State v Pari (No 1) [2000] PGNC 77; N2037 (14 December 2000)

N2037

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No 1376 of 2000

THE STATE

-v-

NICKSON PARI (No. 1)

LAE: KANDAKASI, J.
2000: December 5, 12, 14

CRIMINAL LAW – Practice and procedure –On plea of guilty – Statement in allocutus contrary to plea and depositions – Pleas of not guilty to be recorded – Trial before another judge required.

Cases Cited:

The State v. Joe Ivoro and Gemora Yavura [1980] PNGLR 1

Gabriel Lakau v. The State [1981] PNGLR 350;
The State v. Sari [1990] PNGLR 48
Dinge Damane v. The State [1991] PNGLR 244;
Martin Ferry v. The State (Unreported and unnumbered)

SCRA 64 of 2000

Counsel:
N. Miviri, for the State
M. Mwawesi, for the Defendant

14 December 2000

KANDAKASI, J: On the 5th December 2000, the Defendant pleaded guilty to a charge of attempted murder under s.304 of the Criminal Code Act (Ch. 262) (hereafter "the Code"). Upon reading the deposition, I was satisfied that there was enough evidence to support the guilty plea. Hence, I confirmed the guilty plea and convicted the Defendant as charged.

Allocutus

In his allocutus pursuant to s.593 of the Code, the Defendant said he did not intend to kill or shoot the victim. It was an accident. He said his finger accidentally pressed the trigger of a home-made gun he was carrying and the bullet went off and injured the victim. He then said he has additional things to say and those are set out in a letter and he handed up the letter. The letter was dated 14th November 2000 consisting of 3 pages. That letter was admitted into evidence with the States consent. Set out below is the material parts of the letter.

Your Honour, on the 9th Friday of June 2000 about 8.00pm I left my house at five mile and I was walking down to four mile following the main highway. The reason why I came to four mile is to visit my uncle and his family, as I was approaching the junction to four mile I met those three (3) boys sitting along the street leading to my uncle’s house. Your Honour, I do know them because they are my uncle’s next neighbours so I stopped and ask them why they’re sitting in the dark talking to themselves quietly. Your Honour, they told me that they were planning to rob those men playing cards, I heard this and know that it’s gonna be a trouble so I wanted to leave them and go away. Your Honour, those three (3) boys are bigger than me and they resist that I must follow them to commit these offence. I was helpless that time so I follow them to where this trouble had been committed. They (the boys) gave me a home-made gun with a bullet and we went off to our mission. Your Honour, as we approached the playing party we saw the victim coming out of his sister’s house, he saw us and try to run away but he was unlucky because my co-accuser was rushing behind him and held him with the knife. Your Honour, he then check his pocket and took his money about of K10.00. I was standing about 7 to 8 metres away from my three co-accused when they were raiding the victim. Your Honour, it was my very first time to do such a thing like that so I was in fear and shaking with my heart pumping rapidly. I was holding the home-made gun facing upward when suddenly it blew off. Your Honour, as I had said early that my hand was shaking so the pin locking the spring went off so the spring had come to position to fire the bullet. Your Honour, as the gun was fired I was really frighten and I drop the gun and ran away back to my home at five mile. The next day I went to Bulolo to hid there but the victim took the police and they went and arrested me. I admitted that I’m guilty for doing this offence and I was charge and now standing before you for my punishment to be given.

1. Your Honour, I and my family have pay a compensation of K600.00 to the victim for the pellets which he received. I can’t prove to this higher Court the records of this compensation but my arresting officer is aware of these compensation.
   
2. Your Honour, the police have fail to prove to the Court how serious he (victim) received from that gun fire. I’m saying this because there is no medical reports in the file that will show the Court can know and punish me accordingly to the damage I caused.
   
3. Your Honour, I’m a first time offender and did not mean to shoot or fire that gun but it all went accidentally. I’m very sorry for what I had done and I promise it will never happen in my future life again.
   
4. Your Honour, it is injustice for my co-accused to be left back at home while I’m being charged for what I had done wrong. Your Honour, Demond Affaei is my co-accused and he had committed these trouble but I don’t see why the arresting officer did not charge him and took him the trouble maker as State witness witnessing against me his co-accused.

