count” describe an offence of offensive weapons which is not an indictable offence and hence cannot be pleaded in an indictment.

I consider that the third interpretation is a strained one and is not tenable. It requires reading the words “at the time aforesaid” as “on the date aforesaid”. It places undue attention on the words in the margin “First Count” and “Second Count”. Those words are rather like the marginal note or headnote to the section of a statute which does not form part of the provision: Interpretation Act (Ch. No. 2), s. 26. Or they are rather like a section quoted at the foot of a summary information for example “contrary to s. 20 Summary Offences Act”. If there is any divergence between the wording of the charge and the section number, the wording prevails. After all, the defendant pleads to the words of a charge put to him and not to a section number. Whether the words of the charge amount to an offence under s. 20 or s. 21 is a question of law for the court: the defendant pleads guilty or not guilty to the elements of a charge as expressed in words spoken to him.

In resolving this appeal it is important to look at the conviction or convictions. The appellant is appealing against a conviction, not against an indictment. To examine the conviction we must look at the words used by the trial judge in formally announcing his decision. A judge is not like a jury which returns a verdict of “Guilty”, or “Guilty to the first count, not guilty to the second count”. A trial judge announces a decision and the words he uses to announce that decision are important. It can be in this form: “I find you guilty as charged”, or “I find you guilty of the first count” which in either case is a clear reference to the words of the indictment. Or he can say, as he did in this case, “I find you guilty of stealing from ... with threats of violence ...”. If he announces his decision on guilt in that form then that is the decision for the purposes of appeal. I have quoted the trial judge’s decision in this case. The words he used were an accurate description of robbery and armed robbery and it cannot be said that he was convicted of an offence unknown as an indictable offence, namely of being in possession of offensive weapons.

If the appellant was convicted, as I think he clearly was, of aggravated robbery (as well as robbery) I next have to deal with the appellant’s argument that the conviction should be set aside because he was not indicted on that charge. I consider that he was indicted for aggravated robbery and that the first or second interpretations mentioned above are to be preferred to the third. Before the arraignment there was no application to quash the indictment because it was bad in law, and the appellant was orally arraigned on aggravated robbery. An accused should by virtue of s. 557 be arraigned on the charge as set out in the indictment but it sometimes happens that he is not and in that circumstance the oral arraignment should prevail. It sometimes happens for example that the indictment is for murder but the prosecutor asks the judge to arraign the accused on manslaughter. If this is done without amending the indictment then the trial starts on the charge of manslaughter and the accused can only be convicted of manslaughter. The appellant in this case was informed in open court that the charge was aggravated robbery and pleaded not guilty to it. On the correct interpretation of the indictment, either the first or second interpretation mentioned above, aggravated robbery was the charge, or one of the two charges, in the indictment.

The arraignment for aggravated robbery reduced or eliminated the possibility of the appellant or his trial counsel thinking that robbery with arms (that is aggravated robbery) was not alleged. No evidence has been placed before us that the appellant or his trial counsel thought they were not facing a charge of aggravated robbery. It is true that defence counsel did not cross-examine the prosecution witnesses on the arms but as the defence was one of alibi that was not necessary. If at any time during the trial the prosecutor had sought to amend the indictment by the deletion of the words, “first count” and “second count” in the margin I consider that the amendment should have been granted under s. 535 of the Criminal Code because it was not material to the merits of the case and the accused was not prejudiced in his defence of the charge. The appellant’s counsel on the appeal said that an amendment could with fairness have been granted at any time during the course of the trial.

This is a case where s. 23(2) of the Supreme Court Act (Ch. No. 37) should be applied. That section provides that not withstanding that the court is of the opinion that a point raised might be decided in favour of the appellant, the appeal may be dismissed if the court considers that no miscarriage of justice has actually occurred. The section is the same as s. 2(1) of the Criminal Appeal Act 1968 (Imp.) and Archbold, Criminal Pleading Guidance & Practice (40th ed., 1970), par. 925 cites the following passage on the meaning of miscarriage of justice:

“A miscarriage of justice within the meaning of the proviso has occurred where by reason of a mistake, omission or irregularity in the trial the appellant has lost a chance of acquittal which was fairly open to him. The Court may apply the proviso and dismiss the appeal if they are satisfied that on the whole of the facts and with a correct direction the only proper verdict would have been one of guilty R. v Haddy [1944] K.B. 442.”

That section can apply where there is a defect in the indictment, where there has been a wrongful rejection or admission of evidence, or the trial judge has gone wrong in law, etc. Here we are concerned with an error in the pleading of the indictment and the case law on this section is very similar to the case law on an amendment of the indictment during the trial. The courts have applied the same principles to the trial and post-trial situation.

