Konom v Watai [1981] PGNC 29; N297(M) (20 March 1981)

N297(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL NO. 46 OF 1981

BETWEEN:

KOI KONOM
APPELLANT

AND:

NELSON WATAI
RESPONDENT

Mount Hagen: Pratt J
20 March 1981

PRACTICE AND PROCEDURE - magistrates’ court - change of plea - irrelevance of police statement of facts - rights of the defendant.

Cases Cited
R. v. Doolan: 1962 Qd. R. 449
Joseph Carter: 44 Cr. App. R. 225

PRATT J: The appeal arises out of a conviction at the Local Court in Baiyer River on the 30th December 1980, in which the appellant was convicted of harbouring an escaped prisoner thereby contravening s.144 of the Criminal Code. There are three grounds of appeal set out in paragraph 3 of the notice of appeal. The second ground has however been abandoned in view of the magistrate’s reasons which have just come to hand.

Dealing with the first ground of appeal, Mr Tamutai submitted that the evidence as it presently existed on record did not support the conviction primarily, if not exclusively, on the basis that the accused had made no unambiguous admission to the police officer as deposed in the evidence of Constable Kaigu and that on his unsworn statement he had specifically denied knowledge that at the time he fed the prisoner, he was aware that the man had escaped from custody. On the other hand, Mr Puaria for the State has pointed out that the statement amounting to an admission to Constable Kaigu is open to several interpretations and taken with the fact that the appellant did not give evidence on oath, amounted to an admission upon which the magistrate could find as he did, according to his reasons, a prima facie case. The statement under discussion here occurs at the end of the evidence of Constable Kaigu in the following words:

"I cooked marita for him and let him go because I was scared."

To my mind there is certainly an ambiguity in this statement which I have just quoted. I agree with the defence submission that it is not clear whether he was scared at the time which he cooked the marita or whether he became scared at some subsequent stage upon learning that the accused was an escapee and thereupon let him go on receipt of that information. At least I must find that there being several interpretations open, I must give that interpretation to the evidence which is most favourable to the accused; that of course is a fundamental principle of law. The evidence which I think adds to the forcefulness of the interpretation being one which denies a knowledge at the time of feeding the prisoner, comes from the unsworn statement of the defendant. Now I agree with Mr Puaria that this statement must be given little weight, simply because it is not on oath. But nevertheless it is certainly of some weight and when put in the balance with the ambiguous so-called confession made to Constable Kaigu, certainly gives credence to the submission that he became scared at some subsequent time and not the time at which it may have been said he was committing a breach under s.144.

We are in some difficulty in these proceedings because we do not have before us the evidence of the police officer, Mr Raimp. It is obvious from the magistrate’s working sheet that this person did give evidence on oath but somehow the record of his evidence has become lost. There is nothing in the magistrate’s reasons which enlightens me as to the nature of this witness’s evidence. I therefore feel that I must approach this case from the material which is presented before me.

It also appears from the magistrate’s reasons that he pursued a somewhat unusual course in that having entered a plea of "not guilty" at the commencement of the proceedings and taken evidence on oath from two witnesses, he then advised the accused that he could give evidence on oath or make a statement from the dock, whichever he chose. The appellant as I say, did make a statement from the dock at which point of time the magistrate, according to his reasons, says he made up his mind that the conviction had been made out and that the accused had admitted to the offence. Personally I am unable to deduce from anything the defendant said in his evidence an admission to a crime under s.144 or for that matter to any other crime. To complicate matters however, it seems that the magistrate then having changed the plea of "not guilty" to "guilty", took into account not only the material before him but the original statement of facts which comes into his possession at the start of proceedings. Exactly what use he made of this statement of facts, I am not sure. There are certainly some quite damaging statements contained in it. It is clear however that some of the material in that statement of facts has affected the magistrate’s reasoning. This is unfortunate because I am not sure how much weight the magistrate placed on the material contained in that statement of facts. What I am sure of is that at no stage, once a plea of "not guilty" had been entered, should the statement of facts have been given regard to in any form whatsoever. Once the stage is reached at which a defendant indicates that he wishes to put the matter to trial, I think it would be much better symbolically, if not literally, if the statement of facts was destroyed, that is, destroyed to the extent that it is put completely out of the mind of the presiding magistrate. When a person pleads guilty, of course, he pleads only to those facts which are necessary to sustain the elements of the charge. He does not plead to any other facts. Of course to overcome the difficulties that are faced by people unaware or untutored in the imported system of justice, the practice has sensibly arisen in the magistrates’ court of putting a statement of facts to the accused so that he may understand what the charge is all about and then having done that, asking if he has heard the facts and if he agrees with the facts. That state of affairs of course is something over and above a mere plea and where a person admits that he has heard the facts and he agrees with all the facts, then of course that of itself is an admission of a different kind to a mere statement of guilty. Clearly if he agrees with all the facts then one can accept that all those facts may be used in the proceedings for whatever relevant purpose may arise. Where however the person pleads not guilty either on the plea or after the statement of facts has been read out in what will be invariably the form "Not Tru", from that point onwards for the rest of the proceedings the statement of facts should be completely disregarded. If there is any material contained in them irrelevant to the charge, then that of course should be dealt with by the witnesses as they give their evidence on oath.