(underlining mine)

This clearly differs from the record of interview and the other evidence on file. It essentially disputes the existence of an important element for the offence under s.304 of the Code, namely intention to kill. See R. v. Bena Forepe [1965-66] PNGLR 329. After briefly considering the matter I decided to vacate the guilty plea and conviction thereupon and disqualified myself from conducting a trial if the State was proceeding with the charge. That was on the 12th of December 2000. At that time I said I will publish my reasons. This constitutes my reasons.

I am guided by a number of cases on point. The first case is The State v. Joe Ivoro & Gemora Yavura [1980] PNGLR 1. In that case, the defendants pleaded guilty to two counts of breaking, entering and stealing and rape. The trial judge entered a provisional plea of guilty in each case. He then proceeded to read the depositions and the record of interview and confirmed the guilty pleas and convicted the defendants as he was satisfied that there was sufficient evidence to support the guilty pleas. However, on the administration of the allocutus the defendant's statements caste some doubts as to the correctness of the pleas on both counts.

The Court first dealt with the question of whether a Court has power to change a guilty plea at that stage and answered that question in the affirmative as long as it is before sentence. The Court referred to a number of overseas cases, which provide authority for the proposition, that an entry of a conviction on a plea of guilty is a provisional one which can be changed before sentence. This allows for the possibilities of accused persons mistakenly pleading guilty and that it would be unthinkable to leave such mistakes uncorrected for an appellate Court on appeal to correct.

At page 4 of the judgement, the Court outlined the circumstances in which a guilty plea and conviction thereupon can be changed. These are (1) the accused has not really pleaded; (2) that there was a mistake on the part of the accused; and (3) that there is a clear defence to the change. Then in the case before him the learned trial judge found that one of the elements of the offence of breaking, entering and stealing, namely, breaking was not present according to the matters raised in the allocutus. Similarly, for the offence of rape the element of no consent was not present. The Court therefore, found that the case fell into the third circumstance. On that basis, the guilty plea and conviction were vacated and a not guilty plea was instead entered for both counts.

It is important to note that the process of determining whether or not a case falls into the circumstances in which there can be such a change of plea and conviction does not require a determination as to the truth or otherwise of the evidence presented. The following passage from that case at page 4 is instructive.

On the issues raised in both statements, I need not determine the truth of the statements made at this stage where it conflicts with other evidence in the depositions. This is not my proper function at this stage. This is the function of my jury-half on the trial of the issues.

This simply means, a Court is in no position to assess the evidence presented and weigh that against what the accused persons says. Rather, the Court has to decide on its face value what the accused person says, and decide whether his case falls under any of the circumstances in which a guilty plea can be changed to one of not guilty.

Once the Court decided to change the guilty plea in that case, the State asked the Court to accept the guilty plea and convict on the alternative charge of entering a dwelling house with intent to commit a crime under s.409 of the Code then (now 397) on the evidence contained in the depositions, which was open. The Court decided however, that once a plea of guilty is changed to not guilty, "the Court should not, as a matter of course, proceed to find an alternative verdict if the depositions support that alternative offence". (page 5 of the judgment)

The Court reasoned at page 5 of the judgment that:

Where a plea of not guilty is entered, as in this case, it is like a plea of not guilty by the accused in the first place, pursuant to s.572 of the Criminal Code. According to s.578 of the Criminal Code, issues raised in the charge must be tried according to law. If a Court were to proceed straight to the alternative verdict, then what in fact it does is to find the accused not guilty of the offence ... charged, without a trial. This would deprive the State of proving the charge ... in a trial.

However, the proper procedure, in my opinion would be to ask whether the State wishes to proceed with the trial on the charge. If the State proposes to do so than the trial will take place as a normal trial. If, however, the State does not wish to proceed with the charge but consents to a plea on a lesser charge or any other charge authorised by law, and is supported on the evidence in the depositions, then it may do so.

The judge in that case, his Honour Kapi, J. (as he then was) decided to disqualify himself from hearing the matter to avoid a possible apprehension of bias against the accused, after having read the depositions and having proceeded to convict the accused.

Subsequent cases like that of Gabriel Lakau v. The State [1981] PNGLR 350, (a unanimous decision of the Supreme Court) have adopted and applied The State v. Joe Ivoro and Gemora Yavura (supra) case.

