Mana v Korul [1995] PGDC 1; DC1 (20 November 1995)

Unreported District Court Decisions

[1997] PNGDC 4 - PETER MANA JOHN KORUL

[1997] PNGDC 4

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

CR. NO. 1048 OF 1995

PETER MANA

V

JOHN KORUL

Kundiawa

Manuhu SPM

20 November 1995

CRIMINAL LAW - Practice and Procedure - Bail Application - After Conviction - Conviction by District Court - Exceptional circumstances must be shown - Procedural irregularities after plea of guilty - Applicant admitted to bail pending appeal - District Courts Act, Ch. No. 40, s. 223 -  Bail Act, Ch. No. 340, s. 11.

Counsel

Alphonse Yer for the Applicant

S/C Koai for the Respondent

RULING

20 November 1995

MANUHU SPM:  This is an application for bail pursuant to Section 223 of the District Courts Act, Ch. No. 40, by an Appellant who has been convicted and sentenced to six (6) months with hard labour by the Kundiawa District Court on a charge of unlawfully on premises.

What transpired at the  hearing are as contained in the Magistrate’s notes on the proceedings after the Applicant purportedly pleaded guilty:

“He says that he went to his informant’s house to check for his car papers.  Court notes that they should not visit policeman at their house uninvited at the middle of the night.  That they did means that they mean harm to informant’s family.  Accused is sentenced to 6 months IHL...” (sic)

The grounds of appeal are:

N2>1.       The Court erred in not entering a plea of not guilty when Appellant made statement denying that he was unlawfully on premises.

N2>2.       The Court erred in not administering the allocatus.

N2>3.       That the sentence was and is manifestly excessive in the circumstances.

The Applicant relies on Section 223 of the District Courts Act but reliance may also be had on Section 11 of the Bail Act, Ch. No. 340.  Both of these provisions give a wide discretion upon the Court but all exercise of discretion must be made judiciously, i.e., they must be guided by logic, proper principles and reasoning.

Accordingly, for bail to be granted following conviction, there must be ‘exceptional circumstances’.  Relevant matters may include the likelihood of success of the appeal (where the outcome is a foregone conclusion and readily apparent), or where the preparation of the appeal may be assisted by the release of the appellant, or where there is a lengthy intervening vacation in the calendar of the appeal court.  See Criminal Law and Practice of Papua New Guinea, 2nd Ed., p. 201-202.

The Applicant’s counsel has basically submitted that the errors made  by the Magistrate are such that the appellate court would uphold the appeal and quash the decision of the District Court.  S/C Koai did not make any submission.  It is necessary to consider the appropriate procedure in a situation where a Defendant pleads guilty.

There is an abundance of case law and materials on criminal practice and procedure but time and lack of resources (proper library) does not permit me to make a thorough research.  However, from my experience as a defence lawyer and magistrate; and after having recourse to other materials such as the District Courts Act and the Criminal Jurisdiction of Magistrates in Papua New Guinea, a useful material compiled by O’Neill and Desailly, the following are what I consider to be the appropriate procedure:

N2>a)       Where a Defendant pleads guilty the plea is entered provisionally.

N2>b)       Statement of facts is tendered and read to the Defendant.  The purpose for this is that there must be a basis for conviction and sentence.

N2>c)       Defendant is given an opportunity to rebut or reply to  the statement of facts.

N2>d)       Magistrate considers the plea, the statement of facts and the Defendant’s statement.  If the Magistrate is satisfied that an element of the charge has not been challenged, the guilty plea is confirmed.

N2>e)       Magistrate announces the verdict.

N2>f)       Magistrate is given the antecedent report which is usually already included in the statement of facts sheet.

N2>g)       Magistrate administers allocatus.  It should be noted that if a Defendant raises a statement in rebuttal to any element of the charge, the guilty plea ought to be vacated.

N2>h)       Magistrate deliberates on sentence.

In the case  before me, there are some very obvious irregularities.  Firstly, the Applicant had offered a lawful excuse for the visit.  I note that the trial Magistrate noted the timing of the visit and rejected his explanation.  It is arguable as to whether or not a Magistrate is entitled to reject such statements but I am of the view that if a Defendant’s statement is illogical, inconceivable or nonsense, the Magistrate ought to explain the situation to the Defendant in order to achieve a clear and an unambiguous plea.

The second irregularity is that the Magistrate did not note what happened to the statement of facts, if any.  Consequently, the Magistrate’s notes do not show any statement in rebuttal or reply.

Thirdly, the Magistrate’s notes do not show the verdict and the basis thereof.

Fourth, the learned Magistrate failed to administer the allocatus.

The errors made by the Magistrate are serious and a miscarriage of justice.  Our criminal practice and procedure ensures that the minimum requirements of natural justice are observed at all times.  ‘The chief rules are to act fairly, in good faith, without bias, and in a judicial temper; to give each party the opportunity of adequately stating his case, and correcting or contradicting any relevant statement prejudicial to his case, and not to hear one side behind the back of the other’:  See Osborn’s Concise Law Dictionary, 7th Ed.

In view of the above discussion, I am satisfied that the Applicant has shown that ‘exceptional circumstances’, i.e., the success of appeal being a foregone conclusion, does exist in his case.  I will grant bail in the sum of K200.00 pending appeal to the National Court.

Application granted.

Lawyer for the Applicant:  Alphonse Yer

Representative of the Respondent:  Police Department