Kunangel v The State [1985] PGSC 10; [1985] PNGLR 144 (24 June 1985)

Papua New Guinea Law Reports - 1985

[1985] PNGLR 144 - Opai Kunangel v The State 

[1985] PNGLR 144

SC293

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

OPAI KUNANGEL

V

THE STATE

Waigani

Pratt Woods Los JJ

28 May 1985

24 June 1985

APPEALS - Practice and procedure - Leave to appeal - On questions of fact - Formal request to be made on all questions of fact - Grounds of appeal including questions of fact - No request for leave made - Discretionary power to amend notice of appeal - Supreme Court Act (Ch No 37), ss 4, 22 - Supreme Court Rules, O 1, r 5; O 11, r 8.

CRIMINAL LAW - Alternative verdicts - Misappropriation of property - New offence - Alternative verdict of false pretences available even where false pretence prior to new offence - Criminal Code (Ch No 262), ss 383a, 544.

Held

N1>(1)      On an appeal to the Supreme Court specific leave is required pursuant to the Supreme Court Act (Ch No 37), s 4 and s 22, to argue all or any questions of fact.

N1>(2)      A notice of appeal containing grounds of appeal which specify questions of law, questions of mixed law and fact, and questions of fact alone, should indicate specifically that leave is being sought in respect of the questions of fact.

N1>(3)      Accordingly, that where a notice of appeal contained grounds which included questions of fact but without any formal request for leave to appeal in relation thereto, and where all the necessary documentation, particulars and grounds in support of an application for leave to appeal were filed in time, the court should grant leave to amend the notice of appeal so as to include a formal request for leave to appeal in relation to the questions of fact.

N1>(4)      (Los J dissenting) On a charge of misappropriation of property brought pursuant to the Criminal Code (Ch No 262), s 383a, as introduced by the Criminal Code (Misappropriation of Property) Act (No 10 of 1981), an alternative verdict of false pretences is available pursuant to s 544 of the Code even where the offence was committed before the amendment introducing the offence of misappropriation became effective because a false pretence, once made, continues to remain a false pretence until acted upon.

R v Greathead (1878) 14 Cox’s CC 108 and R v Moreton (1913) 8 Cr App R 214, followed.

Cases Cited

Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186.

Danny Sunu v The State [1984] PNGLR 305.

Dillingham Corporation of New Guinea Pty Ltd v Diaz [1975] PNGLR 262.

Kasaipwalova, John v The State [1977] PNGLR 257.

PLAR No 1 of 1980 [1980] PNGLR 326.

Porewa Wani v The State [1979] PNGLR 593.

R v Eric Oakari [1974] PNGLR 182.

R v Greathead (1878) 14 Cox’s CC 108.

R v Moreton (1913) 8 Cr App R 214.

SCR No 6 of 1984 [1985] PNGLR 31.

Shelley v PNG Aviation Services Pty Ltd [1979] PNGLR 119.

Smedley v The State [1980] PNGLR 379.

State, The v Bai [1980] PNGLR 77.

State, The v Tom Morris [1981] PNGLR 493.

William Moreton (1913) 8 Cr App R 214.

Appeal

This was an appeal against conviction and sentence on a charge of misappropriation of property brought under the Criminal Code (Ch No 262), s 383a, in respect of which an alternative conviction for false pretences was made pursuant to the Criminal Code (Ch No 262), s 554.

Counsel

K Kara, for the appellant.

V Noka, for the respondent.

Cur adv vult

24 June 1985

PRATT J: A preliminary matter has arisen in this appeal concerning the correctness of counsel arguing matters of fact when leave has not been sought. Indeed this case involves several aspects arising out of the form of appeal and grounds stated which are overdue for critical comment in order to “stop the rot”, which has been developing of late.

The notice of appeal in full reads as follows:

“Notice of Appeal

N2>A.       The Appeal is upon mixed fact and law and lies without leave.

N2>B.       The Appeal is against the whole of the judgment appealed from.

N2>C.       The grounds of Appeal are as follows:

‘1(a)   That his Honour erred in holding that the offence of obtaining goods by false pretences pursuant to section 556 of the Criminal Code (Misappropriation of Property) Act (Amendment No 10 of 1981) was available as an alternative to the offence of misappropriation of property pursuant to s 395a(1)(a) of that Act when in law it wasn’t so available.

(b)      That his Honour having erred in holding that the alternative offence of obtaining goods by false pretence was available when it was not available proceeded wrongly to convict the appellant of the said count.

2(a)    Alternatively, that his Honour erred in finding the appellant guilty of the alternative count (referred to in paragraph 1(a) hereof) when there was no evidence or sufficient evidence to satisfy his Honour to the requisite degree that the appellant did obtain by false pretence the amount of K20,000.00, the property of the State.

(b)      That his Honour erred in finding the appellant guilty of the alternative count (referred to in paragraph 1(a) hereof) when there is no evidence or sufficient evidence that all or any representation of the appellant was false.

