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Dwyer, Regina v [1967] PGSC 15; [1967-68] PNGLR 104 (7 September 1967)

Papua New Guinea Law Reports - 1967-68

[1967-68] PNGLR 104 - Regina v Dwyer

[1967-68] PNGLR 104

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

DWYER

Port Moresby

Frost J

4 September 1967

7 September 1967

CRIMINAL LAW - Indictments - Joinder of counts - Series of acts done in prosecution of single purpose - The Criminal Procedure Ordinance of 1889, s. 10 - The Criminal Code Ordinance of 1902, s. 2(4) - The Criminal Code (Queensland, adopted), s. 567.

Section 10 of the Criminal Procedure Ordinance of 1889 does not apply to indictments presented under the procedural provisions of The Criminal Code (Qld.) as adopted by the Criminal Code Ordinance of 1902, so that the only provision governing the joinder of charges in an indictment is s. 567 of The Criminal Code so adopted.

An indictment was presented against the accused containing sixteen counts, the first of stealing and the others of fraudulent false accounting. The Crown alleged that the stealing had taken place between 31st March and 9th May, 1966, and that each fraudulent false accounting had occurred between 20th November, 1963, and 1st March, 1966. Upon motion for separate trial of the first and the other charges,

Held:

N1>(1)����� That acts done or omitted to be done in the prosecution of the same or a similar purpose which is renewed or revived from time to time are not done or omitted to be done in the prosecution of a �single purpose� within the meaning of s. 567 of The Criminal Code.

Laird v. Mitchell, [1930] Q.S.R. 38; 24 Q.J.P.R. 43, applied.

N1>(2)����� Having regard to the lapse of time alleged, the alleged acts or omissions to support the charges of stealing and fraudulent false accounting, could not have been done in the prosecution of a single purpose within s. 567.

R. v. Rodriguez, [1939] Q.S.R. 227; R. v. Gassman, [1961] Qd. R. 381, and R. v. McEachern, [1967-68] P. & N.G.L.R. 48, referred to.

Relationship of ss. 3 and 12 of the Criminal Procedure Ordinance of 1889 to ss. 560 and 561 of The Criminal Code discussed.

Criminal Trial. Motion for Separate Trials.

The indictment presented against the accused contained sixteen counts, the first being of stealing and the others being of fraudulent false accounting. Objection was taken to the joinder of the charges in the indictment, and separate trials of the first charge and the other charges were moved. All relevant facts appear in the reasons for judgment.

The relevant statutory provisions appear in the reasons for judgment.

Counsel:

Shaw, for the Crown.

E. Pratt, for the accused, in support of the motion.

Cur. adv. vult.

7 September 1967

FROST J: �The Crown has presented an indictment containing sixteen counts, charging the accused on the first count that being the servant of the Public Curator of the Territory of Papua, between 31st March, 1966, and 9th May, 1966, he stole the sum of $754.20, and on the other fifteen counts, that being the servant of the said Public Curator during each of fifteen specific earlier periods, between 20th November, 1963, and 1st March, 1966, he did omit from a cash book which belonged to the Public Curator a material particular, on each count, the receipt of a sum of money received by him for and on behalf of the Public Curator with intent thereby to defraud.

Mr. Pratt who appears for the accused has objected to the joinder of the counts in the one indictment, and in particular, he submits that the first count should be tried separately. He has no objection to the remaining fifteen counts of fraudulent false accounting being tried together. He submitted that the law applicable was to be found in The Criminal Code (Queensland, adopted), s. 567, and that that section has superseded the Criminal Procedure Ordinance of 1889, s. 10. He relied on the judgments of Smithers and Minogue JJ. in R. v. Ebulya[clxx]¹. He submitted that the count of stealing was not constituted by the same acts or omissions as the counts of fraudulent false accounting, and the counts of stealing and fraudulent false accounting were not constituted by a series of acts done or omitted to be done in the prosecution of a single purpose pursuant to s. 567.

