Kalinoe, Re [2018] PGSC 94; SC1751 (19 December 2018)

SC1751

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC ACT R. NO. 3 OF 2017

REFERENCE PURSUANT TO SECTION 26 OF THE SUPREME COURT ACT

REFERENCE BY DR LAWRENCE KALINOE
ATTORNEY-GENERAL & SECRETARY FOR JUSTICE

Waigani: Gavara-Nanu, Kariko, Geita & Bona, JJ

11^th December, 2017 & 19^th December, 2018

SUPREME COURT – reference by the Attorney-General, s 26 Supreme Court Act – motion to quash indictment – charge of breaking & entering building and stealing – whether necessary to describe property stolen and state its value and owner – whether indictment embarrassed or prejudiced the defence – whether indictment compliant with Criminal Practice Rules

Cases cited:

Dr Allan Marat v Hanjung Power Ltd (2014) SC1357
Kape Sulu v The State (2003) N2456
R v Angoro Evu [1969 -1970] P&NGLR 274
R v Burusep & Ors [1963] P&NGLR 181
R v Dandemb [1969-70] PNGLR 207
R v Nakian Mandiam [1973] P&NGLR 135
Review pursuant to Constitution, Section 155(2)(b) Application by Herman Joseph Leahy (2010) SC1018
Summit Development Ltd v Byron Chan (2016) N6390
The State v Jacob Amonea (2012) N4673
The State v Sohia Kobobo (2006) N4477
The State v Tony Emmanuel (No.1) (2012) N5124
The State v Virgil Kageni (No. 1) (2012) N5159
The Sate v Xue Zhufu Dickson (2010) N4162
Willie Edo v Hon. Sinai Brown (2006) N3071

Legislation:

Constitution
Criminal Code, Chapter 262
Criminal Practice Rules 1987
District Court (Committal Proceedings in Cases of Indictable Offences) Act 1980
Supreme Court Act, Chapter 37

Overseas Legislation:

Criminal Code Act 1899(Queensland)
Criminal Practice Rules 1900 (Queensland)

Textbook:

Carter’s Criminal Law of Queensland
Criminal Law and Practice of Papua New Guinea

Counsel:

Mr T Kamuta, for the Referrer
Mr Pondros Kaluwin, for the State
Mr L Mamu, for the Accused Person

JUDGMENT

19^th December, 2018

1. BY THE COURT: This Reference was heard by a five member bench, including the former Chief Justice who was the President but is now retired. The decision is therefore of the four remaining judges and is unanimous. The Court has not put the requirements of s. 3 of the Supreme Court Act, Chapter 37, because those requirements do not apply to References.
   

The Reference

2. The Reference poses four questions filed by the Attorney-General pursuant to s 26 of the Supreme Court Act following the acquittal of an accused person upon a motion pursuant to s 558(1)(b) of the Criminal Code, Chapter 262 to quash the indictment presented against him.
   
3. Under s 26 of the Supreme Court Act the Attorney-General may refer points of law to the Supreme Court for its opinion following the acquittal of an accused person upon his trial.
   
4. The questions in this Reference are:
   

(1) Is the value of property as well as the identification of property stolen, an essential element of the offence of ‘break and enter’ under s. 398 (a)(i) of the Criminal Code Act 1974?

(2) Did the Indictment presented by the State operated, in any way, to prejudice or embarrass the Accused in his defence to the charge, pursuant to s. 558 (1)(a) of the Criminal Code Act 1974?

(3) Is the Indictment as presented by the State, consistent with the requirements of paragraph 267 of Schedule 2, of the Criminal Practice Rules 1987?

(4) Did the learned trial Judge erroneously exercise his discretion by dismissing the charges against the Accused, for reasons that the Indictment was defective pursuant to s. 558 (1)(b) of the Criminal Code Act 1974, – when in fact the Accused had not been arraigned as yet.

5. The fourth question was abandoned by the Attorney-General at the hearing of the Reference.
   

Background to the Reference

6. The Reference arises from the trial of an accused person in the National Court at Lae on 17^th February, 2017. Before arraignment, Defence counsel moved an application to quash the indictment pursuant to s 558(1) of the Criminal Code. The indictment contained a charge laid under s 398(a)(i) of the Criminal Code alleging the accused person “broke and entered the office of Islands Petroleum Limited and committed the crime of stealing”.
   
