Sabadi v Police [2001] PGNC 44; N2164 (25 January 2001)

N2164

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

APP. NO. 24 OF 2001

BETWEEN:

LEONARD SABADI
- Appellant -

AND:

THE POLICE
- Respondent-

KIMBE: LENALIA, J.
2001, 2002: 23 Nov & 25 January.

APPEAL – Appeal against conviction and Sentence – One statement of facts – Two convictions – Two charges laid arising from one set of statement of facts – Two.

APPEAL – Appeal from decision of District Court – Allocutus not properly administered – Must be properly recorded – Though records show statement made in response to allocutus being administered, no record on worksheet.

CASES CITED:

The following cases are cited.
Wari Mugining –v- R. [1975] PNGLR 352
Charles Bougapa Ombusu –v- The State [1996] PNGLR 335
Kereku –v- Dodd [1969-1970] PNGLR 176
Mames Wewiong –v- Zania [1967-68] PNGLR 79
Michael Siwi and Others –v- John Bayam [1980] PNGLR 3000
Peter Man –v- John Korul [1996] PNGLR 426
Public Prosecutor –v- Tom Ake [1978] PNGLR 469

Benson Bareto –v- Donatus Kilimito [1990] PNGLR 125

Counsel:
H. Waninara, for Appellant
F. Popeu, for the Respondent

25 January, 2001

LENALIA, J. The Appellant appeals from his two convictions and sentences by the Bialla District Court which Court convicted him and sentenced him on the first count of discharging a firearm with intent to or in a manner likely to frighten, annoy or injure another person pursuant to s. 28 (3) and the second charge of carrying an offensive weapon pursuant to s.12 (1)(a) of the Summary Offences Act, Ch. No. 202. Convictions and sentences were recorded against the Appellant on the 2nd of August 2001.

The first charge laid against the Appellant was that pursuant to s. 28 (3)(a) of the Act. On this charge, the first information presented before His Worship on the 26th of June would look to have been faulty on which the magistrate put two amendments by two lines drawn on words amended and by insertion of a person’s name as "Luke Tari".

The second information of the name nature still with the same CB. No. 161/01 (AB. 17) carries the same wording but carries the name of a different complainant as "Anton Marinki". What is not clear both from the appeal book nor even from the written submissions is whether, the two information were intended to be presented separately since the two information bear the names of two separate complainants or not.

The Appellant first appeared on the 20th of June, 2001 and entered a not guilty plea to the charge of discharging a firearm. The case was adjourned for trial on the 26th of the same month. On that date, when the appellant appeared for trial, two things happened. First instead of conducting a trial, the Appellant personally amended his not guilty plea into guilty. He submitted a statement to that effect. (see AB. 24). On the basis of that statement His Worship amended the not guilty plea to guilty and adjourned to the 10th of July for submission on sentence.

The second factor happened on the 26th of June was that the Police Prosecutor filed a new Information. The new information was the one for carrying offensive weapon in the public place pursuant to s. 12 (1)(a) of the Summary Offences Act. When the second charge was put to the Appellant he also entered a guilty plea. Accepting the two guilty pleas, one for discharging a firearm and the second one for carrying offensive weapon, the magistrate further adjourned for sentence on 2nd of August 2001.

On the above date, the Appellant appeared and was sentenced to six months imprisonment on the first charge for unlawfully discharging a firearm and to three months for the charge of carrying an offensive weapon. The three months for the charge of carrying offensive weapon was made concurrent upon the six months first imposed.

On the date prior to prosecuting the appeal, Mr. Waninara of counsel for the Appellant sought leave to add two additional grounds of appeal. No objection was taken by Mr. Popeu of counsel for the Respondent. Leave was granted. Grounds of appeal relied on are -

1. The learned magistrate erred in law in proceeding to enter a guilty plea when there was only one statement of facts for both offences, and
   
2. The learned magistrate erred in law by accepting the statement of fact, which did not support the particulars alleged in the information.
   