(c)      That his Honour erred in finding the appellant guilty of the alternative count (referred to in paragraph 1(a) hereof) when there is no evidence or sufficient evidence that he obtained goods or that he induced any person to deliver to any person such goods.

3.       That his Honour erred in not giving proper and sufficient weight to the evidence that the appellant had no say or control over the National Village Economic Development Fund Committee and that he had not influenced the Committee in its recommendations or made any false representations to it.

4.       That his Honour erred in not giving proper and sufficient weight to the fact that there was no evidence that the appellant had made any false or other representations to any officer of the Department of Commerce or his Office.

5.       That his Honour erred in not considering that though the appellant was the Minister for Commerce at the time, this did not preclude people from his electorate from applying for and obtaining assistance under the Village Economic Development Fund.

6.       That his Honour erred in finding facts which were unsupported by the evidence in his judgment, particulars whereof will be identified when his Honour’s judgment and notes on the evidence are made available.

7.       That his Honour erred in not giving proper and sufficient weight to material facts supporting the appellant’s case; particulars whereof will be identified when his Honour’s judgment and notes on the evidence are made available.

N2>D.       If the appeal against the judgment appealed from is not allowed, the appellant appeals against the sentence imposed by his Honour on the basis that it is manifestly excessive in the circumstances.

N2>E.       The Appellant seeks the following Orders:

(a)      That the judgment and conviction appealed from be quashed and that the appellant be acquitted.

(b)      Alternatively, that the sentence of imprisonment be uplifted and a non-custodial sentence or a lesser sentence be substituted.

Dated at Port Moresby this 31st day of May, 1984.”

Briefly the facts found by Amet J on the trial were to the effect that the appellant, whilst the National Minister for Commerce, arranged for the payment out of the Village Economic Development Fund a grant of K20,000 to the Oka Business Group. This group comprised three of his five wives plus some other relatives and friends. The indictment charged that on or about 31 March 1981 he dishonestly applied the sum just stated to his own use, being a contravention of what is now numbered s 383a of the Criminal Code (Ch No 262) (previously s 395a). This section was introduced into the Code on 3 March 1981. On the same date a further amendment was made to what was then s 556 (now s 544[v]1) by, inter alia, adding to the alternative verdicts open under a number of property offences, the new offence of “misappropriation of property”. In fact the learned trial judge utilised this section to bring in a verdict of guilty of false pretences, as he could not be satisfied beyond reasonable doubt that in misappropriating the funds the appellant did so “for his own use” rather than “to the use of another person”. His Honour believed that the false pretence consisted of putting the name of the business group on to the list of those entitled to receive grants from the fund after all proper procedures and investigations had been carried out by the appropriate authorities. As a direct result of this false pretence the appellant received a cheque for the sum of K20,000 which was paid into an account upon which he subsequently drew a number of cheques as a cosignatory, one of which was for the purchase of a PMV to be run not in his own province where the Oka Group existed but in Port Moresby.

In order to save time and expense this Court granted leave to the appellant to amend the notice of appeal under the new Supreme Court Rules, O 1, r 5, and O 11, r 8, by formally asking leave of the court to argue the matters of fact and sentence. Such leave was granted but subject to the Court’s final ruling on whether this course was open to either the Court or the parties. Argument on this issue was heard the following day. A similar course was taken in Smedley v The State [1980] PNGLR 379.

It was also tentatively suggested during argument that leave was not required on matters of fact (or on the matter of sentence) because they were incorporated in an appeal which covered a matter of law and thus the appeal became one of law in the first section and fact in the remainder — that is, the appeal was a matter of mixed fact and law. It is certainly a novel approach and would put paid to the efforts of several generations of legal draftsmen. The answer however, is simply that the Act, by s 4 and s 22, refers to “a” question of law, or “a” question of mixed fact and law — that is a single question which requires an examination of facts as well as legal principle in order to arrive at a solution. It does not mean that because some of the questions appearing in the document deal with law and some other quite separate questions deal with straight out matters of fact, the whole document becomes one and indivisible thereby making it unnecessary to obtain leave to argue the purely factual matters. The forms now set out in the new Rules perhaps demonstrate more clearly the appropriate method of dealing with a case where an appeal is to be argued at the same time as an application for leave to appeal on matters of fact or on sentence.

APPLICATION MUST SHOW GROUNDS

The Supreme Court Act (Ch No 37), s 4, states that an appeal to the Supreme Court lies as of right on a question of law or mixed fact and law, but only with leave on a question of fact. This area is again covered in more detail as to criminal matters under s 22 of the Act.

I think it is important to note that in neither s 4 nor s 22 of the Act is any mention made of any specific form of request for leave. A paraphrase of s 22 could run: A person convicted may appeal to the Supreme Court with the leave of that court on any ground that involves a question of fact. Obviously, there must be a time limit, and this limit appears in s 29 which states, inter alia, that:

“Where a person desires ... to obtain leave to appeal ... he shall give notice ... of his application for leave to appeal ... in the manner prescribed by the Rules of Court within 40 days after the date of conviction.”

