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Chapter 5: Charges

Table Of Contents 

[5.0] Introduction 

Section 10(4) of the Constitution states: 

'No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.' (emphasis added) 

Therefore, the prosecution should ensure that proceedings are not instituted against any person unless at the time of the incident it did constitute an 'offence'. 

The term 'Offence' is defined in the Interpretation and General Provisions Act (Ch. 85) as meaning 'any crime, felony, misdemeanour or contravention or breach of, or failure to comply with, any written law, for which a penalty is provided'. (emphasis added) 

Therefore, unless a penalty is provided it is not an 'offence', see for example Part IV of the Traffic Regulations (Ch. 131). Whilst section 82(1)(w) of the Traffic Act (Ch. 131) specifies the maximum penalty which may be imposed, none of the sections in Part IV of the Traffic Regulations (Ch. 131) specifies any penalty that can be imposed for contravening such sections. 

Refer also to the law relating to the interpretation of 'Subsidiary Legislation' commencing on page 63. 

It is the responsibility of prosecutors to check the 'wordings of charges' to ensure that such wordings comply with the relevant statute. 

If the defence considers that the wording of a charge is defective, '[t]he proper course of action is to state in sufficient detail which particulars are defective, and how they have been considered to be defective', see R v Austin Yam (Unrep. Criminal Appeal Case No. 33 of 1994; Palmer J; at page 20). 

In R v Sethuel Kelly & Gordon Darcy (Unrep. Criminal Case No. 2 of 1996) Lungole - Awich J stated at page 2: 

'It is the duty of the court, before putting charges to accused, to ensure that the charges have been filed in court according to the requirement of the law. It is also its duty to ensure that the charges are clearly stated in a way that accused do understand the charges they face. If amendments are required to correct ambiguity, duplicity or other defects, the court is authorized to do so by section 250 [now section 201] of the Criminal Procedure Code. 

Accused, of course, would be afforded opportunity to object to any formal defect apparent from the charges, before they plead.' [words in brackets added] 

The law relating to 'Amendments' is examined commencing on page 88. 

In R v Musuota (Unrep. Criminal Case No. 41 of 1996) Lungole - Awich J stated at page 9: 

'The power of the court to control proceedings before it includes ensuring that accused understanding the offence he is charged with before he is asked to plead and evidence is led. That necessarily requires court to check for defects such as ambiguity, non disclosure of offence, duplicity, wrong reference to statutes, lack of consent of DPP where required and any other impropriety in the charge before it. A useful list of circumstances in which the court may decline to put charge to accused would be something like this: 

1.                  that the court has no jurisdiction to try the offence charged.

2.                  that a matter is a bar such as a plea of autrefois convict or autrefois acquit is confirmed by the court. 

3.                  that a defect in substance such as duplicity, non – disclosure of offence has been confirmed. 

4.                  that a nolle prosequi is entered by the DPP, and 

5. that the charge or charges amount to oppression or are prejudicial to the accused.' (emphasis added)

The law relating to: 

·                     the 'Criminal Jurisdiction Of The Courts' is examined commencing on page 14; 

·                     'Double Jeopardy' is examined commencing on page 105; 

·                     'Duplicity' is examined commencing on page 86; 

·                     'Withdrawal Of Charges' is examined commencing on page 101; and 

·                     'Abuse Of Process' is examined commencing on page 138. 

[5.1] Responsibility To Prefer All Charges 

In R v Lloyd Bennett (Unrep. Criminal Review Case No. 433 of 1999) Palmer J stated at page 2: 

'The Police and Prosecution have a duty to ensure that an accused person is charged with the offences he has been alleged to have committed, especially where the offences are classed as very serious offences.' 

Therefore, the prosecution has a duty to ensure that defendants are charged with all of the offences which they have committed, and not just a selection of such offences. 

Furthermore, all charges should be instituted against a defendant at or about the same time, where possible. 

See however, the section which examines the law relating to the 'Discretion To Prosecute' commencing on page 115. 

[5.2] Wording Of Charges 

[5.2.1] Introduction 

In Paroke & Kuper v R (Unrep. Criminal Case No. 21 of 1992) Muria ACJ commented at page 2:

'The principle of fair hearing embodies the requirement that an accused person must know with certainty what has been alleged against him.' (emphasis added) 

In compliance with sections 117 and 120 of the Criminal Procedure Code (Ch. 7), each charge must contain: 

[i] a 'statement of the offence' which shall: 

[a] describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms; and 

[b] include a reference to: 

1. the section of the statute that defines the offence; and 

2. the section which provides the punishment, ie., creates the offence. 

The wording of a charge should follow the words of the statute creating the offence and words which go further than that should not be used, see R v Johnson (1945) 30 CrAppR 159 at page 167. 

In R v Jacob Waipage (Unrep. Criminal Case No. 46 of 1996) Lungole – Awich J stated: 

'If it is born in mind that the purpose of a charge is to state the offence so that an accused understands clearly the offence he faces, and if it is born in mind that a charge is the statement of offence together with the particulars of offence, then both the section that defines the offence and the section that states the punishment must be stated in the statement of the offence. That way the full extent of what accused faces is laid before the court, and accused is enabled to understand whether his actions or omissions fit in the definition of the offence.' (emphasis added) 

and 

[ii] 'particulars' of such offence which shall be set out in ordinary language in which the use of technical terms should be avoided and which shall contain: 

[a] the forename and surname of the defendant, see section 120(d) of the Criminal Procedure Code (Ch. 7) on page 81; 

[b] the location of the offence, see section 120(f) of the Criminal Procedure Code (Ch. 7) on page 81; 

Whilst it was held in R v Wallwork (1958) 42 CrAppR 153 that there is no necessity to particularise the 'location' of an offence, unless it is material to the charge, it is better practice to always particularise the location of an offence; 

[c] the date of the offence. The law relating to the 'Date Of Offences' is examined commencing on page 85; and 

[d] sufficient details so that the defendant understands the charge. It is for that reason that such 'particulars' must be set out in ordinary language and technical terms are to be avoided, if possible. Therefore, for example such terms as 'Due Care and Attention' are to be avoided, see Ben Donga v R (Unrep. Criminal Appeal Case No. 16 of 1994; Palmer J; at pages 1 – 2). 

[5.2.2] Statutory Provisions 

The term 'Offence' is defined in section 16 of the Interpretation & General Provisions Act (Ch. 85) as meaning: 

'any crime, felony, misdemeanour or contravention or breach of, or failure to comply with, any written law, for which a penalty is provided'. (emphasis added) 

Therefore, unless a penalty is provided it is not an 'offence'. 

Section 117 of the Criminal Procedure Code (Ch. 7) states: 

'Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.' (emphasis added)

Section 120 of the Criminal Procedure Code (Ch. 7) states: 

'The following provisions shall apply to all charges and information and, notwithstanding any rule of law or practice, a charge or information shall, subject to the provisions of this Code, not be open to objection in respect of its form or contents if it is framed in accordance with the provisions of this Code – 

(a)        (i) a count of a charge or information shall commence with a statement of the offence; 

(ii) the statement of offence shall describe the offence shortly in ordinary language avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by enactment shall contain a reference to the section of the enactment creating the offence; 

(iii) after the statement of the offence, particulars of such offence shall be set out in ordinary language, in which the use of technical terms shall not be necessary; 

Provided that where any rule of law or any Act limits the particulars of an offence which are required to be given in a charge or information, nothing in this paragraph shall require any more particulars to be given than those required; 

(iv) Where a charge or information contains more than one count the counts shall be numbered consecutively; 

[Therefore, if there is more that one charge or count, each charge or count is to be numbered consecutively on separate 'Notice Of Offences Charged' forms.] 

(b)        (i) where an enactment constituting an offence states the offence to be the doing or the omission to do any one of any different acts in the alternative, or the doing or the omission to do any act in any one of any different capacities, or with any one of different intentions, or states any part of the offence in the alternative, the acts, omissions, capacities or intentions, or other matters stated in the alternative in the enactment, may be stated in the alternative in the count charging the offence; 

[Refer to the section which examines the law relating to 'Alternative Charges' at page 100.] 

(ii) it shall not be necessary, in any count charging an offence constituted by an enactment, to negative any exception or exemption from, or proviso or qualification to, the operation of the enactment creating the offence; 

[Refer also to the section which examines the law relating to 'Negative Averments' commencing on page 83.] 

(c)        (i) the description of property in a charge or information shall be in ordinary language, and such as to indicate with reasonable clearness the property referred to, and, if the property is so described, it shall not be necessary (except when required for the purpose of describing an offence depending on any special ownership of property or special value of property) to name the person to whom the property belongs or the value of the property; 

[Therefore, provided the property in question has been described with as much detail as possible, it is not necessary to state the name of the owner of the property or its value, unless such details are required to prove a specific offence. See for example, the offence of 'Simple Larceny / Stealing', section 261(2) of the Penal Code (Ch. 26). 

See: R v Gill (1963) 47 CrAppR 166.] 

(ii) where the property is vested in more than one person, and the owners of the property are referred to in a charge or information, it shall be sufficient to describe the property as owned by one of those persons by name and others, and if the person owning the property are a body of persons with a collective name, such as a joint stock company or "Inhabitants", "Trustees", "Commissioners", or "Club" or other such name, it shall be sufficient to use the collective name without naming any individual; 

[Therefore, if the property in question is owned by more than one person it is sufficient to specify 'the name of one of the owners and others'. For example, '… the property of Edmon Peters and others'. 

If the property in question is owned by a 'body of persons' with a collective name it is sufficient to specify the name of that 'body of persons'.] 