3. a) The learned magistrate erred in law in that he did not administer the allocutus prior to handing down the sentence.
   

b) The leaned magistrate erred in law in taking the guilty plea in both cases as sufficient to require the administering of allocutus before sentence.

c) The leaned magistrate erred in law in imposing sentences on both charges without any evidence or merits on the basis of which sentences appropriate to the Appellant would be set.

d) The learned magistrate erred in law in sentencing the Appellant without any regard to sentencing principles in law.

e) The learned magistrate erred in law in failing to explain the nature of the charges to the Appellant, before taking the plea.

f) The learned magistrate erred in law in failing to record an amendment to the charge.

g) The learned magistrate erred in law in that it should have not directed police to need the statement of facts after taking guilty pleas in relation to both counts.

h) The magistrate erred in law in imposing a K400.00 cash fee the appeal.

i) The learned magistrate erred in law in failing to keep a detailed and full written account of proceedings.

In arguing this appeal Mr. Waninara of counsel for the Appellant submitted that there were two different charges and there ought to have been two separate statements of facts. He further argued that the learned magistrate should have proceeded with the more serious offence or alternatively should have disqualified himself from dealing with the second charge.

I now deal with the first two grounds. What is clear is there were two different charges contained in two separate informations. The first ground relied on is a guilty plea should not have been entered as there was only one single statement of facts presented to the learned magistrate. The basis of this argument is that since there were two distinct charges, their essential elements requiring proof were different and thus two different sets of statement of facts should have been presented and filed before the presiding magistrate. Due to this, Mr. Waninara of counsel for the Appellant argued that, the most serious of the charges should have been preferred and laid.

No authority was cited to support the proposition that there ought to have been two separate sets of statement of facts since there were two informations. The reverse of that argument is set out in s. 29 of the District Courts Act Ch. No. 40 which requires that there must be only one information for one matter only. Obviously this provision guards against the principle of duplicity.

My view is there was nothing wrong or irregular with laying a second information. It was in the discretion of the charging authority to lay a second charge. However, it raises an even stronger argument in favour of the Appellant, which was not addressed by counsel for the appellant nor the respondent’s counsel or even the submissions by the Appellant. The issue is, the Appellant could not have been properly charged and arrested on the second information. No warning could have been given the Appellant on carriage of an offensive weapon.

The court take it that the original charge laid against the Appellant was the one on which he was charged for discharging a fireman for which the Appellant entered a not guilty plea on the 20th of June 2001. The brief facts (AB. Page 19) presented to his worship does not specify if there were two charges to be laid although at the bottom of the statement of facts it says "NB... Refer to first charge for Antecedent Report." It is thus clear from the appeal book that only one set of statement of facts was accepted and used by His Worship to enter two convictions and sentences on the appellant.

The next issue is whether it was lawful and proper for the learned magistrate to accept one statement of facts for two separate charges, which constituted a series of acts done in prosecution of an unlawful purpose. The practice in the National Court pursuant to s. 531 of the Criminal Code is that several distinct counts may be joined against one single accused provided such counts arose out of closely related facts in prosecution of a single purpose: Wari Mugining -v- R. [1975] PNGLR 352.

The issues posed on grounds one and two of this appeal are distinct from the situation in the National Court where it is not permissible to join a charge of rape with wilful murder, murder or manslaughter in the same indictment: Charles Bougapa Ombusu -v- The State [1996] PNGLR 335. In the District Court, s. 29 of the Act guards against duplicity and provides –

"29. Information to be for one matter only.

An information shall be for one matter only, except that;

(a) in the case of indictable offences, if the matters of the information are such that they maybe charged in one indictment; and

(b) in other cases, if the matter of the information are substantially of the same Act or omission on the part of the defendant,

those matters may be joined in the same information".

By authority of Kereku -v- Dodd [1969-1970] PNGLR 176 the pre-independent Supreme Court held that the hearing of three informations together without the consent of the accused amounted to a mis-trial. However on a joinder of distinct offences on a complaint does not render the complaint a nullity, but the accused is entitled at the hearing to make an election to the prosecution which charged should be proceeded with: Mames Wewiong -v- Zania [1967-68] PNGLR 79.

Having examined those several authorities, no clear cut answer is given to the issue raised in the first two grounds of appeal, but my view is that I do not think it was at all irregular or improper for the learned magistrate to accept one statement of facts for two separate offences arising out from the prosecution of a single purpose. It has been the practice in the National Court that from the same set of facts several distinct offences can be presented in one indictment so long as they rose out of the same acts or omission.

