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Police v Pidik [2021] PGDC 24; DC5080 (5 March 2021)

DC5080

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS SUMMARY COURT JURISDICTION]

SUM CB No. 5847 of 2020
BETWEEN

THE POLICE
Complainant


AND

ANGELINE PIDIK
Defendant


Lae: I Tjipet


2020:13th November, 16th December, 23rd December
2021: 11th January, 15th January, 22nd January, 05th March, 2021
      

SUMMARY OFFENCE – Stealing - s 48C(1) - Summary Offences Act


PRACTICE AND PROCEDURE - Plea of Guilty - Statement by defendant before conviction and sentence raised possible defence


PRACTICE AND PROCEDURE - Information - Whether information can be amended - Part IV Commencement of Proceedings - Division 2 - Informations - District Courts Act 1963 - ss 29 - 36


PRACTICE AND PROCEDURE - Pleas - Plea of Guilty - Circumstances where plea of guilty may be rejected allowing for plea of not guilty to be substituted - Power to substitute plea after allocutus but before conviction and sentence


PRACTICE AND PROCEDURE - Disqualification - Grounds for perception of bias - Impartiality to be preserved - Preconceived views of evidence formed - Criminal Trial - Magistrate disqualifying self - Trial before different magistrate required


Cases Cited
Yani v The State [1999]SC 615
The State v Joe Ivoro
Gabriel Laku v The State [1981] PNGLR 350
The State v Sari [1990] PNGLR 48
State v Tepol [1991] N1941


References
The Summary Offences Act
The District Courts Act 1963
The Criminal Code Act
The Constitution of PNG


Magistrates Manual of Papua New Guinea
Criminal Law and Practice of Papua New Guinea – 3rd Edition


Counsel

Police Prosecutor Sergeant Suakai, for the Complainant

Defendant appearing in person, for the Defendant

05th March 2021

Isaac Tjipet :

  1. This is a ruling on a summary offences case in which the defendant upon laying of the charge and arraignment pleaded guilty to the charge however before conviction and passing of sentence raised an issue that goes to the substance of the charge hence raising the question whether the charge should be amended to suit the evidence and or whether the guilty plea can be vacated and changed to not guilty plea and the matter proceed to hearing or trial.
  2. I wish to give a background of the events to appreciate what had actually transpired leading up to this ruling.

Background:

  1. The defendant was charged for Stealing under section 48C (1) of the Summary Offences Act.
  2. On the 13th November, 2020, the defendant was arraigned and pleaded guilty to the charge. After confirming the guilty plea I made orders for a Pre-sentence and Means Assessment Report (PSR & MAR) to be furnished by the Community Corrections & Rehabilitation Services Office before sentence is considered.
  3. On the 16th December, 2020, the court was advised that a Pre-Sentence Report (PSR) report has been filed.
  4. On the 23rd December, 2020, the probation officer briefly presented the PSR report and the police prosecutor made short oral submission on penalty. The matter was then adjourned to 08th January, 2021, for a decision on sentence. The court was then closed for the festive Christmas and New Year vacation period.
  5. On the 08th January, 2021, for some reason the matter was not listed and dealt with.
  6. However on the 11th January, 2021, when the matter was listed and mentioned the defendant advised the court that she has something to say before penalty can be handed. She then told the court that in fact at the time of the alleged offence, she was not working for Pacific Foam Ltd as stated on the Information but she was in fact working for Colorpak Ltd which is a different company with different accounts and employees.
  7. This raised a question to the mind of the court whether the charge was in order and further whether the defendant did work for Pacific Foam Ltd and further did commit the offence as alleged and put to the defendant on the information and charge. The court was of the view that a possible defense of general denial has just been raised by the defendant.
  8. When perusing through the Pre-sentence Report (PSR) I noticed there was little to none mention of the company Pacific Foam Ltd however most of the content in the PSR referred to Colorpak Ltd and the defendant working for Colorpak Ltd. Also attached to the PSR was what appears to be a Letter of Appointment and Terms and Conditions of Employment of the defendant as the Accounts Officer for Colorpak Ltd.
  9. Upon enquiry with the police prosecutor on the issue he on that instant attempted to casually amend the Information to suit what the defendant had said and also what was stated in the PSR and proceed to conviction and sentence however I was of the view that what was raised is a matter that goes to the substance and merits of the charge hence must be properly addressed before any amendments can be entertained. Further any amendment at this junction can amount to an abuse of the courts processes and or causing miscarriage of justice.
  10. The Defendant has a constitutional right to be protected by law hence any action taken by the court would not only be to enable and allow prosecution of the defendant but also to protect the rights of the defendant as provided for by the constitution and also to protect the integrity of the processes and procedures which the court must uphold when presiding over cases in ensuring that a fair and just decision is reached at the end.
  11. On those reasons the matter was adjourned to 15th January, 2021, for the police prosecutor to properly address the relevant issues raised in court. The police prosecutor requested if he could be allowed time to provide written submissions to assist the court on the issues.
  12. On the 15th January, 2021, the prosecutor was not ready to address the issue hence requested further adjournment. The matter was then adjourned to 22nd January, 2021.
  13. On the 05th March, 2021, the police prosecutor again was not ready to address the court on the issue hence I proceeded to consider same on my own accord using my judicial discretion.
  14. Firstly, I will outline and restate what is stated in the Information and Summary of Facts supporting the charge. I simply restate what was prepared by the arresting officer.

