Arthur Gilbert Smedley v The State [1980] PNGLR 379

• Jurisdiction: Papua New Guinea
• Judge: Pratt J:
• Judgment Date: 31 October 1980
• Citation: [1980] PNGLR 379
• Court: Supreme Court
• Year: 1980
• Judgement Number: SC182

Full Title: Arthur Gilbert Smedley v The State [1980] PNGLR 379

Supreme Court: Kearney DCJ, Wilson J, Pratt J

Judgment Delivered: 31 October 1980

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ARTHUR GILBERT SMEDLEY

V

THE STATE

Waigani

Kearney DCJ Wilson Pratt JJ

30 April 1980

1-2 May 1980

13 June 1980

31 October 1980

CRIMINAL LAW — Practice and Procedure — Indictments — Plurality of — Refusal to commit by magistrate after committal proceedings — Indictment presented by Public Prosecutor — Nolle prosequi entered — Second indictment presented by Public Prosecutor — Plurality of indictments not permitted — Criminal Code ss. 537 Infra p. 397.1, 538 Infra p. 391.2, 628 Infra p. 392.3.

CRIMINAL LAW — Appeal — Appeal against conviction and sentence — Notice of appeal — Whether notice of appeal an application for leave to appeal — Time for objecting to competency of application for leave to appeal — Supreme Court Act 1975, ss. 21, 27 — Supreme Court Rules 1977 rules 15, 19, 20, 21 and 23.

(Kearney J. dissenting) Section 538 of the Criminal Code, which empowers the Public Prosecutor to present an indictment on a charge "for any offence that the evidence appears to warrant", where a magistrate has refused to commit a person for trial for an indictable offence, does not permit of a plurality of indictments.

Accordingly, where a magistrate has refused to commit a person for trial for an indictable offence, and the Public Prosecutor has reduced into writing an indictment pursuant to s. 538 of the Code and a nolle prosequi has been entered pursuant to s. 539 of the Code a second indictment cannot be presented pursuant to s. 538:

(Per Wilson J.) after a nolle prosequi has been entered, the Public Prosecutor may seek leave to present a new ex officio indictment or information pursuant to s. 628 of the Code.

(Per Pratt J.) Quaere, whether s. 628 of the Code is available to the Public Prosecutor.

(Per Kearney Dep. C.J. and Pratt J.) The term "ex officio" indictment should no longer be used in Papua New Guinea.

(Per Wilson J.) Where a notice of appeal is given in criminal proceedings, and where no application for leave to appeal is made or granted, it is not open to the appellant to appeal against his conviction on any ground of appeal which involves a question of fact alone or to appeal against the severity of sentence.

Porewa Wani v. The State [1979] P.N.G.L.R. 593 followed.

(Per Wilson J.) An objection to the competency of an application for leave to appeal which is out of time, may be raised at any time.

Appeal

This was an appeal against conviction and sentence in which the notice of appeal set out various grounds of appeal including the ground that the indictment filed against the appellant by the Secretary of Law was ultra vires. No leave to appeal on any of the grounds of fact or mixed fact and law was sought.

Counsel

A. Amet and R. O'Regan, for the appellant.

B. J. Cassels and W. J. Karczewski, for the State.

Cur. adv. vult.

31 October 1980

KEARNEY DCJ: On 13th June the Court by majority upheld this appeal and quashed the conviction, for the reasons now published.

The appellant was the Government officer-in-charge at Rabaraba, from 1976 to 1978.

Shortly after he left the posting some twenty-four charges of stealing were laid against him. At committal proceedings in August 1978 these were withdrawn and three charges were laid of falsifying Government general expenses forms, (called TF4s), used to pay money to persons who rendered services to the Government.

At the end of the prosecution case, the magistrate found there was a prima facie case on these three charges, and the appellant reserved his defence. It is not clear, but the magistrate may have thought that the question he had then to decide, was whether he considered that the appellant would be convicted at his trial. At the conclusion of committal proceedings, if a magistrate has no more than a reasonable doubt whether the evidence is "sufficient", for the purposes of s. 107 (3) of the District Courts Act, he must commit. He is concerned with whether a defendant could reasonably be convicted.