An hint can be obtained from s. 531 (1)(2)(a) and (b) of the Code dealing with joinder of charges in the following terms:

"531. Joinder of charges: General rules.

(1) Subject to this Code, an indictment must charge one offence only and not two or more offences.

(2) Subject to Subsection (3), when several distinct indictable offences are alleged to be constituted.

• (a) by the same acts or omissions; or
• (b) by a series of acts done or omitted to be done in the prosecution of a single purpose,
  

charges of such distinct offences may be joined in the same indictment against the same person, and several statements of the offences may be made in the same form as in other cases, without any allegation of connexion between the offences.

(3) If in a case to which Subsection (2) applies, it appears to the Court that the accused person is likely to be prejudiced by the joinder, the Court may –

1. require the prosecutor to elect on which of the several charges he will proceed; or
   
2. direct that the trial of the accused person on each or any of the charges be heard separately.
   

(4) This section does not authorize the joinder of a charge of wilful murder, murder or manslaughter with a charge of any other offence".

Mr. Waninara of counsel for the Appellant submitted that the second leg of their argument in support of the first two grounds of contention is that what took place in the District Court at Bialla casts doubts on the proceedings because they argue that as it appears from the records, the offence of carrying an offensive weapon on a public place pursuant to s. 12 (1)(a) of the Summary Offences Act was only laid on the date of his second appearance namely the 26th of June 2001 and subsequently the most serious charge of the two charges should have been pursued: Michael Siwi and Others -v- John Bayam [1980] PNGLR 3000.

A further argument on ground two of this appeal is that his Worship the learned magistrate wrongly accepted the particulars and essential elements alleged in the two informations. After having examined the statement of facts (see A/B page 19), there was only evidence to support a charge under s. 59 (2) and (3) of the Firearms Act Ch. No. 310. Those two subsections say:-

"2) A person who, without lawful excuse (proof of which is on him), discharges a firearm in or over any occupied land without the consent of the owner of the land is guilty of an offence.

Penalty: A fine not exceeding K1,000.00.

(3) A person who, without lawful excuse (proof of which is on him), discharges a firearm from a motor vehicle on any roadway is guilty of an offence".

Quite apparently the brief facts (A/B 19) does not disclose the very essential element required under s. 28 (3) of the Summary Offences Act. Such elements as discharging a firearm with "intent to or in a manner likely to" frighten annoy or injure another person are apparently absent. The facts do not contain the names of those persons who were likely to be effected as intended in the section charged. I uphold grounds one and two of this appeal.

Grounds 3 (a) and 3 (b) may be lumped together. In these two grounds, the Appellant submits that no allocutus was administered to him before sentence. By reading through the records on the appeal book, it would appear as though the learned magistrate administered allocutuses. On record though it shows the negative. As shown on pages 21 and 25 of the appeal book on his second appearance, the charges were read to him and he pleaded guilty to both counts. His Worship entered provisional pleas; and the facts were put to the Appellant and quite orderly, the Appellant indicated the facts were correct. A ruling was recorded as "guilty as charge" on each count and the antecedents reports were put to the magistrate.

At that stage of the proceeding before the learned magistrate, the allocutus should have been administered to the Appellant as the records show that on that date namely 26th of June 2001, the two cases were further adjourned to the 10th of July the same year for submissions on sentence.

A lengthy two page submission dated the 30th of June 2001 was then tendered to the Court by the Appellant which I believe to be in response to the submissions by police prosecution submissions (see page 30 – 31 AB). Even on the date on which the Appellant was sentenced there is no indication on the work sheets if allocutus were ever administered to the appellant. On properly scrutinizing the records in the appeal book it is apparent no indication, was made by the learned magistrate if allocutus was administered on each case.

Not only that the practice and procedure requires allocutus to be administered to an accused person as the case of Peter Man -v- John Korul [1996] PNGLR 426. seem to say, but it is an element of exercising fairness to the prisoner to hear his views on what he thinks about the sentences that would be shortly passed on him. It is also a Constitutional breach pursuant to s.59 of the Constitution, which requires that the minimum requirement of natural justice is to act fairly and to be seen to act fairly and secondly, to protect against the idea that a convicted person might not have been afforded a fair hearing in terms of s. 37 of the Constitution.