His Honour, Jalina AJ (as he then was) in The State v. Sari (1990) PNGLR 48, went a step further by holding that the Court has a duty to change a guilty plea to a not guilty plea if a guilty plea is not supported by the depositions. A failure to do so may amount to a denial of an accused person’s right to a full protection of the law under s.37(1) of the Constitution and his right to be proven guilty according to law under s.37(4) of the Constitution. The power to do so must be exercised whether or not the accused person’s lawyer applies for leave of the Court to change the plea pursuant to s.563 of the Code. That power is derived from ss.57 and 155(4) of the Constitution and its exercise complies with the direction under s.158(2) of the Constitution.

The latest reported Supreme Court decision on the issue at hand is Dinge Damane v. The State [1991] PNGLR 244. That case also adopted and applied The State v. Joe Ivoro and Gemora Yavura (supra) especially by Kapi DCJ at page 249 of the judgment. On the part of the other members of the bench Amet, J. (as he then was) and Woods, J. they said these at page 252 of the judgment.

It is clear that what ought to have happened procedurally is that, on the basis of a possible defence of provocation, for the trial judge to have indicated the same to counsel and to enter a plea of not guilty ...

If the prosecution wished to prosecute the charge ... then of course the case would proceed to trial. In that event, the trial would be adjourned to be tried before another judge because the trial judge had read the depositions and under the practice in this jurisdiction presently, it is required of the trial judge to so disqualify himself from the trial.

It is the prerogative of the prosecution, having been informed by the trial judge of his decision not to accept the plea of guilty and the reason for it, to elect whether to prosecute on trial the charge ... or as to accept a plea of guilty to a lesser alternative charge in satisfaction of the indictment ... In practice this is the discussion that transpires between the trial judge and counsel, in particular, the prosecuting counsel ...

... The technical procedure ought to be that, if the prosecution is prepared to accept a plea of guilty to a lesser alternative count, then the accused should he re-arraigned on lesser count with the necessarily different facts and elements of the offence.

Very recently, the Supreme Court sitting in Wewak in November 2000, in the case of Martin Ferry v. The State SCA (Unreported and unnumbered) SCRA 64 of 2000. The Supreme Court upheld an appeal against conviction and sentence, where the learned trial judge failed to raise with counsel and enter a plea of not guilty to a charge of grievous bodily harm when the depositions and the accused’s statement in allocutus raised the possible defence of provocation.

These line of cases make it very clear that, once a trial judge finds something inconsistent with a guilty plea either from a perusal of the depositions or in the accused person’s allocutus, the plea should be changed to a not guilty plea. That must happen whether or not the defence counsel makes an application under s.563 of the Code in order to accord to the accused his constitutional rights and or guarantees. Once a guilty plea is changed to a not guilty plea, the trial judge must disqualify from conducting a trial of the case. There is than a prerogative for the prosecuting counsel to decide whether or not to proceed with an alternative charge that may be available and supported by the depositions and one which accords well with the accused’s statement in allocutus if that stage has been reached. If the prosecution takes that option, the accused must be re-arraigned on the alternative charge and be dealt with in the normal way.

Present Case

In the present case, the Defendant pleaded guilty to a charge of attempted murder under s.304 of the Code. The depositions supported the guilty plea and I proceeded to confirm the guilty plea and convicted the Defendant. In his allocutus however, the Defendant through a 3 page letter claimed he did not have any intention to kill. The victim was injured out of an accident. That made it unsafe to proceed to sentence on the charge of attempted murder which has the element of an intention to kill. This was not fully appreciated until the matter was adjourned for sentence and I reviewed the matter for that purpose.

Going by the authority of The State v. Joe Ivoro and Gemora Yavura (supra) and all of the cases that have adopted and applied it, I decided to vacate the guilty plea and the conviction thereupon.

Consequently, a plea of not guilty was recorded and the matter was ordered to go before a different judge for trial on the charge under s.304 of the Code. Until a trial date is fixed and the matter is heard and determined, the Defendant was ordered to continue to remain in custody at Buimo CIS.
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Lawyer for the State: PUBLIC PROSECUTOR
Lawyer for the Accused: PUBLIC SOLICITOR