State v Oida [1997] PGNC 62; N1621 (20 May 1997)

Unreported National Court Decisions

N1621

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 1488 OF 1996
THE STATE
V
WENESA OIDA

Kerema

Batari AJ
20 May 1997

CRIMINAL LAW - Practice and Procedure - Trial - Application to change plea to lesser offence - Leave of Court.

CRIMINAL LAW - Practice and Procedure - Trial - Application to changes plea to lesser offence - application made at end of prosecutrix’s evidence in - Chief - whether appropriate - application refused.

Case Cited

R v Suka Ula (NO 2) [1975] PNGLR 127

Counsel

D Mark for the State

J Ulge for the Accused

INTERLOCUTORY RULING

20 May 1997

BATARI AJ: Upon arraignment this morning on one count of rape, the accused pleaded not guilty. The prosec has completed hted her evidence in chief and was to be cross-examined. His lawyer however applo c to change his client’s plea to that of plea of guto the lesser charge of attempted rape, following a brief aief adjournment. State Counsel conceded tpl application and proposedmendment to the indictment ment by adding the word “attempt” before the word “rape”.

In Archibald, 43r at para 4-121 the learned author states the practice in thin the United Kingdom to be this:

“A plea of Not Guilty may, by leave of the judge, be withdrawn during the trial, and a plea of Guilty substituted.” (emphasis mine).

In R v Suk Ula (No 2) [1975] PNGLR 127 His Honour, Prentice, SPJ considered and applied this statement of law as the appropriate pre to follow in this jurisdiction. I adopt the learned judge’s view and follow ilow it in this case. However, if a plea olty wety were entered at this stage, the question arises as to whether cross-examination of the witness/prosecutrix should theleontinue. It0; It was held in SuRa’s case that, once a witness is called, he , he may not be withdrawn as a witness until cross-examination is concluded. This is the common law rule which also applies in Papua New Guinea.

The issue is however, not as simple as it might seem. In this case, the accused has decided to plead guilty, not to the count on the indict but to the alternate lesselesser charge of attempted rape. He has dd to take this cous course and has inferentially waived hist not to test the prosecutrecutrix’s case. In the light of theence adce adduced, I ask myself whether it is fair that haveard the evidence the proseprosecutrix should not be tested on her evidence in chief. I do not thinkCourt shouldhould allow thiw that the evidence is befo before it and particularly where the prosecutrix in my view, has shown a prima facie case on the charge o indictment.

The Court should not be deprived now ofow of such assistance as it should get from the cross-examination of the prosecutrix to establish either the innocence or guilt of the accused on the offence charged on the indictment.

It is the duty of the Court to consider whether or not a plea of guilty may be safely accepted. In mw, this duty extends tnds to a plea of guilty to the lesser charge than that on the indictment. I do not consider it in the interest of justice to vacate lea at this stage of examination of the prosecutrix and subd substitute it with a plea of guilty to a lesser charge. However, Iot rut the possipossibility of that application being allowallowed at the end of the prosecutrix’s case, depending on the conte the evidence thereof and any satisfaction that such course may be safely taken.

I rp>I rule against the application. I that cross-examination sion should proceed.

Lawyer for the State: P Mogish Public Prosecutor

Lawyer for the Accused: D Koeget A/Public Solicitor