THE INFORMATION:

  1. The charge as put to the Defendant reads as follows;

“The Information of MICHAEL KAMBAWO of Police Station LAE, CID in Papua New Guinea A CONSTABLE of Police, laid this 13th day of November, 2020, before the undersigned, Magistrate of a District Court who (upon Oath) says that on 10th August 2020, at Taraka office in Papua New Guinea Angeline PIDIK aged 50 of Wiamungu village, Kubalia, East Sepik Province,


“DID STEAL A SUM OF K3, 966-75, IN CASH, THE PROPERTY OF PACIFIC FOAM LTD”


Thereby contravening Section 48C (1) of the Summary Offences Act.”

  1. The statement of facts supporting the charge reads;

“That on the 10th of August 2020 between 4 to 5pm, Angeline PIDIK 50 years old, a national female who hails from Wiamungu village of Kubalia District, East Sepik Province was at Pacific Foam Ltd office Taraka Lae Morobe Province employed as a cashier of the said company.


It was alleged on the said date time and place the defendant took a sum of K966.75 been returned to the cashier by Noah Nassam the accounts officer and placed it in an envelope.


Then later took the K3000 cash been withdraw from the Bank of South Pacific by Martin Gola and packed it in a similar envelope and placed both of them on the top of her desk.


Before clocked out she took both envelope and packed both into her hand bag and left the office.


After the management found out they reported the matter, follow up was made accused was brought to the police station.


Accused was then cautioned, administered her rights under section 42(2) of the Constitution and charged under section 48C (1) of the Summary Offences Act. And later was released on K300 police bail.”

ISSUE (s):

  1. Whether or not the court can amend the charge at this juncture to suit the evidence present before the court.
  2. Whether or not the court should vacate the guilty plea and change to not guilty for hearing or trial.

APPLICABLE LAW (s):


Issue 1: Whether or not the Information can be amended to suit the evidence before the Court?

  1. The Information bearing the charge in my view is the most important piece of document in any criminal case as it is part of the originating process that not only kick starts the proceedings but also lays out the reasons as to why the defendant is brought before the court.
  2. Part IV Division 2 of the District Courts Act 1963 provides for instances that may arise with regards to Information and how it can be dealt with or treated.
  3. The following provisions sets out some guidelines as to how an Information should be treated when matters come before the court. I wish to restate this provisions to highlight that the District Courts Act does have provisions to deal with issues arising regarding Information and magistrates must always go back to the relevant law to deal with any issues arising.
  4. Section 30 provides for Description of Persons, Property and Offences. It says, description of persons or things as would be sufficient in an indictment is sufficient in information. The description of an offence in the words of that Act, order or instrument creating the offence, or in similar words, is sufficient in law.
  5. This provision in my view is saying that the standard or treatment given to an Indictment is sufficient in the Information. The description of the person, property or offences must be stated clearly on the Information for all related purposes.
  6. Section 31 provides for Particulars. It says a court or a magistrate may, if it thinks, direct particulars to be delivered to the defendant of a matter alleged in an information and may adjourned the hearing for that purpose.
  7. Section 32 provides for Want of Form or Variance in Information, etc. It says, no objection shall be taken or allowed to an information, or to a summons or warrant to apprehend a defendant issued on an information, for an alleged defect in the information in substance or in form, or for a variance between it and the evidence in support of the information, and any such variance may be amended by order of the court at the hearing.
  8. Section 33 provides for Amendment. It says, if a variance specified in section 32 appears to the court to be such that the defendant has been deceived or misled by it, the court may, and at the request of the defendant shall, adjourn the hearing of the case, on such terms as it thinks just, to some future day, and in the meantime may commit the defendant or discharge him on bail on recognizance for his appearance at the time and place to which the hearing is adjourned.
  9. Section 34, Minute of Amendment, an order for the amendment of a variance shall be entered on the proceedings of the court, and a minute of the amendment, if required, shall be given to the party against whom it was made.
  10. Section 35 provides for Form of Information and section 36 provides for Limitation of proceedings.
  11. These provisions are self-explanatory in which a court should uphold and apply in any given case on Information.
  12. The Constitution also provides that every person has a right to the full protection of the law and relevant authorities must ensure that that right is fully available, especially to persons in custody or charged with offences: s. 37 of the Constitution.
  13. A defendant is entitled to be informed not only of the legal nature of the offence with which he or she is charged but also of the particular act which is alleged as the foundation of the charge.
  14. The court, if it thinks fit, can direct particulars to be delivered to the defendant of a matter alleged in the information and may adjourn the hearing for that purpose: s. 31 of the District Court Act.
  15. Where the information is presented to the court, the court has a duty to decide whether or not the information is justified. The court must be mindful to protect the defendant against criminal proceedings which are contrary to law or technically incorrect.
  16. At the stage of the laying of the charge, the court is not permitted to take notice of any objection to the information where the objection relates to an alleged defect in the information in substance or form or a variance between the information and the evidence in support of the information. Any such variance may be amended later by order of the court at the hearing: s. 32 of the District Court Act.
  17. At the National Court, section 535 of the Criminal Code Act, provides for instances where an indictment can be amended. This provision is somewhat similar to section 35 of the District Courts Act which provides for amendment of the information. From the face of these two provisions it is apparent the indictment or the information cannot be simply amended but that any variance must be properly considered not to prejudice the defendant. Further the variance must not be material to the merits of the case but then it has to be properly addressed for the court to consider [emphasis mine].
  18. In the present case, it is in my humble view considering the facts as evident in the present case that it is only proper that any amendment can only be entertained after a full hearing or trial when all the relevant evidence are properly before the court and considered. It would be premature and an abuse of the process to simply amend the Information to suit the supporting evidence before the court at this juncture. Furthermore, the DCA provides quite clear that any such variance and amendment can be done later on by order of the court at the trial or hearing.