The section I have quoted from the English 1968 Act is the same as ours but its antecedent was the proviso to s. 4(1) of the Criminal Appeal Act 1907 (Imp.). That proviso is in the same terms as the 1968 section except that it uses the words, “substantial miscarriage of justice”. Although the form of the section has changed I consider that old case law is still relevant. It is still cited in the latest editions of Archbold. In R. v. Thompson [1913] UKLawRpKQB 236; (1914) 9 Cr. App. R. 252 the meaning of the proviso was argued before an appeal court of three judges but, because it raised a difficult point of law, it was re-argued before a full court of five judges. The appellant had been convicted of two counts of incest. The first count read that he committed the offences “on diverse days between the month of January 1909 and 4 October 1910”. The second count alleged that he committed the offences “on diverse dates between 4 October 1910 and the end of February 1913”. At the trial, defence counsel submitted that the indictment was bad for duplicity, that it alleged more than one offence in each of the two counts. The trial judge rejected the submission. On appeal, the appellant argued that there had been an error of law because of the irregularity of pleading in the indictment and that the appellant was entitled to an acquittal. It was not disputed on the appeal that the appellant had not suffered any embarrassment or prejudice at the trial, in as much as in the depositions and during the trial the offences were proved on specific dates, of which the appellant had had ample notice, and for which the defence was fully prepared.

The Court of Criminal Appeal applied the proviso and dismissed the appeal. At 260 the court said:

“If we had thought that any embarrassment or prejudice had been caused to the appellant by the presentment of the indictment in this form, we should have felt bound to quash the conviction, whatever our views might be as to the merits of the case.

...

One of the objects of s. 4 was to prevent the quashing of a conviction upon a mere technicality which had caused no embarrassment or prejudice. Whilst giving the right of appeal upon any wrong decision of any question of law, the object of the Legislature was that justice should be done in spite of a wrong decision, and that the court should not interfere if it came to the conclusion that, notwithstanding the wrong decision, there had been no substantial miscarriage of justice.

...

The court must always proceed with caution when it is of opinion that a wrong view of the law has been taken by the judge presiding at the trial, but when it is apparent, and, indeed, undisputed, as it is and must be in this case, that no embarrassment or prejudice had in fact been suffered in consequence of the pleader having made the manifest error above mentioned, the court must act upon the proviso in this section of the Act.”

That decision was affirmed by a full court of five judges in R. v. McVitie (1960) 44 Cr. App. R. 201. In that case the appellant had been charged with “Possessing explosives contrary to s. 4(1) of the Explosive Substances Act 1883”, and the particulars of the offence omitted the word “knowingly”. The appellant argued that the omission of the word “knowingly” was incurably and fatally bad, that there was no reference to knowledge in the indictment or particulars or in the summing up.

In this case, as in Thompson, the appellant was in no way embarrassed by the omission of the word “knowingly” because he had admitted that he knew he had explosives in his possession. The court applied the proviso, followed Thompson’s case and dismissed the appeal. The court (at 212) said that the appellant had suffered no embarrassment or prejudice because of the defect in the indictment. If the word “knowingly” had been stated in the particulars and the judge had referred to it in his address to the jury he would have gone on to say that McVitie admitted that he had that knowledge. Despite the omission of the word the essential ingredient of the offence was established.

I would apply that case law and s. 23(2) of the Supreme Court Act to the facts of this case. I consider that the indictment could have been amended at any time during the trial under s. 535 of the Criminal Code without any prejudice to the appellant. I consider that from the moment of presentment of the indictment, through the arraignment, and throughout the trial up to the point of conviction the accused was not embarrassed, disadvantaged or prejudiced by the technical defect in the indictment. He knew that he was charged with aggravated robbery and/or robbery. He knew that the State was alleging that weapons were used in the course of the robbery. The technical defect in the indictment which was the two marginal notes “first count” and “second count” was one of form and not of substance and remained so right up to the point of conviction. It cannot be said that up to that point the defect in the indictment deprived the appellant of a chance of acquittal which was fairly open to him. There is nothing in the court record to suggest, and no affidavit material has been put before us, that the accused or his counsel thought that the second charge was one of offensive weapons only.

I consider that the defect in the indictment created no miscarriage of justice to the appellant up until the point of conviction but at that point the trial judge seriously erred and the appellant suffered an actual miscarriage of justice. He was convicted of two offences, robbery and aggravated robbery, instead of one. It is wrong in law to convict of an aggravated offence and the offence simpliciter when the two offences arose out of the same incident.

Thus if a judge convicts of burglary of a house in the night (Criminal Code, s. 395(2)) it is not necessary or correct to also convict of the lesser charge of burglary. The lesser charge is subsumed in the conviction of the aggravated charge. The appellant in this case suffered the stigma of two convictions and two sentences (although the lesser sentence was admittedly concurrent) arising out of the same incident. In England when a defendant is convicted of two alternative counts there is no rule of law that on appeal, the court of appeal, will treat the conviction as if it had been on the lesser count only but the court may do so in a proper case or if left in doubt. Regard must be had to the realities of the matter, and it may be proper to affirm the conviction for the major offence if there is clear evidence of that offence: R. v. Dawson (1960) 44 Cr. App. R. 87. I consider that we should follow that law.

