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 National Provident Fund. The inquiry itself became popularly known as the ‘NPF Inquiry! A number of high profile people including the two accused were recommended for prosecution and charges were subsequently laid against them by the Police.

11. At the Committal Court prima facie case was found against Jimmy Mostata Maladina and he was committed to stand trial in the National Court. However, when it came to the accused Herman Joseph Leahy, the learned Committal Magistrate found no prime facie case against him and refused to commit him to the National Court. This refusal led to the presentation of the ex officio indictment by the Public Prosecutor dated 12 May 2005 and the ensuing court battles that is now history.

12. Since the ex officio indictment, the accused has fought bitterly in both the National Court and as far as the Supreme Court on the correctness of the action taken against him by way of ex officio indictment. The issue of the validity of ex officio indictment has been fully exhausted in the Supreme Court with a decision that is numbered and published (Review Pursuant to Constitution, Section 155 (2) (b); Application By Herman Leahy (Unreported Judgment of the Supreme Court dated 15th December 2006, SC855) and the case has made a full cycle back before this Court to be heard.

13. While the pre-trial process has ended and the case is ready for trial, at the status conference conducted before me on 11th August 2008 a number of preliminary issues were foreshadowed from both sides of the bar table which included this application for amendment to the indictment. This led to the court giving directions to the parties to expedite resolution of these issues before the end of the year and the trial itself was tentatively set for February 2009. For reasons unknown to the court none of these preliminary issues were brought on earlier since those directions were given until now clearly signalling already a protracted litigation involving short but significant applications even before we come to the substantive trial or trials in the cases of the two accused. The next of such short hearings from information frankly given to date by the State is to seek a joint-trial of the two accused which no doubt is likely to be opposed from earlier indications. But that is a separate matter to be addressed if and when it eventuates.

THE OBJECTION

14. The accused premised his objection to State’s application to amend the indictment by emphasizing the fact that he was discharged by the District Court or Committal Court due to insufficiency of evidence to commit him to stand trial in the National Court. However, the Public Prosecutor, exercising his inherent power under the Constitution, preferred an ex-officio indictment against him under s.526 of the Code. This was strenuously objected but was over-ruled and he appealed to the Supreme Court. The Supreme Court dismissed the appeal and the ex-officio indictment stood firm.

15. Since the ex-officio indictment was presented, the State’s approach to the manner or attitude to prosecuting the accused for the alleged offences changed, driven largely by the nature of evidence it intends to call to prove its case against him. It is therefore seeking leave of this Court to make changes to the charges on the indictment in order to reflect the evidence it intends to produce in court.

16. The accused objects firstly because the law does not expressly provide for amendment to an ex officio indictment, and as such the State cannot amend an ex officio indictment once presented. The defence contention is that by having an amended draft indictment already in existence, the State is wrong in doing so as it simply had no power to amend an ex officio indictment once already presented. 

17. The questions that the court will ultimately have to answer are:

1.	Can an ex officio indictment be amended after its presentation but before the start of the actual trial?

2.	Is the accused likely to suffer any prejudice to the conduct of his defense by the amendment sought to be made to the indictment?

Nature of Amendment

18. In the original indictment the accused was charged with one court of conspiracy to defraud the National Provident Fund in the sum of K2, 500,000.00; one count of dishonestly applying K2, 500,000.00 to the use of another, property belonging to Kumagai Gumi Company Limited and one count of dishonestly applying K70, 000 to the use of another, property belonging to Kumagai Gumi Company Ltd.

19. The proposed amendment to that indictment aims to achieve several outcomes:

1.	It reduces the number of charges from three to two by omitting or deleting count three in the original indictment.

2.	It amplifies as well as clarifies by pleading in detail the count of conspiracy to defraud by pleading full name of the owner of property as being the National Provident Fund Board of Trustees and increases the sum of money to K2, 650, 000.00 from K2,500,000.00 as earlier pleaded and in the manner as alleged.

3.	It re-pleads the second count in the full terms of section 383A of the Criminal Code by including the phrase ‘to his own use and’ after the words ‘dishonestly applied’ in the wording of the charge which gives a broader scope or definition to the charge than it was originally pleaded.

THE LAW

20. Amendment of indictments or charges in a criminal case is not a noble procedure. From one perspective, it is a utility provision that allows for a charge to be amended so that there is no variance between the charge and the evidence or that justice is fairly done.

21. Section 535 is expressed in these terms:

(1)	If on the trial of a person charged with an indictable offence—

(a)	there appears to be a variance between the indictment and the evidence; or

(b)	it appears that—

(i)	any words that ought to have been inserted in the indictment have been omitted; or

(ii)	any words that ought to have been omitted have been inserted,

the court may, if it thinks that—

(c)	the variance, omission or insertion is not material to the merits of the case; and

(d)	the accused person will not be prejudiced in his defence on the merits,

order the indictment to be amended, so far as it is necessary, on such terms (if any) as to postponing the trial as the court thinks reasonable.

