The State v Herman Joseph Leahy (2008) N3570

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom, J
• Judgment Date: 11 December 2008
• Citation: (2008) N3570
• Docket Number: CR. NO.835 OF 2005
• Court: National Court
• Year: 2008
• Judgement Number: N3570

Full Title: CR. NO.835 OF 2005; The State v Herman Joseph Leahy (2008) N3570

National Court: Kirriwom, J

Judgment Delivered: 11 December 2008

N3570

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO.835 OF 2005

THE STATE

-Applicant-

V

HERMAN JOSEPH LEAHY

-Accused-

Waigani: Kirriwom, J.

2008: 9 & 11 December

PRACTICE AND PROCEDURE – Indictments – Ex Officio Indictment – Amendment – Whether amendable – Power to amend indictment – Time for amendment of indictment – Amendment before arraignment of accused - General discretion of court to amend indictments – Liberal interpretation of statute – Criminal Code, s. 535(1)

Cases Cited:

PNG Cases

Arthur Smedley v. The State [1980] PNGLR 379.

The State v. Pawa Kombea [1997] PNGLR 494.

The State v. Williams (No. 1) [2004] N2556.

The State v. Saul Ogerenu [2004] N2780.

Review Pursuant to Constitution, Section 155 (2)(b); Application By Herman Leahy (Unreported Judgment of the Supreme Court dated 15th December 2006, SC855)

The State v. Tanedo [1975] PNGLR 395

Overseas Cases

R v Fraser (1923) 17 Cr. App R 182

R v Smith (1951) 1 KB 53; (1950) 2 All ER 679; 34 Cr App R 168

R v Aldridge (1993) A Crim R 371

Counsel:

Peter Kelly, for the State

I.R. Molloy, for the Accused

11 December, 2008

1. KIRRIWOM, J.: This is an application made by the State by way of Notice of Motion filed 29 October 2008 seeking inter alia, an order that the ex officio indictment presented against the Second Respondent, Herman Joseph Leahy (hereafter ‘the accused’) on 16th May 2005 be amended. The application is supported by an affidavit sworn 25th August 2008 by Camillus Sambua, Acting Deputy Public Prosecutor (Administration) in which, amongst other things, he deposes that ‘on the 11th of August 2008 when (sic) His Honour Justice Kirriwom directed that the State make a formal application to amend the indictment of Herman Leahy.’

2. The affidavit also deposes ‘I am instructed by the Acting Public Prosecutor, Mr. Jack Pambel that the indictment is to be amended in the terms of that attached hereto and marked ‘B’. The purported annexure marked with letter ‘B’ to Mr. Sambua’s affidavit is a 3 page document including cover page titled ex-officio indictment. The body of page 2 of the document sets out two counts which are worded in these terms:

Proposed EX OFFICIO INDICTMENT

Count One: HERMAN JOSEPH LEAHY of KOUKOU, PORT MORESBY, NATIONAL CAPITAL DISTRICT stands charged that he between the 1st day of November 1998 and the 10th day of October 2000, at Port Moresby, National Capital District in Papua new Guinea, did conspire with JIMMY MOSTATA MALADINA, HENRY FABILA, SHUICHI TANIGUCHI, KAZU KOBOYASHI and other persons to defraud the NATIONAL PROVIDENT FUND BOARD OF TRUSTEES of the sum of TWO MILLION SIX HUNDRED AND FIFTY THOUSAND (K2,650,000.00) by fraudulently increasing the construction costs of the National Provident Fund Tower situated at Douglas Street, Port Moresby, National Capital District.

Count Two: AND ALSO THE SAID HERMAN JOSEPH LEAHY further stands charged that he, between the 26th day of February 1999 and the 30th day of July 1999 at Port Moresby, National Capital District in Papua New Guinea, dishonestly applied to his own use and to the use of others the sum of TWO MILLION SIX HUNDRED AND FIFTY THOUSAND KINA (K2,650,000.00) the property of NATIONAL PROVIDENT FUND BOARD OF TRUSTEES.”

3. I have since come to appreciate that this is intended to be the proposed amended indictment that, if leave is given, the State seeks to rely on in the prosecution of the accused Herman Leahy.

4. Apart from pleading these ‘facts’, the affidavit fails to provide any factual basis upon which this application for amendment is made other than leaving to the Court to infer from the annexure, the nature and the substance or content of the amendment sought in the indictment earlier presented.