The learned Crown Prosecutor submitted that both The Criminal Code, s. 567, and the Criminal Procedure Ordinance of 1889, s. 10 were operative, the latter section not having been expressly or impliedly repealed by the Criminal Code Ordinance of 1902. He relied on the judgment of Mann C.J. in R. v. Ebulya[clxxi]². He then submitted that the offences contained in the indictment were all constituted by a series of acts done in the prosecution of a single purpose which was the defrauding of a deceased estate being administered by the Public Curator, and thus could be joined in the one indictment pursuant to s. 567. He justified the joinder also under s. 10 on the ground that the person thereby injured, that is to say, the Public Curator, in his capacity as administrator of the deceased estate, was one and the same person. He submitted that the word �injured� in s. 10 was used in its Latin sense �injuria�, and covered damage to both person and property.

Although both counsel invited me to read the depositions, I declined to do this and asked Mr. Shaw broadly to outline the facts which the Crown proposed to prove under each count. He then stated that the Crown would prove under the first count a general deficiency over the period as shown by the books kept by the accused, together with certain admissions made by the accused to the police inspector, and to an officer of the Public Curator. During this period, for about ten weeks no money had been paid into the bank by the accused. The basis of the Crown case in respect of the remaining fifteen counts was that over a period of time prior to the alleged theft, the accused had received from time to time moneys from the Collector of Public Moneys at Daru, which he paid into the estate bank account but failed to enter up in the receipt side of the cash book.

The decision of this point of joinder thus requires me to consider the effect of the chapter in The Criminal Code concerned with indictments and the provisions of the Criminal Procedure Ordinance of 1889. That Ordinance provided that all crimes and offences cognizable in the Central Court (now the Supreme Court) should be prosecuted by charge under the Seal of the Court and every such charge when laid shall in the Possession (now the Territory of Papua) be as valid and effectual in all respects as an indictment would be in England (s. 6).

Reflecting �the difficulty of administering the law in primitive and understaffed conditions� (R. v. Ebulya[clxxii]³), it was provided that whenever any person has been committed by a magistrate for trial at the Central Court, the chief magistrate (now a judge of the Supreme Court) should consider the evidence taken in the matter by the magistrate and at his discretion, lay or direct to be laid against the person committed any charge that the evidence appears to the chief magistrate to warrant, quash the committal, or send the evidence and all papers back to the committing magistrate to obtain further evidence, or directing the magistrate to try and deal with the matter in a summary manner, if the alleged offence be one which the magistrate had jurisdiction to try in a summary manner (s. 12).

Section 10 provides as follows:

�Persons may be charged with different felonies and misdemeanours or with different felonies or misdemeanours in the same charge when the person thereby injured is one and the same person or when the several offences so charged constitute or relate to one and the same transaction but the Chief Magistrate (now a Judge of the Supreme Court) shall have power to prevent the trial of different felonies or misdemeanours together if such trial would in his opinion be inexpedient and in such case he may order separate records to be made up and separate trials to be had.�

The court was given a discretion to order further particulars of the charge (s. 9). The mode of trial was for all trials to be heard by the chief magistrate sitting alone (s. 21). There was a power of amendment of the charge (s. 22), and other incidental provisions.

But the course of procedure by way of charge thus prescribed by the Ordinance was a simple one, so the important provision was s. 42 which provided that all criminal or quasi-criminal matters for which no provision has been specially made by any ordinance, law, enactment or regulation of the Possession should be governed as nearly as circumstances would admit of by the law, practice and procedure concerning such matters in force in the colony of Queensland on 17th September, 1888, when same could be applied without contravening the law of the Possession.

