Ula (No 2), Regina v [1975] PGSC 38; [1975] PNGLR 127 (3 July 1975)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 127 - Regina v Suk Ula (No. 2)

[1975] PNGLR 127

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

SUK ULA AND OTHERS (NO. 2)

Port Moresby

Prentice SPJ

3 July 1975

CRIMINAL LAW - Pleas - Withdrawal of plea of not guilty - Substitution of plea of guilty - By leave of court - Duty of court to be satisfied that safe to accept plea of guilty - Application made during cross-examination of accused - Relevant considerations - Application refused.

Four people were charged with wilful murder. One of the accused Suk Ula, had originally made a personal plea of guilty, which on the application of his counsel at the commencement of the trial was vacated and a plea of not guilty entered under s. 601a of the Criminal Code, (Queensland adopted). During the course of the trial, the accused gave evidence exculpatory of his co-accused and when half way through cross-examination by the Crown, sought to change his plea to guilty;

Held

N1>(1)      The common law practice, that a plea of not guilty may, by leave of the judge, be withdrawn during the trial and a plea of guilty substituted, is to be applied in Papua New Guinea.

N1>(2)      It is the duty of the Court to be satisfied that a plea of guilty may be safely accepted.

N1>(3)      The normal common law rule that once a witness is called he may not be withdrawn as a witness until cross-examination is concluded, also applies in Papua New Guinea.

N1>(4)      Further matters to be considered included the factor that the Crown should not be deprived of such assistance as it should get from a completion of the cross-examination in relation to the innocence or guilt of the co-accused; that even if a plea of guilty was taken there were still disputed facts and the need particularly in Papua New Guinea to scrutinize pleas of guilty very carefully. Reg. v. Gabai Vagi [1973] P.N.G.L.R. 30 referred to.

N1>(5)      In all the circumstances and in the interests of justice it would not be safe to accept a plea of guilty at the stage reached, and before cross-examination was concluded.

Interlocutory Ruling

The accused Suk Ula and three others were charged with wilful murder. The accused originally made a personal plea of guilty which on the application of his counsel at the commencement of the trial was vacated and a plea of non guilty entered under s. 601a of the Criminal Code, (Queensland adopted). The accused having given evidence in chief, and half way through cross-examination by the Crown, indicated that he wished to change his plea to guilty. The report deals only with the ruling made on this matter.

Counsel

A. M. Webb and W. J. Karczewski, for the Crown.

A. Alpine, for the accused Suk Ula.

C. F. Wall, for the other accused.

Cur. adv. vult.

3 July 1975

PRENTICE SPJ: The accused Suk Ula, has given evidence in this trial of four people for wilful murder. He has been examined-in-chief. Mr. Wall for the other defendants declined to cross-examine him. When well into his cross-examination by the Crown it was indicated by counsel after an adjournment, that the accused Suk wished to change his plea to guilty. I understood Mr. Wall to support the application that he be allowed to do so. The Crown opposed the application.

I stood the matter over to this morning in order that I might have the further assistance of counsel, as the turn which the trial had taken was quite a novel one in my experience. This morning Mr. Alpine has approached the matter in a slightly different way, by asking that his application that the plea of guilty originally entered by Suk be vacated, and that a plea of not guilty be entered under s. 601a of the Criminal Code — that that application now be withdrawn. I do not think that such an application can be withdrawn. The Court made an order on the application granting leave and entering a plea of not guilty in lieu of the original personal plea of guilty by the accused. In any event, if I had the power to do that, I would not agree to adopting that course. The Crown has opposed not only the form of application made by Mr. Alpine this morning, but also the alternative of the accused himself applying and being granted leave to substitute a plea of guilty at this stage; although the Crown agrees that such might not be an objectionable course after cross-examination of this accused had been completed.

The learned author of Archbold in his 38th ed. at par. 398 states the practice of the United Kingdom Court to be that “A plea of Not Guilty may, by leave of the judge, be withdrawn during the trial and a plea of Guilty substituted.” (Emphasis is mine). I think that ought to be the appropriate practice applied here. If a plea of guilty were entered at this stage, subsidiary questions might arise as to whether cross-examination of the accused should nevertheless continue. The normal rule seems to be that once a witness is called, he may not be withdrawn as a witness, until cross-examination is concluded.

