State v Bulaim [1980] PGNC 10; N234 (4 June 1980)

Unreported National Court Decisions

N234

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
YAULIPA BULAIM AND FOUR OTHERS

Wabag

Narokobi AJ
4 June 1980

THE FACTS

NAROKOBI AJ: The facts of this case are quite simple. The accused are charged with having wilfully murdered a woman by the name of Utomo Polio. Following their arraignment, the state prosecutor outlined acts in the following words: “Five accused agreed to d to kill Utomo Polio, a female they believed to be a sorceress responsible for the deaths of many men. The word men is used generally.

On the day in question, they took the deceased away near a river and shot her with arrows.

Luku Wapulae shot her first in the left side, in the ribs with an arrow. Piopi Kune was the next to shoot her in the chest area, again with an arrow. Unama Aumane shot her the third time with an arrow, in the left region of her body. All three men fired arrows from their individual bows. Yaulipa Bulaim aided the others. He stood by and watched them kill her. He also urged them in their criminal actions. Aluma Boku, the fifth accused held her whilst she was shot.”

Following the outline of the facts, the accused were carefully informed of the seriousness of the charges. Each one was asked, separately, to plead to the charge. Each of the accused pleaded guilty to the charge and counsel for the defence made no section 575 applications.

I was then presented the records of interview, marked as exhibits to read. I took time of one half hour to read the records of interview.

In the course of my reading of the records of interview, I learned certain facts which lead me to believe it was safe to accept pleas of guilty to wilful murder with respect to the accused Unama Aumane, Luku Wapulae, Piopi Kune, and Aluma Boku. I will set the facts out later. However, from these facts on the records of interview I formed a clear opinion that as a tribunal of fact, I could not accept the plea of guilty of one Yaulipa Bulaim.

Now, these are the facts which lead me to that view.

1. ;ټ T60; The acce accused Yaulipa Bulaim is the natural son of the deceased. My mind is much unsettled on whether a son could wilfully murder his mother in the part he played, so itsaid.

2.; #160;&#160 ary to the fthe facts as o as outlined by the State, there was no plan to take the woman away near a river to murder her with intent. On the contrary, they took her to Porgera to show her to Kiap (Q. & A. 32 of Luku Wapulae “that she eat plenty man”). It was when she tried to run away that they killed her.

3. & O60; On reading Unama Aumane’s record of interview (Q. & A. 22) it is clear that he did not name the son as a murderer. The qon wa8220;ou cae nam the men who killedilled this woman?”. The answer was&#was”8221; &#82 “Ye20;Yes. 1. Luku Wapulae, 2. Piope Kune, 3. Unama Aumane, 4. Myself and 5. Aluma Boku.”

It is clear from this answer that “Myself” is the same person as Unama Aumane, numbered 3. No mention is made at all of the son, Yaulipa Bulaim. (See also Q. & A. 30).

4. ; A60in waen I look at Luku Luku Wapulae’s evidence, on the record of interview, I find (Q. & A. 16, Q. & A. 19) that the son is not named as a murderer. “He stood there watching us killing the lady”.

5. &ـ A60; Again wain when I read the record of interview of one Piope Kune (Q. & A. 15) I find that when asked to nhe murs, Piope Kune left out the name of Yaulipa Bulaim.

6. &<;&160;  It is algnificant that thet the last son of the deceased, Awin did not want his mother to be killed. Why would another son want to kill his mother? (See Q. &a. 22 220;sood there anre and watched us, he did not get angryry”.221;. No suggestion he urged them on to kill her. (See Q. & A. 26).

7. & The evidence uf Aluma Boku Boku (Q. & A. 22) is very significant to me. A very leading question was put to Aluma Boku and the answer was “Yaulipa was standing near by and we killed her”. Q. 23 “Yaulipa authorized to kill her?” A. “First place we shot her he did not know and she fell on the ground and he said ‘that lady eats plenty men so kill her to death’ ”. Q. & A. 24 also doubtful. “He saw us killing the lady but he did not say anything, when she fell down, he said kill her”.

In the pidgin version of 24, the answer reads as follows: “Taim mipela sutim, em lukim, lukim tasol em ino tokim mipela long kilim dispela taim. Meri pundaun nao em tok kilim.”