The rules of court applicable when the present appeal was lodged were r 20 and r 21 of Statutory Instrument No 22 of 1977 which came into operation on 17 June 1977. I shall call these the “Old Rules” as opposed to the “New Rules”, which came into operation on 1 February 1985. Order 1, r 2 of the New Rules indicate such rules shall apply only to matters commencing after the commencement date. Rule 5 however deals with pending proceedings. Old Rules 20 and 21 of course must be taken in conjunction with s 29 of the Act. By and large the wording under O 7, Divs 1 and 2 of the New Rules dealing with applications for leave to appeal are the same as those appearing in the Old Rules, though I make no pretence at having solved the problem posed by reference in the Old Rules, r 21(3) to “s 19(3), (4) and (5)”. The other section references however seem to fit quite obviously into the renumbered counterparts in the revised Act. In construing the Old Rules I am unable to say with complete confidence that r 21(3) has no effect on the outcome but it seems unlikely.

Thus when it is desired to appeal against matters of fact, or on sentence, there must be an application for leave, and such application must be filed within forty days, “in the manner prescribed by the Rules ...”. We are thus brought back to r 20 of the Old Rules which reads:

N2>“20(1) An application for leave to appeal shall be made by notice in writing:

(a)      showing that an appeal lies with leave; and

(b)      stating the nature of the case, ...; and

(c)      ....”

An application must be lodged in writing showing, inter alia, that an appeal lies with leave. The rule does not mention the word “stating” nor does it suggest anything other than “showing”. It is an application for leave which shows, or displays, or exhibits, in the body of the application that leave is required. An appeal on questions of fact and an appeal on sentence, by law, require leave. The present appellant has appealed without leave on the matters of mixed law and fact. He has shown on the face of the same document filed within the required period that he also contests a number of findings of facts and requests a review of sentence. He has omitted to make a formal request although he has shown in specific terms what areas of fact he believes were wrongly decided. This absence of particularity in Smedley v The State may well have been the reason why Wilson J, in what was strictly speaking obiter dicta, felt constrained to put so much weight on the consequences which follow from the absence of the heading, “An Application for Leave”. At 387 his Honour says:

“The backsheet to that document describes it as ‘Notice of Appeal’. The document itself does not purport to give notice of application for leave to appeal.”

The grounds for appeal in Smedley were objectionable because of vagueness, though they attempted to encompass matters of fact. On this basis alone it is quite a different case from the one presently before this Court. Kearney DCJ was clearly persuaded to the opposite view by the fact that greater particularity was supplied to the respondents after the forty-day period had elapsed and that the non-compliance with the Rules to specifically request leave should not act as a bar. The decision on this point was essential to the judgment of Kearney DCJ for his Honour then went on to consider a number of matters of fact, and having granted leave, dismissed the appeal.

Other cases in which an application has been dismissed because leave was not requested all indicate that nothing was “shown” or stated in the body of the document to bring it within r 20. For example, in Porewa Wani v The State [1979] PNGLR 593, an examination of the notice of appeal discloses there was no application ever filed at the Registry on the issue requiring leave of the court, namely, sentence. As the court points out at 595:

“Grounds of appeal are stated; no grounds upon which the appellant relies in seeking the court’s leave are stated.”

Shelley v PNG Aviation Services Pty Ltd [1979] PNGLR 119 was decided on the basis of what was or was not an interlocutory matter and it appears that no application to treat the appeal as one for leave to appeal was made or entertained. Dillingham Corporation of New Guinea Pty Ltd v Diaz [1975] PNGLR 262 was a case where the headnote states:

“In the absence of a grant of leave under s 10 or s 20 of the Supreme Court (Full Court) Act 1968, the appeal should be limited to questions of law or questions of mixed law and fact....”

Once again, the question did not arise squarely in the form in which it is before us.

The failure to apply for leave in so many words despite the fact that the substance of the document headed “Notice of Appeal” shows in the most specific terms matters which require leave to be granted, does not, in my view, constitute such a major transgression as should be incapable of rectification by amendment under r 40. What should appear between pars 1 and 2 of the present notice of appeal is some heading which indicates that leave is sought. To deny such amendment would deprive the appellant of a basic right to have his “appeal” examined on the merits purely because of a question of form. The essential requirement to be observed within the time period is to lodge a document which clearly sets forth seriatim what conclusions of facts are disputed and why and how. Common sense would then dictate the appropriate application and distinguish this area from that which disputes one of law or mixed law and fact. In view of the strict test laid down in Danny Sunu v The State [1984] PNGLR 305, the possibility of obtaining a review under the Constitution, s 155(2), would be of little consolation. I believe that to interpret the document filed so strictly in the absence of a mere formal wording is not in keeping with the more liberal approach taken over the past few years as mentioned by Wilson J in PLAR No 1 of 1980 [1980] PNGLR 326 at 334 and in SCR No 6 of 1984 [1985] PNGLR 31. In my view all the necessary documentation, particulars and grounds in support of an application for leave to appeal were filed in time. In the absence of a formal request for leave one has now been sought. I believe the omission can be rectified by amendment. This has now been done. I would therefore continue to examine the case on the merits in order to decide whether leave to appeal should be granted.

