[1973] PNGLR 110

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SIWI KURONDO

V

KEVAN WYLDE

Kundiawa
Kelly J

14 November 1972

CRIMINAL LAW - Procedure - Information bad for duplicity - Behaving in riotous manner - Local Courts Ordinance, s. 22[ci]1.

APPEAL - Grounds of appeal - Objection not taken below - Interests of justice - Information bad for duplicity - Substantial miscarriage of justice.

S. K. was charged with and found guilty of behaving in a riotous manner on 19th and 20th July, 1972, and sentenced to imprisonment for two months. On appeal against both conviction and sentence it was argued for the first time that the information was bad for duplicity.

Held

(1)      The general rule that an appellant is not entitled to take on appeal an objection that he could have taken in the court below is not an inflexible rule but is subject to a number of recognized exceptions and to the general principle to secure as far as possible that justice is done according to law; Stirland v. D.P.P., [1944] A.C. 315 at p. 328 referred to.

(2)      In the circumstances the appellant should not be precluded from raising the objection of duplicity, although that objection was not taken below.

(3)      A complaint under the Local Courts Ordinance should in general relate to one matter only.

(4)      The complaint against S. K. was defective and the conviction bad, as it clearly appeared that the appellant was found guilty and convicted of riotous behaviour on each of two separate occasions and so was in fact convicted of two offences; Edwards v. Jones, [1947] K.B. 659 referred to.

(5)      By reason of the course taken at the Local Court hearing a great deal of evidence against the appellant was introduced which could not have been introduced had the complaint been limited to one of two days only, which could not have failed to prejudice the appellant and which was sufficient in the circumstances to amount to a substantial miscarriage of justice: test in Mraz v. The Queen (1955), 93 C.L.R. 493 at p. 514 applied.

(6)      The appeal should be allowed.

Appeal

This was an appeal against conviction and sentence by Siwi Kurondo who was charged under the Local Courts Ordinance with, and convicted of behaving in a riotous manner on 19th and 20th July 1972 and sentenced to imprisonment with hard labour for two months. He appealed against both conviction and sentence. The grounds of appeal against conviction included the ground that the information was defective for duplicity. This objection was not taken before the Local Court.

Counsel

J. Bradshaw, for the appellant (accused).
B. Ryan, for the respondent (Crown).

14 November 1972

KELLY J: This is an appeal from a decision of the Local Court at Kundiawa given on 7th September, 1972, whereby the appellant was found guilty of behaving in a riotous manner on 19th and 20th July, 1972, and sentenced to imprisonment with hard labour for two months. The appeal is against both conviction and sentence. The grounds of appeal against conviction are (1) that it was contrary to the evidence and the weight of evidence, and (2) that the information was defective for duplicity as it alleged two offences by the appellant.

It will be convenient to consider first the latter ground. In my view it is correct to say that the information alleges two offences, that is, riotous behaviour on each of two separate occasions and this is properly referred to as duplicity. The objection that the information (or complaint as it should more correctly have been termed) was bad for duplicity was not taken before the Local Court, in which the appellant was represented by counsel. If the objection had been taken and had been held to be a valid objection, the defect would have been curable by the prosecutor being called upon to elect upon which offence he would proceed, and upon his so electing the complaint could have been amended accordingly. The first question which arises is therefore whether the appellant is now entitled to rely on this ground of appeal in view of the general rule that an appellant is not entitled to take an objection that he could have taken in the court below. However, this is not an inflexible rule as it is subject to a number of recognized exceptions, none of which is applicable here and is also subject to the general principle referred to in Stirland v. D.P.P.[cii]2: “The object of British law, whether civil or criminal, is to secure, as far as possible, that justice is done according to law, and, if there is substantial reason for allowing a criminal appeal, the objection that the point now taken was not taken by counsel at the trial is not necessarily conclusive.”

There are several reasons why I consider that the fact that objection was not taken below should not be fatal to the appellant on this appeal. Firstly it is by no means established that in the case of a complaint in the Local Court, the objection of duplicity is open and the question of whether such an objection lies at all is one of the issues on this appeal. Furthermore, the matter is one of substance going to the root of the whole case and if justice is to be done, I consider that the appellant should not be precluded from raising it now.

Section 22 of the Local Courts Ordinance which deals with complaints under that Ordinance does not by its terms require that a complaint shall be for one matter only and there is no other provision in the Ordinance to this effect. This is to be contrasted with the position under the District Courts Ordinance which by s. 37 requires that with certain exceptions an information shall be for one matter only, a provision which has its genesis in Summary Jurisdiction Act, 1848 of the United Kingdom. I do not consider that any particular assistance is to be derived from provisions in the Local Courts Ordinance such as ss. 15, 38 and 41 the effect of which is that in certain events a matter instituted in the Local Court may ultimately be heard in the District Court. I do not think that such provisions require a reading together of the two Ordinances (that is, the Local Courts Ordinance and the District Courts Ordinance) and in the event that a complaint alleging more than one offence and which had originated in the Local Court came to be heard in the District Court, that court, having regard to s. 37 of the District Courts Ordinance, should once it was seized of the matter proceed to put the prosecutor to his election.