(iii) property belonging to or provided for the use of any public establishment, service or department may be described as the property of Her Majesty the Queen; 

(iv) coin and bank notes may be described as money; and any allegation as to money, so far as regards the description of the property, shall be sustained by proof of any amount of coin or of any bank or currency note (although the particular species of coin of which such amount was composed or the particular nature of the bank or currency note, shall not be provided); and in cases of stealing, embezzling and defrauding by false pretences, by proof that the accused person dishonestly appropriated or obtained any coin or any bank or currency note, or any portion of the value thereof, although such coin or bank or currency note may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same or to any other person and such part shall have been returned accordingly; 

(d) the description or designation in a charge or information of the accused person, or of any other person to whom reference is made therein, shall be such as is reasonably sufficient to identify him, without necessarily stating his correct name, or his abode, style, degree, or occupation; and if, owing to the name of the person not being known, or for any other reason, it is impracticable to give such a description or designation, such description or designation shall be given as is reasonably practicable in the circumstances, or such person may be described as "a person unknown";

(e) where it is necessary to refer to any document or instrument in a charge or information, it shall be sufficient to describe it by name or designation by which it is usually known, or by the purport thereof, without setting out any copy thereof; 

(f) subject to any other provisions of this section, it shall be sufficient to describe any place, time, thing, matter, act or omission whatsoever to which it is necessary to refer in any charge or information in ordinary language in such a manner as to indicate with reasonable clearness the place, time, thing, matter, act or omission referred to; 

(g) it shall not be necessary in stating any intent to defraud, deceive or injure to state an intent to defraud, deceive or injure any particular person, where the enactment creating the offence does not make an intent to defraud, deceive or injure a particular person an essential ingredient of the offence; 

(h) where a previous conviction of an offence is charged in a charge or information, it shall be charged at the end of the charge or information by means of a statement that the accused person has been previously convicted of that offence at a certain time and place without stating the particulars of the offence; 

[For example, 'and it is alleged that [name of the defendant] has been previously convicted of [specify the 'statement of the offence' in question, for example, 'Simple Larceny, section 261(2) of the Penal Code (Ch. 26)] at [specify the name of the court and date, for example, 'the Magistrate's Court at Gizo on 27th March 2001].'] 

(i) figures and abbreviations may be used for expressing anything which is commonly expressed thereby; 

(j) when a person is charged with any offence under sections 259 ['Stealing and Embezzlement by Co – Partners, Etc'], 273 ['Larceny and Embezzlement by Clerks Or Servants'] or 278 ['Conversion'] of the Penal Code it shall be sufficient to specify the gross amount of property in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed without specifying particular times or exact dates.' (emphasis added) [words in brackets added] 

See also: sections 159 & 311 of the Criminal Procedure Code (Ch. 7). 

[5.2.3] General Principles 

In Pointon v Cox (1926) 136 LT 506 the Court held at page 510: 

'An accused person is entitled to information in two respects: 

(1) He is entitled first of all to be told what law, statutory or other, he alleged to have broken; and in addition, 

(2) He is entitled to be told with reasonable particularity [ie., clearness], how he is alleged to have broken the law.' (emphasis added) [word in brackets added] 

In Ex parte Grinham: Re Sneddon (1961) 78 WNNSW 203 Herron J, with whom the other members of the Court concurred, stated: 

'But the defendant is entitled not only to know with what offence he is being charged but to be supplied with such particulars of the alleged offence as are reasonably necessary to enable him to defend himself. […] 

The question as to what are reasonable particulars creates at times substantial difficulty and must depend largely on the circumstances of each case. […] The defendant is not entitled to be told the detailed evidence by which the informant hopes to prove his case.' (emphasis added) 

In S v R (1989) 64 ALJR 126 Toohey J, as a member of the High Court of Australia, stated at page 133: 

'But the problem of uncertainty in knowing the charge to be met still remains. This issue was considered by Dixon J in Johnson v Miller (1937) 59 CLR 467 at 489, when his Honour said: 

"[…] the question is whether the prosecutor should be required to identify one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charge is based. In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be appraised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing as the foundation of the charge.' (emphasis added) 

In Ben Donga v R (Unrep. Criminal Appeal Case No. 16 of 1994) Palmer J stated at pages 1 – 2: 

'The particulars of the charge read: "Mr Ben Donga on the 14th day of January 1994 at Honiara in the Guadalcanal Province, drove motor vehicle No.8567 on a road without due care and attention." 

The records of the Magistrate's Court reveal that the accused was unrepresented, and that the charge was read over and explained. What this Court does not know is, what was explained, and how the charge was explained. The particulars simply stated that the accused drove without due care and attention. The words "due care and attention" are technical terms. Had the accused been represented, then it could possible be acceptable. However, in the case of this accused, how would he know that what he was being accused of fell below the minimum requirements that the law imposes upon a reasonable, prudent particulars of the offence, in what way his driving was careless, or without due care and attention. As worded, the particulars of the offence are inadequate and therefore bad. 

Magistrates should be cautious in ensuring that there are sufficient particulars in the information to enable him to put the charge to the accused, and if necessary, to explain it to the accused. Where the particulars are inadequate, then the prosecutor should be required to amend the information and insert the necessary details. It is good practice too to ask the accused if he understood the charge before taking his plea.' (emphasis added) 

See also: R v Carr [2000] 2 CrAppR 149; Jemmison v Priddle [1972] 1 QB 489; (1972) 56 CrAppR 229; [1972] 2 WLR 293; [1972] 1 AllER 539; R v Jones & others (1974) 59 CrAppR 120; Heaton v Costello [1984] CrimLR 485; R v Fyffe [1992] CrimLR 442; R v Savage & Director of Public Prosecutions v Parameter [1992] 1 AC 699 at page 737 & R v Warburton – Pitt (1991) 92 CrAppR 136. 

The law relating to: 

·                     'Duplicity' is examined commencing on page 86; and 

·                     'Drive Without Due Care & Attention' is examined commencing on page 726.

[5.3] Negative Averments 

Section 10(11) of the Constitution states (in part): 

'Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of – 

(a) subsection (2)(a) of this section to the extent that the law in question imposes upon any person charged with a criminal offence the burden of proving particular facts.' (emphasis added) 

Section 10(2)(a) of the Constitution states: 

'Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty.' 

The following sections of the Criminal Procedure Code (Ch. 7) also refer to 'Negative Averments': 

Section 120 states (in part): 

'The following provisions shall apply to all charges and information and, notwithstanding any rule of law or practice, a charge or information shall, subject to the provisions of this Code, not be open to objection in respect of its form or contents if it is framed in accordance with the provisions of this Code – 

(b)(ii) it shall not be necessary, in any count charging an offence constituted by an enactment, to negative any exception or exemption from, or proviso or qualification to, the operation of the enactment creating the offence.' (emphasis added) 

Section 202 states: 

'Any exception, exemption, proviso, excuse or qualification, whether it does or does not accompany in the same section the description of the offence in the law creating the offence, and whether or not specified or negatived in the charge or complaint, may be proved by the defendant, but no proof in relation thereto shall be required on the part of the complainant.' (emphasis added)  

In R v Edwards (1974) 59 CrAppR 213 [[1975] QB 27] Lawton LJ, delivering the judgment of the Court, held at page 221: 

'In our judgment this line of authority establishes that over the centuries the common law, as a result of experience and the need to ensure that justice is done both to the community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This exception, like so much else in the common law, was hammered out on the anvil of pleading. It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by person of specified classes or with specified qualifications or with the license or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisos, exemptions and the like, then the prosecution can rely upon the exception. 

In our judgment its application does not depend upon either the fact, or the presumption, that the defendant has peculiar knowledge enabling him to prove the positive of any negative averment. […] 

Two consequences follow from the view we have taken as to the evolution and nature of this exception. First, as it comes into operation upon enactment being construed in a particular way, there is no need for the prosecution to prove a prima facie case of lack of excuse, qualification or the like; and secondly, what shifts is the onus: it is for the defendant to prove that he was entitled to do the prohibited act. What rests on him is the legal or, as it is sometimes called, the persuasive burden of proof. It is not the evidential burden.' (emphasis added) 

In John v Humphreys [1955] 1 AllER 793 the Court held that the onus was on the defendant to prove that he/she had a license because that fact was peculiarly in his/her knowledge. 

See also: R v Hunt (1987) 84 CrAppR 163 [[1987] AC 352], per Lord Griffiths at page 175; Davey v Towle [1973] CrimLR 360 at page 361; Williams v Russell (1933) 149 LT 190 at page 191; R v Oliver (1943) 29 CrAppR 137 at page 146 & R v Ewens (1966) 50 CrAppR 171. 

Therefore, when the prosecution avers in a charge that a defendant did not have an 'exception', 'exemption', 'proviso', 'excuse' or 'qualification' in respect of an offence, the onus is on the defendant on the 'balance of probabilities' to prove otherwise. However, before such an onus is on the defendant the prosecution must prove 'beyond reasonable doubt' the other elements of the preferred charge. 

There is no onus on the prosecution to prove that the defendant did not have an 'exception', 'exemption', 'proviso', 'excuse' or 'qualification' in relation to such an offence. 

Section 175(e) of the Penal Code (Ch. 26) is an example. That section states:

'[A]ny person who without lawful excuse publicly does any indecent act is deemed to be an idle and disorderly person.' (emphasis added) 

In respect of such an offence the prosecution must firstly prove 'beyond reasonable doubt' that the defendant did an indecent act before the defendant bears the onus of proving on the balance of probabilities that he/she had a lawful excuse for doing so. 