SHOULD LEAVE BE GRANTED

To my mind the matters in par (2) of the notice of appeal are concerned with questions of fact. They are intimately related to questions of weight and credibility of the witnesses, both prosecution and defence. In saying this, I am not unmindful of the very pertinent observations and comments by Windeyer J in Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186 at 194-196 where his Honour gives, in my respectful view, a most helpful and comprehensive dissertation on what is meant by the terms a matter of fact, a matter of law, and where they are mixed. My view is the same in relation to par 4. I do not propose to go over the various points made by counsel. They are all matters of a factual nature dealing with questions of credibility and credit-worthiness. His Honour has rejected the evidence of the defence. He has made inferences which were clearly open on the prosecution evidence and he has found that any inference in favour of innocence in respect of these matters is just not supportable. All I can say is, that to draw the inferences suggested by learned counsel for the defence would be to ask the trial judge to engage in an exercise in niaivity which would be an insult to the intelligence and experience of any grown man. After all, we are tribunals of fact when we sit in the National Court and we do occupy the same place as juries, with the added requirement of handing down reasons. We must therefore apply our minds to the facts and draw inferences on those facts which are open to reasonable men. A hypothesis consistent with innocence to be of assistance to an accused must be a reasonable one on the evidence before the court. I cannot see any basis for interfering with the findings of facts by the learned trial judge. I would therefore refuse to grant leave to appeal on these grounds.

Grounds 3 and 5 were abandoned and grounds 6 and 7 were conceded to be inapposite. The Court has said on a number of occasions over the years that any claim to reserve further points for submission when or if counsel may feel disposed to put them is not a ground of appeal and has no place in any notice of appeal or application for leave to appeal. In repeating the admonition I am in no way criticising the special provision allowing unrepresented appellants to reserve points for detailed specification by a lawyer, if one is finally secured: see Supreme Court Rules (1984), Sch 2, Form 1.

The final ground for leave to appeal involved sentence. I believe that counsel felt there was little to say in support of such application and in my view counsel has pursued a proper course. Frankly, the appellant got off lightly. No doubt the fact that not all the money was used to the personal advantage of the appellant figured quite strongly in the mind of the trial judge. Nevertheless, within the context of a Papua New Guinean community, the obligations under which the various recipients of the appellant’s largesse were placed must still work to the appellant’s advantage, just as much as any material object he would buy across the counter. There is undoubtedly an element of cross-cultural confusion in the mind of the appellant who was a “big man” both in his traditional role and in the new era of things. He would be expected to act like one — not so much perhaps in stealing from outside the kinship group but in spreading around his power over wealth with its concomitant obligations redeemable at some later time, These matters would be well-known to his Honour. There is no basis established for interfering with the sentence imposed by the learned trial judge and I would refuse to grant leave on this ground also.

QUESTIONS OF LAW — GROUND 1(A)

The grounds set down as 1(a) and 1(b) are clearly matters of law although the argument which emerged under 1(b), that the false pretence occurred at a time before the amending Act came into operation, or alternatively, that the court could not be sure that it did not do so, is probably as good an example as one can obtain of a matter which involves a question of mixed fact and law.

The first ground argues that although no criticism is levelled at the dates laid in the charge for misappropriation under the Criminal Code, s 383a, nevertheless, the alternate verdict of false pretences brought in under s 544 was not open to the trial judge because the alleged false pretence may well have occurred before the date upon which Amendment Act No 10 of 1981 came into operation. It is quite true that his Honour did not determine a date upon which the false pretence took place and it is quite likely that such pretence did occur before 3 March 1981. For the purpose of this submission however I propose to accept the possibility of the false pretence being made before the commencement of the amending section.

A complete answer to this submission was furnished by Mr Noka for the State. He says that even if the false pretence was made prior to 3 March 1981 that is of no assistance to the appellant because a false pretence may well be, and in fact was, in the present circumstances a continuing thing. Here the pretence was made on one particular date and continued right up until the Minister uplifted the cheque from his table and took it off to the bank on 14 March 1981. Counsel referred to R v Greathead (1878) 14 Cox’s CC 108, a case which has significance not only on the present point but also on the further submission made in the next ground of appeal concerning whether a cheque can be classed as money. The Court of Criminal Appeal in R v Greathead, consisting of five judges presided over by Lord Coleridge CJ, held that where a false pretence had been made to an employer by one of his employees to the effect that there were a specified number of persons to be paid their wages this week, whereas in fact there was one less, such false pretence will continue right up until the time the dishonest employee obtains possession of the money and pockets the wages of the fake employee. This is so even where the employer gave the dishonest employee an informal cheque which was rejected by the bank and replaced by the employer with a proper cheque form after the employee told his superior that the bank would not cash the first cheque. The point of the case is that the cheque was handed to the accused and he received the money from the bank as a direct result of the false pretence. As Lord Coleridge says at 110, “the good sense of the thing is, that the false pretence upon which the first cheque was given continued in force, and was the acting motive which influenced the prosecutor’s mind in giving the second cheque”.