7. The Defence argued the indictment was defective for not listing the property stolen. After hearing submissions, the trial Judge agreed the indictment was defective for not specifying the property stolen and its owner.
   
8. His Honour reasoned that given the definition of stealing under the Criminal Code, it was necessary for the State to provide those further particulars for the accused person to be sufficiently informed of the act of stealing alleged against him. Accordingly, his Honour upheld the application, quashed the indictment and discharged the accused person from the charge.
   

Motion to quash indictment

9. Pursuant to s 558(1) of the Criminal Code an accused person may apply to quash an indictment on grounds that:
   

(a) it prejudices or embarrasses him in his defence to the charge; or

(b) it is formally defective.

10. Upon the hearing of the application, the Court may uphold the application, order amendment of the indictment or refuse the motion; s 558(2).
    
11. In R v Burusep & Ors [1963] P&NGLR 181 at 187, Mann CJ in discussing what might be considered a defective indictment observed that s 534 (then s 571) of the Criminal Code suggested what might be regarded as a formal defect. That provision states:
    
    534. Formal defects.

(1) An indictment is not open to objection—

(a) by reason of the designation of any person by a name of office or other descriptive title instead of by his proper name; or

(b) for omitting to state the time at which the offence was committed, unless the time is an essential element of the offence; or

(c) for stating imperfectly the time at which the offence was committed; or

(d) for stating the offence to have been committed on an impossible day, or on a day that never happened or has not yet happened.

(2) An objection to an indictment for a formal defect apparent on its face must be taken by motion to quash the indictment before the accused person pleads to the indictment.

12. His Honour said:
    

If it is apparent on the face of an indictment that the Court had no jurisdiction or that no offence could have been committed this may involve defects of both form and substance, and the section cannot mean that the latter would be waived if raised in time. An amendment as to form might obviate the apparent defect in substance, but if not, I think that a “formal defect” must be limited to the form in which the indictment appears.

13. Many early cases dealing with applications under s 558(1) related to issues arising from committal proceedings; see for example R v Dandemb [1969-70] PNGLR 207; R v Angoro Evu [1969 -1970] P&NGLR 274; and R v Nakian Mandiam [1973] P&NGLR 135. The issues in those cases would not necessarily be relevant today because the practice and procedure for committal proceedings significantly changed after the enactment of the District Court (Committal Proceedings in Cases of Indictable Offences) Act 1980 and changes to the prosecution powers to lay indictment. For example, the prosecution may now indict on a charge different from the charge before the committal court, provided the evidence supports the new charge.
    
14. Recent cases concerning s 558(1) applications include:
    
    • Kape Sulu v The State (2003) N2456 – where the charge was laid under a repealed provision
    • The State v Virgil Kageni (No. 1) (2012) N5159 – where it was argued that the inclusion of an alternative charge was not permitted by law.
    • The State v Jacob Amonea (2012) N4673 – where it was claimed that the owner of property was incorrectly named.
    • The State v Sohia Kobobo (2006) N4477 – where it was alleged that the offence charged did not exist at the relevant time.
    • The State v Xue Zhufu Dickson (2010) N4162 – where, the main grounds of the motion were that the alleged acts or omissions of the accused were not sufficiently particularised; and whether a fresh committal proceedings was necessary as prosecution had obtained further evidence after the original committals.
      

Breaking into buildings and committing crime

15. The offence of breaking and entering into certain buildings and places and committing a crime is prescribed by s 398(a)(i) of the Criminal Code, and reads:
    

A person who-

(a) breaks and enters-

(i) a schoolhouse, shop, warehouse, counting-house, office, store, vehicle, garage, hangar, pavilion, factory, workshop, tent, caravan, petrol-station, ship, aircraft, vessel or club; or

(ii) .........,

and commits a crime in it .... is guilty of a crime.

16. In simple terms, s 398(a)(i) states that it is a crime for a person to break and enter a building (described) and commit a crime in the building.
    

Indictment

17. The main legislation in relation to the criminal law is the Criminal Code Act 1975 which contains the Criminal Code. Section 1 of the Criminal Code defines “indictment" as “a written charge preferred against an accused person in order to his trial before some court other than a court of summary jurisdiction”. An indictment is therefore the formal court document that sets out the criminal charge alleged against an accused person at his trial in a court not of summary jurisdiction. In this country, that is usually the National Court.
    
