State v Sari [1990] PGNC 130; [1990] PNGLR 48; N800 (26 January 1990)

N800

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

SARI

Rabaul
Jalina AJ

18 January 1990
23-24 January 1990
26 January 1990

CRIMINAL LAW - Practice and procedure - Pleas - Plea of not guilty - Power of court to enter - Plea of guilty - Depositions read - No application from lawyer to change plea - Court has discretionary power - Failure to enter plea of not guilty may be breach of constitutional rights - Constitution, ss 37(1), 57, 155(4), 158(2).

CONSTITUTIONAL LAW - Basic rights - Protection of law - Criminal law - Right to be proved guilty - Plea of guilty - Depositions read - Plea of not guilty entered by court - Failure to enter plea of not guilty may be denial of constitutional rights - Constitution, s 37(1), (4).

CRIMINAL LAW - Practice and procedure - Pleas - Plea of guilty - Depositions read - View of evidence formed - Plea of not guilty entered by court of own motion - Whether judge should disqualify himself for bias.

COURTS AND JUDGES - Judges - Disqualification for bias - When judge should stand down on request.

COURTS AND JUDGES - Judges - Disqualification for bias - Particular cases - Criminal trial - Plea of guilty - Depositions read - View of evidence formed - Court of own motion entering plea of not guilty - Request to disqualify acceded to.

Held:

(1) The National Court has power, in an appropriate case, to enter a plea of not guilty on behalf of an accused person who pleads guilty but whose lawyer does not make an application under s 563 of the Criminal Code for a plea of not guilty to be entered on his behalf. This discretionary power is derived from the power to enforce guaranteed rights and freedoms under s 57 of the Constitution and the inherent jurisdiction under s 155(4) of the Constitution and its exercise complies with the direction in s 158(2) of the Constitution to give paramount consideration to the dispensation of justice.
Kavali v Hoihoi [1986] PNGLR 329 and The State v James Bero Popo [1987] PNGLR 286, considered.

(2) Failure to exercise the discretion to enter a plea of not guilty where the depositions do not disclose any offence, do not disclose all the elements of the offence charged or disclose possible defences, involves a denial of the right of the accused to the full protection of the law under s 37(1) of the Constitution and his right to be proved guilty under s 37(4)(a) of the Constitution.
Eiserman v Nanatsi [1978] PNGLR 457 at 458, considered.

(3) Where a judge is asked to disqualify himself for bias, whether or not it has been shown that there is a real likelihood of bias or a reasonable suspicion of bias and provided the objection is not unprincipled, frivolous or futile, the judge ought to disqualify himself.
Romeyko v Samuels (1972) 2 SASR 529 at 537; 19 FLR 322 at 329, adopted and applied.

(4) Where a trial judge was asked to disqualify himself for bias after having read the depositions (on a plea of guilty) and entering a plea of not guilty on behalf of the accused, it was appropriate, in the interests of integrity and impartiality, that he disqualify himself.

Cases Cited

The following cases are cited in the judgment:

Amaiu v Commissioner of Corrective Institutions [1983] PNGLR 87.
Eiserman v Nanatsi [1978] PNGLR 457.
Eliza v Mandina [1971-1972] PNGLR 422.
Kavali v Hoihoi [1986] PNGLR 329.
Metropolitan Properties Co (FGC) Ltd v Lannon [1968] EWCA Civ 5; [1969] 1 QB 577.
Nai’u Limagwe v The State [1976] PNGLR 382.
Prowse v Bartlett (1972) 3 SASR 472.
R v Australian Stevedoring Industry Board [1953] HCA 22; (1953) 88 CLR 100.
R v Blandford Justices; Ex parte G (An Infant) [1967] 1 QB 82.
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546.
R v Gabai Vagi [1973] PNGLR 30.
R v Joseph-Kure [1965-66] PNGLR 161.
R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248.
Romeyko v Samuels (1972) 2 SASR 529; 19 FLR 322.
State, The v James Bero Popo [1987] PNGLR 286.
State, The v Joe Ivoro [1980] PNGLR 1.
Weaver v Samuels [1971] SASR 116.

Interlocutory rulings

On an indictment charging rape the accused (by his counsel) informed the court that he would be pleading guilty. The trial judge read the depositions and formed a view thereof inconsistent with guilt.

The following judgment deals with the issues then raised.