A further case referred to was that of R v Moreton (1913) 8 Cr App R 214 where a descendant of Lord Coleridge in dealing with a case of false pretence and the distinction between such charge and one of obtaining credit by fraud says at 216:

“It is clear that, if there is a false pretence made by the accused, and continuing at the time when the goods are supplied, that will operate as evidence that the goods were obtained by that false pretence.”

After distinguishing another case on the basis that there was no continuing false pretence his Lordship concludes:

“... it is evident here that there was evidence on which the jury could find a continuing false pretence operating on the mind of the person supplying the goods, and on these grounds the conviction must be upheld.”

In the present case even assuming that the false pretence was made before the commencing date of the amendment it continued to remain a false pretence until it was acted upon by the authorities in making the cheque available for collection some eleven days later.

Quite apart from this aspect of a continuing false pretence, there is another flaw in the argument put forward by learned counsel for the appellant. He says that because the appellant could not be charged with the offence of misappropriating property until after 3 March 1981, and because under that charge of misappropriation an alternate verdict of false pretence was not available until after 3 March, then if the false pretences had been committed before 3 March, it would be unlawful and unfair to convict him in the alternate of false pretence when such conviction could not have been achieved on any indictment for misappropriation before 3 March because no such indictment could have been formulated. The defect however is that there was an offence of false pretence before 3 March and given that the evidence supported such a conviction he could have been convicted of such offence before 3 March. He certainly could not and would not have been charged with misappropriation of property because such an offence was unknown to the prosecuting authorities before 3 March. He may of course have been charged with stealing or of obtaining payment by means of a fraudulent trick or device and in such circumstances he could have been found guilty of false pretences under the then existing s 556 (now s 544).

It seems to me that counsel may have confused the facts of the present case with the principle enshrined in our Constitution that a person cannot be convicted on any act which did not constitute an offence at the time it was committed, but is subsequently made a crime. The present case is not one in which the offence of false pretences was not known to the law. The only “gap” which existed was that procedurally, a person could not have been convicted of false pretences because he could not have been charged with misappropriation in the first place. He was however correctly charged with misappropriation. Further, at that time, that is the date on which the misappropriation took place, he was also guilty of committing the crime of false pretences, such crime having been committed before the date upon which the misappropriation matter became an offence and continuing until the day of misappropriation and intimately linked with such misappropriation. I cannot see how this precludes the court from finding such charge proved as an alternate conviction open to it on the properly presented indictment for misappropriation. There is no question involved of making some act a crime retrospectively.

GROUND 1(B)

Passing now to the second ground of appeal, I believe that again a misconception has given rise to this ground. Mr Kara has been at great pains in trying to draw an analogy between the cheque being left with his client and subsequently used for the benefit of others at the direction of the accused and the type of factual and legal problems raised in John Kasaipwalova v The State [1977] PNGLR 257 and The State v Bai [1980] PNGLR 77. Those cases however have nothing in common with the present matter. They were concerned with the signing and depositing of cheques in a personal bank account of the accused, being insufficient in law to constitute a stealing of that money. Appellant’s counsel says that the misappropriation of money covered in the charge as laid down does not deal with the same property within the sense in which that phrase is used in s 544 because what is misappropriated is the money whereas the property obtained by the accused as a result of the false pretence is a cheque.

It is true that in his judgment, the learned trial judge said: “I am satisfied that a cheque is money as defined for the purpose of s 404. I am satisfied that the evidence as I have found has established an offence of obtaining goods by false pretences pursuant to s 544(b).” I do not believe, however, that his Honour was singling out the cheque merely as a piece of paper. Indeed his Honour has relied on the definition section in the Code to the effect that money includes cheques and consequently, although he did not say it in so many words, it is clear that the conviction was for a false pretence which led to a payment to the accused of K20,000 which was subsequently used for various purposes at the accused’s direction. It does not assist the appellant one jot to emphasise the receipt of a piece of paper rather than cash as a result of the false pretence. There was no suggestion in R v Greathead, for example, that because a cheque was received which could be converted into cash, therefore, that had some peculiar effect on the commission of a false pretence. The law and the facts in such cases as John Kasaipwalova v The State and The State v Bai are simply not applicable to the circumstances of this case. I can see no valid basis for upholding the appeal on this second ground. I would dismiss this ground also.

WOODS J: This is an appeal against the conviction of the appellant by the National Court on 24 April 1985 of obtaining goods by false pretences contrary to the Criminal Code (Ch No 262), s 404. This conviction was brought in as an alternative, pursuant to s 544 of the Code, to an indictment charging the appellant with the offence of misappropriation. The appellant was then on 25 April 1985 sentenced to two years imprisonment in hard labour.