18. There are a number of provisions that relevantly deal with matters of form and substance of an indictment, including s 528, s 529 and s 536 of the Criminal Code and Order 3 Rules 2 and 3, First Schedule Form 1 and Schedule 2 of the Criminal Practice Rules 1987.
    
19. Sections 528, 529 and 536 of the Criminal Code relevantly state (with our underlining):
    
    528. Form of indictment

(1) An indictment shall be intituled with the name of the court in which it is presented, and must, subject to the succeeding provisions of this Division set forth the offence with which the accused person is charged—

(a) in such a manner; and

(b) with such particulars as to—

(i) the alleged time and place of committing the offence; and

(ii) the person (if any) alleged to be aggrieved; and

(iii) the property (if any) in question,

as is necessary to inform the accused person of the nature of the charge.

..............

(6) It is sufficient to describe an offence in the words of this Code or the other written law defining it.

(7) ...................

529. General rules applicable to indictments.

The following rules are applicable to all indictments:—

......

(c) it is not necessary to set out the value of any thing mentioned in an indictment unless the value is an essential element of the offence; and

......

536. Particulars.

The court may—

(a) if it thinks fit, direct particulars to be delivered to the accused person of any matter alleged in the indictment; and

(b) adjourn the trial for the purpose of the delivery.

20. Order 3 Rule 2 of the Criminal Practice Rules states that an indictment in the National Court shall be in accordance with Form 1. That Form is the general form of an indictment and it notes that the statement of the offence shall be in accordance with the Second Schedule. That requirement is consistent with Order 3 Rule 3(a) which states that the statement of offence shall follow the applicable Form in the Second Schedule.
    
21. Order 3 Rule 3(b) provides that if there is no such Form in the Second Schedule, an analogous Form in the Schedule may be used. Where no analogous Form exists, the statement of offence shall follow the words of the statutory provision creating the offence; Order 3 Rule 3(c), and that alternative is consistent with s 528(6) of the Criminal Code.
    

Consideration

22. The wording of an indictment for a criminal offence is governed by s 528 of the Criminal Code. The indictment should contain a concise statement of the offence and accompanied by factual particulars that are necessary in order to sufficiently inform the accused and the Court of the precise nature of the offence alleged against the accused. The sufficiency of factual particulars to be stated in the indictment depends on the elements of the offence charged and the key facts supporting the elements of the offence.
    
23. The Forms for indictments contained in the Criminal Practice Rules merely provide a guide on the factual particulars required to be stated for each offence.
    
24. Prior to the promulgation of the Criminal Practice Rules 1987, the Public Prosecutor’s Office, as a matter of practice, adopted and applied the statement of offences provided in the Schedule to the Criminal Practice Rules 1900 (as amended) of Queensland that was conveniently included in the textbook Carter’s Criminal Law of Queensland. In fact, counsel and the Court in criminal trials constantly referred to this textbook and were guided by the Queensland Rules with respect to the wording of the charges. In his Foreword in the First Edition of the annotated textbook Criminal Law and Practice of Papua New Guinea in February 1979, former Chief Justice Prentice reflected on this practice, stating: “In the past, both Bench and Bar carried with them Judge Carter’s annotation of the Queensland Code as an essential tool of trade.” That was understandable because the Papua New Guinea Criminal Code substantially adopted the Criminal Code Act 1899 of Queensland and we had yet to issue our own practice rules.
    
25. During that time, the equivalent of our s 398(a)(i) under the Queensland Criminal Code was s 421. Form 252 of the Criminal Practice Rules of Queensland provided the statement of offence for the offence. In the case where the crime committed in the building was stealing Form 252 required the indictment to state the property stolen and its owner.
    
26. It is a long standing practice in this jurisdiction for an indictment for the crime of break, enter and stealing under s 398(a)(i) of the Criminal Code; to contain a statement that a building of a type listed in that Section; whose physical location is stated; whose owner is named; was broken into by a named person, who entered the premises and property of a certain description and value belonging to a named person was stolen. It is not sufficient to simply state “stealing”. It is meaningless.
    
27. The word “crime” in s 398(a)(i) must be given its ordinary meaning by recourse to the section of the Criminal Code that creates the offence. The relevant factual matters to be stated are derived from the crime itself that is defined elsewhere in the Criminal Code. In the case of stealing, the crime is created by s 372(1) of the Criminal Code which states:
    

372. Stealing.

(1) Any person who steals anything capable of being stolen is guilty of a crime.