Counsel:

N Miviri, for the State.
T Tamusio, for the accused.
Cur adv vult

26 January 1990

JALINA AJ.: During the callover in Chambers on Monday morning, 15 January 1990, counsel for the accused, Mr Tamusio, indicated that the accused would plead guilty to a charge of attempted rape. Consequently I read the depositions.

On Thursday, 18 January, the accused was indeed charged pursuant to s 348 of the Criminal Code (Ch No 262) with attempted rape and on arraignment he pleaded guilty to that charge. Counsel for the accused did not make any application for leave of the Court for a plea of not guilty to be entered pursuant to s 563 of the Code. I then entered a plea of "not guilty" on behalf of the accused using my powers under the Constitution (which I will consider later) as I was not satisfied that the evidence as contained in the depositions was sufficient to sustain a conviction for attempted rape bearing in mind the "overt act" requirements discussed in R v Joseph-Kure [1965-66] P&NGLR 161 at 166, coupled with doubts created by the accused’s alibi, the doubts as to identification and his denial of the offence in the record of interview. These particulars were pointed out to counsel pursuant to s 575 of the Code after a plea of not guilty was entered on behalf of the accused.

Defence counsel even at this time did not apply for an adjournment to seek further instructions from his client, the accused, even though I invited him to consider it. I then adjourned the case for trial.

On 23 January, however, Mr Miviri for the State, relying on a passage in O’Neill and Desailly, Criminal Jurisdiction of Magistrates in Papua New Guinea, asked me to make a ruling on a point of law. That was that in view of my having read the depositions, I had formed a view or an opinion on the case and that being so, I should disqualify myself. Defence counsel also assisted the State Prosecutor and made similar submissions and relied on The State v Joe Ivoro [1980] PNGLR 1. They were, in effect, submitting that I should not proceed to sit on the trial because there was a likelihood of my being biased. I will consider this issue later.

Although counsel only asked me to rule on whether I should disqualify myself, for the reasons I have specified above, there is, in my view, another important issue which I consider should not be allowed to slip by since an opportunity has now arisen for such an issue to be considered in some detail. That issue relates to whether or not the court can (on a plea of "guilty" by the accused but without any application by his counsel for a plea of "not guilty" to be entered) of its own initiative or motion, enter a plea of "not guilty" on behalf of the accused.

Entry of a plea of not guilty by leave of the Court is covered by s 563 of the Criminal Code. It says:

"Notwithstanding anything in this Code, counsel for an accused person may, with leave of the court and after the accused person has been —

(a) informed of the offence with which he is charged; and

(b) asked to plead to the indictment,

enter a plea of not guilty on behalf of the accused person."

As stated by Chalmers, Weisbrot and Andrew, Criminal Law and Practice of Papua New Guinea, 2nd ed (1985) at 608, this section is intended to provide an additional safeguard to an accused who is unaware of legal defences (for example, self-defence, provocation) open to him through him admitting to certain alleged facts (see Nai’u Limagwe v The State [1976] PNGLR 382). As the plea of "not guilty" was not entered as a result of an application by defence counsel in this particular case, s 563 of the Code is not relevant for the purposes of determining the issue of whether or not the court can, of its own motion, enter a plea of "not guilty" on behalf of the accused. Where, then, does the court get its power to do this?

Section 57(1) of the Constitution provides that a right or freedom referred to in this Division shall be protected by, and is enforceable in the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative (my emphasis) or on an application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority. Furthermore, s 158(1) of the Constitution provides that, subject to this Constitution, the judicial authority of the people is vested in the National Judicial System. The National Judicial System, by virtue of s 155(1) of the Constitution, consists of:

"(a) the Supreme Court; and

(b) the National Court; and

(c) such other courts as are established under Section 172 (establishment of other courts)."

By virtue of s 158(2) of the Constitution, the courts, in interpreting the law, shall give paramount consideration to the dispensation of justice.

Section 57(3) to (6) provides as follows:

"(3) A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).

(4) Any court, tribunal or authority may, on its own initiative or at the request of a person referred to in Subsection (1), adjourn, or otherwise delay a decision in, any proceedings before it in order to allow a question concerning the effect or application of this Division to be determined in accordance with Subsection (1).

(5) Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.

(6) The jurisdiction and powers of the courts under this section are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of this Constitution."

