Vagi, Regina v [1973] PGSC 51; [1973] PNGLR 30 (17 October 1972)

Papua New Guinea Law Reports - 1973

[1973] PNGLR 30 - Regina v Gabai Vagi

[1973] PNGLR 30

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

GABAI VAGI AND OTHERS

Port Moresby

Raine J

13 October 1972

16-17 October 1972

CRIMINAL LAW - Plea of guilty - Dispute as to facts - Version of facts upon which Court to act.

Four accused pleaded guilty to a charge of rape but did not admit some of the facts relating to aggravation alleged in depositions taken at the committal proceedings.

Held

N1>(1)      Where the court does not take sworn evidence but has before it unsworn material it is the duty of the court to act upon the version of the facts, which within the bounds of possibility, is most favourable to the accused.

Nash v. Haas [1972] Tasmanian Irregular Notes 1077; [1972] A.L.M.D. par. 862 followed; Reg. v. Maitland, [1963] S.A.S.R. 332; Schugman v. Menz, [1970] S.A.S.R. 381; Law v. Deed, [1970] S.A.S.R. 374; Weaver v. Samuels, [1971] S.A.S.R. 116 referred to.

N1>(2)      In circumstances where sworn evidence had been given at the committal, not only as to the bare legal ingredients of the crime but also as to aggravating matter, and that aggravating matter was denied in unsworn material before the court, and not contested by the Crown, and the denials were not utterly unreal and in the teeth of the highest probabilities those matters of aggravation to the extent that they were denied ought to be ignored.

Judgment on Sentence

The facts are sufficiently stated in the judgment.

Counsel

Ross, for the Crown.

Cavit, for the accused.

Cur. adv. Vult.

17 October 1972

RAINE J: The four prisoners, who are aged 20, 17, 17 and 16 years respectively, pleaded guilty and admit the various elements of a charge of rape but they do not admit some of the facts alleged in the depositions taken at the committal proceedings. Placed with the papers and initialled by me is a list of these matters. On Friday last, when the indictment was presented, but the trial could not further proceed, counsel drew my attention to this state of affairs and were in some doubt as to what should be done. I referred counsel to a note I had of a decision of Burbury C.J., in Nash v. Haas[xv]¹ of 15th February, 1972. A similar report is found in 1972 Australian Legal Monthly Digest at par. 862 but as far as I know the case has not yet been fully reported. The report, which is only in headnote form, reads as follows:

“The defendant pleaded guilty to a charge of assault in a court of summary jurisdiction and said it was a practical joke. He was sent to prison. On motion to review

Held, that:

(1)      ‘a defendant must be given the benefit of any reasonable doubt on matters of penalty as well as on matters of guilt and innocence;

(2)      ‘a plea of guilty admits no more than the essential legal ingredients of the offence;

(3)      ‘where aggravating circumstances are asserted by the prosecutor and not admitted by the defendant, or mitigating circumstances are asserted by the defendant and not admitted by the prosecution, the proper course is to take sworn evidence, because, where there is a dispute as to the facts on a plea of guilty, the facts can only be determined by the ordinary judicial process in accordance with the rules of evidence, including the burden and standard of proof applicable in criminal cases;

(4)      ‘where the court does not take sworn evidence, but only has before it unsworn material it is the duty of the court to act upon the version of the facts, which within the bounds of possibility, is most favourable to the defendant;

(5)      ‘the court cannot reject facts asserted in mitigation without giving the defendant an opportunity to support his story on oath. This is not to say that the defendant even on a plea of guilty can be forced into the witness box’; and

(6)      the Justices Rules 1961, r. 42 (4), cannot be invoked to exclude the above principles.

Reg. v. Maitland, [1963] S.A.S.R. 332, Schugman v. Menz, [1970] S.A.S.R. 381, Law v. Deed, [1970] S.A.S.R. 374, and Weaver v. Samuels, [1971] S.A.S.R. 116, followed.”

I have read the last three South Australian cases referred to in Nash v. Haas[xvi]² (supra) and they certainly lend support to much that is set out in the headnote I have quoted. In Weaver v. Samuels[xvii]³ (supra), Bray C.J. said:

“The rule is that if the defendant desires to dispute circumstances of aggravation alleged in sworn evidence for the prosecution, he must do so by sworn evidence from himself or someone else; but if the aggravating matter is not sworn to, but is only alleged on the one hand and denied on the other in an unsworn form, then it is the duty of the court ‘to act upon the version of the facts which within the bounds of reasonable possibility, is most favourable to the accused’ (Maitland’s Case [1963] S.A.S.R. at 335). In addition I held in Law v. Deed [1970] S.A.S.R. 374 that if the defendant alleges circumstances of mitigation peculiarly within his knowledge which the prosecution is not in a position to negative, again his version must be accepted ‘within the bounds of a reasonable possibility’ and if the court is minded to reject it as beyond those bounds, it must at least give him an opportunity to support his story by his oath if he so desires.

I realise that an additional burden might well be placed on the overworked courts of summary jurisdiction if defendants invoked this right on a wholesale scale. But it seems to me that there is no escape. The defendant must be given the benefit of any reasonable doubt on matters of penalty, as well as on matters of guilt or innocence, in the absence of any statutory provision to the contrary. The plea of guilty admits no more than the bare legal ingredients of the crime. Any dispute as to anything beyond this must be resolved on ordinary legal principles, including the presumption of innocence.”

It is true that the situation here is not quite the same as in a police court, where the prosecutor reads out the facts to the court once there is a plea of guilty. Generally sworn evidence is not given. I appreciate that in my case sworn evidence has been given at the committal, not only as to the “bare legal ingredients of the crime”, but also as to aggravating matter. However, I do not really see much difference in my position and that of a magistrate, where an accused or a defendant says “Guilty, but . . .” At the committal the prosecution witnesses are often not tested by cross-examination and the defendants generally give no evidence. Here there was virtually no cross-examination before the committing magistrate and the prisoners gave no evidence nor did they elect to make a statement.

Counsel did not choose to disagree with the statements of principle in Nash v. Haas[xviii]⁴. However, as I respectfully agree with what both Burbury C.J. and Bray C.J. have said, I have gone into the matter for the purposes of this jurisdiction.

The Crown Prosecutor has indicated that he does not propose to contest the issues raised in the document I have referred to. Some of the matters not admitted are quite unimportant, but others are critical. As the Crown does not insist on proving these ancillary matters of aggravation, and accepts the denials, and as I do not find the denials utterly unreal and in the teeth of the highest probabilities, I therefore ignore matters of aggravation raised in the depositions to the extent that they are denied in the document I have referred to.

Ruled accordingly.

Solicitor for the Crown: P. J. Clay, Crown Solicitor.

Solicitor for the Accused: W. A. Lalor, Public Solicitor.

[xv][1972] Tas. Irr. N. No. 1.

[xvi][1972] Tas. Irr. N. No. 1.

[xvii] [1971] S.A.S.R. 116, at pp. 119, 120.

[xviii][1972] Tas. Irr. N. No. 1.