Refer also to the chapter which examines the 'Proof Of Issues' commencing on page 68. 

[5.4] Date Of The Offence 

[5.4.1] General Principles 

Section 201 of the Criminal Procedure Code (Ch. 7) states (in part): 

'(2) Variance between the charge and the evidence adduced in support of it with respect to the day upon which the alleged offence was committed is not material and the charge need not be amended for such variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof. 

(3) Where an alteration of a charge is made under subsection (1) or there is a variance between the charge and the evidence as described in subsection (2), the court shall, if it is of the opinion that the accused has been thereby misled or deceived, adjourn the trial for such period as may be reasonably necessary. ' (emphasis added) 

The prosecution is expected however to particularize the date of the offence, ie., by specifying the day of the month, the month and the year when the offence is alleged to have been committed, as accurately as possible for the purpose of giving a defendant every fair opportunity to prepare his/her defence to what is charged, per Stanley J in R v Phil Maria [1957] StRQd 512 at page 523. Therefore, if the prosecution is able to prove the specific date of an offence then it should do so, rather than relying on the wording, 'On or about …'. 

In The State v Titeva Fineko [1978] PNGLR 262 Prentice CJ, sitting alone, held: 

Where the words 'on or about (the date)' are used in a charge, proof that the offence was committed within some period which has a reasonable approximation to that specified date will suffice.

What a 'reasonable approximation' of the date alleged will depend on the circumstances of the case. 

See also: R v Hartley [1972] 2 QB 1; [1972] 56 CrAppR 189; [1972] 2 WLR 105; [1972] 1 AllER 599; [1972] CrimLR 309; R v Dossi (1918) 13 CrAppR 158; Wright v Nicholson [1970] 1 WLR 142; [1970] 1 AllER 12; (1970) 54 CrAppR 38 & R v Jacobs [1993] 2 QdR 541. 

The law relating to 'Limitation Of Time' is examined commencing on page 100. 

[5.4.2] Between Dates 

The use of the words 'Between … and …' signifies prima facie a continuing offence between those specified dates, see Ex parte Bignall (1915) 32 NSWWN 91. 

Therefore, to charge a defendant with 'Between the second day of March 1994 and the sixth day of March 1994 …' signifies that the offence was committed on the third, fourth and fifth days of March 1994. It should be noted that the offence is alleged to have not occurred on any of the dates specified in the charge. 

If the offence is not a continuing offence in nature and it is unknown on which date the offence was committed, but the dates on either side of the offence can be proven, then the following wording should be used: 

'That on a date unknown between … and …'. 

An example of such an offence would be a 'break and enter' offence whereby it is unknown on which day the property was stolen, but the complainant can give evidence to substantiate when he/she: 

[i] left the 'dwelling – house'; and 

[ii] returned. 

See also: Anderson v Cooper (1981) 72 CrAppR 232 & Chiltern Divisional Court v Hodgetts [1983] AC 120; [1983] 2 WLR 577; [1983] 1 AllER 1057. 

See however section 120(j) of the Criminal Procedure Code (Ch. 7). 

[5.5] Duplicity 

The rule against 'duplicity' relates to the charging of a defendant with committing more than one offence in a single charge. 

If a court is of the opinion that a charge is bad for 'duplicity', the prosecution is expected to apply to amend the charge, see R v Radley (1974) 58 CrAppR 394; [1974] CrimLR 312. In some instances it may be necessary to prefer an additional charge. 

In R v Stanley Bade [1988 – 89] SILR 121 Ward CJ stated at page 123: 

'Whilst the English authorities on this point have tended recently to present a rather inconsistent approach, I feel the general principle has not been questioned, namely, that a charge should not be double in the sense of charging the accused with more than one offence. This is a matter to be taken on the wording of the charge itself although in some circumstances, the duplicity may only be revealed by reference to the evidence as well in order to show the significance of the suggested duplicity.' (emphasis added) 

In Director of Public Prosecutions v Dunn [2001] 1 CrAppR 352 Bell J, with whom Pill LJ concurred, stated at page 357: 

'[In Director of Public Prosecutions v Merriman (1972) 56 CrAppR 766; [1973] AC 584 Lord Morris or Borth – y – Gest at pages 775 and 793 and Lord Diplock at pages 796 and 607] make it clear that the rule against duplicity, that only one offence should be charged in any one count, information or summons, has always been applied in a practical rather than a strictly analytical way for the purpose of determining what constituted one offence. 

The question of whether someone has committed one offence or more than one offence is best answered by applying common sense in deciding what is fair in the circumstances. It will often by legitimate to bring a single charge in respect of what may be called one activity, even though it may involve more than one act.' (emphasis added) [words in brackets added] 

In R v T [1993] 1 QdR 454 the Court of Criminal Appeal had to consider whether a number of acts committed on a complainant constituted more than one offence. Thomas J stated at page 455: 

'Useful guidance is afforded by Lord Morris's remarks in R v Merriman [1973] AC 584, 593: 

"The question arises – what is an offence? If A attacks B, and, in doing so, stabs B five times with a knife, has A committed one offence or five? If A in the dwelling house of B steals ten different chattels, some perhaps from one room and some from others, has he committed one offence or several? In many different situations comparable questions could be asked. In my view, such questions when they arise are best answered by applying common sense and by deciding what is fair in the circumstances. No precise formula can usefully be laid down but that clear and helpful guidance given by Lord Widgery in a case where it was considered whether an information was bad for duplicity: see Jemmison v Priddle [1972] 1 QB 489, 495. I agree respectfully with Lord Widgery CJ that it will often be called one activity even though that activity may involve more than one act. It must, of course, depend upon the circumstances." 

The need to identify particular acts and omissions with precision will usually be more acute in the case of an indictment of two or more persons. There may be a series of offences some of which involve one person and non the others. A person may be criminally liable under s.7 of the Code with respect to one and not with respect to others. These difficulties are discussed in R v Baynes [1989] 2 QdR 431. 

However for the purposes of the present case there was a series of acts by one person. The question is whether the series of acts may reasonably be regarded as one transaction or as comprising one offence. In R v Morrow and Flynn [CA 120 and 122 of 1990 CCA unreported 30th August 1990] Connolly J observed: 

"It is obvious that a knifing attack by one man who delivers a number of blows may properly be charged as a series of woundings, but one must ask oneself whether this would be an application of common sense in terms of Lord Morris's speech."' (emphasis added) 

A charge that alleges separate offences on different days is bad for 'duplicity', irrespective whether the offences alleged are the same, see R v Robertson (1936) 25 CrAppR 208 & R v Thompson (1914) 9 CrAppR 252; [1914] 2 KB 99. 

In R v Calos Galofia (Unrep. Criminal Review Case No. 1293 of 1991) Muria J stated at page 1: 

'I refer to my Review Judgments in Criminal Case No. 1245/91 given on 10 January 1992 and Criminal Case No. 1167/91 given on 13 January 1992 in which I said that a count alleging that the accused "broke and entered ….. with intent to steal and did steal therein ….." is bad for duplicity. It is clear that the charge against the accused is bad for duplicity.' 

Such a charge is bad for 'duplicity' because it alleges two separate offences, ie., 'break and enter with intent' under section 299(a) of the Penal Code (Ch. 26) and 'break and enter and commit' under section 300(a) of the Penal Code (Ch. 26). 

See also: Paroke & Kuper v R (Unrep. Criminal Case No. 21 of 1992; Muria ACJ; at pages 1 – 2); R v Greenfield [1973] 3 AllER 1050; [1973] 1 WLR 1151; (1973) 57 CrAppR 849; [1973] CrimLR 798; R v West [1948] 1 KB 709; (1948) 32 CrAppR 152; [1948] 1 AllER 718; R v Davey & Davey [1960] 1 WLR 1287; (1961) 45 CrAppR 11; [1960] 3 AllER 533; R v Griffith [1966] 1 QB 589; (1965) 49 CrAppR 279; [1965] 2 AllER 448; [1965] 3 WLR 405; R v Asif (1986) 82 CrAppR 123; [1985] CrimLR 679; R v Nicholls (1960) 44 CrAppR 188; R v Disney (1933) 24 CrAppR 49; R v Wilmot (1933) CoxCC 652; (1933) 24 CrAppR 63; R v Johnson (1945) 30 CrAppR 159; Director of Public Prosecutions v Shah (1984) 79 CrAppR 162 & R v Perry (1945) 31 CrAppR 16. 

[5.6] Amendments 

[5.6.1] General Principles 

It is responsibilities of prosecutors to: 

[i] check the wording of all charges prior to attending court; and 

[ii] apply for an amendment to a charge, if required, as soon as possible after the opening of the court and the calling – on of the relevant defendant. All applications to amend must be made 'before the close of the case for the prosecution', see section 201(1) of the Criminal Procedure Code (Ch. 7). 

A charge may be amended on a date after the expiration of a period of statutory limitation in respect of that charge, provided the date amended to is within the period of statutory limitation, see R v Wakeley [1920] 1 KB 688; (1919) 14 CrAppR 121. 

Section 201 of the Criminal Procedure Code (Ch. 7) states: 

'(1) Where, at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case. 

Provided that where a charge is altered as aforesaid, the court shall thereupon call upon the accused person to plead to the altered charge: 

Provided further that where a charge is altered under this subsection the accused may demand that the witnesses or any of them be recalled and give their evidence afresh or be further cross – examined by the accused or his advocate and, in such last – mentioned event, the prosecution shall have the right to re - examine any such witness on matters arising out of such further cross – examination. 

(2) Variance between the charge and the evidence adduced in support of it with respect to the day upon which the alleged offence was committed is not material and the charge need not be amended for such variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof. 

