Simili Kara v The State [1984] PNGLR 254

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Bredmeyer J, Amet J
• Judgment Date: 28 September 1984
• Citation: [1984] PNGLR 254
• Court: Supreme Court
• Year: 1984
• Judgement Number: SC278

Full Title: Simili Kara v The State [1984] PNGLR 254

Supreme Court: Kidu CJ, Bredmeyer J, Amet J

Judgment Delivered: 28 September 1984

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:

" (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.

(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

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

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

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

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

(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.

(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.

(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.

(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) 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] 175 E.R. 573; 3 Car. & Kir. 326.

R. v. Thompson [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:

" (1) A person who commits robbery is guilty of a crime.

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

(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:

"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...