The State v Herman Joseph Leahy (2008) N3570

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

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

National Court: Kirriwom, J

Judgment Delivered: 11 December 2008

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, s535 (1)

Cases Cited:

PNG Cases

Arthur Gilbert Smedley v The State [1980] PNGLR 379; The State v Pawa Kombea [1997] PNGLR 494; The State v Murray William (No 1) (2004) N2556; Review Pursuant to Constitution, Section 155(2)(B); Review Pursuant to Constitution, Section 155(2)(B); Application by Herman Joseph Leahy (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

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...