8. ټ&#F60; lynally, when when I look at the record of interview of the son Yaulipa Bulaim himself, I find several serious contradictions. In Q. & A. 14 he says “they already killed her”. He did not say we already killed her”. Again in Q. & A. 15, he said “and I was there watching them”. This use of the word they is again emphasised in Q. & A. 16. The only admission is in Q. & A. 17 where he said - “so I told them to kill her and I stood there watching them”.

In Q. & A. 18, again he said “they killed her”. See also Q. & A. 22 “they killed her”.

In answer to Q. 26, it is clear, the four men did not plan to kill her and did not tell him. In Q. 27, he said - “at the time they killed my mother, I felt sorry again”. Again in Q. & A. 28, he said - “I did not tell them to kill her (denies telling them), but was surprised when my mother tried to run away and they killed her”.

In Q. & A. 29, he did say “he told them to kill her”.

However, bearing in mind the gravity of this offence, the problems of interpretation, unsophisticated nature of the accused and the matters I mention above, I have formed a clear conclusion that I could not safely accept a plea of guilty and therefore direct that the trial of the accused be adjourned to the next sittings of the National Court.

My difficulty is simply that having read all the records of interview, I find myself faced with a very serious question as to whether the son Yaulipa had actually urged the others to kill his mother, or whether he was caught in a surprise situation in which he finds his mother being shot to death and he was helpless to do anything except to stand by or even to say almost fatalistically and without intent - KILL HER. I can imagine what might have be fallen him if he had tried to defend his mother against the other four men.

I should state that with respect to each of the records of interview I was satisfied that they contain a true record of conversation held between each of the accused and police officers. Each interview was free and voluntary and not induced with threats or promise of rewards.

Lack of library and lighting facilities in circuits such as this one in Enga makes it impossible for me to give adequate legal support to the decision I have taken. However, all judges in this jurisdiction have to do the best they can in the circumstances and I propose to do just that.

The Criminal Code provides in Section 572 under the heading Pleas, that if the accused does not among other things, apply to quash the the indictment, then he may plead to it among other things. If he pleads, he may plead either that he is guilty as charged ... or do any of the other things there set out from (a - g). The trial is said to begin when the accused is called upon to plead, after he has been informed of the offence with which he is charged, s. 569 of the Code.

By section 578, it is provided that if the accused pleads any plea, but not a plea of guilty, he is deemed to have demanded that the issues raised shall be tried according to law. On a plea of guilty, it is my view, that no such demand is made.

The court must, in its discretion consider whether it is safe to accept that plea. Obviously in a case where the accused is not represented by counsel, the dangers of accepting a plea are great. In the case where accused is represented by counsel as in the present case, I am of the opinion that the court must satisfy itself, of course with the help of counsel, that it is safe to accept a plea of guilty to the offence charged. The court, in my view, must not surrender its duty by relying merely on the word of the defence counsel.

From my reading of the code, I can see no provision which says that the court has discretion to accept or not accept a plea of guilty, once the counsel for the accused announces his appearance and states he wishes to make no s. 575 application.

I have found no cases in which once defence counsel makes no application, the court proceed upon reading of the depositions to decline to accept a plea. Wabag court facilities are very limited.

To my mind, there are several possible reasons why a court might not accept a plea - assuming it has the power to do so. First, it may well be that in the course of reading depositions, the court forms a view that the plea would not be supported by those facts before it. To this extent, the judge’s view may well be influenced, in which case it would not be wise to proceed to trial. The proper course would be to stand the matter over to another justice. The court is entitled however, in a joint trial, to dispose of that matter first and then proceed with the other co-accused.

Secondly, it might be that the judge might find that the facts as before him do not support another lesser or more serious offence. He may, in conscience, question whether he would be doing the right thing by accepting the plea. In such a case, it would be proper to enter a plea of not guilty and if no further fails are presented, to return a verdict of not guilty.

Thirdly, and most seriously for this jurisdiction, the court has to be very careful to avoid a possible situation in which the accused volunteers responsibility and that others and perhaps more influential members of his clan mark him out to accept responsibility. In the present case, it is quite conceivable that the accused Yaulipa Bulaim, having gone with the other accused would be under some fear or threat, if he did not admit to being a party to the crime.

The court must be satisfied before it links moral blame worthiness with criminal guilt.