(2)	When an indictment has been amended, the trial shall proceed at the appointed time, on the amended indictment, and the same consequences ensue in all respects and as to all persons as if the indictment had been originally in its amended form.

(3)	If it becomes necessary to draw up a formal record in any case in which an amendment to an indictment has been made, the record shall be drawn up setting out the indictment as amended, and without taking any notice of the fact of the amendment having been made."

22. A number of case law authorities both local and overseas were cited to me by counsel which have usefully discussed this section or its equivalent in sister Code States in Australia, where the general trend appears to be leaning in favour of amendment to be done where it is just and necessary at any stage of the trial process.

The issue before me now is whether the State can amend an indictment once it has been presented but before the commencement of the trial or before the plea is taken?

23. On behalf of the accused it is submitted that the State cannot amend. It is argued that the amendment sought is not supported by evidence and is outside the terms of section 535(1) (b) of the Criminal Code. Where section 535(1) (b) refers to the words ‘it appears that’, there is no evidence to suggest or make it appear that any words have been incorrectly omitted or inserted as required. Defence is contending that this is a mere assertion and does not satisfy the requirement of section 535(1) (b). The closest the State may have got to meeting this requirement, as the argument goes, is the affidavit of Camillus Sambua sworn 29 October 2008 which does not plead any facts that, as the consequence, support the State seeking to amend the indictment. The proposed amendment it is submitted goes to the substance of the charge itself thereby affecting the merits of the case.

24. Secondly, it is also submitted that the intended amendments do not fall within section 535(1)(b) of the Code because they are not amendments to insert ‘words that ought to have been inserted’ or ‘to delete’ words that ought to have been omitted’. Counsel for the accused contends that section 535(1) (b) must be read in a punitive or penal sense to confine the prosecution to total compliance with the requirements of the statute and not read liberally so as to give a wider meaning to the Act that disadvantages the citizen as was so intended in section 535(1) (a) which is carried right through to section 535(1) (c). He submitted that section 535(1(b) is in the nature of a penal provision and must be construed accordingly. This submission, if I correctly understood it, must be reconciled with the established principles that favour liberal approach to interpreting statute law.

25. In conclusion the defense submitted that due to these failures on the part of the State, it is difficult for the Court to reach a conclusion that the ‘omission’ or insertion’ is not material to the merits of the case and that the accused will not be prejudiced in his defence on the merits, and the Court must therefore not exercise its discretion to order the indictment to be amended.

26. It is to be noted at the outset that the Defence contention is that section 535(1) (a) and paragraph (c) with respect to the word ‘variance’ do not apply in this instance. In full that provision would read ‘If on the trial of a person charged with an indictable offence (a) there appears to be a variance between the indictment and the evidence … the court may, if it thinks that –

(a)	the variance, omission or insertion is not material to the merits of the case; and

(b)	the accused person will not be prejudiced in his defence on the merits,

order the indictment to be amended, so far as it is necessary, on such terms (if any) as to postponing the trial as the Court thinks reasonable!

27. Counsel for the accused cited a number of leading PNG cases on this issue of amendment of indictments including Arthur Smedley v. The State (1980) PNGLR 379, The State v. Pawa Kombea [1997] PNGLR 494, The State v. Williams (No. 1) [2004] N2556 and The State v. Saul Ogerenu [2004] N2780.

28. I note however the State’s position is quite opposite to what the accused asserts. In the main the State’s application for amendment of the indictment is founded on both the first leg of section 535(1) which is set out in paragraph (a) that the defence says is inapplicable. State contends that the evidence that it will be presenting before the Court against the accused will be the same as that it intends to present against the co-accused Jimmy Maladina. 

29. State contends that if the amendment is not effected now, the evidence and the charge in the indictment will be at variance and therefore the Court must exercise its discretion now to avoid that eventuality by ordering an amendment to the indictment as proposed before the hearing begins.

30. State submits that the authorities favour amendment before the commencement of the trial or before the plea is taken. State further contends that the cases referred to by the defence in support of its case are clearly distinguishable with the current scenario because they relate to amendments being sought during the trial after the trial had commenced and even after verdicts already pronounced. In one view of the matter the State is taking a proactive approach by seeking an amendment now as prudence would require particularly after already having a bird’s eye-view of the State case against both accused.

31. I have considered the arguments presented by the defense. I do appreciate fully the position from which the defence objection is raised. Balancing the defence arguments based largely on strict application of the law as stipulated in section 535(1)(b) I am however inclined to prefer the State’s position on the way forward in the matter. It seems to me more logical, convenient and coherent as it is consistent with the spirit of the law. The bottom line, from whatever perspective one looks at the case, is that the accused is not prejudiced in his defence on the merits.

