Papua New Guinea Law Reports - 1969-70
[1969-70] PNGLR 285
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
REGINA
V.
TOIGEN TIOLO AND OTHERS
Rabaul
Kelly J
9 July 1970
CRIMINAL LAW - Procedure - New Guinea - Indictment - Offence disclosed in depositions on committal for other offence - Joinder of counts - Other offences alleged to be constituted by same act - Acts done in the prosecution of a single purpose - The Criminal Code, ss. 561, 567.
When a person is committed for trial for an offence upon depositions disclosing evidence of an additional offence, the Crown is entitled to rely on s. 561 of The Criminal Code to support an indictment charging the additional offence as well as that on which the person is committed for trial.
Reg. v. Webb, [1960] Qd. R. 443, applied.
The Crown alleged that the victim was assaulted by at least a dozen persons including three of the accused, while the fourth accused was present aiding and abetting the assault and a principal offender in the alleged riot. At the time of the alleged assaults within and near a church following a service members of the congregation including relatives of the victim and the victim himself were in fear of what might happen to him.
Held:
That the joinder in the indictment of counts of assault occasioning bodily harm and of riot could be supported under The Criminal Code, s. 567.
R. v. Rodriguez, [1939] Q.S.R. 227, applied.
Motion to Quash Indictment.
Toigen Tiolo and three others, having been committed for trial on a charge of assault occasioning bodily harm, were arraigned before Kelly J. upon an indictment containing counts of that charge and of taking part in a riot. The accused moved that the indictment be quashed. The facts and arguments are set out sufficiently in the ruling reported hereunder.
Counsel:
Pratt, with him Gajewicz, for the Crown.
Flood, for the accused Toigen Tiolo and Tomas Tobernat.
O’Meally, for the accused Tonialai Torita and Tobata Toravi.
9 July 1970
KELLY J:  Counsel for the accused have moved to quash the indictment pursuant to s. 596 of the Code on both of the grounds set out in that section, namely, that it is calculated to prejudice or embarrass the accused in their defence and that it is formally defective. Their submissions proceed on two bases: firstly, that whereas the accused were each committed for trial on the charge which is the subject of the first count, namely, assault occasioning bodily harm, they are now in addition indicted on the second count, namely, taking part in a riot; and secondly, that the counts of assault occasioning bodily harm and of riot cannot be joined in one indictment. It is further submitted that even if such joinder is possible as a matter of law, nevertheless, I should exercise my discretion under the second paragraph of s. 567 and require the prosecutor to elect on which charge he will proceed.
1.          INDICTMENT FOR OFFENCE FOR WHICH NOT COMMITTED.
For the reasons which I gave in Reg. v. Angoro Evu[cccxcv]1 I consider that s. 560 permits of an indictment only for the offence for which the accused was committed. However, the Crown here seeks to support the indictment under s. 561 relying on the practice referred to by Philp J. in Reg. v. Webb[cccxcvi]2 where, in referring to the use of the power given by s. 561, his Honour said[cccxcvii]3:
“The first use is when a man has been committed for trial for an offence and the depositions disclose evidence of a different offence or of other offences; in such circumstances it is convenient and just that an indictment charging the different or other offences should be presented by the Crown Prosecutor.”
I am of the opinion that s. 561 is operative in New Guinea and, assuming as I do from what was said in argument and without having read the depositions that the offence the subject of the second count is one disclosed by the depositions, I consider that the Crown is entitled to rely on the second paragraph of s. 561 to support the indictment. So far as I can see, there is nothing requiring the indictment to be intituled in any particular way to indicate that it is presented under that section and I do not consider that s. 695 has any operation in the present instance as in any event it refers to indictments presented under the first paragraph of s. 561.
I do not know the position as to the giving of notice of the new charge, but that goes only to the question of whether an adjournment, if sought on the basis that the defence is taken by surprise, should be granted and not to the question of whether the indictment should be quashed.
On the view which I have taken there is no necessity to consider the effect of s. 12 of the Criminal Procedure Ordinance of 1889 (Papua, adopted), as amended in 1924 and the extent to which it may be relied upon to support the indictment in its present form.
On this submission I therefore hold that there is no objection to the indictment on the basis that it relates to an offence in addition to that on which the accused were committed for trial.
2.         JOINDER OF THE TWO COUNTS.
The question of joinder depends on the proper interpretation of s. 567 in its application to the facts of this case. It seemed to me to be essential that I have some knowledge of the basic facts alleged in order to deal properly with this submission and since it is not the practice in this Territory for the trial judge to have the depositions before him I had the Crown Prosecutor inform me of the substance of what the Crown was alleging. Mr. Pratt informed me that the Crown would allege that Dimain Tokuropa was assaulted by at least a dozen persons including three of the four accused, the fourth accused being present aiding and abetting the assault and being a principal in the riot. The assaults are alleged to have taken place inside and outside a church following a service and meeting and at a time when a number of members of the congregation, including relatives of the man assaulted, were still present and that both the man assaulted and other members of the congregation were in some fear of what would happen to him.
Mr. Pratt submits that the same acts and omissions constitute both the offences charged and says that all the evidence on the riot count would be called on the assault count and in his submission it would all be admissible on that count, although that really seems to go more to the question of prejudice by joinder of the charges than to whether the two offences are constituted by the same acts or omissions.
Applying the broad meaning of “constituting” adopted by the Queensland Court of Criminal Appeal in R. v. Rodriguez[cccxcviii]4 and having regard to such decisions as Reg. v. Young[cccxcix]5 where the Court of Criminal Appeal held that the same acts may constitute the offence of attempted rape and also the offence of indecent dealing so that these offences may be properly joined in the same indictment under s. 567, it seems to me that the two offences charged can be said to be constituted by the same acts or omissions so that the joinder could be supported on that basis. It would seem that the joinder may also be supported on the basis which Clarkson J. held appropriate in Reg. v. Edward Tolikun Kision[cd]6 in the last Rabaul sittings namely that the offences are alleged to be constituted by a series of acts done in the prosecution of a single purpose. It follows that on either view the two counts are properly joined under s. 567.
3.         EXERCISE OF DISCRETION TO REQUIRE PROSECUTOR TO ELECT.
As already stated the Crown Prosecutor has intimated that the Crown evidence relating to both charges would be the same. On the material before me any likelihood of prejudice to the accused by the joinder of the charges is not apparent and I am unable to see any basis on which I would be justified in requiring the prosecutor to elect on which of the charges he will proceed. I am not asked to direct that the trial of the accused upon either of the charges be heard separately and there is no reason that I can see why I should give such direction.
The application to quash the indictment is refused and the trial should proceed on the indictment as framed.
Motion to quash dismissed.
Solicitor for the Crown: J. G. Smith, Acting Crown Solicitor.
Solicitor for the accused: W. A. Lalor, Public Solicitor.

[cccxcv][1969-70] P. & N.G.L.R. 273.
[cccxcvi][1960] Qd. R. 443.
[cccxcvii][1960] Qd. R., at p. 447.
[cccxcviii][1939] Q.S.R. 227.
[cccxcix][1955] Q.W.N. 38.
[cd]Unreported (Sup. Ct., P. & N.G., 1970).