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 prosecutrix has completed her evidence in chief and was to be cross-examined. His lawyer however applied to change his client’s plea to that of plea of guilty to the lesser charge of attempted rape, following a brief adjournment. State Counsel conceded the application and proposed an amendment to the indictment by adding the word “attempt” before the word “rape”.

In Archibald, 43rd ed. at para 4-121 the learned author states the practice in 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“A plea of Not Guilty may, by leave of the judge, be withdrawn during the trial, and a plea of Guilty substituted.”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 practice to follow in this jurisdiction. I adopt the learned judge’s view and follow it in this case. However, if a plea of guilty were entered at this stage, the question arises as to whether cross-examination of the witness/prosecutrix should nevertheless, continue. It was held in Suk Ula’s case that, once a witness is called, he may not be withdrawn as a witness until cross-examination is concluded.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 indictment, but to the alternate lesser charge of attempted rape. He has decided to take this course and has inferentially waived his right not to test the prosecutrix’s case. In the light of the evidence adduced, I ask myself whether it is fair that having heard the evidence the prosecutrix should not be tested on her evidence in chief. I do not think the Court should allow this, now that the evidence is before it and particularly where the prosecutrix in my view, has shown a prima facie case on the charge on the indictment.

The Court should not be deprived now 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 my view, this duty extends 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 the plea at this stage of examination of the prosecutrix and substitute it with a plea of guilty to a lesser charge. However, I do not rule out the possibility of that application being allowed at the end of the prosecutrix’s case, depending on the content of the evidence thereof and any satisfaction that such course may be safely taken.

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

Lawyer for the State: P Mogish Public Prosecutor

Lawyer for the Accused: D Koeget A/Public Solicitor