(3) Where an alteration of a charge is made under subsection (1) or there is a variance between the charge and the evidence as described in subsection (2), the court shall, if it is of the opinion that the accused has been thereby misled or deceived, adjourn the trial for such period as may be reasonably necessary. ' (emphasis added) 

A charge is defective in 'substance', if there is essential information not included in the charge; whereas, a charge is defective in 'form', if the wording of the charge requires 'amendment'. 

In R v Calos Galofia (Unrep. Criminal Review Case No. 1293 of 1991) Muria J held at page 1: 

'The charge in this case is clearly defective and should have been amended before the accused pleaded to the charge or before the prosecution closed its case. In cases where a police officer is conducting the prosecution, very often defects in the charges are not picked up as they are not qualified lawyers. It is therefore incumbent on the Court to exercise its power under section 200(1) [now section 201] and amend the charges bearing in mind the proviso which requires the Court to call upon the accused to plead to the amended charge.' (emphasis added) [words in brackets added] 

If a court is deciding whether to exercise its discretion to amend a charge, although such an application had not been made by the prosecution, it should seek submissions from the prosecution and the defence, see R v West & others [1948] 1 KB 709; [1948] 1 AllER 718; (1948) 32 CrAppR 152 & R v Gregory [1972] 1 WLR 991; (1972) 56 CrAppR 441; [1972] 2 AllER 861; [1972] CrimLR 509. 

See also: R v Robert Maebinua (Unrep. Criminal Review Case No. 160 of 1999; Kabui J) & R v Yamse Masayuki, Ito Tutomu, Solgreen Enterprises Limited (Unrep. Criminal Case No. 27 of 1998) Muria CJ; at page 9). 

[5.6.2] Offence Not Known To Law 

In Andrias Nan Ganta v Lewis Nandi [1973] PNGLR 61 Frost SPJ, sitting alone, stated at page 62: 

'Counsel for the appellant relied on the statement of the law by Jordan CJ in Ex parte Lovell; Re Buckley (1938) SR (NSW) 153 at p. 173 as follows: 

"If the Magistrate convicts upon an information or charge which discloses no offence, or for an offence with which the accused has not been duly charged, the conviction is bad."' 

In Broome v Chenoveth (1946) 73 CLR 583 Dixon J of the High Court of Australia stated at page 601: 

'Whether an information disclosing no offence can be amended has been the subject of some difference of judicial opinion. […] Probably it is necessary to deal with the question as a matter of degree and not by firmly logical distinction. An offence may be clearly indicated in an information, but, in its statement, there may be some slip or clumsiness which upon a strict analysis results in an ingredient of the offence being the subject of no proper averment. Logically it may be said in such a case that no offence is disclosed and yet it would seem a fit case for amendment, if justice is not to be defeated. By contrast, at the other extreme, an information may contain nothing which can identify the charge with an offence known to law. Such a case may not be covered by the power of amendment.' (emphasis added) 

However, whilst a charge alleging an 'offence not know to law' may not be amended, section 201(1) of the Criminal Procedure Code (Ch. 7) provides that 'a court may make such order for the alteration of the charge […] by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case'. (emphasis added) Therefore, it is at the discretion of the court in such circumstances. However, provided prosecutors check the wording of charges, the charging of a defendant with a charge alleging an 'offence not know to law' should not arise.

[5.6.3] Wrong Name Of Defendant 

In Pearcey v Chianta (1987) 6 MVR 10 the case involved a defendant who was stopped by the police for allegedly exceeding the speed limit. Whilst he gave the police the name of his brother, he gave his correct address. He was charged under the name of his brother with exceeding the speed limit. The prosecutor applied to amend the information to the correct name. 

The Court held: 

The defect created no injustice to the defendant; he knew the error; he was not mislead or deceived; he admitted that he was the driver of the motor vehicle at the time of the offence and he knew that the information was intended for him. An amendment was therefore appropriate. 

See also: section 120(d) of the Criminal Procedure Code (Ch. 7) on page 81. 

[5.6.4] No Reference To Section 

In Gordon v Crabbe, Ex parte Gorman [1957] QWN 43 the case involved a hearing of a complaint alleging that the defendant had carried on unlawful bookmaking but which did not state the particular Act under which it was laid. 

The Court of Criminal Appeal held: 

The defect was one in substance which should have been amended. 

Section 201 of the Criminal Procedure Code (Ch. 7) refers to charges which are 'defective' either in 'substance' or in 'form'. 

See also: R v McLaughlin (1983) 76 CrAppR 42. 

[5.6.5] Absence Of The Defendant 

Subject to section 10(2)(f) of the Constitution and section 179 of the Criminal Procedure Code (Ch. 7), it is permissible to amend charges in the absence of a defendant. 

If a defendant does not appear by his/her own volition, it is permissible to amend a charge, provided the nature of the offence is not altered. Such amendments would obviously have to be minor in nature, see R v Wilson & Scott, Ex parte Browne [1940] StRQd 93; R v Police Magistrate at Roma & Warneminde; Ex parte Rowland [1939] QdR 184; Foreman v Crabbe, Ex parte Gorman [1957] QWN 43 & Pearcey v Chianta (1987) 6 MVR 10. 

If it is necessary to amend the nature of the charge and the defendant does not appear, then the defendant should be advised by the Court in writing that the prosecution is making an application to amend the charge. 

If the defendant then does not appear the charge can be amended. Subject to complying with section 188 of the Criminal Procedure Code (Ch. 7), the Court may deal with 'any offence punishable with imprisonment for a term not exceeding six months or a fine not exceeding one hundred dollars, or both such imprisonment and fine'. 

The law relating to: 

·                     the 'Defendant's Right To Be Present In Court' is examined commencing on page 154; and 

·                     'Sentencing' is examined commencing on page 918. 

[5.7] Joinder 

[5.7.1] General Principles 

Section 120(a) of the Criminal Procedure Code (Ch. 7) states (in part): 

'(iv) Where a charge or information contains more than one count the counts shall be numbered consecutively.' (emphasis added) 

Section 118 of the Criminal Procedure Code (Ch. 7) states: 

'(1) Any offences, whether felonies or misdemeanours, may be charged together in the same charge or information if the offences charged are founded on the same facts or form, or are part of, a series of offences of the same or a similar character. 

(2) Where more than one offence is charged in a charge or information, a description of each offence so charged shall be set out in a separate paragraph of the charge or information called a count. 

(3) Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be embarrassed in his defence by reason of being charged with more than one offence in the same charge or information, or that for any other reason it is desirable to direct that the person be tried separately for any one or more offences charged in a charge or information the court may order a separate trial of any count or counts of such charge or information.' (emphasis added) 

The evidence in respect of each charge must however be considered separately, see R v Fisher (1965) 49 CrAppR 116. 

In Collins (1994) 76 ACrimR 204 McPherson JA and Lee J, in their joint judgment, stated at pages 206 – 211: 

'Section 567(1) sets up a general prohibition in relation to the joinder of multiple counts in the one indictment. Section 567(2), however, sets up an exception. Relevantly, it provides that multiple counts may be joined on the one indictment if they: 

'are founded on the same facts or are, or form part, of a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose." 

It has long been accepted that the basic criteria for the joinder of counts under subs (2) is the existence of some connection or nexus between them, each limb of the subsection being illustrative of the circumstances giving rise to that nexus: Ludlow v Metropolitan Police Commissioner [1971] AC 29 at 39; (1970) 54 CrAppR 233 at 242; Kray [1970] 1 QB 125 at 130 – 131; (1969) 53 CrAppR 569 at 573 – 575; Clayton v Wright [1948] 2 AllER 763 at 765; Cranston [1988] 1 QdR 159 at 164. 

In defining in broad terms what connection is sufficient for this purpose, an examination of the cases demonstrates that an appropriately liberal reading be given to the text of the section, consistent with its underlying policy. That policy, it was stated in Kray at 131; 575, is to enable the joinder of charges which may be "properly and conveniently" dealt with together; see also Ludlow at 38; 241. 

It is obviously desirable both in the interests of the due and expedient administration of criminal justice and in the interests of finality of litigation in relation to the particular accused, that there be a single and final inquiry into matters which arise out of or which essentially involve common issues of fact or law. Any injustice which such a course has the potential to produce is adequately catered for by the discretion to sever provided for in s.597A. If nothing else, consistency in decision making would dictate that the one tribunal resolve such questions, little being gained from a fragmented approach. 

The simple means which the legislature has provided for giving effect to this policy is to allow the joinder of multiple counts in the same indictment in an appropriate case so that the whole of the facts can be adjudicated upon be one jury"; Bellman [1989] AC 836 at 850; (1989) 88 CrAppR 252 at 260. 

Indeed so extensively has this policy been recognized, that the courts have laid down the general rule that matters which can be joined without prejudice to the accused ought generally to be: Connelly v DPP [1964] AC 1254; (1964) 48 CrAppR 183; Bargenquast (1981) 5 ACrimR 126. The counts in the present indictment plainly display the requisite nexus. If nothing else, all of the offences charges had their genesis in the events of 13 June 1993 and in that sense attract the operation of the first limb of the subsection. For offences to be "founded on the same facts" they must have a common factual origin"; Barrell and Wilson (1979) 69 CrAppR 250; Bellman at 850; 260; Cranston at 162. But that is a phrase which is not to be narrowly construed. In particular, it is not necessary for the offences to have arisen contemporaneously or to involve precisely the same facts. All that is necessary is for them to be traceable, either in time, place or circumstance, to common events. 

