Ivarabou v Nanau [1967] PGSC 18; [1967-68] PNGLR 12 (14 February 1967)

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COURT FOR NATIVE MATTERS - Jurisdiction of Supreme Court to entertain appeal from Court for Native Matters - Plea of guilty wrongly entered - Delay in bringing on appeal for hearing - Sentence - Native Regulation Ordinance 1908-1963 - Native Regulations 1939-1962, regs. 30, 31, 71(a).

The appellant, an elderly man with no previous convictions, was charged before a Court for Native Matters with unlawfully striking a woman contrary to reg. 71(a) of the Native Regulations 1939-1962. He admitted the striking but from the explanation which he then proceeded to give it appeared that the defence of provocation arose on the facts. However a plea of guilty was entered and he was convicted and sentenced to imprisonment for three months with hard labour. Less than a week later an appeal to the Supreme Court against conviction and sentence was lodged on behalf of the appellant and he was released on bail pending the hearing. The matter was then overlooked by the appellant’s solicitor and the respondent’s solicitor took no step to bring the appeal on for hearing. Eventually the appeal was heard before the Supreme Court some fifteen months after conviction.

N1>(1) The decision to convict as on a plea of guilty was a nullity and the appeal should be allowed.

R. v. Blandford Justices, Ex p. G. (an infant), [1966] 2 W.L.R. 1232, applied.

R. v. West Kent Quarter Sessions, Ex p. Files, [1951] 2 T.L.R. 470; R. v. Durham Quarter Sessions, Ex p. Virgo, [1952] 2 Q.B. 1; Jensen v. McGrath, [1965-66] P. & N.G.L.R. 91; and Pukari-Flabu v. Hambakon-Sma (1966), 9 F.L.R. 180, referred to.

N1>(2) The sentence was manifestly excessive and the Court should infer that the judicial discretion as to sentence had been improperly exercised.

N1>(3) Because of the delay which had occurred since the entry of the appeal and because the sentence was manifestly excessive it would not be appropriate to remit the matter for rehearing and the conviction should therefore be quashed.

On 5th November, 1965, Laeka Ivarabou was convicted by the Court of Native Matters held at Port Moresby of unlawfully striking a female native Ivioro Sape contrary to the Native Regulations 1939-1962, reg. 71(a), and he was sentenced to imprisonment for three months. Against this conviction and sentence an appeal was brought, and all the relevant facts appear in the reasons for judgment.

FROST J: This is an appeal by the appellant against a decision of the Court for Native Matters held at Port Moresby on Friday, 5th November, 1965, whereby the Court found the appellant guilty under the provisions of reg. 71(a) of the Native Regulations 1939-1962, that on 2nd November, 1965, at Waigani Village, Port Moresby sub-district, he did unlawfully strike a female native, Ivioro Sape, and whereby he was sentenced to imprisonment for three months with hard labour at the Bomana Corrective Institution. The grounds of the appeal are set out in the notice of appeal:

N2>“1. That the Court wrongly entered a plea of guilty on behalf of the Defendant.

N2>2. On the facts placed before the Court a defence of provocation was open to the accused and should have been considered by the Court sitting as a jury.

Now the appeal is brought under s. 4 of the Native Regulation Ordinance 1908-1963, and I have already held that although no rules of the Supreme Court have been made relating to the practice and procedure in appeals, this Court has full power to allow an appeal if it appears to the Court that some substantial injustice and hardship will otherwise be caused to the appellant. I refer to the unreported case of Daure v. Mitchell[xvi]¹. The repeal of that section under the Native Regulations (Papua) Ordinance 1963, s. 6, cannot affect the appellant’s right of appeal, which has accrued under the Ordinance, or these proceedings: Ordinances Interpretation Ordinance (1949-1966), s. 44.

It is a matter which I have already referred to and which has caused me concern that notice of appeal was given as long ago as 11th November, 1965, and on motion made to this Court also on that day, this Court ordered that the appellant should have bail pending the hearing of the appeal, he then being discharged out of custody. At that stage he had served six days of the sentence of three months. I am concerned that this appeal has not come on for hearing until today, which is fifteen months after the original decision of the Court of Native Matters. It has been explained to me that the delay has been caused by the matter unfortunately being overlooked in the office of the Public Solicitor, and apparently also the Crown Law Department, omitting to take any steps to see that the appeal was brought on. However, I accept fully the explanation which has been given to me by both counsel that this is an unfortunate, individual case and that the present procedure is such that the delay would not again occur.