28. Any inanimate thing, etc that is the property of any person and is movable is capable of being stolen: s 364 of the Criminal Code. Form 243(1) of the Criminal Practice Rules provides a standard statement of an indictment for stealing and it states:
    

Section 372

(1) Stole (give particulars) the property of (name person)

29. A reference to “a crime” in s398(a)(i) in the case of stealing must be interpreted as a reference to stealing under s 372(1), the necessary particulars associated with the elements of stealing which are supplied by virtue of s528.
    
30. The need to state in the indictment the stolen property and its owner is made obvious by s 258 and s 398(a)(i) and even Form 267 which provides the statement of offence for s 398(a)(i). That Form states:
    

Section 398

(a) Broke and entered

• (i) (name place in terms of section) of (name owner);
• (ii) ...........................

and committed the crime of (state it)

31. To state the crime in Form 267 means to state the necessary factual particulars of the crime committed in the building, in this case stealing, that attach to the elements of the crime.
    
32. In the present case, the indictment stated the accused person “broke and entered the office of Island Petroleum Limited and committed the crime of stealing”. This indictment complied with s 398(a)(i) in terms of the accused person, the description of the building (office) and the owner of the building (Islands Petroleum Limited). Although the owner of the property is not an element of s 398(a)(i), it is a necessary factual particular that is required by Form 267 by virtue of s 528. In the case of stealing, the crime is stated without its necessary particulars. A statement of the stolen property and its owner and its value if it is known are necessary particulars that are a part of stating the crime under Form 267, by virtue of a joint reading of s 528, s 398(a)((i) and s 372 (1) of the Criminal Code.
    
33. Where the Court considers that some relevant particulars are lacking in an indictment, the Court may order amendment of the indictment pursuant to s558(2) of the Criminal Code provided it is made after the indictment is presented but before arraignment; Review pursuant to Constitution, Section 155(2)(b) Application by Herman Joseph Leahy (2010) SC1018. The Court may also exercise its powers under s 536 of the Criminal Code for the particulars to be provided to the accused person so he may properly prepare his case; The State v Xue Zhufu Dickson (supra) at [21].
    
34. We also note the general principle stated in many cases that Rules are not an end in themselves and therefore strict compliance may be dispensed with in the interest of justice; see for example Summit Development Ltd v Byron Chan (2016) N6390 at [28]. Those cases relate to civil proceedings but we consider the principle equally applicable in the criminal jurisdiction.
    
35. The Criminal Practice Rules are also subject to the Constitution which guarantees the right to fair trial under s 37(3) and the right to properly understand a criminal charge under s 37(4), rights that are paramount; The State v Tony Emmanuel (No.1) (2012) N5124 at [58]. In our opinion, both s 528 and s 536 of the Criminal Code are consistent with those rights.
    
36. Further, subordinate legislation shall be read subject to its enabling legislation – that the subordinate legislation shall be consistent with the enabling legislation; Willie Edo v Hon. Sinai Brown (2006) N3071; Dr Allan Marat v Hanjung Power Ltd (2014) SC1357. In our view, the statement of offences must not only comply with the Forms in the Criminal Practice Rules but must be consistent with the provisions of the Criminal Code relating to indictments.
    

Conclusion

37. From the foregoing, our answers to the questions in this Reference are:
    

Question 1: Is the value of property as well as the identification of property stolen, an essential element of the offence of ‘break and enter’ under s 398(a)(i) of the Criminal Code Act 1974?

Answer: No, but they are necessary particulars that should be provided in an indictment under s 398(a)(i) of the Criminal Code where the crime committed in the building is stealing.

Question 2: Did the Indictment presented by the State operate, in any way, to prejudice or embarrass the Accused in his defence to the charge, pursuant to s.558 (1)(a) of the Criminal Code Act 1974?

Answer: Yes, but only to the extent that the indictment lacked the particulars of the identity of the property stolen, its value and its owner.

Question 3: Is the Indictment as presented by the State, consistent with the requirements of paragraph 267 of Schedule 2, of the Criminal Practice Rules 1987?

Answer: No, because to state the crime in Form 267 means to state the necessary factual particulars of the crime of stealing that attach to the elements of the crime and that requires particulars of the identity of the property stolen, its value and its owner to be stated in the indictment.
________________________________________________________
Kamuta Lawyers: Lawyer for the Referrer
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused Person