In this case there is abundant evidence to support the conviction on the more serious charge, indeed the evidence in support of the conviction is not challenged. In view of the appellant’s conviction on the aggravated charge, which contains all the elements of robbery simpliciter plus an aggravating circumstance, I consider that his conviction on the lesser charge was wrong. I would therefore quash the conviction for robbery simpliciter and the sentence of six years imposed therefor. I would affirm the second conviction that on 8 October 1982 he stole from David John Redcliffe and Linda Redcliffe with actual violence the property listed in the indictment and that at the time he did that robbery he was armed with an offensive weapon, namely an axe.

The appellant appealed against the sentence of eight years imprisonment for aggravated robbery but Mr Lupalrea for the appellant said that if this Court affirmed the conviction for aggravated robbery then he could or would not argue that the sentence of eight years was excessive. The offence occurred before the minimum penalties of seven years for robbery and ten years for aggravated robbery were enacted but the offence was a bad one and the appellant had a string of priors which justified a stern sentence. I consider that the sentence is within the limits imposed by the courts for offences of this type and I would affirm that sentence. I would allow the appeal in part and would quash the conviction for robbery and the sentence of six years for robbery. I would affirm the conviction and sentence of eight years for aggravated robbery.

AMET J: I have had the benefit of reading the opinion of the learned Chief Justice and respectfully agree with his Honour’s reasons and conclusion. I just add several remarks of my own.

I consider that the error occurred at the outset in the framing of the indictment by the State Prosecutor. The allegations should not have been pleaded as two separate counts. The words, put together, constitute the single standard allegation of aggravated robbery, the “first count” being that of robbery simpliciter and the “second count” being the allegations of aggravation. The “second count” as it is expressed does not allege an offence known under the Criminal Code (Ch. No. 26), and to which the appellant could not lawfully plead.

The learned trial judge then arraigned the appellant in terms of the words set out to which he pleaded not guilty. It should be noted that at this point the accused was arraigned on one charge only and only one plea of not guilty was obtained and entered. The terms of the oral arraignment contain the allegation that the appellant was armed with a weapon, which is an aggravating factor, so that it can be safely accepted that the appellant was arraigned in terms on a charge of aggravated robbery.

It would seem that the trial proceeded thereafter on the basis that the accused was facing two distinct charges as quite clearly evidenced by the learned trial judge’s reasons for decision, the recording of convictions on the two counts and the passing of two sentences on the convictions respectively.

Putting aside for the moment the view that the “second count” alleges an offence unknown to the Code, the fact remains, until that count is either pleaded to or demurred to, that there were pleaded two distinct counts which must be put to the accused separately and he pleads to each separately. I do not consider it to the point to say that if it is contended on the one hand that the “second count” discloses no offence known to the Criminal Code, then why should the trial judge be obliged to arraign on a non-existent offence.

I consider therefore, that two material irregularities took place at the very outset, not “in the course of the trial”, in the terms of s. 23(1)(c) of the Supreme Court Act (Ch. No. 37), but prior to the formal commencement of the trial, pre-trial irregularities, the effects of which are fatal to the validity of the trial, rendering it a nullity. First, the appellant was arraigned on one charge only, and secondly the single charge was neither of the two counts pleaded.

Arraignment is basic to criminal trials. It consists of three parts, (1) calling the accused to the bar by name; (2) reading the statement and the particulars of the offence to him; and (3) asking him whether he is guilty or not guilty: Archbold, Criminal Pleading Evidence & Practice (40th ed., 1970) par. 363 at 214.

Where an indictment contains several counts, each count should be put to the accused separately, and he should be asked to plead to each count as it is read to him: R. v. Boyle [1954] 2 Q.B 292. At 296 Lord Chief Justice Goddard in delivering the opinion of the court said:

“The court desires to say that in its opinion the right practice is that when the indictment contains more than one count, each count should be put to the prisoner separately, and he should be asked to plead to each particular count. It should be remembered that every count in an indictment is equivalent to a separate indictment; the prisoner can be tried on one or all of the counts. The verdicts have to be taken separately, and the right practice is that he should be asked to plead to each count as each count is read to him. There can then be no doubt as to which count the prisoner intends to plead.”

See also R. v. James Ellis (1973) 57 Cr. App. R. 571 (C.A.) approving R. v. Boyle contrast R. v. Williams [1977] 1 All E.R. 874.

In the upshot I consider that far too many material irregularities have occurred, both pre-trial and in the course of the trial, that the appeal should be upheld. I do not consider it an appropriate case for this Court to embark upon rectifying the several irregularities which I consider have taken place and which are quite basic to the conduct of a proper trial according to law.

I agree with the learned Chief Justice that the case be remitted to the National Court for retrial

Appeal allowed. Convictions and sentences quashed. Case remitted to the National Court for a proper trial according to law.

Lawyer for the appellant: N. Kirriwom.

Lawyer for the respondent: L. Gavara-Nanu.