A notice of appeal was filed on behalf of the appellant on 31 May 1984 stating that the appeal was upon mixed fact and law and lies without leave. It then listed seven grounds of appeal against conviction and further added that if the appeal against judgment is not allowed then the appellant appealed against the sentence imposed as being manifestly excessive.

A perusal of the grounds of appeal quite clearly indicates that whilst ground 1(a) and (b) are or include questions of law, grounds 2, 3 and 4 were on questions of fact alone, ground 5 was too vague and grounds 6 and 7 had no basis. At the commencement of the hearing of the appeal, grounds of appeal 6 and 7 were ordered to be struck out and the appellant indicated that ground 5 was not to be argued.

The Supreme Court Act (Ch No 37), s 22, clearly provides that leave must be sought to appeal on any ground which involves a question of fact alone or against sentence. No reference to leave to appeal was included in the notice of appeal. Particular note should be made of the wording of this section. It specifically refers to “any ground”. Just because a notice of appeal contains grounds which are on questions of law and then separate grounds which are questions of fact alone does not make it an appeal on mixed law and fact and therefore leave need not be sought for the grounds on question of fact.

The appellant now seeks leave to appeal on grounds 2, 3 and 4 and against the severity of the sentence.

The Supreme Court Act, s 29, provides that where a person convicted desires to appeal or to obtain leave to appeal, he shall give notice of appeal or notice of his application for leave to appeal, as the case may be, in the manner prescribed by the rules of courts within forty days after the date of conviction.

The Supreme Court Rules, O 7, r 2, and its predecessor, r 20, clearly requires that an application to this Court to appeal on a question of fact should show that an appeal lies with leave and forms 7 and 8 of the Rules suggest that words “Leave to Appeal” should be included. A notice of appeal was filed within the forty days required by the Act and it quite clearly shows without actually stating it that the appeal is made on questions of law and on questions of fact.

However, the specific reference to leave being required is not there, but of course it would be understood from the reading of the notice that leave is required. Does the omission of the words referred to in forms 7 and 8, “Leave to Appeal”, render the notice in respect of grounds of appeal relating to questions of fact incompetent, realising that at the time of the filing of the appeal these forms were not part of the Rules.

Rules of court have a purpose; they let parties know where they stand and enable parties to regulate their affairs accordingly. They create order in the system. However, rules should never be allowed to be an instrument of tyranny. Where genuine issues ought to be litigated, if such can be done with fairness to all concerned, it is appropriate that the court should have a discretion and be prepared to exercise it.

This is a criminal conviction we are considering, and a person who has been sentenced to a deprivation of liberty for whatever cause, must be entitled to have the reasons for his conviction reviewed by a higher tribunal so long as due notice has been given. Notice has been given within the time required of the complaints of the imprisoned offender and on the face of it, it is quite clear that questions of fact are being raised in the notice. It cannot be considered unfair to the State to allow these complaints to be litigated, unfairness to the State is not a concept that can arise in criminal matters. It is a question of justice being done and being seen to be done.

This question of whether omission of the reference to leave being sought invalidates the appeal was considered in the case of Smedley v The State [1980] PNGLR 379, however, as the question did not really have to be decided in that case the observation of one judge that non-compliance with the rule should not bar the grant of leave and of another judge saying the opposite does not really help us now.

The Supreme Court must not fetter its discretion by strict rules. The basic rule or requirement has been complied with, that of filing a notice within forty days. The omission of the word “leave” can be corrected by amendment if the circumstances warrant it. This is a criminal appeal where part of the notice of appeal relates to a ground relating to a question of law. I would regard the balance of the grounds as being grounds on which leave must be sought and on which leave is now being sought to appeal and accept the notice of appeal as effective. However, now that there are clear forms set out in the rules of the court, the foregoing arguments may not have much validity in the future.

I will now consider the merits of the application for leave to appeal on questions of fact and against the sentence.

This application for leave refers to grounds 2, 3 and 4 of the notice of appeal and to the question of the sentence.

The appellant’s submission on these grounds is that the conviction is unsafe and unsatisfactory because there was no evidence that there was no proper application from the Oka Business Group and therefore no evidence to implicate the accused with the placing of the name of that group on the list for grants; the accused himself having said he had no say or control over the National Village Economic Development Fund Committee and that he had not influenced the Committee and did not know how it worked.

The trial judge clearly referred to the unsatisfactory aspects of the accused’s case, noting that a critical witness was not cross-examined on critical evidence and that the accused’s own evidence was inconsistent and that all the evidence and lack of evidence by the accused confirms that there was in fact no application.