Issue 2: Whether or not the guilty plea can be vacated and changed to not guilty plea.

  1. The District Courts Act or even the Summary Offences Act does not clearly outline instances where a guilty plea can be vacated and changed to not guilty.
  2. Nevertheless, the principle applicable to the issue of whether or not a court can vacate a plea of guilt and substitute a not guilty plea is well settled in this country as set out in the case of The State v Joe Ivoro & Gemora Yavura [1980] PNGLR 1 and followed in a number of subsequent cases like Gabriel Laku v The State [1981] PNGLR 350, The State v Sari [1990] PNGLR 48, Dinge Damane v The State [1991] PNGLR 424, State v Tepol [1991] N1941, and Yani v The State [1999] SC 615 Kapi DCJ, Sheehan and Kirriwom JJ in which the court states;
    1. The court has power to change a plea of guilty after the plea is confirmed and the allocutus administered but before sentence is passed.
    2. A plea of guilty may be changed where circumstances indicate that;
      1. The accused had not really pleaded guilty;
      2. There was a mistake on the part of the accused;
      1. There is a clear defence to the charge.
    3. Where a plea of guilty has been changed to a plea of not guilty, the court should not as a matter of course proceed to find an alternative verdict if the depositions support that alternative offence: to do so would be equivalent to finding the accused Not Guilty of the offence charged without the issue being tried according to law as required by section 578 of the Criminal Code.
    4. Where a plea of guilty has been changed to a plea of not guilty the proper procedure to be adopted is to ascertain whether the state wishes to proceed with the charge, or, to consent to a plea on a lesser or alternative charge which is supported by the evidence.
    5. A judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he is not unprejudiced or impartial.

  1. I adopt this principle and apply in the current case.

PRESENT CASE:

  1. In the present case, the defendant has pleaded guilty to the charge of stealing under section 48C (1) of the Summary Offences Act however before conviction and sentence has raised a pertinent fact that not only goes to the merits of the case but also to the substance of the charge and to my view needs to be proven before the issue of guilt can be considered and ascertained.
  2. The court also at all expense is bound to protect the integrity of the processes and procedures provided by law to ensure that a defendant is given a fair and just hearing that is impartial in finding the guilt or otherwise of any defendant.
  3. When the defendant says she does not work for Pacific Foam Ltd but works for Colorpak Ltd, on the face of it, a defence has been raised. The court is now mindful whether or not the Defendant did in fact steal from Pacific Foam Ltd as alleged. The complainant must have the standing and also the legal capacity to sue or be sued. In this case it is quite unclear whether the defendant was working for Pacific Foam Ltd at the time of the offence and so whether the court can safely convict and sentence the defendant.
  4. It is therefore in my view and as discussed above that it is unsafe to proceed to conviction and sentence considering the apparent facts.
  5. I therefore order that the guilty plea is vacated and changed to not guilty plea.
  6. I further disqualify myself from hearing the matter and adjourn same to be tried before another magistrate.

Orders accordingly:


  1. The guilty plea is now vacated and changed to not guilty plea and matter is transferred to be tried before another magistrate.
  2. The matter is adjourned to Friday, 16th April, 2021, at 9am.
  3. Bail is extended.

Lawyer for the Complainant The Police

Lawyer for the Defendant In Person

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