Unlike in the National Court where both Criminal and Civil Procedures are quite elaborately laid down by the Criminal Code (see ss. 552 – 604) and the National Court Rules 1987, the District Courts Act 1963 as amended to date was very badly drafted. In that same document, both Criminal and Civil Procedures are found without a separate procedural rules for either Criminal or Civil. On the issue of allocutus s. 593 of the Criminal Code specifically provides that where an accused pleads or has been on trial and found guilty the "proper officer" of the Court or the Court itself is required to ask the prisoner if he has anything in relation to the sentence or sentences which will shortly be passed on him.

In relation to criminal procedure in the District Court, s. 128 (1) and (2) provide –

"(1) At the time appointed for the hearing of an information of a simple offence or an indictable offence triable summarily, the defendant shall be informed in open court of the offence with which he is charged as set out in the information, and shall be called on to say if he is guilty or not guilty of the charge.

(2) When the defendant is called on under Subsection (1), the hearing is deemed to commence."

Despite the procedural lack in criminal proceedings as provided for by the District Courts Act, it is abundantly apparent that, the Act itself provides for such procedural lack by the terms of ss. 131 of the Act and 46 of the District Court Regulations. The former provision says:

"131. Conduct of summary proceedings.

In respect of the examination and cross-examination of witnesses and the right of addressing the Court on the case in reply, or otherwise, the practice before a Court on the hearing of an information of a simple offence or an indictable offence triable summarily shall be in accordance as nearly as practicable, with the practice for the time being in the National Court on the trial of an issue of a fact in an action at law".

Section 46 of the Regulation also enhances the above quote by providing –

"46. Supplying deficiencies in Regulation, etc.

Where in this Regulation, there is no provision, or no sufficient provision, for or in respect of any matter or thing, then the Court may supply the deficiency, or allow it to be supplied, in such manner as may be just and proper, and for that purpose regard may be had to any relevant or analogous practice, procedure or form in use by, or for the purposes of, the National Court."

I would reiterate that administration of allocutus to an accused person is an important aspect of the administration of justice pursuant to s. 37 and 59 (2) of the Constitution and in compliance with criminal procedure by virtue of s. 593 of the Criminal Code. Though there appears to be there is procedural deficiencies in the District Courts Act, it is clear by my reading of ss. 22 (Civil Procedure) and 131 (Criminal Procedure) of the Act and s. 46 of the District Court Regulations, that the National Court Rules in Civil Procedures and the Criminal Practice Directions of 1987 and Procedure as stated in s. 593 of the Criminal Code in regard to allocutus must be adopted by the District Court where there is clear procedural lack in its practice. Thus grounds 3 (a) and 3 (b) of the appeal must be sustained.

Grounds 3 (c) of this appeal must be partially upheld. First there were two charges before the learned magistrate. One of the two charges was for discharging a firearm pursuant to s. 28 (3)(a) of the Summary Offences Act. A notable feature of essential elements required to be proven and this charge would have to be that at least someone must have been affected. To start with that someone is not named in the brief facts (see page 19 A/B). The section charged requires that there must not be any reasonable cause for discharging the firearm. The next important element is, there must be an intention on the part of the person charged. Then such action must be done in a manner which would be likely to injure annoy or frighten the complainant. Apparently the complainant’s name is not named in the facts and eventually, ground 3 (c) of the appeal ought to be upheld.

There was however sufficient information to support the second charge of carrying an offensive weapon pursuant to s. 12 (1)(a) of the Summary Offences Act. It was argued by Mr. Waninara of counsel for the Appellant that if there were any material facts to be relied on by his worship, it was the statement and the statement of facts only. Otherwise the learned magistrate was only influenced by irrelevant considerations to which I must agree. Could be imposed and these are very high penalties.

My view is, the learned magistrate sufficiently addressed the serious nature of the two charges in his judgment. For an offence of carrying an offensive weapon on a public place under s. 12 (1)(a), the maximum penalty is a fine of K2,000.00 or an imprisonment term of five years. On the charge of discharging a firearm pursuant to s. 28 (3)(a)(i) a fine of K1,000.00 in default two years imprisonment.

On ground 3 (d), the Appellant says that the sentences imposed on him were manifestly excessive. The Appellant’s lawyer cited the case of Public Prosecutor -v- Tom Ake [1978] PNGLR 469 for the proposition that on a guilty plea, an accused person’s version of facts should be most favourable to the accused. In fact in Tom Ake’s case (supra) the principle did not apply.