In my view it is pertinent to determine if there is any common law principle which is applicable. Regard is to be had to s. 16 of the Laws Repeal and Adopting Ordinance 1921-1933 (N.G.) which provides that: “The principles and rules of common law and equity that were in force in England on 9th May, 1921, shall be in force in the Territory so far as the same are applicable to the circumstances of the Territory, and are not repugnant to or inconsistent with the provisions of any Act, Ordinance, law, regulation, rule, order or proclamation having the force of the law that is expressed to extend to or applied to or made or promulgated in the Territory.” When this section was considered by the High Court in Booth v. Booth[ciii]3, Rich and Dixon JJ. said that a very wide meaning should be given to the section, and added by way of obiter—”Probably the principles and rules of common law must be taken subject to and together with the statutory modifications in their application which had been made in England before 9th May, 1921.”

In the case of indictments the common law rule prior to 1915 had been that whilst as a matter of law even two offences of felony could be charged in the same count, the practice was uniform and well established that several offences should not be charged in the same count and an indictment which did so was irregular (see R. v. Thompson[civ]4). In 1915 in England the Indictment Rules were made under the Indictments Act of that year. Neither the Act nor the Rules are available to me here but the position as at 9th May, 1921, may be regarded as being authoritatively stated in R. v. Molloy[cv]5 by Avory J. in a judgment in the Court of Criminal Appeal delivered on 11th April, 1921, in which he said, “In this case it is clear on the authorities quoted that when two felonies are charged in the same count of an indictment, such indictment —unless it can be cured by the Indictments Act, 1915—is bad on the ground of duplicity.” That of course related to indictments and the position in relation to complaints before justices was dealt with by the Summary Jurisdiction Act, 1848 and legislation which subsequently replaced it which was to the effect of s. 37 of the District Courts Ordinance and specifically required that subject to certain exceptions which are not applicable here the complaint should be for one matter only. This might be thought to have given statutory effect to common law principle that a charge against an accused should relate to only one offence and that this should be so whatever the nature of the offence or the court in which the accused was tried.

Applying the dictum of Rich and Dixon JJ. in Booth v. Booth[cvi]6 to which I have referred above, I would therefore consider that part of the common law of England introduced into New Guinea in 1921 was the rule that in general a charge against an accused person should relate to one offence only. There is nothing in the Local Courts Ordinance which would prevent such a rule continuing in force in relation to complaints under that Ordinance and it is certainly applicable to the circumstances of the Territory.

I would therefore consider that a complaint under the Local Courts Ordinance should in general relate to one matter only. It is not necessary for the present purpose to consider whether as part of the common law of England introduced into New Guinea there are qualifications to that rule along the lines of s. 37 of the District Courts Ordinance as no such qualification would apply in this case. I may say that I have previously expressed a view on this matter to the contrary of that which I now hold, but that was without benefit of argument on the question and of the further consideration which I have now been able to give to it.

The position then is that the complaint in this case was defective and the conviction on it was bad (see Edwards v. Jones[cvii]7). It seems clear to me from the judgment of the magistrate that the appellant was found guilty and convicted of riotous behaviour on each of two separate occasions and so was in fact convicted of two offences.

It next becomes necessary to consider whether in the circumstances there has been a substantial miscarriage of justice, as it is only if it appears that this is so then the appeal is to be allowed: District Courts Ordinance, s. 43 (3). The test to be applied in this regard is whether by reason of the course taken at the Local Court hearing the appellant may thereby have lost a chance which was fairly open to him of being acquitted (see Mraz v. The Queen[cviii]8). In this case the effect of the matter proceeding in the way in which it did was that a great deal of evidence against the appellant was introduced which could not have been introduced had the complaint been limited to only one of the two days. This could not have failed to prejudice the accused and it therefore appears to me that there has been a substantial miscarriage of justice and that the appeal should therefore be allowed. It thus becomes unnecessary for me to consider the remaining grounds of appeal as such.

The question which I do have to consider, however, is whether I should send this matter back for rehearing and this has caused me a great deal of anxious consideration. I am not able to say that, if this matter were reheard after the information had been amended to relate to only one of the two days in question and admissible evidence given relating only to that day, a conviction would be unlikely; the appellant might or might not be convicted on such evidence. I am informed that the appellant was granted bail shortly after the date of his conviction and has served only about one day of his sentence so that the same consideration does not arise in this case as arises in some other instances where some significant part of a sentence has already been served. A consideration which to my mind is quite material is that the offences with which the appellant has been charged occurred some five months ago and if a rehearing were now ordered it would possibly be six months or more after the events concerned, that witnesses would be giving evidence of what they saw and heard, which, having regard to the nature of those events, might not be thought to be a particularly satisfactory state of affairs. Issues which might otherwise be dormant between the clans involved might well be revived by a further recounting of the events of last July, with possible conflicting accounts of what took place. The matter has already occupied five days in the Local Court, apart from parts of two other days on which preliminaries took place and judgment was delivered. Taking all these matters into account I have finally come to the view that the interests of justice do not require that this matter be sent back for rehearing and I do not do so.

Appeal allowed. Decision of the Local Court reversed.

Solicitor for the appellant: W. A. Lalor, Public Solicitor.
Solicitor for the respondent: P. J. Clay, Crown Solicitor.

[ci]Section 22 of the Local Courts Ordinance provides:--
[cii][1944] AC. 315, at p. 328.
[ciii](1935) 53 CLR. 1, at p. 30.
[civ](1913) 24 Cox C.C. 43, at p. 46.
[cv](1921) 15 Cr. App. R. 170, at p. 171
[cvi](1935) 53 CLR. 1, at p. 30.
[cvii][1947] KB. 659.
[cviii](1955) 93 CL.R. 493, at p. 514.