Moreover, the admissibility of the accused's recent possession of the stolen items on the charges of arson and breaking, entering and stealing, as a circumstance tending to connect him with the scene of those crimes (Loughlin (1951) 35 CrAppR 24), establishes them as part of a series of offences as that phrase is understood. It is both the fact of that possession and the circumstances attending its acquisition that provides the necessary link. The mere fact that the counts are mutually exclusive in the sense that they are based on contradictory explanations as to the circumstances surrounding the offences is not to the point: Bellman. It is the existence of some common link between them that justifies the joinder.' (emphasis added) 

In R v Baird (1993) 97 CrAppR 308 the Court of Appeal stated at pages 313 – 315:

'It seems to us that a coincidence in point of time, like a coincidence in point of location, may be an important factor in determining whether or not particular offences can be regarded as being or forming part of a series, but every case must depend upon its own facts. This, we think, explains why there is no authority suggesting that, for the purposes of Rule 9, the components of any particular series of alleged offences must have been committed within a definite time span. As the authorities plainly show, the correct approach is to discover whether the alleged offences claimed by the prosecution to form part of a series are linked by a sufficiently close nexus to bring them within the Rule. It is not an approach by way of the dictionary definition of the word. This appears from the comments of Widgery LJ (as he then was) upon rule 3 of Schedule I to the Indictments Act 1915, the forerunner of rule 9, in Kray (1969) 53 CrAppR 569, [1970] 1 QB 125 at pp. 574 and 130 where he said: 

"Counsel for Ronald Kray contended that two murders cannot amount to a 'series' of offences since a series, involves at least three components. Mr. Wrightson (for Reginald Kray) did not support this argument, but he contended that rule 3 was no more than a consolidation of earlier rules of practice which did not sanction the joinder of offences unless they arise out of the same facts or were part of a system of conduct, which was not here alleged.  

The Court does not accept either of these arguments. It may be true that the word 'series' is not wholly apt to describe less than three components, but so to limit its meaning in the present context would produce the perverse result that whereas three murders could be charged in the same indictment, two could not. The construction of the rule has not been restricted in this way in practice during the 50 years which have followed the passage of the Act and it is too late now to take a different view. 

On the other hand, offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them. Such nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other, but it is clear that the rule is not restricted to such cases. 

Widgery LJ added at pp. 575 and 131: 

"It is not desirable, in the view of this Court, that rule 3 should be given an unduly restricted meaning, since any risk of injustice can be avoided by the exercise of the judge's discretion to sever the indictment. All that is necessary to satisfy the rule is that the offences should exhibit such similar features as to establish a prima facie case that they can properly and conveniently be tried together."

These passages from the judgment of Widgery LJ were approved by the House of Lords in Ludlow v Metropolitan Police Comr. (1970) 54 CrAppR 233, [1971] AC 29, where again it was held that two offences could constitute a "series" within the meaning of the rule. Lord Pearson, with whom the other members of the House agreed, added at pp. 242 and 39 of the respective reports: 

"In my opinion, however, it is important to notice that there has to be a series of offences of a similar character. For this purpose there has to be some nexus between the offences … Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series." 

It was held that a sufficient nexus existed in that case because the two offences "were similar both in law and in fact". More recently, in Marsh (1986) 83 CrAppR 165 this court rejected an argument by the appellant that, for the purposes of joinder, the two offences must have both a legal and factual similarity. At p. 171 of the report Mustill LJ (as he then was) referred to Lord Pearson's approval of the last sentence quoted above from the judgment of Widgery LJ in the Kray case, and added: 

"It seems to us, therefore, that those faced with the question of joinder should approach the matter by seeking to ascertain whether or not the counts have similar or dissimilar legal characteristics, whether or not they have similar or dissimilar factual characteristics, and whether or not in all the circumstances such features of similarity as are found enable the offences to be properly described as a series." 

It will be seen from these authorities that the answer to the question whether the counts in the present case were properly joined as a "series" largely depends, upon whether or not the evidence in relation to one set of alleged offences was admissible in relation to the other and vice versa.' (emphasis added) 

In Chief Constable of Norfolk v Clayton [1983] 2 AC 473 [(1983) 77 CrAppR 24] Lord Roskill stated at pages 491 – 492: 

'Where a defendant is charged on several informations and the facts are connected, for example motoring offences, or several charges of shoplifting, I can see no reason why those informations should not, if the justices think fit, be heard together. […] Of course, when this question arises, as from time to time it will arise, justices will be well advised to inquire both of the prosecution and of the defence whether either side has any objection to all the informations being heard together. […] Absence of consent, either express where the defendant is present or represented, should no longer in practice be regarded as a complete and automatic bar to hearing more than one information at the same time or informations against more than one defendant charged on separate informations at the same time when in the justice's view the facts are sufficiently closely connected to justify this course and there is no risk of injustice to defendants by its adoption. Accordingly, the justices should always ask themselves whether it would be fair and just to the defendant or defendants to allow a joint trial. Only if the answer is clearly in the affirmative should they order joint trial in the absence of consent by or on behalf of the defendant.' (emphasis added) 

See also: R v Marsh (1986) 83 CrAppR 165; [1966] CrimLR 120; R v Assim [1966] 3 WLR 55; [1966] 2 QB 249; [1966] 2 AllER 881; (1966) 50 CrAppR 224; R v Youth [1945] WN 27; R v Grondkowski & Malinowski (1946) 31 CrAppR 116 [[1946] KB 369] at pages 119 – 121; R v Clayton – Wright [1949] 2 AllER 7632; (1948) 33 CrAppR 22 & R v Anderson [1994] 2 QdR 409. 

In R v John Musuota (Unrep. Criminal Case No. 41 of 1996) Lungole - Awich J stated at pages 7 – 9: 

'The DPP, by charging the one overt act in five different counts is saying that the one act is technically five different offences so accused, by the one act committed crime five times, he is to be charged for the five times. That legalism may be attractive to those of us who are trained in Law; what about to an ordinary, but intelligent person, and is it not desirable that however technical an offence may be, it must be put to an accused in a way he understands the charge against him? Does excessive multiplicity in counts not leave an accused lost in the maze? After all it is the accused's liberty in danger. 

I raised the question, with the DPP, as to whether he would insist on proceeding with the multiple counts all based on the one overt act. His response was that the DPP was authorized to decide to charge and to prosecute for any charges he chooses. What I had in mind was not to question that constitutional authority of the DPP which must be all too obvious to any lawyer of the Common Law tradition. My inquiry was meant to find out whether the DPP had considered exercising his constitutional discretion to elect to proceed on only one or some of the counts since all the counts were based on one overt act. That is normal practice – See Regina v Riebold and Another [1967] 1 WLR 674 where the prosecutor elected to proceed only on a count of conspiracy and 28 other counts of larceny and obtaining by false pretences remained on the court file not to be proceeded with without leave of court. The 29 counts were based on the same overt acts. Of course the prosecutor, in deciding to have some counts stayed must be careful to consider that should it be necessary to return to seek leave to proceed with the counts stayed, circumstances do not exist in which it may be said that he will be merely seeking a retrial of the whole case. Indeed the prosecution could, on the same overt act charge one key count and one or two as alternative counts. The court, for its part, has to ensure that the multiplicity of counts will not amount to oppression or prejudice to the accused.' 

In R v King [1897] 1 QB 214 [(1897) 18 CoxCC 447] Hawkins J commented at page 216: 

'The defendant was tried for obtaining and attempting to obtain goods by false pretences upon an indictment containing no fewer than forty counts; and I pause here to express my decided opinion that it is a scandal that an accused person should be put to answer such an array of counts containing, as these do, several distinct charges. Though not illegal, it is hardly fair to put a man upon his trial on such an indictment, for it is almost impossible that he should not be grievously prejudiced as regards each of the charges by the evidence which is being given upon the others. In such a case it would not be unreasonable for the defendant to make an application that each count, or each set of counts, should be taken separately.' 

See also: R v Bailey (1924) 18 CrAppR 42; [1924] 2 KB 300; (1924) 27 Cox CC 692; R v Carless & Stapley (1934) 25 CrAppR 43 at pages 44 – 45; R v Shaw & Agard (1942) 28 CrAppR 138 & R v Hudson & Hagan (1952) 36 CrAppR 94 at page 95. 

The law relating to 'Abuse Of Process' is examined commencing on page 138. 

[5.7.2] Joint Trials 

[A] Criminal Procedure Code 

Section 119 of the Criminal Procedure Code (Ch. 7) states: 

'The following persons may be joined in one charge or information and may be tried together, namely – 

(a)                person accused of the same offence committed in the course of the same transaction; 

(b)               persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence; 

(c)                persons accused of different offences committed in the course of the same transaction; 

(d)               persons accused of different offences provided that all offences are founded on the same facts, or form or are part of a series of offences of the same or a similar character.' (emphasis added) 

[B] General Principles 

In R v Gibbins & Proctor (1918) 13 CrAppR 134 Darling J, delivering the judgment of the Court, stated at page 136: 

'The rule is, that it is a matter for the discretion of the judge at the trial whether two people jointly indicted should be tried together or separately. But the judge must exercise his discretion judicially.' 

See also: R v Youth [1945] WN 27; R v Assim [1966] 3 WLR 55; [1966] 2 QB 249; [1966] 2 AllER 881; (1966) 50 CrAppR 224 & R v Grondkowski & Malinowski (1946) 31 CrAppR 116; [1946] KB 369. 

In Bannon v R (1995) 132 ALR 87 Deane J, as a member of the High Court of Australia, made the following observation at page 93: 

'The joint criminal trial of two persons either on the basis that both were jointly involved in criminal conduct or on the basis that one or other of them is alone guilty of the charged criminal offence has long been rightly seen as representing one of the most difficult facets of the administration of criminal justice.' 