When the accused pleads guilty, the general practice is that, if defence counsel considers there are circumstances to warrant a plea of not guilty to be entered, he applies for one under s. 575 and with the leave of court, a plea of not guilty would be entered. For a discussion of principles concerning breach of human rights in such cases under the constitution see The State v. Aubafo Feama, Nama Auri & Kafidiri Kududebe HagimaN234.html#_edn202" title="">[ccii]¹.

In a case like the present one where the trial judge has some doubts about whether an indictment discloses wilful murder or manslaughter, in my view the court should not accept a plea of guilty to wilful murder. The proper course is for the court to vacate the plea, and unless other factors might prevent it, it would be quite proper for the court to proceed to try the issues of fact. (See Public Prosecutor v. Yapuna KasoN234.html#_edn203" title="">[cciii]²). This principle is much easier to see when the accused changes his plea of guilty to not guilty to let the State prove its case (See The State v. John Mugal PokaN234.html#_edn204" title="">[cciv]³).

The discretion the court has under s. 575 to give leave to the accused to enter a plea of not guilty is the courts discretion also to refuse to accept a plea. Quite apart from s. 575, the National Court of Justice is a court of record with unlimited jurisdiction.

It is vested with the exercise of the judicial authority of the people by s. 158 of the constitution. In deciding cases the law courts are to give paramount consideration to the dispensation of justice (s. 158 (2)). Under s. 155 (4) of the constitution, the national court has an inherent power to make such other orders as are necessary to do justice in the circumstances of a particular case. In my view, these provisions enable the Court to decline to accept a plea of guilty of the accused.

If these provisions are not enough, I may have recourse to schedule 2.3 - (Declaration and Development of Underlying Law) to declare that in my view a judge has that discretion to accept or decline a plea of guilty to wilful murder or to any other offence even when the defence counsel makes no s. 575 application. It does not seem necessary for me to proceed under schedule 2.3 in this case.

The procedure courts in this country have adopted in cases in which the accused intends to plead guilty to wilful murder, was laid down by The State v. Manga KanjipN234.html#_edn205" title="">[ccv]⁴. In my view, even after that careful procedure is gone through, the court still has a discretion to refuse to accept the plea and either proceed to trial or refer the matter to another judge.

It is well established that a plea of guilty is not a conviction. The court may exercise its discretion, and so can the counsel and the accused. But once the allocatus is administered, that is an acceptance of conviction, subject only to appeal. (See R v. Ambaidunga KindeN234.html#_edn206" title="">[ccvi]⁵).

What the plea of guilty admits is the legal ingredients of the offence charged. (See Weaver v. SamuelsN234.html#_edn207" title="">[ccvii]⁶ and ed by Raine J. in R. v.R. v. Gabai Vagi and othersN234.html#_edn208" title="">[ccviii]⁷).

This admission may lead the court to accept tha to the offence charged. Ted. The court may however on its own or on the initiative of the accused, the state or the defence counsel, refuse to accept the plea of guilty, until the administration of, or more usually, at the application of the allocatus.

In this case, the accused had pleaded guilty to wilful murder. The defence counsel, in my view, correctly on instructions made no s. 575 application. However, for all the reasons I set out above, I decline to accept that plea. In this case, the course of justice and true interests of the accused would be better served by my adjourning this matter to be tried at the next sittings of the National Court at Enga.

Solicitor for the State: Public Prosecutor, C. Maino-Aoae

Counsel: J. Pollak

Solicitor for the Accused: Acting Public Solicitor, D.J. McDermott

Counsel: K.A. Wilson with him A. Yer.

<02">N234.html#_ednref202" title="">[ccii]^{(1978) N. No. 165}

N234.html#_ednref203" title="">[cciii]^{(1977) S.C. No. 118}

N234.html#_ednref204" title="">[cciv]^{(1977) N. No. 87}

N234.html#_ednref205" title="">[ccv]^{(1976) P.N.G.L.R. 86 (See Andrew p. 257)}

N234.html#_ednref206" title="">[ccvi]^{(1974) No. 799.}

N234.html#_ednref207" title="">[ccvii] ^{(1971) S.A.S.R. 116 per Bray C.J.}

N234.html#_ednref208" title="">[ccviii]^{(1972) No. 707}