It may be argued that because s 57 deals with enforcement of guaranteed rights and freedoms, it should not apply to the issue before me. Any such argument should not be accepted in my view because s 57(1) not only provides for "enforcement" of the guaranteed rights and freedoms in the Supreme Court or the National Court but it also provides for the "protection" of such guaranteed rights and freedoms. Section 57(1) further goes on to provide for the Supreme Court or the National Court to enforce or protect such rights and freedoms on its own initiative. This view is supported by Chalmers, Weisbrot and Andrew in their book referred to above (at 67):

"By force and effect of s 57(1), the National Court may on its own initiative protect and enforce the rights or freedoms of persons whose liberties have been denied them ... "

In respect of the court’s powers to change a plea of "guilty" to one of "not guilty", Chalmers, Weisbrot and Andrew said, at 606:

"Quite apart from the discretion vested in the court by s 563 to change a plea from guilty to not guilty upon an application from defence counsel, the court may enter a plea of not guilty upon its own motion. This discretion is derived from the inherent unlimited jurisdiction of the National Court, and from the Constitution. In deciding cases the courts are to give paramount consideration to the dispensation of justice (s 158(2) of the Constitution). Further (under s 155(4) of the Constitution) the National Court has inherent power to make such other orders as are necessary to do justice in the circumstances of a particular case. These provisions enable the Court to decline to accept a plea of guilty. St v Yaulipa Bulaim and 4 Ors (1980) N No 234."

A recently reported case regarding the court’s powers to intervene to protect a person’s guaranteed rights is that of Kavali v Hoihoi [1986] PNGLR 329. In that case, the Supreme Court, in dealing with an appeal based on the appellant’s right to a trial in his presence pursuant to s 37(5) of the Constitution, held, inter alia, that s 37(5) of the Constitution entrenches the right of the person charged with an offence to be present at his trial and that applies in respect of all offences subject only to the exceptions provided for in the section itself. The court further held that, as it is the duty of the courts zealously to guard the rights entrenched in the Constitution, the courts must ensure, before such a right is denied, that the circumstances of the particular person come within the exceptions (if any) specifically outlined in the Constitution. What the Supreme Court has decided in respect of s 37(5) of the Constitution can, in my view, be equally applied to the other rights under s 37, including the rights under s 37(1) and s 37(4)(a), and it is for the courts to zealously guard those rights: see also The State v James Bero Popo [1987] PNGLR 286 where Amet J held, inter alia, that the power under s 57 of the Constitution to protect and enforce guaranteed rights and freedoms may be exercised by the court of its own volition even if not argued and at any time.

The constitutional provisions and the cases I have referred to may not be exhaustive but I have no doubt in my mind that a National Court judge, pursuant to his powers under s 57(1) (3) (4) and (5), coupled with his inherent power under s 155(4) of the Constitution, has the power, in an appropriate case, to enter a plea of not guilty on behalf of an accused person who pleads guilty but whose lawyer does not make an application for a plea of not guilty to be entered on his behalf, so that justice, which the court is required to dispense pursuant to s 158(2) of the Constitution, is so dispensed.

Could the accused, Peter Sari, have been denied his constitutional rights had the court not intervened? On the basis of the constitutional provisions and the cases discussed below, I am of the opinion that he could have been denied his constitutional rights.

Section 37(1) of the Constitution provides that every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences. Section 37(4)(a) provides that a person charged with an offence shall be presumed innocent until proved guilty according to law. In my view, if the depositions disclose possible defences and defence counsel does not make an application under s 563 of the Code, and the court, knowing of such defences, proceeds to convict and sentence the accused, the accused cannot be said to have been proven guilty according to law under this subsection and as such he cannot be said to have been given the full protection of the law under s 37(1). See Wilson J’s discussions of s 37 of the Constitution in Eiserman v Nanatsi [1978] PNGLR 457 at 458.

In their comments on s 37(1) of the Constitution in relation to Amaiu v Commissioner of Corrective Institutions [1983] PNGLR 87, Chalmers, Weisbrot and Andrew said (at 46):

"Section 37(1) means that no aspect, or at least no major aspect, of a prisoner’s treatment should be at the whim of the officer-in-charge or of any warder; the warders must treat a prisoner in accordance with the laws."