The appellant’s submission on this are so clearly refuted by the evidence and by his Honour’s findings that I can find no merit at all in the application for leave to appeal on the questions of fact and I therefore dismiss this part of the application. With respect to the application for leave to appeal against the sentence, the appellant stated he was not pressing the matter. A sentence of two years hard labour for the misappropriation of K20,000 of Government moneys by a person in the appellant’s position is quite within the range of sentences given by this Court; I may even suggest at the more lenient end of the range, so I can find no merit in the appellant’s lightweight submission here and I would therefore dismiss the application.

I therefore refuse leave to appeal on grounds 2, 3 and 4 in the notice of appeal and against the sentence imposed.

I now turn to consideration of the grounds of appeal on which leave to appeal is not required.

Ground 1(a) is that his Honour erred in holding that the offence of obtaining goods by false pretences pursuant to the Criminal Code, s 556, acts of misappropriation of property was available as an alternative to the offence of misappropriation of property pursuant to s 395a of that Act, when in law it was not so available.

First, I must refer to the correct numbering of the amended sections as s 544 and s 383a of the Criminal Code as prepared for inclusion as at 1 January 1982.

The appellant’s submissions here are that the offence in s 383a only came into existence on 3 March 1981 and whilst the charge of misappropriation dates to sometime between 14 and 31 March, the offence of obtaining goods by false pretences which was provided for as an alternative by that same legislation of 3 March 1981 started as an offence at some time prior to 3 March 1981. Because the offence of obtaining goods by false pretences was not an alternative verdict to misappropriation prior to 3 March, it therefore, it is submitted, was not available in law.

The appellant submits that the false pretence did not happen at the time the cheque for K20,000 was received and banked and applied, namely in the latter half of March 1981 but happened at some earlier time, unknown, when the appellant put in the supposed application for a grant to the Oka Business Group or placed the name of Oka Business Group in the list for a Village Development Fund grant when at the time such a group did not exist.

The submission does not stand up for two reasons.

First, the false pretence is a continuing matter. It does not only exist when it is first made, it is a false pretence at all and any time on which it is acted. It may have been a false pretence at some date when the name Oka Business Group was placed on a list for funding but it was still an existing false pretence at the time the money was received and applied on the basis of that fictitious group.

Clear authority that a false pretence can be continuing exists in the case of R v Greathead (1878) 14 Cox’s CC 108 where the Court of Criminal Appeal said in the words of Lord Coleridge CJ, “... now, the good sense of the thing is that the false pretence upon which the first cheque was given continued in force ...”.

In R v Moreton (1913) 8 Cr App R 214 Lord Coleridge J said “... it is quite clear that there was evidence on which the jury could find there was a continuing false pretence ...” and “It is clear that, if there is a false pretence made by the accused and continuing at the time when the goods are supplied, that will operate as evidence that the goods were obtained by that false pretence”.

The appellant’s submissions on this point need no further consideration, the above quote is right on the point and I will not go into the further point that the offence of obtaining goods by false pretences was an offence at all relevant times, and the fact that it was not specifically an alternative to misappropriation does not mean that in law it was not available.

I find no substance in the appellant’s submissions on ground 1(a).

The appellant’s submissions on ground 1(b) are that the offence of obtaining goods by false pretences is an offence involving a completely different form of property than the offence of misappropriating the sum of K20,000 because the former is goods namely a cheque whereas the latter is money and on the authority of R v Eric Oakari [1974] PNGLR 182; a cheque is not the same as money. However, his Honour in that case found that the then s 581 (now s 544) was inappropriate for application in the circumstances of that case.

The appellant here submits that the indictment was for K20,000 whereas his Honour convicted for false pretences involving something quite different, “a cheque”. However, at 266 his Honour the trial judge said, “I am satisfied that the cheque is money as defined for the purpose of s 404”. I find no basis for any submission that his Honour was then in the next sentence merely referring to a piece of paper. At 265 he clearly refers to the K20,000 and by establishing the offence of obtaining goods by false pretence as the heading for s 404 puts it, there can be no dispute that he was still thinking of the K20,000 as the wording of s 404(1)(a) states, “... obtain from any other person any chattel, money or valuable security”. This is further confirmed by his Honour’s comments on sentence when he said, “I have found you guilty of obtaining by false pretence the amount of K20,000”.

I find no merit in the appellant’s submission on this ground of appeal.

I therefore dismiss the appeal.

LOS J: I have had the advantage of reading the judgments of Pratt J and Woods J and I agree with their Honours on the question of leave to appeal. As to the appeal against sentence counsel for the appellant did not press the issue. I do not think therefore that there is any need for me to consider it except to say that while there was some evidence, though slight, of other persons being involved, the appellant seemed to have copped it all because of his then position.

