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

• Jurisdiction: Papua New Guinea
• Citation: (2010) SC1018
• Date: 29 March 2010
• Docket Number: SCR NO 1 0F 2009
• Court: Supreme Court
• Year: 2010

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

CRIMINAL LAW—practice and procedure—whether an indictment presented under Criminal Code, s526 can be amended after being presented to the National Court—whether preconditions in Criminal Code, s535 must be satisfied.

The applicant applied for review under Constitution, s155(2)(b) of an order of the National Court to amend an indictment presented under s526 (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 s526 indictment; (2) that, if there is power to amend, the preconditions to its exercise under Criminal Code, s535, 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 s526 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, s535; as s535 only applies after commencement of a trial, which occurs when the accused is called upon to plead to the indictment (Criminal Code, s557(2)).

(3) Amendment of a s526 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; Application by Herman Joseph Leahy (2006) SC855; Simili Kara v The State [1984] PNGLR 254; Arthur Gilbert 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, s155(2)(b) of a decision of the National Court ordering an amendment to an indictment that had been presented under s526 of the Criminal Code.

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 s155(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...