In R v Gabai Vagi [1973] PNGLR 30, where the accused pleaded guilty to rape, Raine J quoted (at 31-32) a passage from Bray CJ in the South Australian case of Weaver v Samuels [1971] SASR 116 at 119-120:

"... The defendant must be given the benefit of any reasonable doubt on matters of penalty, as well as on matters of guilt or innocence, in the absence of any statutory provision to the contrary. The plea of guilty admits no more than the bare legal ingredients of the crime. Any dispute as to anything beyond this must be resolved on ordinary legal principles, including the presumption of innocence."

In Eiserman v Nanatsi, which went on appeal against conviction and sentence on a charge of knowingly habouring two prohibited immigrants contrary to s 27(2)(b) of the Migration Act 1963, it appeared that the appellant had pleaded guilty, and by implication from this evidence and the record of interview that he suspected that the two men concerned were "prohibited immigrants", but there was no formal evidence to this effect. Wilson J said, at 459:

"In my opinion the statement by the appellant in his record of interview and indeed such other indirect evidence that was adduced at the District Court hearing in Vanimo leads me (and it presumably led the learned magistrate) to suspect that the two men concerned were ‘prohibited immigrants’ at the time. But suspicion is not enough. Proof in a criminal case must be proof beyond reasonable doubt. In the absence of any formal evidence from an officer of the Migration Department or some other appropriate authority to depose to the lack of status of the two men concerned in Papua New Guinea at the time, it could not be said that the fact of their being ‘prohibited immigrants’ had been proved beyond reasonable doubt.

I have no reason to suppose that his omission of proof was any more than an oversight on the part of the prosecuting authorities and subsequently by the learned magistrate. Nevertheless, as the appellant was deprived of a trial in which the rules of procedure were strictly followed and as the appellant did not have which the law of Papua New Guinea says he shall have, I find that there has been a substantial miscarriage of justice, because justice is justice according to law."

A plea of guilty which has been wrongly accepted can be found to be a nullity on appeal (see Eliza v Mandina [1971-1972] P&NGLR 422 at 425-426 and R v Blandford Justices; Ex parte G (An Infant) [1967] 1 QB 82, per Widgery J, at 87. It is therefore desirable to be on the safe side in the initial stages of the proceedings, particularly in a criminal case. Where there are good grounds for substituting a plea of guilty with one of not guilty, then that should be done.

It follows from the authorities that if the depositions do not disclose any offence or do not disclose all the elements of the offence charged or disclose possible defences, the entry of a plea of guilty would, in my opinion, be tantamount to denial of the right of the accused to the full protection of law under s 37(1) and his right to be proven guilty according to law under s 37(4)(a) of the Constitution. These rights should not be at the whim of lawyers who, perhaps in their plea-bargaining process, or perhaps to reduce the amount of workload, decide to advise the accused to plead guilty. The accused could have been denied his constitutional rights had the court not intervened.

I will now deal with the question of bias as a result of a judge having formed an opinion or a view about a case after having read the depositions.

Counsel for the State, Mr Mirivi, in support of his submission that I should disqualify myself on the basis that I have referred to above, relied on par 1.17 of O’Neill and Desailly’s book which I have referred to above. That passage reads:

"If there is tangible ground for suspicion that a magistrate’s decision is not to be trusted in a particular case, and particularly if he is accused of bias, he should retire from the case, but he is not necessarily legally disqualified from trying a case because he has preconceived opinions about some of the matters in issue. However, if his opinions are pre-determined conclusions which are not open to argument he is disqualified."

Mr Miviri did not make submissions beyond this point nor did he elaborate on the various respects in which I had preconceived opinions or pre-determined conclusions which were such that the likelihood of my being biased was not open to argument as they were obvious.

Defence counsel, Mr Tamusio, also assisted the State Prosecutor and referred me to the case of The State v Joe Ivoro where the converse but the usual course from the one that I had taken, took place. In that case, Kapi J (as he then was), who entered a plea of guilty but later vacated that plea when the accused denied an essential element of the offence on allocutus, chose to disqualify himself from presiding at the trial since he had formed an opinion regarding the evidence to be called by the State.

With regard to preconceived opinions or determinations, the High Court of Australia, (Dixon CJ, Williams, Webb and Fullagar JJ) said in R v Australian Stevedoring Industry Board [1953] HCA 22; (1953) 88 CLR 100 at 116:

"... when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there should be strong grounds for supposing that the judicial ... officer has so acted that he cannot be expected fairly to discharge his duties ... with the result that a substantial distrust of the result must exist in the minds of reasonable persons."

