N1434

PAPUA NEW GUINEA
[In the National Court of Justice]

App. 357 of 1995

PETER MAN
(Appellant)

-v-

JOHN KORUL
(Respondent)

Kundiawa: AKURAM, AJ
1996: 18th March

District Court - Practice and Procedure - manner of determining and entering a plea.

Practice and Procedure - District Court - Fair trial - conduct - principles of fair hearing - Section 59 (2) of Constitution.

Held: Court must not only do justice but must be seen to conduct a fair trial so that justice is not only done but must be seen to be done.

Statutes Cited in judgment:
Constitution - S.59 (2).

A. YER for the Appellant.
R. JOHNSON for the Respondent.

18th March 1996

AKURAM, AJ. The Appellant is Appealing against his conviction on the 16th of November 1995 whereby he was sentenced to six (6) months imprisonment in hard labour on a charge of being unlawfully on premises, an offence Contrary to Section 20 of the Summary Offences Act, Ch. 264. His grounds of Appeal are:

1.	The Court erred in not entering a plea of not guilty when the Appellant made a statement denying that he was unlawfully on premises.

2.	The Court erred in not administering the allocutus.

3.	That the sentence was and is manifestly excessive in the circumstances.

The State conceded the appeal and I upheld it and said I’ll write my reasons later which I now do.

The presiding magistrate had recorded on the Court depositions the Appellant’s statement on his plea that:

"He says that he went to informant’s house to check for his car papers".

The exact words said by the Appellant are not written but the above words were the translation by the magistrate of what the Appellant said.

The magistrate also wrote saying:

"Court notes that they should not visit policemen at their house uninvited at the middle of the night. This means that they mean harm to informant’s family. Accused is sentenced to 6 months in hard labour. Sentence to be served in Bundairia jail. Transportation to be effected forthwith".

I wish to point out certain practice and procedural irregularities in the manner the learned magistrate went about conducting the hearing.

1. Determining a Plea

After reading and explaining the words of the charge to the defendant, the magistrate then asks the defendant whether he admits or denies the charge. That is, whether he pleads guilty or not guilty. The response by defendant must be written "word for word" without any alterations. This is because about 90% or more of the defendants that appear in lower courts do not come right out when asked to plea and say "yes or no", or "Guilty or not Guilty".

The magistrate will then interpret the statement on plea or arraignment and enter a "provisional" plea of "Guilty" or "not guilty".

2. Guilty Plea

After entering a "Provisional plea" of guilty, the magistrate then hears the statement of facts read by the Prosecution. At the conclusion of the facts being read to the court and the defendant, the following three questions are asked:

(a)	Have you heard the facts as read?
(b)	Do you understand the facts as read?
(c)	Do you wish to say anything in response to the facts as read? Or put in another way, - Are the facts as read correct or not?

If answer to the last question is "yes I have something to say in response" or "no, they are not correct", then magistrate should record what is said in explanation. The magistrate can either "confirm the provisional plea" or change the plea of guilty to "not guilty" and adjourn the matter to another date for trial. If the provisional plea is confirmed, the magistrate then administers allocutus.

3. Allocutus

Before sentencing or passing sentence the magistrate has to administer allocutus. This is where the magistrate asks the defendant, or now the prisoner as he is found guilty, as to "why the court should not proceed to pass sentence or judgement on him". This and the above are essential steps in a trial because of various reasons and some of them are:

(a)	he many change his mind and plead not guilty.

(b)	he may plead for leniency, express remorse, etc..

(c)	he may give a lengthy statement which may change the mind of the magistrate to stop sentencing him and alter the plea of guilty to not guilty.

(d)	he may ask to see a probation officer for a Pre-Sentence Report.

(e)	He must address the court on the type of sentence before being sentenced.

There are therefore hosts of reasons why above steps should be administered which basically boils down to one factor and that is the court must be seen to conduct a fair trial so that justice is not only done but is seen to be done (section 59 (2) Constitution).

4. SENTENCE

After an allocutus is administered the court is in a better position to pass a sentence which is seen to be fair by the prisoner, the community, the law enforcement authorities and in accordance with law as the fair and just sentence to be imposed in all the circumstances of the case before the magistrate.

The above procedure and practice has all the checks and balances for a fair trial.

In the present case, I find that the learned magistrate has not done any of the matters mentioned above. The Appellant clearly indicated a plea of not guilty when he may have told the magistrate that "he went to informant’s house to check his car papers". This is a reasonable excuse because he has his car papers in the informant’s premises. The car papers may have meant "car registration documents". This is confirmed by the statement of facts tendered and before the magistrate.

The Appellant/Defendant was asked at the premises as stated in the statement tendered, he replied - "That he had come to recover his vehicle which was confiscated by police who suspected it to be stolen". So there are two reasons. The only way to be sure is to call evidence to show whether what he was saying is true or not true.

I therefore find from the above irregularities in the proceedings that all the three grounds of appeal are sustained and allow the appeal, quash the conviction and order of the District Court. The Appellant be refunded his K200 cash surety he paid to prosecution the appeal.

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Lawyer for the Appellant: ALPHONSE YER LAWYERS
Lawyer for the Respondent: PUBLIC PROSECUTOR