State v Tombos [2015] PGNC 191; N6097 (24 September 2015)

N6097

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1186 OF 2013

BETWEEN:

THE STATE

V.

ALICE MEI TOMBOS
Accused

Mendi: Nablu, AJ
2015: 10, 14, 17, 18, 21 & 24 September

CRIMINAL LAW – Plea of guilty – Murder – Criminal Code, s.300 – Depositions disclose defence of provocation or self-defence –Allocutus administered – Submissions on sentence made - Directions for further address – Court has discretion to change plea on own volition - Guilty plea vacated and substituted with a plea of not guilty after conviction but before sentence passed.

Cases cited:

Gedai Kairi v. The State (2006) SC 831
The State v. Joe Ivoro and Gemora Yavura [1980] PNGLR 1

The State v. Sari [1990] PNGLR 48
State v. Tepol [1999] N1941
Tomscoll v. The State (2012) SC 1208

Counsel:

S.Luben, for the State
C.Koek, for the Accused

RULING

24th September, 2015

1. NABLU, AJ: On 10th of September 2015, this matter came before me as a short plea matter. The accused, a 26 year old woman, and educated to tertiary level was in the first year of working as a primary school teacher when the offence was committed. She was represented by Ms Koek of the Public Solicitor's Office. The accused pleaded guilty on arraignment to a charge of murder. The State was represented by Ms Luben, of the Public Prosecutor's Office. When Counsel outlined the facts for the purposes of arraignment, there was no acknowledgment of any defences, such as provocation or self-defence. The facts as presented, appeared to support the charge of murder under Section 300(1)(a) of the Criminal Code.

2. The prosecution's case, was that this offence occurred in a domestic setting where the accused and deceased were co-wives to James Tombos. The accused was the third wife and the deceased was the second wife. On 29th of March 2013 at about 6pm, the deceased had gone to the husband's house at Heyap/Bela village to have dinner with the husband and the first wife. The accused was also there and confronted the deceased outside the kitchen and used a kitchen knife to stab the deceased on her chest. She pulled out the knife and fled. The deceased died from the penetrating stab wound.

3. The State alleged that the accused's act was not justified in law and that she intended to do grievous bodily harm to the deceased thereby causing her death.

4. Upon entering a provisional plea of guilty I then proceeded to reading the Court depositions. The evidence in depositions supported the State's allegation and I convicted the accused.

5. When allocutus was administered, the accused made a short statement which was interpreted from pidgin to English, which I reproduce below verbatim. She stated that;

"Your Honour, when I was interviewed, I denied the charge, reason why because I was in my house and three ladies came and attack. It wasn't my intention to murder that woman. I was in my house in the process of cooking and the lady came to me and she came and attack me so therefore as soon as she attack me I fell down and I swing the kitchen knife and attacked her that is why I denied the charge. I swing the knife and offended her so I feel guilty to the charge. For her death I feel guilty for the charge."

6. Counsel for the accused then required a few minutes to consult with her client after she was not able to continue.

7. When the Court resumed the accused made a short statement where she expressed her remorse and begged for the Court's mercy.

8. I then adjourned to 14th September 2015 for submissions on sentence.

9. Both Counsel made detailed submissions on sentence and a Pre-sentence report was also prepared by the Community Based Correction Officer, Mrs Suzanne Elias.

10. Upon careful and closer examination of the facts and the entire circumstances pertaining to the incident that gave rise to the charge, I had trouble accepting the plea of guilty, especially in the light of possible defences that may be available to the defendant like provocation and self- defence.

11. At the hearing, the State did not avert to any possible defence. The defence in their submissions did raise the point of de facto provocation but stated that they opted to argue that there was provocation in the non-legal sense and that should be taken into account as mitigating factor during sentencing. In the Pre-Sentence Report, Mrs Elias outlines in great detail what the accused said to her when she interviewed the accused. In her interview, the accused stated that she was preparing the evening meal in the kitchen when she was attacked by three women. She was 4 months pregnant when the crime was committed.

12. After informing Counsel of my difficulty in accepting the plea of guilty, I sought assistance from Counsel to enlighten me on the issue, so that I would be satisfied that the plea taken was in order. The matter was mentioned on 21st September 2015 where both Counsel made brief submissions.

13. The State maintained their position and argued that the accused was charged for wilful murder but after a plea bargain, the accused was indicted for murder pursuant to Section 300(1)(a) of the Criminal Code. There was no evidence of provocation. Furthermore, the conviction was formally entered and submissions on sentence were made and now the matter is before the sentencing court.

14. The Defence stated that they did obtain full instructions and were of the view that the full defence of provocation or self-defence was not available. Counsel was of the view that there was no supporting evidence and therefore the evidence had no weight to support the defence raised.