32. In my view, the amendment before the trial begins places the accused in a far more advantageous position now to be able to properly prepare and defend himself. He knows exactly what the charge or charges are as precisely worded to give him no uncertainty as to the substance of the case against him.

33. The amendment seeks not to alter the charges except to particularize the charges so that even before the trial has begun, the accused knows the exact nature of the case against him. The charges are the same. Count one is that of conspiracy to defraud and count two is misappropriation or dishonest application of property under sections 407 and 383A respectively.

34. In my view the fact that the amendment seeks to withdraw or discontinue or omit the third count in the original indictment must be accepted by the accused with a sigh of relief because he now has one less charge to defend in Court as his burden lightens. At this juncture when the trial had only gone as far as presentation of indictment which was done before Mogish J on 16 may 2005, a little over three years ago, the ball is still in the hands of the Public Prosecutor to ensure that the accused is properly and appropriately indicted in accordance with the constitutional requirements of fair trial and justice according to law. The choice of charge or charges that he makes in the performance of his constitutional function is an exercise of discretion that not even the Court can direct or interfere with or influence the Public Prosecutor by virtue of his independence under the Constitution. The role and functions of the Public Prosecutor and his right to invoke section 526 of the Code and his independent status had been fully canvassed by the Supreme Court in this same matter in the Application for Judicial Review under section 155(2)(b) of the Constitution (supra) and I need not dwell on it more. However, it is trite procedural law, as correctly observed by Humphreys J in R v Smith (1951) 1 KB 53; (1950) 2 All ER 679; 34 Cr App R 168 while allowing amendments to correct errors in description, said at pp.55;682;183:

"The responsibility for the correctness of an indictment lies in every case on counsel for the prosecution and not upon the court. No counsel should open a criminal case without having satisfied himself on that point. If in his opinion the indictment needs amendment, the necessary application should be made before the accused are arraigned and not, as in this case, after all the evidence for the prosecution has been called."

35. As far as it is plain to see, there are no substantial changes proposed to the indictment that would gravely impact on the merits of the case against the accused at all. In fact the accused would be far better informed of the nature of the allegations against him with the amendment than without it, and it is better made now than later, after all the evidence had been led. In The State v. Tanedo [1975] PNGLR 395, one of the oldest cases in this jurisdiction in which Prentice DCJ canvassed this point at some length held that even at the close of the State case and after a no case submission has been made (which seemingly highlighted the deficiencies in the prosecution case), the indictment may be amended to reflect the evidence so far presented but must be done before the accused gives his evidence.

36. The court, on its own volition, where it is deemed proper, also has power to make amendment to the indictment and this has been highlighted in several cases including R v Fraser (1923) 17 Cr. App R 182 and R v Aldridge (1993) A Crim R 371. In the latter case, Sheller AJ said at pp.377-378:

"Where before trial or at any stage of the trial it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice."

37. In this case, it is not open to the court to invoke its own powers to order or direct amendment and I agree with counsel for the accused that there is no evidentiary basis for me to do so as the trial has not yet started and I have no clue as to the nature of evidence that the State has to produce. But I do accept the State argument that the proposed amendment involves nothing more than providing details of the counts pleaded in the indictment rendering them consistent with the terms of the section under which the charges are founded. Count 1 remains as one of conspiracy to defraud with the only changes being – National Provident Fund of Papua New Guinea changed to National Provident Fund Board of Trustees, K2.5 million changed to K2.65, "National Provident Fund of Papua New Guinea’s Tower at Allotment 16, Section 05, Douglas Street Granville, Port Moresby" changed to National Provident Fund Tower situated at Douglas Street Port Moresby. Count 2 remains as one of misappropriation with the only changes being to align the wording of the charge consistent with the terms of the Act. This is apparent in the first indictment where the words ‘to his own use" were omitted. 

38. I am of the view that the application to amend the indictment as proposed now is consistent with the current trend of development of the law on amendment of indictments or charges or pleadings generally in all cases. Courts are more inclined to order amendment that enables the parties to see the issues clearly at the outset of the trial and even in the course of the trial than deny amendment purely on legalistic points of view so as to ensuring that justice is done.

39. For these reasons it is ordered that the indictment presented on 16 May 2005 dated 12 May 2005 be amended in the terms proposed in the draft amended indictment (although not so described) annexed to Camillus Sambua’s affidavit marked with letter ‘B’ referred to in the judgment.

40. This matter now stands adjourned to February 2, 2009 for further hearing.

________________________

Acting Public Prosecutor: Lawyer for the State
Young & Williams: Lawyer for the Defence