Now turning to the grounds of this appeal, Mr. Broadley, on behalf of the appellant, first submitted that the Court wrongly entered a plea of guilty. From the record of proceedings before me it appears that the appellant did plead guilty, and later he went on to give a statement in which he admitted that he did hit the woman with his flat hand three times, but in his statement he referred to circumstances leading to this assault. He alleged that the woman Ivioro had accused the appellant’s son of stealing some bananas, and had given the names of two witnesses to this alleged theft. At the request of the appellant at least one of the witnesses was interviewed, and when he denied that he had seen any such theft, it was then that the appellant, moved by the apparent false accusation, hit the woman with his flat hand three times. From the woman’s statement her complaint was that the defendant struck her on the face three times. Mr. Broadley argued that under those facts the defence of provocation under s. 268 of the Code arose for consideration, and that the Court should have then entered a plea of not guilty.

The record of proceedings shows that, in accordance with reg. 30 of the Native Regulations 1939-1962 the magistrate read and explained the charge to the appellant. I take it that the learned magistrate told the defendant that it was alleged that he had hit the woman about the face three times, he being then asked to admit whether he did hit her or not. The defendant pleaded guilty; I assume he said that he did strike the woman. But in offences such as common assault it is plainly not sufficient to get from an accused person merely an admission as to the assault because, upon all the facts, other defences such as self-defence and provocation may well arise.

This Court is not precluded from considering whether a plea which was made in a court of summary jurisdiction, taking all the defendant said into account, was really a plea of guilty or not guilty. A plea wrongly entered is a nullity. See R. v. West Kent Quarter Sessions, Ex p. Files[xvii]²; R. v. Durham Quarter Sessions, Ex p. Virgo[xviii]³; R. v. Blandford Justices, Ex p. G. (an infant)[xix]⁴. It has also been adverted to by Mann C.J. in Jensen v. McGrath[xx]⁵, and see also Pukari-Flabu v. Hambakon-Sma[xxi]⁶. Mr. Broadley cited and strongly relied on R. v. Blandford Justices, Ex p. G. (an infant)[xxii]⁷, the headnote of which is as follows:

“The applicant, a girl of 15, was charged with larceny of jewellery belonging to her employer and her employer’s guest.

She had made a statement to the police admitting taking the jewellery but said that she had intended to keep it only for a short while and then to return it.

When she appeared before the justices the charge was read out and she pleaded guilty. She was unrepresented and a police officer, giving evidence, read her statement. The plea of guilty was entered and the justices convicted her, and remanded her.

Subsequently an application was made to change the plea to ‘Not Guilty’ but the justices refused the application and again remanded the applicant.

On an application for an order of certiorari on the grounds, inter alia, that no proper explanation of the ingredients of the offence of larceny was given to her before she pleaded guilty, as required by Rule 6 of the Summary Jurisdiction (Children and Young Persons) Rules, 1933, and that she should have been permitted to plead ‘Not Guilty’:

N2>(1) that Rule 6 of the Summary Jurisdiction (Children and Young Persons) Rules, 1933, did not require an elaborate or detailed explanation of the constituents of the offence and that the charge had been sufficiently explained to the applicant.

N2>(2) But that while there was a point where justices were functus officio and could not re-open a case after an unequivocal plea had been accepted, where a defendant was unrepresented or was of tender age or for any other reason there was doubt as to his ability fully to decide whether or not to plead ‘Guilty’, the justices should accept a plea of ‘Guilty’ provisionally and defer final acceptance until they had had an opportunity of seeing whether there was any undisclosed factor which might render the plea misleading; that once it became apparent from the applicant’s statement that she had intended to return the jewellery, the justices were not in possession of an unequivocal plea of ‘Guilty’ but one which, properly understood, was ‘Not Guilty’, and that therefore their decision to convict was a nullity.”

Mr. Broadley relied particularly on the following passage by Widgery J.[xxiii]⁸:

“In every instance, as it seems to me, when a magistrate receives the reply ‘Guilty’ to the common form question asking the defendant to plead, it is necessary for the magistrate to consider whether it is safe to accept the plea and enter a conviction. Of course, in many cases, the question is not a difficult one. If the defendant is represented, if the defendant as in R. v. West Kent Quarter Sessions, Ex p. Files[xxiv]⁹ is a man of mature years who clearly understands what is being put to him, it may well be that the magistrate can accept the plea in the sense that he can regard it as being a satisfactory plea upon which he can safely act without further inquiries. But in cases where the defendant is not represented or where the defendant is of tender age or for any other reasons there must necessarily be doubts as to his ability finally to decide whether he is guilty or not, the magistrate ought, in my judgment, to accept the plea, as it were, provisionally, and not at that stage enter a conviction. He ought, in my judgment, in these cases to defer a final acceptance of the plea until he has had a chance to learn a little bit more about the case, and to see whether there is some undisclosed factor which may render the unequivocal plea of guilty a misleading one. I have no doubt that experienced magistrates in fact do in these cases wait until they have heard the facts outlined by the prosecution and wait until they have heard something of what the accused has to say.