In 1902 it was decided to adopt the provisions of the newly enacted Criminal Code of Queensland. The Criminal Code Ordinance of 1902 provided that on and from 1st July, 1903, the provisions contained in the Queensland Criminal Code �is [sic] hereby adopted as and shall be the law of British New Guinea with respect of the several matters therein dealt with� (s. 1). The Code went on to repeal certain Imperial statutes which had been repealed in Queensland so far as they were in force in British New Guinea (s. 2(1)), certain adopted statutes of New South Wales and Queensland (s. 2(2)), and further provided for the amendment of certain adopted statutes of New South Wales and Queensland (s. 2(3)). The adopted statutes of New South Wales and Queensland which were repealed included presumably all the statutes dealing with criminal offences. Indeed the purpose of the Ordinance was to get rid of the existing criminal law and to bring The Criminal Code (Queensland, adopted) into operation within the Territory (see s. 4).

It is important to note proviso (4) contained in s. 2, which was the repealing section. The proviso was in these terms:

�This Ordinance shall not except as expressly therein declared affect any principle or rule of law or equity or established jurisdiction or form or course of pleading practice or procedure notwithstanding that the same respectively may have been in any manner affirmed recognised or derived by in or from any enactment hereby repealed.�

The accepted canon of construction of provisos is as follows:

�The effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it; and such a proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and properly construed without attributing to it that effect� (Craies on Statute Law, 5th ed. (1952), pp. 201, 202).

But it is accepted that there are many cases in which the terms of an intelligible proviso may throw a considerable light on the ambiguous import of statutory words (West Derby Union v. Metropolitan Life Assurance Society[clxxiii]⁴); and a proviso may be a guide in the selection of one or other of two possible constructions of the words to be found in the enactment or as to the scope of the latter in a doubtful case[clxxiv]⁵�(Craies on Statute Law, 5th ed. (1952), p. 202).

In my opinion, this proviso does in the words of Lord Herschell show generally the scope of the Criminal Code Ordinance of 1902. It would seem to me to be a fortiori that any established jurisdiction or form of course of pleading practice or procedure provided for in a statute or ordinance not so repealed by that ordinance was not to be affected except as expressly declared in the ordinance.

Now The Criminal Code provided not only a Code of substantive law which was adopted as the law of the Possession (now the Territory of Papua) but also a comprehensive procedure for the prosecution of indictable offences by indictment. But as there was no express repeal of the provisions of the Criminal Procedure Ordinance of 1889 which provided for prosecution by way of charge, in my opinion, the provisions certainly of s. 12 remain as an alternative procedure unaffected by the Criminal Code Ordinance of 1902. In Papua this is so because of the proper construction of the two enactments, and in New Guinea because of the further effect of the Laws Repeal and Adopting Ordinance 1921-1939, s. 15. I thus agree on this point with the views expressed in R. v. Ebulya[clxxv]⁶�by Mann C.J. and Ollerenshaw J. But in my opinion, if an indictment is signed and presented to the court in Papua by a Crown Prosecutor pursuant to The Criminal Code, chap. LX, and the Criminal Code Amendment Ordinance 1909, and in New Guinea under The Criminal Code, chap. LX by the Secretary of Law as the Crown Law Officer of the Territory (following the 1934 amendment of that term in s. 1), subject to at least one exception to which I shall refer, the law relating to indictments generally is to be found exclusively in the provisions of The Criminal Code, which so far as indictments are concerned, superseded the provisions relating to charges laid or directed to be laid under the 1889 Ordinance. I cannot think that the legislation should be construed so that the effect of indictments should be governed by the out-moded procedure of the 1889 Ordinance with resort, when there is no local provision, to the obsolete law practice and procedure of Queensland on 17th September, 1888. Certainly the law relating to alternative verdicts to be returned upon indictments must be found in The Criminal Code and it would be a strange result if indictments were to be governed by provisions to be found both in The Criminal Code and also the 1889 Ordinance. I thus consider that s. 10 as to joinder does not apply to the procedure by way of indictment.