The principle stated in Tom Ake’s case is being distorted. The Supreme Court there said that were the evidence of the witness conflicted with that of the respondent in his record of interview, then on a plea of guilty the version of facts most favourable to the accused should have been accepted. The principle was distinguished in Tom Ake’s case on the grounds that neither on plea nor on allocutus was any challenges made to the facts sworn to in the evidence presented in that National Court.

In the instant appeal, the Appellant made two typed written submissions (see 23 and 24 A/B) explaining how he mistakenly discharged the firearm and secondly, his intention to amend his not guilty plea to guilty and Appellant’s explanation was that, he decided against a trial because it would have been too stressful to him and his family particularly his wife who has hypertension.

The brief statement of facts presented before the learned magistrate, did not contain the essential elements of intent nor were there any elements of any person who would have been put to fear or being annoyed or injured by the Appellant’s actions. Although the information contained the name of the victim being affected by the Appellant’s behaviour, the facts do not contain the essential elements of intent and, the name of the person or persons being likely to be injured, annoyed or frightened by discharging the firearm. The Appellant was charged pursuant to s. 28 (3)(a)(b) of the Summary Offences Act provides –

"3. A person –

(a) who without reasonable cause, discharges a firearm with intent to, or in a manner likely to—

(i) injure, annoy or frighten any person; or

(ii) damage any property; or

(b) who makes, possesses or sells a firearm, without being the holder of a valid licence under the Firearms Act 1978,

is guilty of an offence.

Penalty: A fine not exceeding K1,000.00 or imprisonment for a term not exceeding two years".

My view is although the Appellant had forgone the right to peruse a trial by amending his not guilty plea to a guilty plea on his first charge (discharging a firearm), the facts presented could not be reconciled to the information nor to the submissions on sentence both by the prosecution and the Appellant. This was a clear case where the learned magistrate should not have exercised his discretion to accept the Appellant’s proposal to amend the not guilty to guilty plea.

Despite the Appellant’s guilty pleas, it would appear, no consideration was given to the Appellant’s guilty pleas, his previous good character and apart from that other antecedents showed that the Appellant was employed by Hargy Oil Palms Ltd – Bialla – West New Britain Province. He was then holding the post of Chief Security Officer. At paragraph (5) of his third statement in reply to the prosecution submissions on sentence, the Appellant indicated he was a "hyperthyroid" patient and was taking "carbimazole" tablets continuously. These were all matters that should have attracted the magistrate’s attention when he sentenced the Appellant. Obviously such factors were not considered resulting in imprisonment of the Appellant. This ground must be upheld.

There is merit on ground 3 (e) of this appeal. This Court can only assumed that the nature of the two charges were sufficiently put to the Appellant. By examination of the two worksheets of the 20th and 26th of June 2001, the Magisterial Service has developed a format and standard worksheet used for criminal proceedings in the District Court. A presiding magistrate need only to either tick or delete whichever words are applicable in the proceedings before him or her. Despite this, below the paragraph which reads "Admits/Denies truth of information", on the worksheet of the 20th of June 2001, the magistrate recorded a not guilty plea to the first charge pursuant to s. 28 (3)(a) of the Summary Offences Act.

On the second charge a guilty plea was recorded but in both instances, above the record of guilty pleas, there is no indication in neither case if the nature of the charges were explained to the Appellant. There were no deletions or ticks to indicate if the nature of the charges were fully explained to the Appellant. This ground must be upheld.

Grounds 3 (f) and (g) can be put together. Although on the Charge of discharging a firearm, an amendment was made, there were two informations in fact, (see AB. Pages 16 & 17) for the same charge. On the one on page 16 of the appeal book an amendment seemed to have been incorporated. The other information on page 17 of the appeal book, no amendment was being recorded either on the information or even on the worksheet. Despite any incorporated amendments, my view is such amendments could not cure the deficiencies in terms of essential elements on the charge of discharging a firearm. There are no indications on the worksheet, as to which firearm charge was being prosecuted.