Because of the doubts which I have in relation to the procedure followed in this case and to the aspect of whether or not the accused made any admission at all relevant to the commission of the offence, I propose to uphold the appeal and in the ordinary course would return the matter to the magistrate for rehearing. However the accused has served two and a half months of his four months sentence. Whilst I may not agree with the period of sentence imposed by the learned magistrate in this case, I certainly could not say, nor would I find, that such sentence was manifestly excessive. But in all the circumstances I think justice would best be served by refraining from ordering a rehearing in the matter and I shall simply quash the conviction simpliciter.

Before I conclude this judgment I make mention of a matter which was not subject to any submissions on the appeal, simply because the point did not come to notice until the Court and counsel had received the magistrate’s reasons. In those reasons the learned magistrate says that at the end of the prosecution case he ruled that a prima facie case was established and informed the defendant to that effect. He then goes on to say that he informed the defendant that: "he has two options, either to remain at the dock and make his statement or elect to (go into) the witness box. The defendant elected to remain at the dock and made his statement." There is of course under s.584 of the Code an obligation imposed on the proper officer of the Court "to ask the accused person or his counsel whether the accused intends to adduce evidence in his defence or whether he desires to make a statement to the court before he or his counsel, if he is defended by counsel, addresses the court." There are several authorities which support the rule that a failure by a court to advise a defendant, particularly if he is unrepresented, will amount to a mistrial. For example, in R. v. Doolan^[1] the trial judge, although informing the accused that he was not obliged to give evidence or to go into the witness box, failed to advise him that he had a right to call evidence. In an English case Joseph Carter^[2] the headnote says:

"It is essential that an unrepresented prisoner should be asked by the judge whether he wishes to call any witnesses in his defence."

In the present case the appellant was advised of his right to give evidence, but there was an omission to advice the accused that he could remain silent if he wished. It has always been a matter of practice so far as I am aware in the National Court, to advise an accused of the right. This is especially so if the accused is unrepresented. It therefore seems to me that although such advice to a defendant does not have a statutory basis, a failure by a court to advise a defendant of that particular right at the time when the court is also advising him of his right to call evidence, may well prove fatal to the case if a conviction is subsequently recorded. Obviously whether it was fatal or not would depend on all the circumstances of the case and each individual matter would have to be considered on its merits. All I say here is that prima facie, a failure to advise a defendant that he did have a right to remain silent if he wished or to give evidence if he chose to do so may amount to a failure sufficient to cause a mistrial.

The order of the Court (under s.43 of the Local Courts Act) will be to uphold the appeal and to substitute a verdict of "not guilty" for the verdict of "guilty" entered by the Local Court.

Solicitor for the Appellant: A. Amet, Public Solicitor
Counsel: M. Tamutai
Solicitor for the Respondent: K. Roddenby, Acting Public Prosecutor
Counsel: K. Puaria

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^[1] 1962 Qd. R. 449
^[2] 44 Cr. App. R. 225