If at that stage the magistrate feels that nothing has been disclosed to throw doubts on the correctness of the plea of guilty, he properly accepts it, enters a conviction and that is the end of the matter so far as this point is concerned.

If, however, before he reaches that stage he finds that there are elements in the case which indicate that the accused is really trying to plead not guilty or, as Lord Goddard C.J.[xxv]¹⁰ put it, ‘Guilty but’, then the magistrate has, in my judgment, no discretion, but must treat the plea for what it is, namely, a plea of not guilty.”

I consider that every word in this passage applies a fortiori in the Territory, particularly in cases where the defendant is a native and is unrepresented. It is rare in the Territory for a defendant simply to plead “guilty” or “not guilty”. The defendant usually admits or denies the elements of the charge. In this case when the defendant admitted that he struck the complainant, the learned magistrate was not in possession of sufficient facts to determine whether the defendant had unequivocally pleaded guilty to the charge. He should then have heard the substance of the defendant’s version before entering a plea. When the defendant went on and gave his explanation, from which it appeared that the defence of provocation arose on the facts, it was not open to the learned magistrate to enter a plea of “Guilty” and he should have proceeded to try the matter under reg. 31 of the Native Regulations, 1939-1962. Thus the decision to convict as on a plea of guilty was a nullity. R. v. Blandford Justices, Ex p. G. (an infant)[xxvi]¹¹.

I therefore find that there has been a substantial miscarriage of justice, and I therefore propose to allow the appeal. Mr. Broadley submitted that I should send the matter back for rehearing; however, for two reasons I propose to go further and quash the conviction. The first consideration I have in mind is the delay which has occurred since the entering of the appeal. Whilst it was true that the appellant omitted to bring the appeal on, the respondent took no steps to see that the appeal was brought on. After all, it was the respondent’s complaint under which the appellant was imprisoned, and the ends of justice strongly require a speedy determination of a case such as this where the appellant, having been sentenced to a term of imprisonment, is released from the corrective institution after serving a portion only of the sentence. At this late stage I do not consider that the appellant should be placed in jeopardy of being further punished.

Secondly, in my opinion, the sentence was excessive, and in any event the appellant has been punished enough. This Court should interfere with the sentence imposed in the exercise of judicial discretion only if it is satisfied that discretion has been exercised on wrong principles. It is not enough that the sentence should be greater than this Court would impose: House v. The King[xxvii]¹²; Cranssen v. The King[xxviii]¹³; Harris v. The Queen[xxix]¹⁴. “But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound.”: Cranssen v. The King[xxx]¹⁵, cited Harris v. The Queen[xxxi]¹⁶. Here we have a case of an elderly native about sixty years of age, who had no previous convictions, a married man living with his six children at Port Moresby, who, upon the facts, whether or not there was provocation in law, may well have been provoked by the woman, Ivioro, making a false allegation that his son had stolen her bananas. The case could have been dealt with by imposing a fine, but the learned magistrate may have taken the view that it was little use fining an unemployed. man. It seems to me that upon those facts for such a man to be imprisoned for three months, the sentence is so manifestly unjust, that this Court should infer that in some way there has been an improper exercise of discretion.

[xvi]S. Ct., P. & N.G., 1st March, 1969 (Frost J.)

[xvii][1951] 2 T.L.R. 470.

[xviii][1952] 2 Q.B. 1.

[xix][1966] 2 W.L.R. 1232.

[xx][1965-66] P. & N.G.L.R. 91.

[xxi](1966) 9 F.L.R. 180.

[xxii][1966] 2 W.L.R. 1232.

[xxiii][1966] 2 W.L.R., at pp. 1239, 1240.

[xxiv][1951] 2 T.L.R. 470.

[xxv] [1952] 2 Q.B. 1, at p. 6.

[xxvi][1966] 2 W.L.R. 1232.

[xxvii](1936) 55 C.L.R. 499.

[xxviii](1936) 55 C.L.R. 509.

[xxix](1954) 90 C.L.R. 652.

[xxx](1936) 55 C.L.R., at p. 520.

[xxxi](1954) 90 C.L.R., at pp. 655, 656.

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Supreme Court of Papua New Guinea

Ivarabou v Nanau [1967] PGSC 18; [1967-68] PNGLR 12 (14 February 1967)

Papua New Guinea Law Reports - 1967-68