In the instant case, no strong grounds have been shown by the prosecution.

In Romeyko v Samuels (1972) 19 FLR 322; 2 SASR 529, the defendant in a magistrate’s court had been convicted on a charge of knowingly sending by post a postal article which bore words of indecent, obscene or a grossly offensive character. The magistrate who heard the case had, in other proceedings, referred to certain words as "intrinsically abhorrent". These words were in the offensive article and the defendant alleged bias on the ground that an important issue had been pre-determined. The magistrate refused to disqualify himself. On appeal, it was held that bias had not been sufficiently established. In the same case, Bray CJ said, at 351; 557:

"It is often very hard for a judge to avoid having some preliminary opinions on the points of law which he can see in advance will be involved in the case. It is a different matter if he holds irrefragable opinions which he has determined in advance can never be altered, still more if he is known to hold such opinions."

In the present case, as I saw important points of law going to the requirements to sustain a conviction for attempted rape, I was duty-bound to hold the view that it would not be proper for me to accept a plea of guilty for attempted rape and then proceed to convict and sentence on same. Bray CJ, however, went on to say at 352; 558:

"At the same time, I think he would have been better advised to decline to sit after the objection had been made. No judge of this Court, I think, would have had any hesitation in refusing to sit after an objection had been raised to his presence on the bench, unless that objection was one which would equally have applied to any other judge available to hear the case, or unless it was, in the words of Madden CJ in Sharp v Carey ‘undue, unprincipled or insolent’, or, I would add, ‘frivolous or futile’."

The objection, I should mention, was not raised at the time I entered a plea of not guilty and advised that the case should proceed to trial.

In Metropolitan Properties Co (FGC) Ltd v Lannon [1968] EWCA Civ 5; [1969] 1 QB 577, Lord Denning said, at 599:

"There must be circumstances from which a reasonable man would think it likely or probable that the justice ... would, or did, favour one side unfairly at the expense of the other."

In R v Watson; Ex parte Armstrong [1976] HCA 39; [1976] 136 CLR 248, the High Court of Australia in a joint judgment (at 262) noted a passage from an earlier joint judgment of the same Court in the case of R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, wherein the learned judges (at 553-554), regarding the principles of natural justice, said:

"Those requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds."

However, in another South Australian case of Prowse v Bartlett (1972) 3 SASR 472, the appellant claimed, inter alia, that bias was shown by the tone and content of questions asked or comments made by the magistrate during the course of the hearing which indicated that the magistrate took strong personal exception to the appellant’s conduct and opinions. The court held that bias inconsistent with a fair trial was not shown. Bray CJ, who also heard this case said, at 477:

"Judges and magistrates frequently take strong views about the contentions put before them and sometimes express themselves forcibly during the course of a trial. It is often well that they do so express themselves, because that gives the party affected an opportunity to appreciate the considerations which are weighing with the tribunal and to answer them. A judge who keeps his mouth firmly closed during the hearing and refrains from giving utterance to his thoughts may decide the case on considerations which could have been answered if they had been made known to the unsuccessful party during the hearing. Such remarks on the part of a judicial officer are not to be taken, extreme cases apart, as indicating that his mind has been irrevocably made up or that he is not open to further argument ..."

This passage is of much relevance to the case before me but the prosecution and the defence both consider otherwise. In Kavali v Hoihoi, the Supreme Court held that a conviction is open to review on the ground of bias only where there is a real likelihood of bias or a reasonable suspicion of bias.

From the authorities I have referred to, it appears that no clear lines can be drawn as to what amounts to bias or likelihood of bias and what does not. Each case must depend on its own facts. In the present case, it has not been shown that there is real likelihood of bias or a reasonable suspicion of bias merely from my reading of the depositions and entering a plea of not guilty on behalf of the accused. However, in the interest of avoiding anyone raising doubts about the integrity and impartiality of the office I hold, the most appropriate course of action for me to take is to disqualify myself and this I do. Whilst it is, no doubt, practised by my senior brethren, I might mention, for my part, that a judicial officer should disqualify himself in similar circumstances.

Plea of not guilty entered Judge — disqualifying self from further hearing

___________________

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.