As to the appellant’s submission in relation to what might have constituted false pretences, I agree with counsel for the appellant that the evidence was circumstantial. What the accused might have done and when is not known. Up to a point it is a mere conjecture that the accused used his wives as a group, invented a name for the group and inserted that name on the list of applications in such a way that nobody would query it. The evidence does not indicate in any definite terms any place and time where the accused might have been involved in any of the acts necessary to constitute false pretences. On this alone it would have been difficult on the authorities such as The State v Tom Morris [1981] PNGLR 493 to reach only one reasonable inference consistent with the guilt of the accused. In the result the verdict might have been unsafe and unsatisfactory. However his Honour the trial judge looked at the evidence as a whole and not just at one part of it. A person who had nothing to do with an initial act to obtain a grant could not suddenly be closely involved in expenditure such as is shown in the evidence. Indeed his Honour was straight to the point in his judgment shown at 265 of the appeal book when he questioned how a stranger could:

“... become so intricately involved in the operations of the business group — to the extent of ordering pigs, authorising ploughing of land, negotiating purchase of a 25-seater PMV bus, writing all the cheques in the 5 major transactions ....”

The only reasonable and rational conclusion that his Honour was bound to draw was that in relation to the action, whatever the details might be, that was brought about to obtain a grant from VEDF, the appellant was not a stranger; he was involved from the beginning to the end when he received a cheque for K20,000.

The only ground of appeal that I wish to dwell upon in any length is the first ground. The appellant’s argument in a nutshell is that the appellant could not be convicted of an offence alternative to the main offence, that is, misappropriation, because some acts that could constitute the alternative offence, that is, obtaining goods by false pretences, might have occurred at the time the main offence was unknown to the law. The appellant’s counsel did concede that an independent charge could be laid against the appellant for the offence of false pretences but it was for the prosecution to elect. Any acts done by the appellant that might have constituted false pretences occurred before the offence of obtaining goods by false pretences was made an alternative offence to the offence of misappropriation.

Mr Noka arguing to the contrary relied upon R v Greathead (1878) 14 Cox’s CC 108 and William Moreton (1913) 8 Cr App R 214. In R v Greathead, Lord Coleridge CJ said, “now, the good sense of the thing is, that false pretence upon which the first cheque was given continued in force ...”. In Moreton, Lord Coleridge J said, “it is quite clear that there was evidence on which the jury could find there was a continuing pretence ...”.

While I acknowledge the weight of the authority established by the cases and their logical conclusions therefrom, I beg to differ. In R v Greathead two counts were laid under the same Act for existing offences. In Moreton the first and the second batch of counts were framed of existing offences. In the appellant’s case he was charged initially with an offence that had just come into being and was then convicted of an alternative offence to that offence. Some acts of false pretences might have occurred before 3 March 1981. Both John Kasaipwalova v The State [1977] PNGLR 257 and The State v Bai [1980] PNGLR 77 upheld the great constitutional principle that no person may be tried and convicted of an offence not defined under any law. The vacuum in the law discovered in these cases existed until 3 March 1981. With respect I cannot perceive even by an inference from those two cases that certain deeds not punishable under any law at one stage become punishable at some future time if one simply plucks any of the existing offences and makes it an alternative to an offence which was then unknown.

A reading of s 544 of the Code which provides for an alternative offence would clarify the point:

“Upon an indictment charging a person with any of the following, that is to say:

...

(b)      ...obtaining goods by false pretences;

...

(f)      ...misappropriation of property;

he may be convicted of any other of those offences.” [Emphasis mine.]

It is quite obvious that the appellant could not be indicted for misappropriation before 3 March 1981 nor later for acts that occurred prior to 3 March 1981. If he could not be charged for misappropriation for any acts that occurred before 3 March 1981, he could not be charged in the alternative for obtaining goods by false pretences. The latter would be alternative to nothing.

As to the second ground of appeal I did not see much in the learned counsel’s argument. The Criminal Code contemplates that money can be in different forms. This was the subject of a lengthy discussion in Kasaipwalova’s case at 285-286. Indeed his Honour the trial judge was satisfied that cheques were money. When the name Oka Business Group was included in the list the intention was to obtain money, a sum of K30,000. In the end K20,000 was granted. This sum could have come in cash, though this would be out of the ordinary. However, it came in the most safe and convenient way.

Even if the appellant is right in his argument that what he received was a cheque and not money, he cannot be saved from the offence for which he was found guilty: goods could be a number of things with varying values. The cheque he received was worth K20,000.

For the reasons I have stated I would refuse to grant leave to appeal on the question of facts and the question of sentence. I would dismiss the second ground of appeal but I would uphold the first ground of appeal.

Appeal dismissed

Lawyer for the appellant: K Y Kara.

Lawyer for the respondent: E Kariko, Acting Public Prosecutor.

[v] 544. Stealing, false pretences, cheating and misappropriation of property.

On an indictment charging a person with—

(a) stealing, with or without a circumstance of aggravation; or

(b) obtaining goods by false pretences; or

(c) obtaining goods by a wilfully false promise; or

(d) obtaining goods partly by a false pretence and partly by a wilfully false promise, or

(e) cheating; or

(f) misappropriation of property; or

(g) procuring any other person to commit any such offence,

he may be convicted of any other of those offences committed with respect to the same property, if that other offence is established by the evidence.”

(Replaced by No 10 of 1981, s 4.)