I mentioned that there was at least one provision of the 1889 Ordinance which does apply to indictments. Although it is not necessary for my decision, as I was referred generally by both counsel to R. v. Ebulya[clxxvi]⁷, I propose to state that, in my opinion, s. 3 of the 1889 Ordinances is an established jurisdiction or course of practice or procedure which is unaffected by the Criminal Code Ordinance of 1902. I thus agree on this point also with Mann C.J. and Ollerenshaw J. in R. v. Ebulya[clxxvii]⁸. Section 3 thus prevails over ss. 560 and 561 of The Criminal Code. (I consider that notwithstanding the apparent plain inconsistency of the two provisions, s. 561 can be given a limited but useful operation subject to s. 3 of the 1889 Ordinance to enable an indictment to be presented for an indictable offence different from the offence upon which, after an investigation by a magistrate, the accused was committed for trial. Such an indictment would seem to fall outside s. 560. This was the view expressed by Mann C.J. in R. v. Ebulya[clxxviii]⁹.)

Having decided that s. 10 does not apply to indictments and that the sole provision concerning joinder in relation to indictments is to be found in s. 567 of The Criminal Code, it is unnecessary for me to decide whether s. 10 applies to a charge laid or directed to be laid under s. 12 of the 1889 Ordinance. It will be time enough to consider this question when it arises.

Turning to the provisions of s. 567 of The Criminal Code, it provides as follows:

�Except as hereinafter stated, an indictment must charge one offence only, and not two or more offences:

Provided that when several distinct indictable offences are alleged to be constituted by the same acts or omissions, or by a series of acts done or omitted to be done in the prosecution of a single purpose, charges of such distinct offences may be joined in the same indictment against the same person.

In any such case the several statements of the offences may be made in the same form as in other cases, without any allegation of connection between the offences.

But, if in any such case it appears to the Court that the accused person is likely to be prejudiced by such joinder, the Court may require the prosecutor to elect upon which of the several charges he will proceed, or may direct that the trial of the accused person upon each or any of the charges shall be had separately . . . .�

Mr. Shaw does not contend that the offence of stealing set out in the first count was constituted by the same acts and omissions as the earlier acts of alleged fraudulent false accounting. The joinder is justified on the ground that all sixteen counts were constituted by a series of acts done or omitted to be done in the prosecution of a single purpose. Now the word �single� bears the meaning not only of �separate� or �individual� but also �undivided� or �one� (see the Shorter Oxford Dictionary). As I apprehend, acts done or omitted to be done in the prosecution of the same purpose which is renewed or revived from time to time are not done or omitted to be done in the prosecution of a single purpose. So in Laird v. Mitchell[clxxix]¹⁰, where the court was concerned with the validity of a conviction under s. 448 of the Code, for defacing earmarks of sheep, Macrossan S.P.J. considered that s. 567 applied to the complaint, and said: �It seems clear therefore that whilst it would be competent to allege in the one complaint a series of acts of defacing earmarks done at one time in the prosecution of a single purpose, it would not be competent to allege in the one complaint a series of offences of defacing earmarks done at intervals of time extending over a period of two years or more�[clxxx]¹¹.

In my opinion this gives the key to the interpretation of the section. Here the offences of stealing and of fraudulent false accounting may have had the same or similar purpose, but in my opinion, having regard to the lapse of time over a period of more than two years, it could not be said that they were done in the prosecution of a single purpose. If the purpose was the same in each offence, that is, to defraud the estate being administered by the Public Curator, it was a purpose which may have been revived or renewed at the intervals of time alleged by the Crown, but in my opinion cannot be said to have been a single purpose in the sense of a continuing undivided purpose. Mr. Shaw relied on the Queensland cases of R. v. Rodriguez[clxxxi]¹²�and R. v. Gassman[clxxxii]¹³�which my brother Clarkson considered in R. v. McEachern[clxxxiii]¹⁴. However the Queensland cases seem to me to relate to conspiracy charges, and I do not find them of assistance. I accordingly hold that it is not open to the Crown to join the first count of stealing in the same indictment as the fifteen counts of fraudulent false accounting. I accordingly direct that the trial of the accused on the first count shall be heard separately from the other counts.

Separate trials directed.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitor for the accused: W. A. Lalor, Public Solicitor.