In Zebedee Lolety v R (Unrep. Criminal Appeal Case No. 4 of 1981) Daly CJ stated at page 2: 

'I should add that having seen the full proceedings of this trial I have given serious consideration as to whether the course adopted of having a joint trial of twenty four persons could be said to be in the interests of justice. There appears to be an increasing practice of bringing large number of accused before courts at one time. It is not a practice of which I approve particularly when there are issues of identification before the court in relation to serious offences as was the case in this trial. The better course would have been for those persons accused of assault to be tried separately from those against whom unlawful assembly was laid by itself. Even so it would still in my view be better if the disputed unlawful assembly cases were tried in smaller groups. The learned Magistrate went to great trouble to make sure that all accused were given a full opportunity to place their cases before the court. His task would have been much easier if he was dealing with manageable numbers. 

Having a number of separate trials involving the same evidence may, I appreciate, cause administrative difficulties and the loss of time to courts, witnesses and advocates. But, if the interest of justice require it, then the sacrifice must be made. Justice is for the individual not the group and courts must be seen to be dealing fully and carefully with every individual appearing in front of them. This may not be apparent to a bystander where a court is considering the cases against a large number of accused at one time. I hope, therefore, that joint trials of large numbers of accused will discontinue.' (emphasis added) 

In R v Myers [1996] 2 CrAppR 335 Russell LJ, delivering the judgment of the Court of Appeal, stated at pages 338 – 339: 

'Predictably we were referred to the statements of principle to be found in Lake (1977) 64 CrAppR 172, 175: 

"It has been accepted for a very long time in English practice that there are powerful public reasons why joint offences should be tried jointly. The importance is not merely one of saving time and money. It also affects the desirability that the same verdict and the same treatment shall be returned against all those concerned in the same offence. If joint offences were widely to be treated as separate offences, all sorts of inconsistencies might arise. Accordingly it is accepted practice, from which we certainly should not depart in this court today, that a joint offence can properly be tried jointly, even though this will involve inadmissible evidence being given before the jury and the possible prejudice which may result from that […]. […]"

[…] 

Subject to questions of admissibility […], we cannot fault the exercise of the trial judge's discretion. He had to place in the balance the interests of both defendants. Prejudice to one could be an advantage to the other. In a difficult situation, he had to look at the overall fairness of the situation that might develop in a joint trial.' (emphasis added) 

In Webb & Hay v R (1994) 68 ALJR 582 Toohey J of the High Court of Australia, with whom Mason CJ and McHugh J concurred, stated at page 606: 

'King CJ [in Webb & Hay (1992) 59 SASR 563 at 585 pointed …] out that there are "strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other". What King CJ referred to as "strong reasons of principle and policy" were discussed by his Honour in R v Collie [(1991) 56 SASR 302 at 307 – 311]. I respectively agree with that discussion which emphasizes that when accused are charged with committing a crime jointly, prima facie there should be a joint trial.' (emphasis added) [words in brackets added] 

In Wemp Mapa & three others v The State [1979] PNGLR 135 Andrew J, with whom the other members of the Supreme Court concurred, stated at page 139: 

'The power of a court to order separate trials (or to refuse to do so) for persons jointly indicted, where required by the interests of justice, has long been recognized by the common law of England.' 

In Smith, Turner & Altintas (1994) 75 ACrimR 327 Perry J of the South Australian Supreme Court examined the law relating to the joinder of charges as regards 'accessories after the fact' at pages 340 – 341: 

'I would have thought that it is ordinarily in the interests of an alleged accessory after the fact to have his or her charge dealt with at the same time as the hearing of the substantive offence. If separate trials were to be contemplated, the conviction of the principal offender or offenders is only prima facie evidence of the commission of the offence as to which accessorial liability is sought to be established […]. If the alleged accessory sought to offer evidence going to the question whether or not a principal offence had been committed, the accessory would, in the context of separate trials, inevitably have to call much evidence again. If the accessory is tried with the alleged principal offenders, he or she has the opportunity of participating in the presentation of evidence going to the commission of the principal offence, and may be cross – examination or otherwise have an opportunity of playing a part in the defence to the allegations going to the establishment of the principal offence which it would be difficult in the context of a separate trial.' (emphasis added)

See also: R v Buggy (1961) 45 CrAppR 298. 

The law relating to 'Accessories After The Fact' is examined commencing on page 421. 

'The case must be rare in which fellow – conspirators can properly in the interests of justice be granted a separate trial', see R v Miller & others (1952) 36 CrAppR 169 [[1952] 2 AllER 667] at page 174. 

Separate trials should not be ordered solely on the basis that a defendant intends to question the credibility of a co – defendant, see R v Johnson (A.) [1995] 2 CrAppR 1; R v O'Boyle (1991) 92 CrAppR 202; [1991] CrimLR 67 & R v Grondkowski & Malinowski [1946] KB 369; (1946) 31 CrAppR 164. 

The law relating to 'Questioning The Credibility Of Defendants' is examined commencing on page 352. 

Some of the considerations which should be considered by a court are: 

[i] the proper administration of justice; and 

[ii] the interests of the witnesses, see R v Edwards & Lake (deceased) [1998] CrimLR 756. 

A Court may refuse to order separate trials and furthermore, exercise its discretion to limit the extent of cross – examination as to credibility taking into account such considerations, see R v Murdoch & Taylor [1965] AC 574. 

In a joint trial evidence against each defendant must be considered separately, see Foster & others v R (Unrep. Criminal Appeal Case No. 8 of 1994; Court of Appeal; at page 4); R v Graham (1919) 13 CrAppR 220; (1919) 14 CrAppR 7; R v Matthews (1919) 14 CrAppR 23; R v Twigg (1919) 14 CrAppR 71; R v Lovett & Flint (1921) 16 CrAppR 41 & R v Rhodes (1959) 43 CrAppR 23. 

If the prosecution is unable to satisfy the Court 'beyond reasonable doubt' that either or both defendants committed the offence, then the appropriate verdict is not guilty, see Swallow v Director of Public Prosecutions [1991] CrimLR 610; Collins & Fox v Chief Constable of Merseyside [1988] CrimLR 247; R v Abott [1955] 3 WLR 369; [1955] 2 QB 497; [1955] 2 AllER 889; (1955) 39 CrAppR 141; R v Grondkowski & Malinowski (1946) 31 CrAppR 116 [[1946] KB 369] at pages 119 – 121; R v Lane & Lane (1986) 82 CrAppR 5; [1985] CrimLR 789; R v Russell & Russell (1987) 85 CrAppR 388; [1987] CrimLR 494; R v Aston & Mason (1992) 94 CrAppR 180; R v Strudwick & Merry (1994) 99 CrAppR 326; R v Rowlands (1972) 56 CrAppR 169 & R v Gibson & Gibson (1985) 80 CrAppR 24; [1984] CrimLR 615.

Where two or more persons are indicted jointly, the wife or husband of any such defendant is not an available witness against any co – defendant, see R v Mount & Metcalfe (1934) 24 CrAppR 135 at page 137. 

The law relating to the 'Competence of Spouses' is examined commencing on page 282. 

See also: R v Moghal (1977) 65 CrAppR 56; [1977] CrimLR 373; R v Josephs & Christie (1977) 65 CrAppR 253; R v Hoggins & others [1967] 1 WLR 1223; [1967] 3 AllER 334; (1967) 51 CrAppR 444; R v Pieterson & Holloway [1995] 1 WLR 293; [1995] 2 CrAppR 11; R v Eriemo [1995] 2 CrAppR 206; R v Miller [1957] 2 AllER 667; (1952) 36 CrAppR 169; R v Shaw & Agard [1942] 2 AllER 342; (1943) 28 CrAppR 138; John Rul Nabil v The State [1979] PNGLR 88 at pages 88 – 90 & The State v Leo Nimo [1980] PNGLR 129. 

[C] Evidence Of Co - Defendants 

In R v Kempster (1990) 90 CrAppR 14 Staughton LJ, delivering the judgment of the Court, stated at page 18: 

'At common law it was established long ago that a plea of guilty by one of two co-accused is not evidence against the other.' 

See also: R v Moore (1956) 40 CrAppR 50. 

In R v Peter Fitali & others (Unrep. Criminal Case No. 39 of 1992) Muria CJ stated at page 8: 

'The general rule is that the statements made by one accused either to the police or to others are not evidence against a co – accused unless the co – accused either expressly or by implication adopts the statements as his. See R –v- Rudd (1948) 32 CrAppR 138 and R –v- Gunewardene (1951) 35 CrAppR 80.' 

In Foster & others v R (Unrep. Criminal Appeal Case No. 8 of 1994) the Court of Appeal stated at pages 4 – 5 

'The appellant Foster's other grounds of appeal were, first, that the learned Chief Justice took into account against him statements contained in the caution statements of the other two appellants. We do not think this is so. In his general summary of events the learned Chief Justice referred to the evidence generally including the caution statements of all three accused. The appellant submitted that it should be implied that because he used them in his general summary he used them also in considering the individual accused's cases. We do not think any such implication follows. In our view he clearly considered each accused's case separately and in this appellant's case he plainly did not take into account matters contained in the statements made by the appellants Loea and Dusu. […] 

[…] 

It appears to us that the learned Chief Justice has inadvertently used Loea's caution statement in reaching the conclusion that both appellants heard Foster calling out, when in fact only Loea admitted that, and both had pulled the deceased over to him which again was only admitted by Loea. […] 

It is of course, not permissible to take one accused's statement into account when considering the case against another accused […].' (emphasis added) 

Nor is it permissible to use the statement of a 'co - defendant' who is called as a witness for either the prosecution or defence, even if it is necessary to have that witness declared 'hostile', see R v O'Neill [1969] CrimLR 260 & R v Dibble (1909) 1 CrAppR 155. 

