Kote, The State v [1978] PGNC 36; [1978] PNGLR 212 (13 June 1978)

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CRIMINAL LAW - Evidence - Competency of witnesses - Joint indictment - One accused pleading guilty and other not guilty - Postponement of sentence till conclusion of trial - Accused pleading guilty to be called as witness - Appropriate procedure - Witness not competent - Relevance of s. 72 of Evidence Act 1975.

CRIMINAL LAW - Practice and procedure - Accomplice as witness - Joint indictment - One accused pleading guilty and other not guilty - Postponement of sentence till conclusion of trial - Accused pleading guilty to be called as witness - Appropriate procedure - Relevance of s. 72 of Evidence Act 1975.

Two accused were jointly indicted upon a charge of attempted unlawful killing. Upon arraignment at the outset of the trial one accused Apo Toto pleaded guilty and the other accused, Atu Kote, pleaded not guilty. The trial judge then ruled that sentence upon Apo Toto should be postponed until Atu Kote’s trial had been determined. At the conclusion of its evidence on the trial of Atu Kote the State sought to call as a witness, Apo Toto (no previous advice to that effect having been given to the court). Upon objection being taken:

N1>(1) Where on a joint indictment one accused has pleaded guilty and the other has pleaded not guilty, the proper practice to be followed is to postpone sentence until the accused who has pleaded not guilty has been tried so that the court will be in possession of all facts relevant to sentencing.

N1>(2) Where, however, on a joint indictment one accused has pleaded guilty and the other has pleaded not guilty and it is proposed to call as a witness the accused who has pleaded guilty, the proper practice to be followed is to pass sentence on the accused who has pleaded guilty forthwith, so that there should be no suspicion of his evidence being coloured by the fact that he hopes to get a lighter sentence because of the evidence which he gives.

N1>(3) Section 72(1) of the Evidence Act 1975 which provides that a person charged with an offence shall not be called as a witness by the prosecution in any proceeding in connexion with that offence is intended to apply only to the accused person who is on trial, i.e. Atu Kote, and cannot be used to exclude the accomplice who has pleaded guilty from being called as witness in that trial.

N1>(4) The objection should be upheld, as to proceed, at the stage of trial reached, to sentence the accused who had pleaded guilty, Apo Toto, would involve according to the practice in Papua New Guinea the perusal of the record of the court which committed both accused for trial and would involve placing material in relation to the accused on trial before the tribunal of fact, before completion of the evidence.

N1>(5) Semble: if at the outset of a trial the court is informed that the State desires to call one accused as witness against another the trial judge has power to sever the indictment and thus allow separate trials.

On the trial of an accused on a charge of attempted unlawful killing, the State, having almost completed its evidence, sought to call as witness an alleged accomplice who had pleaded guilty at the outset of the trial and sentence upon whom had been postponed by the trial judge until determination of the trial, there being, at that stage, no indication that the alleged accomplice might be called as a witness. The following ruling was made on the objection being taken to the competence of the alleged accomplice as a witness.

ANDREW J: At this stage of the trial counsel for the accused has taken objections to the State calling an alleged accomplice, one Apo Toto, to give evidence against the accused. The trial has reached the stage where the State has called all its evidence save for this witness.

The accused was jointly indicted with Apo Toto upon a charge that they, on the 12th March, 1978 in Papua New Guinea, attempted to unlawfully kill one Maria Aminae. Upon arraignment at the outset of the trial Apo Toto pleaded guilty and Atu Kote pleaded not guilty.

Mr. Bona, who appeared as counsel for the State, then submitted that I should proceed with the plea of guilty and stand the trial over to the next sittings of this Court on the following month. Mr. Lalor, who appears as counsel for the accused, submitted that the accused was entitled to a fair hearing within a reasonable time: Constitution s. 37(3), and that therefore the trial should proceed first. In this way both matters could be disposed of at these sittings.

I ruled that I would postpone sentence upon Apo Toto until Atu Kote’s trial had been determined and if in the event of his being found guilty, I would then deal with the question of sentence in relation to both. I was not advised at that stage that it was intended to call Apo Toto as a witness in the trial against Atu Kote.

“Where several prisoners are joined in an indictment and some plead guilty and others not guilty, the proper course is to postpone sentence on any prisoner who has pleaded guilty until those who have pleaded not guilty have been tried, so that the Court may be in possession of the facts relating to all who are convicted and may be able to assess properly their degrees of guilt.

The above rule will not apply where a prisoner who has pleaded guilty is to be called as a witness. In such circumstances it is a proper practice that sentence should be passed forthwith, so that there should be no suspicion of the prisoner’s evidence being coloured by the fact that he hopes to get a lighter sentence because of the evidence which he gives.”

In England the procedure to be adopted where it is proposed to call an accomplice for the Crown, is set out in Archbold’s Criminal Pleading 38th ed. at par. 401:

“Where it is proposed to call an accomplice for the Crown, it is the practice: (i) to omit him from the indictment; or (ii) to take his plea of guilty on arraignment; or during the trial, if he withdraws his plea of not guilty; or before calling him either (iii) to offer no evidence and permit his acquittal; or (iv) to enter a nolle prosequi.”

