Review Pursuant to Constitution, Section 155(2)(B); Application by Herman Joseph Leahy (2010) SC1018

• Jurisdiction: Papua New Guinea
• Judge: Batari J, Cannings J, Kariko J
• Judgment Date: 29 March 2010
• Citation: (2010) SC1018
• Docket Number: SCR NO 1 0F 2009
• Court: Supreme Court
• Year: 2010
• Judgement Number: SC1018

Full Title: SCR NO 1 0F 2009; Review Pursuant to Constitution, Section 155(2)(B); Application by Herman Joseph Leahy (2010) SC1018

Supreme Court: Batari J, Cannings J, Kariko J

Judgment Delivered: 29 March 2010

SC1018

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR NO 1 0F 2009

REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2)(b)

APPLICATION BY

HERMAN JOSEPH LEAHY

Waigani: Batari J, Cannings J, Kariko J

2009: 27 October

2010: 29 March

CRIMINAL LAW – practice and procedure – whether an indictment presented under Criminal Code, Section 526 can be amended after being presented to the National Court – whether preconditions in Criminal Code, Section 535 must be satisfied.

The applicant applied for review under Constitution, Section 155(2)(b) of an order of the National Court to amend an indictment presented under Section 526 (indictment without committal) of the Criminal Code. Three grounds of review were relied on to argue that the order should be quashed: (1) that, once presented, there is no power to amend a Section 526 indictment; (2) that, if there is power to amend, the preconditions to its exercise under Criminal Code, Section 535, did not exist; and (3) the application by the Public Prosecutor in the National Court to amend the indictment was tantamount to filing a nolle prosequi and then presenting a fresh indictment and therefore an abuse of process.

Held:

(1) There is no prohibition against amendment of a Section 526 indictment after presentation. The question of whether an indictment should be amended is a matter of discretion for the Judge before whom the application for amendment is made.

(2) In deciding whether and in what terms to order that an indictment be amended, the Judge may, after presentation of an indictment and before commencement of a trial, have regard to but is not bound by the matters prescribed by Criminal Code, Section 535; as Section 535 only applies after commencement of a trial, which occurs when the accused is called upon to plead to the indictment (Criminal Code, Section 557(2)).

(3) Amendment of a Section 526 indictment after its presentation and before commencement of a trial is not necessarily an abuse of process. Whether an abuse has occurred will depend on the circumstances of each case; and in this case no abuse was evident.

(4) None of the grounds of review had merit. The National Court did not err in law. The application for review was dismissed.

Cases cited

The following cases are cited in the judgment:

Application by Herman Joseph Leahy (2006) SC981

Application by Herman Joseph Leahy (2009) SC994

Re Leahy (2006) SC885

Simili Kara v The State [1984] PNGLR 254

Smedley v The State [1980] PNGLR 379

The State v Esorom Burege (No 1) [1992] PNGLR 481

The State v Herman Joseph Leahy (2008) N3570

The State v Pawa Kombea [1997] PNGLR 494

APPLICATION

This was an application for review under Constitution, Section 155(2)(b) of a decision of the National Court ordering an amendment to an indictment that had been presented under Section 526 of the Criminal Code.

Counsel

I Molloy and S Nepel, for the applicant

P Kelly and A Bray, for the respondent

1. BY THE COURT: Herman Joseph Leahy seeks review by the Supreme Court of a decision of the National Court constituted by Justice Kirriwom. His Honour decided to grant leave to the Public Prosecutor to amend an indictment against Mr Leahy that had been presented under Section 526 of the Criminal Code (The State v Herman Joseph Leahy (2008) N3570).

2. The application for review is made under Section 155(2)(b) of the Constitution, which gives the Supreme Court an inherent power to review all judicial acts of the National Court. We granted leave for the review as the applicant, Mr Leahy, had no right of appeal against Kirriwom J’s decision, there was no other way he could bring the matter to the Supreme Court, and he has raised important points of law that are not without merit (Application by Herman Joseph Leahy (2009) SC994).

3. Mr Leahy’s application for review contains six grounds of review but some overlap and we consider that they can fairly be reduced to three:

1 that, once presented, there is no power to amend a Section 526 indictment;

2 that, if there is power to amend, the preconditions to its exercise under Criminal Code, Section 535, did not exist; and

3 the application by the Public Prosecutor in the National Court to amend the indictment was tantamount to filing a nolle prosequi and then presenting a fresh indictment and therefore an abuse of process.