The law relating to 'Hostile Witnesses' is examined commencing on page 288. 

However, if a defendant gives 'evidence' then such 'evidence' may be used against a 'co – defendant', see Mawaz & Khan v R [1967] 1 AllER 80; [1967] 1 AC 454; [1966] 3 WLR 1275 & R v Rudd (1948) 32 CrAppR 138. 

Refer also to the law relating to 'Questioning The Credibility Of Co – Defendants' commencing on page 352. 

When a defendant called in his/her own defence gives evidence against a co – defendant the full warning, as regards 'corroboration', which is appropriate in respect of a witness for the prosecution who may be an accomplice need not be considered, see R v Bagley [1980] CrimLR 572; R v Loveridge & Loveridge (1983) 76 CrAppR 125 & R v Knowlden & Knowlden (1983) 77 CrAppR 94. 

The law relating to 'Corroboration' as regards 'Accomplices' is examined commencing on page 303. 

See also: Burnett (1994) 76 ACrimR 148. 

[D] Defective Joinder 

Upon a court ruling that counts or charges have been improperly joined, the only option available for the prosecution is to seek leave to have the counts or charges withdrawn and institute fresh proceedings against the defendants. Such a defect can not be cured by a direction for separate trials, see R v O'Reilly (1990) 90 CrAppR 40 & R v Newland [1988] QB 402; (1988) 87 CrAppR 118. 

The law relating to the 'Withdrawal Of Charges' is examined commencing on page 101. 

[5.7.3] Alternative Charges 

Subsection 120(b)(i) of the Criminal Procedure Code (Ch. 7) permits the joinder of alternative charges. That subsection states: 

'[W]here an enactment constituting an offence states the offence to be the doing or the omission to do any one of any different acts in the alternative, or the doing or the omission to do any act in any one of any different capacities, or with any one of different intentions, or states any part of the offence in the alternative, the acts, omissions, capacities or intentions, or other matters stated in the alternative in the enactment, may be stated in the alternative in the count charging the offence.' (emphasis added) 

The prosecution is required to advise the court whenever it is relying on charges in the 'alternative', 'Practice Note' issued by Davis CJ in David Kio v R (Unrep. Criminal Appeal Case No. 11 of 1977). 

[5.8] Limitation Of Time 

Section 206 of the Criminal Procedure Code (Ch. 7) states: 

'Except where a longer time is specially allowed by law, no offence, the maximum punishment for which does not exceed imprisonment for six months or a fine of one hundred dollars or both such imprisonment and fine shall be triable by a Magistrate's Court, unless the charge or complaint relating to it is laid within six months from the time when the matter of such charge or complaint arose.' (emphasis added) 

The 'laying of the charge or complaint' refers to the time when it was laid before the Court. As regards 'Institution Of Proceedings' refer to section [6.0] commencing on page 110. 

The 'time when the matter of such charge or complaint arose' refers to the date on which the offence is alleged to have been committed. 

See also: R v Kennett L JJ, Ex parte Humphrey & Wyatt [1993] CrimLR 787; R v Pain, Jory & Hawkins (1986) 82 CrAppR 141 & R v Pontypridd Juvenile Magistrates' Court, Ex parte B & others [1988] CrimLR 842.  

[5.9] Authority To Withdraw Charges 

Section 10(1) of the Constitution states: 

'If any person is charged with a criminal offence, then, unless the charge is withdrawn, that person shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.' (emphasis added) 

By virtue of section 91(4) of the Constitution, the 'Director of Public Prosecutions has the power in any case in which he considers it desirable to do so – 

(a) to institute and undertake criminal proceedings against any person before any court […] in respect of any offence alleged to have been committed by that person; 

(b) to take over and continue any such criminal proceedings that have been instituted or undertaken by any other person or authority; or 

(c) to discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.' 

'The powers conferred on the Director of Public Prosecutions by paragraphs (b) and (c) of subsection (4) of [… section 91] shall be vested in him to the exclusion of any other person or authority: 

Provided that where any other person or authority has instituted criminal proceedings, nothing in this subsection shall prevent the withdrawal of those proceedings by or at the instance of that person or authority and with the leave of the court', see section 91(6) of the Constitution. 

The prosecution is responsible for determining who is prosecuted. A prosecutor upon receiving the requisite authority to withdraw a charge based on the below – mentioned tests should advise the Court that it is the intention of the prosecution to seek leave of the court to withdraw the charge. Whilst the prosecutor should always consider any comments made by the Court, the ultimate decision is that of the prosecution and not the Court as to whether a prosecution proceeds, see R v Jenkins (1986) 83 CrAppR 152. 

The Director Prosecutions and Provincial Police Commanders have the authority in respect of charges dealt with summarily in a Magistrates' Court or a Local Court to determine whether an offender is prosecuted, subject to: 

[i] both the 'Sufficiency Of Evidence' and 'Public Interest' tests as outlined commencing on page 115; and 

[ii] the express directions of the Director of Public Prosecutions, see section 74 of the Criminal Procedure Code (Ch. 7).

Section 68(1) of the Criminal Procedure Code (Ch. 7) states: 

'In any criminal case and at any stage thereof before verdict or judgment, as the case may be, the Director of Public Prosecutions may enter a nolle prosequi, either by stating in court or by informing the court in writing that the Crown intends that the proceedings shall not continue, and thereupon the accused shall be once discharged in respect of the charge for which the nolle prosequi is entered, and if he has been committed to prison shall be released, or if on bail his recognisances shall be discharged; but such discharge of an accused person shall not operate as a bar to any subsequent proceedings against him on account of the same facts.' (emphasis added) 

See also: sections 69 & 70 of the Criminal Procedure Code (Ch. 7). 

Section 190 of the Criminal Procedure Code (Ch. 7) states: 

'(1) The prosecutor may with the consent of the court at any time before a final order is passed in any case under this Part ['Procedure in Trials Before Magistrates' Courts – Part VI'] withdraw the complaint. 

(2)               On any withdrawal as aforesaid – 

(a) where the withdrawal is made after the accused person is called upon to make his defence, the court shall acquit the accused; 

(b) where the withdrawal is made before the accused person is called upon to make his defence, the court shall subject to the provisions of section 197 in its discretion make one or other of the following orders -- 

(i)                 an order acquitting the accused; 

(ii) an order discharging the accused. 

(3) An order discharging the accused under paragraph (b) (ii) of subsection (2) shall not operate as a bar to subsequent proceedings against the accused person on account of the same facts.' [words in brackets added] 

An order acquitting a defendant under paragraph (b)(ii) of section 190(2) of the Criminal Procedure Code (Ch. 7) shall operate as a bar to subsequent proceedings against the same defendant on account of the same facts, see the law relating to 'Double Jeopardy' which is examined commencing on page 105. 

Section 190 however only applies to charges being dealt with summarily and not 'Preliminary Investigations / Inquiries' because it refers to Part VI of the Criminal Procedure Code (Ch. 7). 

In Tatau v Director of Public Prosecutions (Unrep. Civil Case No. 289 of 1992) Palmer J stated at pages 2 – 12: 

'The first matter I will consider is the powers of the learned Director of Public Prosecutions under section 68 of the Criminal Procedure Code and under section 91(4)(c) of the Constitution. 

[His Lordship then referred to section 68 of the Criminal Procedure Code (Ch. 7).] 

The following points can be noted. 

(i)                 The powers under section 68 may be exercised at any state of the trial before verdict or judgment.

(ii)               They are discretionary. 

(iii)             Nolle may be entered either in Court or by writing to the court. 

[…] 

[His Lordship then referred to section 91 of the Constitution.]

There are certain points to note about section 91(4)(c). 

(1)               The powers of the Director of Public Prosecutions is restricted to what he considers "desirable"; and

(2) He may discontinue criminal proceedings at any stage before judgment [is] delivered. 

The power to discontinue would seem to run right up until before judgment is delivered ie., even right up until after defence have stated their case! However, one would need to be extremely cautious about giving such powers or interpreting such sections so widely. 

Some guidelines as to the limits of the exercise of such a widely worded power can be gleaned from the provisions of section 189 of the Criminal Procedure Code [now section 190]. 

Section 189(2)(a) for instance provides that if a withdrawal is made in the Magistrates Court after the accused person is called upon to make a defence, then the Court shall acquit him. The basis of this provision stems from the common law principles of a right to a fair hearing and the inherent jurisdiction of the court to safeguard an accused person from oppression or prejudice […]. If a nolle is entered in such circumstances then the accused is entitled to be acquitted. 

Another limit can naturally be seen also from section 196 of the Criminal Procedure Code [now section 197] which covers the situation that arose in the case of Regina –v- Abia Tambule & Others [1974] PNGLR 250. 

Section 196 states in essence that where prosecution has closed its case then the presiding magistrate must decide if there is a sufficient case for the accused to deny. If he finds that there is insufficient evidence to put the accused on his defence, then he must be acquitted. 

[…] 

In broad terms, [… the learned Director of Public Prosecutions] is concerned with the pursuit of justice, the lawful apprehension of offenders, collection of evidence and successful prosecution at trial. In his pursuit of justice, his actions are barricaded in by what is lawful and according to general rules of practice evolved by the Court over many years. 