In any event, the magistrate decided he should not commit. The later history of the proceedings is detailed by Wilson J. and Pratt J., whose opinions I have had the benefit of reading.

Ultimately, the appellant stood his trial over fourteen days on two charges, under ss. 430 (b) and 91 of the Criminal Code, involving a single TF4. This document purported to record that one Aidan Gariadi had worked on a toilet and shower block at Dogura Hospital in July 1977, for which he claimed, and was paid, K500. It purported to be signed both by the appellant and Gariadi. It was common ground at the trial that the work in question had not been done. His Honour found that Gariadi had not signed the TF4 and had not received payment. The appellant conceded that he had signed the TF4, but contended that it could not fairly he said that he had made a false entry; and that there was no evidence he had an intent to defraud (see s. 430 (b) ), or knowledge of falsity (see s. 91).

The appellant was convicted on both counts. He was sentenced to terms of twenty-one months and twelve months' imprisonment, to be served concurrently.

At the commencement of this appeal the State took an objection to competency, on the basis that the notice of appeal did not amount to an application for leave to appeal which was required if certain grounds involving questions of pure fact, and severity of sentence, were to be argued. Further, that r. 20 of the Supreme Court Rules 1977 had not been complied with.

Wilson J. had dealt with this contention, at length. I have the misfortune to differ, but I will be brief.

The appellant's trial lawyers prepared this notice of appeal on the day he was convicted, 10th November, 1978. They then ceased to act for him, except for making a bail application eleven days later. He was without any legal aid for many months. The notice of appeal is deficient, in elementary ways.

The only reference to the question of leave is in par. 6 (a); there is no express application for leave. The respondent contends that the document's deficiencies are such that the rule applied in Porewa Wani v. The State [1979] P.N.G.L.R. 593.4 governs the matter here. However, in that case, where the question arose when the appellant sought to contend that the sentence was excessive, there was no reference at all to that in the document, or to an appeal on that basis. In the present appeal, the matters in pars 6 (b) and 6 (d), and the three reasons in the fourth ground of appeal, must be considered. To my mind, these differences render the cases distinguishable on this point; I think there is sufficient in this document to warrant a conclusion that leave is necessarily being sought.

It is clear that the draftsman completely overlooked r. 20. However, particulars were apparently supplied in April, and in the circumstances of this case I do not think that non-compliance with the rule should bar the grant of leave.

The appellant had relied on Evertz v. The State Unreported judgment SC 154, 3rd August, 1978.5, which has some similarities. There, the appellant was in person, with a notice of appeal which may well have been drafted by the same draftsman. The question of competency was raised by the court. The appellant did not argue his written grounds of appeal. The court dealt with what he had to say, on its merits. It was a wholly exceptional case, and should be treated as such.

All of these cases involve the construction of differing documents; it is a wilderness of single instances. One fact relevant both in Evertz and this appeal is that during the statutory period, both appellants were unrepresented, and in custody; the Rules are not geared, in practice, to such persons.

I would grant leave to appeal to the extent necessary to enable the ground as laid, to be argued.

It is unnecessary for me to deal with the appellant's counter-point under s. 23 of the Supreme Court Act.

I turn to the substantive grounds of appeal, as argued.

Mr. O'Regan dealt first with the ground that the indictment of 18th October was ultra vires. The matter is dealt with at length in the opinions of Wilson and Pratt JJ, with whose conclusions I have the misfortune to differ.

Mr. O'Regan first argued that the power to indict under s. 538 of the Criminal Code did not extend to committing an abuse of the process of the court, and that the presenting of the indictment of 18th October amounted to such an abuse.

One ground appeared to be the difference in the charges laid, as between the indictment of 1st September and the indictment of 18th October. However, I see no abuse in that; the charges, as tried, were very similar.

Another ground was that the procedure defeated the protection afforded the accused by the amending power in s. 547 of the Code. I agree that that may be so, but I do not consider there was any abuse of power in that sense, in the circumstances of this case.

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