5. This failure quite rightly prompted defence contention that the application for amendment was not factually supported and the onus was on the State to properly table evidentiary material before the court to ask for that relief. In support of this proposition Counsel referred to The State v Saul Ogerem [2004] N2780 where Lay J whilst acquitting the accused after recalling and quashing his earlier acceptance of the accused’s guilty plea based on inaccurate legal advice of counsel on the basis that the charge in the indictment was badly pleaded by not setting out the elements of the offence charged and not put to the accused on arraignment and no application was made to amend the indictment before the arraignment. When defence counsel’s assistance was drawn to the possible injustice abound strangely enough supported the correctness of the plea of guilty and requested amendment to the charge to conform to the brief facts given for arraignment. He was supported by the prosecuting counsel. The court rejected the submissions of counsel. His Honour said:

“Although no amendment has been sought, any variance, omission or insertion would be for the purpose of turning a nullity into an effective indictment on which the Defendant could be properly convicted. Therefore it is impossible to say that the variance, omission or insertion would not be material to the merits of the case.”

6. And before I leave this aspect of the case, let me make few pertinent points for the record. Mr Sambua’s affidavit tends to suggest that I had directed for the indictment to be amended. In fact I made no such order or direction as there was no legal or factual basis for me to make such a direction. All that I did as the judge allocated this case sitting in the status conference on this matter in August was, after hearing both sides on the proposals for way forward with the case, gave directions for the State to file appropriate notices and serve on the defence on the various preliminary applications it intimated pursuing including the application for amendment to the indictment.

7. Secondly, it is probably a misconception of facts to depose to a direction from one’s superior to take a particular course of action in a matter as a fact to justify seeking amendment to the indictment as is pleaded in Mr Sambua’s affidavit when the true facts prompting this action would be the depositions taken from the witnesses or potential witnesses who are ultimately going to testify in the trial. But to plead those facts now would only duplicate the task that will eventually be the function of the court in the trial itself.

8. The indictment previously presented against the accused Herman Leahy dated 12 May 2006, is worded in these terms:

Count One: HERMAN JOSEPH LEAHY of KOUKOU, PORT MORESBY, National Capital District stands charged that he between the 01st day of November 1998 and the 10th day of October 2000 at Port Moresby, National Capital District in Papua new Guinea did conspire with Jimmy Mostata Maladina, Henry Fabila, Shuichi Taniguchi, Kazu Koboyashi and other persons to defraud the National Provident Fund of Papua New Guinea of the sum of Two Million Five Hundred Thousand Kina (K2,500,000.00) by fraudulently increasing the construction costs of the National Provident Fund of Papua New Guinea’s Tower at Allotment 16, Section 05, Douglas Street, Granville, Port Moresby, National Capital District.

Count Two: AND ALSO THAT the said HERMAN JOSEPH LEAHY further stands charged that he, between the 26th day of February 1999 and the 30th day of July 1999 at Port Moresby, National Capital District in Papua New Guinea, dishonestly applied to the use of another person the sum of Two Million Five Hundred Thousand Kina (K2,500,000.00) the property of Kumagai Gumi Company Limited.

Count Three: AND ALSO THAT the said HERMAN JOSEPH LEAHY further stands charged that he between the 9th day of April 1999 and the 22nd day of April 1999 at Port Moresby, National Capital District, Papua New Guinea dishonestly applied to the use of another person the sum of Seventy Thousand Kina (K70,000.00) the property of Kumagai Gumi Company Limited.”

9. In the proposed amendment there is a significant difference in that the third count is omitted, leaving only two counts remaining against the accused, however with slight variations to the wording on those counts. Whether the omission of the third count and insertion of additional words and phrases to the remaining counts have any adverse implications against the accused in the conduct of his defence are the threshold issues in this application.

10. While no evidentiary material was placed before me in support of this application, written submission filed by the State gives a background account of this case and the reasons under-pinning the need for amendment to the indictment sought at this juncture. The brief facts provided as per counsel’s submission for purpose of this application are that the accused Herman Joseph Leahy and the co-accused Jimmy Mostata Maladina were both charged with conspiring to defraud the National Provident Fund of Papua New Guinea and dishonest application of monies at different times between 1998 and 2000 following findings and recommendations of a Commission of Inquiry investigating into the allegations of fraud, purportedly committed by people one way or another involved in the construction of a multi-storey NPF Tower building in down-town Port Moresby now come to be known as ‘Delloitte Tower’ funded by the...