The worksheet on page 25 of the appeal book, does not even indicate if the amended charge was sufficiently put to the Appellant. Where a charge is amended it is a practice that the charge must be re-read to a defendant and he must fully understand the amended charge. That being the case, grounds 3 (f) and (g) must be upheld as well.

The second last ground of appeal (3 (h)) relates to the recognizance on appeal. The argument advanced by Mr. Waninara of counsel for the Appellant is that their client had entered into a recognizance as of the 3rd of August 2001. That taking the recognizance of itself vitiated the necessity of depositing any cash security. This relates to recognizance on appeal. Mr. Waninara further argued that s. 222 of the District Courts Act only authorises the payment of other security where the magistrate directs in writing. He further argued a recognizance on appeal is a promise that an Appellant will prosecute the appeal expeditiously and thus he does not need to pay any cash.

I am of the view that a "recognizance" and "surety" are two different words but may mean the same thing. The "Oxford Advanced Learner’s" Dictionary gives the following meaning to the term "recognizance" as "a promise by somebody who is accused of a crime to appear in a court of law on a particular date" and the second meaning given to the same word is "a sum of money paid as a GUARANTEE of this promise". On the phrase "surety" the meaning as appears from the same source means "money given as a promise that you will pay a debt" or "appear in a court of law, etc: She was granted bail with a surety of $500." The second meaning given there is "a person who accepts responsibility of somebody else does not pay a debt, appear in a court of law, etc" or "to act a surety for somebody"."

In terms of recognizances on appeal s. 222 of the District Courts Act says-

"222. Recognizance on appeal.

(1) Subject to Subsection (2), within one month after the day when the decision is pronounced an appellant shall enter into a recognizance with a surety before a Magistrate in such sum as the Magistrate thinks fit, conditioned—

(a) to prosecute the appeal; and

(b) to abide the order of the National Court on the appeal; and

(c) to pay such costs as are awarded by the National Court,

or the appellant may, instead of entering into a recognizance, deposit with the Clerk of the Court by which the conviction, order or adjudication was made such sums of money as a Magistrate in writing directs.

My view and interpretation of the term "recognizance with a surety" of Subsection (1) of Section 222 of the District Courts Act is the phrase is used interchangeably. It could mean a promise by itself together with a sum of money attached to that promise by the District Court concerned. It could also mean, a promise by an Appellant to prosecute his appeal with a surety being a separate person who may undertake the prosecution of an appeal by the Appellant.

The latter part of s. 222 (1) (c) of the District Courts Act throws further light on the concept of recognizance. It says in part and I quote, "instead of entering into a recognizance, deposit with the Clerk of Court by which the conviction, order or adjudication was made such sums of money as a Magistrate in writing directs." The immediate quote above would seem to be in line with the argument raised in favour of the Appellant that seeing the Appellant in this appeal had entered into a recognizance, there was no need for the same to pay the sum of K400.00.

In context of this appeal, I am prepared to accept the proposition that when his worship directed a recognizance, it meant a promise together with a sum of money attached to it.

On the final ground of this appeal, (3 (i) ) the Appellant contends that, the learned magistrate did not keep a detailed accounts of the proceedings. In support of this ground, the case of Benson Bareto -v- Donatus Kilimito [1990] PNGLR 125 was cited where it was held by the National Court that because there was insufficient notes taken down in writing the appeal Court (National Court) could not fully conduct a proper hearing. The judge directed a retrial. I adopt the ruling in the above case and apply them to the instant appeal.

As I have indicated earlier on, certainly there was obviously a number of procedural errors in the proceedings before the learned magistrate such as there were no deletions made to whether the Appellant admitted or denied the truth of the charges. There is no record of whether the allocutus was administered or not are just two of those deficiencies that appear from the records. The final ground is also upheld.

The appeal is upheld on the basis of substantial miscarriage of justice pursuant to s. 230 (2) of the District Courts Act. I make the following orders:

1. Appeal upheld and convictions and sentences quashed.
   
2. The matters be remitted to the Bialla District Court to be tried before another magistrate.
   
3. The recognizance and security attached to it (K400.00) be refunded to the Appellant.
   
4. Costs awarded in favour of the Appellant.
   

Appeal upheld.

Retrial Ordered.

Lawyer for the Appellant : Sialis Tedor & Associate, Lawyers
Lawyer for the Respondent : The Public Prosecutor