15. I am concerned about leaving the plea as it is on the facts presented by the Prosecution. The view I hold does not only stem from what the accused said in allocutus but the evidence in the court depositions. From the evidence, it is not disputed whether this defence raised was a "recent invention".

16. From the record of interview, the plaintiff stated that in Question 34 that she was in the kitchen preparing the evening meal and was cutting cabbage with a kitchen knife;

"At about 5:30pm I heard from voice from outside of the kitchen and I thought it was Vicky the first wife so I continue cutting the cabage. All of a sudden four females armed with knives and sticks entered the kitchen and caught me by surprise. They came and attacked me inside the kitchen and made me weak and also pregnant...[sic]"

17. The police investigators also stated in their statement that in the interview, the accused denied stabbing the deceased but says she was attacked by four women in the kitchen.

18. The only direct evidence is the evidence of a 16 year old witness who was the deceased's niece who says that she was walking towards the tank and was six or seven steps away from the deceased when she heard some noise. She turned around and saw the accused stab the deceased with a 30cm long knife on her right side, just above the breast. She stated that the accused pulled out the knife and ran away. The evidence of Lucy Kol, was obtained by way of a written statement. She stated that the victim was stabbed on the right side. But there is an alteration, where written above the word "right", is the word "left" in dark black ink and in capital letters. The alterations are not initialled.

19. Lucy Kol is the only eye witness. There is no confessional statement or admissions made in the accused record of interview. There is evidence of the post mortem and cause of death but that is not disputed.

20. Based on this evidence, I am not satisfied that the plea of guilty for murder is in order. There is possible defence for the accused. Furthermore, it is not for the Defence counsel to weigh the evidence, but rather the responsibility of the Court. In this case, the State's only evidence is that of an eye witness whose unsworn evidence should be tested because the accused states a different version of the facts.

21. There is clear evidence of a defence and by entering a plea of guilty would mean the accused may be denied justice. Also, her Constitutional rights of presumption of innocence, right to protection of the law and right to defend the charges would be prejudiced. The possibility or chance of acquittal or more importantly being found guilty of an alternative offence like manslaughter or unlawful killing would be affected.

22. The issue that is now to be determined is whether the Court can vacate a guilty plea and substitute a not guilty plea. This has been discussed and raised in a number of cases in this Court and the Supreme Court.

23. In the early case of The State v. Joe Ivoro and Gemora Yavura [1980] PNGLR 1 after discussion of various overseas authorities the Court held that;

"The Court had the power to change a plea of guilty after the plea is confirmed and allocutus is administered but before sentence is passed a plea of guilty may be changed in instances where the accused had not really plead guilty; there is a mistake on the part of the accused; there is a clear defence of the charge.

Where a plea of guilty has been changed to a plea of not guilty, the Court should not as a matter of course proceed to find an alternative verdict if the depositions support that alternative offence: to do so would be equivalent to finding the accused not guilty of the offence charged without the issue been tried according to law as required by Section 578 of the Criminal Code.

Where a plea of guilty has been changed to a plea of not guilty the proper procedure to be adopted is to ascertain whether the State wishes to proceed with the charge, or, to consent to a plea on a lesser or alternative charge which is supported by the evidence."

24. Furthermore, the Court held that a Judge should not sit to hear the case but should disqualify himself or herself.

25. Similar views were held in The State v. Sari [1990] PNGLR 48. The Court held that the power to change a plea of guilty to not guilty is derived from Section 57 and Section 155(4) of the Constitution. If the Court does not proceed to change the plea of guilty to not guilty where the depositions do not disclose a defence or prove all the elements of the offence or disclose possible defences, may amount to a denial of justice contrary to Section 37(1) and 4(a) of the Constitution.

26. Those principles were also upheld and applied in a number of cases like State v. Tepol [1999] N1941, which I have had regard to.

30. His Honour, Kandakasi J in the case of The State v. Nickson Pari (No.1) (2000) N2037 after considering a number of authorities in this Court and the Supreme Court stated that:

"These lines of cases make it very clear that, once a trial judge finds something inconsistent with a plea of guilty either from a perusal of the depositions or in the accused allocutus, the plea should be changed to 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 guarantees. Once a guilty pleas 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 maybe 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."

31. This passage was cited with approval by the Supreme Court in the case of Gedai Kairi v. The State (2006) SC 831 and recently in Tomscoll v. The State (2012) SC 1208 as the applicable law on guilty pleas to charges; disclosure of a defence known to law in the evidence or in an accused person's plea or allocutus.

32. For the foregoing reasons, I exercise my discretion to vacate the plea of guilty and enter a plea of not guilty and the State is to prove its case against the accused in the normal way. This matter is re-listed for mention at the next criminal call-over.

Office of the Public Prosecutor: Lawyers for the State
Office of the Public Solicitor: Lawyers for the Accused