The decision to initiate a prosecution or to stop or discontinue criminal proceedings belongs to him alone to exercise. 

If for instance, having commenced a hearing, the Director of Public Prosecutions realizes that there is insufficient evidence available and therefore rather than waste everybody's time he decides to discontinue proceedings, that is a perfectly valid thing to do. If in reconsidering the evidence he comes to the conclusion that no successful prosecution will ever be made and he simply decides not to resume criminal proceedings, then that is perfectly valid, and that is the end of the matter. Although the effect of discontinuing the proceedings is to discharge the accused, in this particular example, it will have the same indirect effect of an acquittal or can be regarded as a permanent discharge. 

[…] 

I do not think it was intended that the courts should delve into how a particular decision is arrived at in the exercise of the Director of Public Prosecution's power under section 91(4)(c).

[…] 

I will now address briefly the submission of Mr Talasasa on the question of the interpretation to be accorded to the word "withdraw" as used in section 10(1) of the Constitution. 

The word "withdraw" is not defined in the Constitution, as submitted. 

[…] 

The ordinary meaning as applied to the word "withdraw" in section 10(1) of the Constitution would mean a "cancellation", a "washing out" of the case resulting in an acquittal. However, when used in the context of section 189 of the Criminal Procedure Code it would also mean a discharge. The context of the use of the word withdrawn, in my opinion is important to look at to determine the extent of the power used when a withdrawal is made i.e., when the case was withdrawn, was there an acquittal made or a discharge?' (emphasis added) [words in brackets added] 

In R v Soho Sade (Unrep. Criminal Appeal Case No. 253 of 2001) Palmer ACJ dealt which a case in which the police prosecutor made an application to have a charge withdrawn under section 190(2)(b)(ii) of the Criminal Procedure Code (Ch. 7) on the basis that: (i) there was a lack of transport for the police; and (ii) the un – cooperativeness of the defendant. The presiding Magistrate accepted the application and discharged the defendant. 

His Lordship held at pages 1 - 2: 

'[In Director of Public Prosecutions v Clement Tom [1988 - 89] SILR 118 Ward CJ stated at page 119:] 

"Whenever a prosecutor seeks to withdraw a charge under section 189 he requires the consent of the court. Normally that will be given but only after enquiry by the court as to the reasons for the withdrawal. If there is any doubt about the propriety of the application, the court should refuse and require the prosecution to proceed. If necessary, the court can require evidence of the reasons.

Where the magistrate is satisfied there should be withdrawal and it is before the accused has been called upon to make his defence, he must decide the appropriate order under subsection 2(b). Where there is no evidence or the wrong charge has been laid or the wrong person charged, the order should be one of acquittal. In all other cases, the appropriate order is one of discharge under 2(b)(ii)." 

[…], I find the reasons […] given to be inadequate to justify an application for withdrawal. If there are no police vehicles, there are taxis available and if taxis are too expensive there are public buses to use. If all else fails walk.

If an accused is un – cooperative then there are avenues available to police officers to deal with such persons. I don't really see how such excuse can be accepted when the accused is under a warrant of arrest anyway. If an accused is evasive, then it is part of police work to locate and arrest him.' (emphasis added) 

In R v Dao & Dao [1988 – 89] SILR 142 Ward CJ stated at page 144: 

'The complaint of the prosecution in ground one relates to the order of acquittal following the magistrate's consent to withdraw the charge. The reason for that withdrawal was, as the prosecutor told the lower court, so that he would be free to bring the case back once essential evidence became available. That was the same reason that he had raised in seeking an adjournment. He was attempting to use withdrawal under section 189 to achieve the very adjournment the magistrate had refused and for the same reason. 

I feel that was a clear case of seeking to withdraw for improper reasons and the learned Magistrate should have refused his consent to the withdrawal. Instead, what he did was to step, as it were, straight into sub-section (2) and decide whether the order should be under (2)(b)(i) or 2(b)(ii). There is nothing to suggest he considered the matter properly under subsection one in allowing the withdrawal. On the contrary, having said that he felt it was wrong to leave, the case hanging over the defendant's heads "for exactly the same reason as for refusing the adjournment", he should clearly not have passed to subsection 2 at all. 

Having refused his consent, the prosecution would have had to proceed. Whether they offered no evidence or tried to succeed on the evidence they had would have been a matter for them. Counsel for the appellants has made it clear that they could not have succeeded and so an acquittal would have been inevitable.' (emphasis added) 

See also: R v Alwyn Salau & Silas Atu (Unrep. Criminal Case No. 45 of 2000; Lungole - Awich J) & Job Tuhaika & another v Attorney – General & Controller of Prisons (Unrep. Civil Case No. 383 of 1992; Palmer J; at page 2).

[5.10] Double Jeopardy 

No person should be prosecuted for an offence for which he/she has been previously either convicted or acquitted, unless such conviction or acquittal has been reversed or set aside.

Section 10(5) of the Constitution states: 

'No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence, save upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.' (emphasis added) 

Refer also to the chapter which examines the 'Criminal Jurisdiction Of The Courts' commencing on page 14. 

Section 121 of the Criminal Procedure Code (Ch. 7) states: 

'A person who has been once tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal has not been reversed or set aside, not be liable to be tried again on the same facts for the same offence.' 

Section 3 of the Traffic Regulations (Ch. 131) states: 

'Where any act or omission is an offence under the Act and these Regulations, nothing in these Regulations shall be deemed to affect the liability of any person to be prosecuted under the Act: 

Provided that no person shall be prosecuted twice for the same act or omission.' (emphasis added) 

In Connelly v Director of Public Prosecutions [1964] AC 1254 [(1964) 48 CrAppR 183; [1964] 2 WLR 1145; [1964] 2 AllER 401] Lord Devlin stated at pages 1339 – 1340: 

'For the doctrine of autrefois to apply it is necessary that the accused should have been put in peril of conviction for the same offence as that with which he is then charged. The word "offence" embraces both the facts which constitute the crime and the legal characteristics which make it an offence. For the doctrine to apply it must be the same offence both in fact and in law.' (emphasis added) 

In Director of Public Prosecutions v Porthouse (1989) 89 CrAppR 21 May LJ, delivering the judgment of the Court, stated at page 24: 

'The rules of autrefois convict and acquit are rooted in nemo debet bis vexari. A defendant is twice – vexed only when he was in peril of a valid conviction upon his first trial. Accordingly autrefois convict is not available unless the first trial was before a lawfully constituted court, having jurisdiction in the matter, and trying an offence known to the law in accordance with the law. An acquitted defendant has been at peril if he has been at risk of such a conviction. 

There can be no difference in principle whether the first proceedings result in an acquittal or a conviction: either the defendant was at risk of a valid conviction or he was not.' 

In R v Z [2000] 2 CrAppR 281 [[2000] 2 AC 483; [2000] 3 WLR 117; [2000] 3 AllER 385; [2001] CrimLR 222] the House of Lords held per Lord Hutton at page 302: 

'A consideration of the authorities and of the textbook writers and commentators leads me to the following conclusions: 

(1)               The principle of double jeopardy operates to cause a criminal court in the exercise of its discretion, and subject to the qualification as to special circumstances stated by Lord Devlin in Connelly at pp. 274 and 1360, to stop a prosecution where the defendant is being prosecuted on the same facts or substantially the same facts as gave rise to an earlier prosecution which resulted in his acquittal (or conviction) […]; 

(2)               Provided that a defendant is not placed in double jeopardy as described in (1) above, evidence which is relevant on a subsequent prosecution is not inadmissible because it shows or tends to show that the defendant was, in fact, guilty of an offence of which he had earlier been acquitted. 

(3) It follows from (2) above that a distinction should not be drawn between evidence which shows guilt of an earlier offence of which the defendant had been acquitted and evidence which tends to show guilt of such an offence or which appears to relate to one distinct issue rather that to the use of guilt of such an offence […].' 

A plea to autrefois convict or acquit should be in writing, see R v Walker (1843) 2 M & Rob 446. The onus is on the defendant to prove on the 'balance of probabilities' that he/she has been previously convicted or acquitted of the offence charged, see R v Coughlan & Young (1976) 63 CrAppR 33. In that regard the defendant may call evidence, see Connolly v Director of Public Prosecutions (supra) at pages 1305 – 1306. 

See also: section 48 of the Interpretation & General Provisions Act (Ch. 85); sections 165, 205 & 217 of the Criminal Procedure Code (Ch. 7); sections 2 & 20 of the Penal Code (Ch. 26); Tatau v Director of Public Prosecutions (Unrep. Civil Case No. 289 of 1992; Palmer J; at pages 7 – 10); R v Robinson [1975] 1 AllER 360; [1975] QB 508; [1975] 2 WLR 117; (1975) 60 CrAppR 108 & Tapopwa Thomas v The State [1979] PNGLR 140. 

See however section 123 of the Criminal Procedure Code (Ch. 7) which states: 

'A person convicted or acquitted of any act causing consequences which together with such act constitute a different offence from that for which such person was convicted or acquitted may be afterwards tried for such last – mentioned offence, if the consequences had not happened or were not known to the court to have happened at the time when he was acquitted or convicted.' 

See also section 20 of the Penal Code (Ch. 26) which states: 

'A person cannot be punished twice either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof he causes the death of another person, in which case he may be convicted of the offence of which he is guilty by reason of causing such death, notwithstanding that he has already been convicted of some other offence constituted by the act or omission.' 

Considering that those sections are inconsistent with section 10(5) of the Constitution it may be argued that such sections void by virtue of section 2 of the Constitution. 

See also: sections 122 & 124 of the Criminal Procedure Code (Ch. 7).