This statement of the practice was approved by the Court of Appeal in R. v. Pipe[ccclx]².

The whole object of sentencing a co-defendant who is going to give evidence for the prosecution in advance is that there should be no suggestion that he is under any inducement whatever to give evidence which will result in his getting a shorter sentence than otherwise: R. v. Stone[ccclxi]³.

N1>Mr. King, who appears as counsel for the State together with Mr. Bona, urges upon me that the best course would be for me to now dispose of the case against Apo Toto by proceeding to sentence, in which case he would then be a competent witness against Atu Kote and even if I was not disposed to take this course, nevertheless Apo Toto is still a competent witness, even if not sentenced, as he has pleaded guilty to the offence. Further, he submits that as public policy or in the interests of public policy I should allow the accomplice to be called as to refuse to do so would unnecessarily fetter the administration of justice.

N1>This situation which has now arisen in this case creates real problems in our jurisdiction where the judge sits as both judge of law and of fact.

N1>In my view the better opinion is that Apo Toto would have to be sentenced first before I could consider permitting him to be called as a witness for the reasons outlined in R. v. Payne[ccclxii]⁴ and R. v. Stone[ccclxiii]⁵. In my view those reasons, that is, that there should be no suspicion of the prisoner’s evidence being coloured by the fact that he hopes to get a lighter sentence because of the evidence which he gives apply, a fortiori, to the circumstances of Papua New Guinea.

N1>Practical difficulties arise, however, in my now proceeding to sentence Apo Toto. It is the practice in our jurisdiction to accept a plea of guilty provisionally, where the accused indicates he wishes to plead guilty, subject to the trial judge perusing the record of the court which committed the accused for trial. Then, if the trial judge is so satisfied that the plea of guilty may properly be accepted he indicates accordingly and then formally records a plea of guilty. Thus, the proceedings against Apo Toto have reached the stage only where I have entered a plea of guilty subject to my perusal of the record of the committing court. To proceed any further I would have to examine that court record and this would amount to material in relation to Atu Kote, the accused now on trial, being placed before the tribunal of fact or, in other words, my jury half. Thus the position in our jurisdiction is very different to that in England.

N1>I should add that Mr. Lalor, for the accused, has submitted that the accomplice cannot be called as a witness by virtue of the operation of s. 72(1) of the Evidence Act.

N2>“S72(1) A person charged with an offence shall not be called as a witness by the prosecution in any proceeding in connexion with that offence.”

He argues that the trial against Apo Toto is still continuing. A plea of guilty does not of its own force constitute a conviction. There can be no conviction on a count to which an accused person pleads guilty until by some act on the part of the court it has indicated a determination of the question of guilt: Reg. v. Jerome and McMahon[ccclxiv]⁶. A plea of guilty once recorded does not rank as a conviction at all but only ranks as a conviction when the offender is in fact sentenced: R. v. Cole [ccclxv]⁷. Therefore, in his submission, as the trial against Apo Toto has not been determined he cannot, pursuant to s. 72 of the Evidence Act, be called as a witness “in any proceeding in connexion with that offence.”

N1>However, in my view such an interpretation would be giving too wide a construction to the section which is clearly intended to apply only to the accused person who is on trial. In this case, Atu Kote.

N1>Thus I am of the view that I cannot, at this stage, proceed to sentence Apo Toto, which must involve the perusal of the court record pertaining to both persons, and still be able to continue with the trial.

N1>I therefore uphold the objection of counsel for the accused for, in my view, the person Apo Toto is not a competent witness and due to the way in which this trial has proceeded he cannot become a competent witness. I wish to add that I have noted Mr. King’s concern that this ruling might hamper the administration of justice. However, it seems to me that where the State is desirous of calling an accomplice it has open to it any of the procedures outlined in Archbold’s Criminal Pleading 38th ed. (supra) and for those reasons I do not feel that my ruling creates any precedent that would be restrictive upon the State. Further, if at the outset of the trial the court is informed that the State desires to call one accused against the other, the trial judge has power to sever the indictment: (R. v. Grant[ccclxvi]⁸). In this event one accused could be tried before another judge.

N1>After reviewing the evidence his Honour made findings of fact upon which the accused was convicted.

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[ccclix] (1950) 34 Cr. App. R. 43 at p. 43.

[ccclx](1967) 51 Cr. App. R. 17.

[ccclxi](1970) 54 Cr. App. R. 364.

[ccclxii](1950) 34 Cr. App. R. 43.

[ccclxiii](1970) 54 Cr. App. R. 364.

[ccclxiv][1964] Qd. R. 595.

[ccclxv][1965] 2 All E.R. 29.

[ccclxvi] (1944) 30 Cr. App. R. 99.

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National Court of Papua New Guinea

Kote, The State v [1978] PGNC 36; [1978] PNGLR 212 (13 June 1978)

Papua New Guinea Law Reports - 1978