GROUND 1: NO POWER TO AMEND A SECTION 526 INDICTMENT

4. This was Mr Leahy’s principal contention. He points out that on 21 September 2004 the District Court discharged him from various conspiracy and misappropriation charges. The Public Prosecutor then on 16 May 2005 presented an indictment under Section 526 of the Criminal Code against him to the National Court, constituted by Justice Mogish. Section 526 is the provision that allows the Public Prosecutor to present an indictment – sometimes called an ex officio indictment – where the District Court has refused to commit a person for trial.

5. The indictment contained three counts, which can be summarised as follows:

· count 1: conspiracy with other persons to defraud the National Provident Fund of K2.5 million;

· count 2: dishonest application to the use of another person of K2.5 million, the property of Kumugai Gumi Ltd;

· count 3: dishonest application to the use of another person of K70,000.00, the property of Kumugai Gumi Ltd.

6. Mr Leahy raised an objection to the indictment which Mogish J on 8 June 2005 dismissed.

7. Mr Leahy then sought and was granted leave by the Supreme Court (Kapi CJ, Cannings J, David J) to review Mogish J’s decision but the review was dismissed (Re Leahy (2006) SC885). Between the hearing of that application and the delivery of judgment, an application for disqualification of one of the members of the Court on the ground of apprehended bias was also dismissed: Application by Herman Joseph Leahy (2006) SC981. The case eventually returned to the National Court, with the 16 May 2005 indictment intact.

8. During 2008 the case came before Kirriwom J for a pre-trial status conference. The Public Prosecutor applied by motion for an order to amend the 16 May 2005 indictment in three respects:

Count 1 – by adding the words “Board of Trustees” after “National Provident Fund” and by increasing the amount of money from K2.5 million to K2.65 million;

Count 2 – by adding the phrase “to his own use”, in describing how the money was applied;

Count 3 – by deleting this count.

9. Mr Leahy opposed amendment and argued that the Public Prosecutor had no power to amend the indictment and the National Court had no power to grant leave for an amendment. Having presented the indictment on 16 May 2005 the Public Prosecutor was obliged to prosecute it on its terms, without any amendment. An indictment under Section 526 can only be presented after the District Court has refused to commit a person for trial. It is an exercise of great power. The Public Prosecutor is allowed only one bite at the cherry. Section 526 does not permit a plurality of indictments, it was argued.

10. Mr Molloy, for Mr Leahy, submitted before Kirriwom J, as well as before us, that authority for those propositions lies in the decision of the Supreme Court (Wilson J and Pratt J, Kearney DCJ dissenting) in Smedley v The State [1980] PNGLR 379 and the decision of the National Court (Lenalia J) in The State v Pawa Kombea [1997] PNGLR 494.

11. In Smedley, the Public Prosecutor presented a Section 526 indictment, following a refusal to commit by the District Court. He then presented a nolle prosequi under Section 527 of the Criminal Code; and then presented, without seeking or obtaining the leave of the Court, a new indictment under Section 526. This was held to be impermissible. An appeal against a conviction entered after a trial on the second indictment was upheld.

12. In Kombea, a State Prosecutor wrongly signed and presented a Section 526 indictment to the National Court (such an indictment can only be signed by the Public Prosecutor: The State v Esorom Burege (No 1) [1992] PNGLR 481). After the error was discovered, the State Prosecutor sought to present a new indictment, signed by the Public Prosecutor. Lenalia J refused to accept the second indictment, stating:

There are two main types of indictments in our jurisdiction. There are those taken under Section 525(2) following committal proceedings. … The second type is under Section 526(2) where there has been a refusal to commit by the committal magistrate for insufficiency of evidence ... I am more inclined to think that once having decided to reduce the charge into writing and then that [Section 526] indictment is in fact presented to the Court, that in my reading of Sections 524, 525(2) and 526(2) is the end of the matter and the prosecution cannot thereafter seek to amend by a substitute, and an amended indictment. I must therefore agree with the defence counsel that, the State had already presented the indictment … and I must refuse acceptance of the amended … indictment proposed by the State Prosecutor.

13. We...