The accused here, has put himself, of course on the advice of his counsel, in the position of being a witness in the trial of himself and three others. It is established that the slightest examination-in-chief of a witness opens up the whole of a cross-examination case. (Phipson 7th ed. at p. 459). And even if counsel calls a witness and changes his mind and asks him no questions, the findings of the court have always been, as I understand them, that the other side may well cross-examine him. (Phipson 7th ed. at p. 459 and Taylor 12th ed. at p. 911). If a witness is called by one co-defendant, he may be cross-examined by others against whom he has given incriminating evidence; and of course the same applies to a co-defendant giving evidence. (Taylor 12th ed. at p. 912). It is trite of course, that a witness is compelled to answer every question put to him in cross-examination relevant to an issue. (Phipson 7th ed. at p. 463). Normally a co-defendant ought not to be deprived of the right to cross-examine a defendant giving evidence. Some of the evidence given by a defendant before he sought to change his plea for instance, might inculpate co-defendants. It would be monstrous if one defendant could go into the witness-box and in sworn evidence inculpate others of these defendants, then change his plea to guilty, and by so doing deprive his co-defendants’ counsel of the right to cross-examine him. Even if a co-defendant has not inculpated other defendants, it seems that he may yet be cross-examined by their counsel to establish an alibi. See the South African case of State v. Langa (which is referred to in Cross on Evidence, Australian ed. at p. 266). The prosecution may of course rely on material gained in examination of one accused who gives evidence to support the case against co-accused. The extent to which this principle has been carried out is mentioned in the case of R. v. Paul[cxlv]¹, also referred to in Cross at p. 187, where one co-accused went in the witness-box and said he was guilty and said nothing more in-chief. (This case was approved by the Court of Appeal. One of the Law Lords has since criticised it.) He was allowed to be cross-examined by the prosecution in regard to matters which might inculpate co-accused. I mention these basic rules in the endeavour to clarify my own mind and to point out that the issue is not quite as simple as it might appear. In this case the accused Suk, has given evidence which may be taken as exculpatory of the other accused. I ask myself is it fair that the Crown should now be prevented from testing this. Even if Mr. Wall for the other accused should say “I ask you to discount any of the evidence that Suk has given in favour of my clients”, I do not think the Court could do this now that the evidence is before it. I feel that the Court should not be deprived now of such assistance as it should get from a completion of the cross-examination of Suk to establish either the innocence or guilt of the co-accused.

N1>A further factor is that in the latest of his admissions the accused does not appear to admit all the ingredients of the Crown case. Normally such a situation or type of plea — qualified plea of guilty — would require the trial of the issues of fact which were not admitted. And counsel will recall the decision of the Chief Justice Mr. Justice Burbury in 1972 in the Tasmanian case of Nash v. Haas[cxlvi]² which was followed by my brother Raine in R. v. Gabai Vagi[cxlvii]³. There are disputed facts remaining in this case even if a plea of guilty were taken on the basis of wilful murder generally, or in relation to the use of a piece of timber as contrasted with the Crown allegation of the use of a knife. These disputed facts as to possible actions in concert, the type of weapon used and so on, may go to the question of sentence of Suk on a plea of guilty or on a conviction otherwise, and they may of course go to the question of complicity or otherwise of the other accused. An additional consideration in Papua New Guinea is the constant necessity, as has been underlined by Mr. Wall’s submissions and citation of Clarkson J.’s decision in R. v. Namiropa Koinbondi[cxlviii]⁴ to scrutinize pleas of guilty because of the tortuous possibilities in this country of misunderstanding, or fraud, or attempt to shift blame from others; and the well-known practice in some areas of senior men marking down certain persons to accept responsibility for crimes committed by others. One normally does not in this Court, accept a plea of guilty finally and register a conviction until the evidence has been taken or read. There has been a most extraordinary course here of crimination and recrimination. Originally there was a plain admission such as would support a plea of guilty being entered by Suk. As I have mentioned above, on his counsel’s request a plea of not guilty was allowed by order of the Court to be substituted under s. 601a. Suk is alleged by the Crown to have made admissions to the police of killing the accused with a knife, and to have acted in concert with the other accused. To the District Court he said that he had admitted previously, using a knife but that was not true. He had killed the deceased John Alai — but he had killed him with a piece of timber. In evidence here in-chief he denied touching the deceased at all. He stated that the deceased, like his brother, was killed in the traffic accident and that John Alai’s body remained close by the vehicle untouched by him, until the ambulance arrived. Later in cross-examination he changed his story and said that he had killed John Alai with the timber, and he went on in cross-examination to add that he had never admitted using a knife.

It is my duty to be satisfied that a plea of guilty may be safely accepted. I note that at this stage it is sought to change the plea of Suk to guilty, but I do not think in the interests of justice and in the light of the considerations I have set out above, that I should grant leave for such a course at this stage. But I note that I shall probably allow that course to be taken after the completion of cross-examination of Suk — depending on the content thereof and my satisfaction that that course may then safely be taken. I will not therefore accept a plea at this stage, and I rule that the cross-examination should continue.

Ruled accordingly.

Solicitor for the Crown: B. W. Kidu, Crown Solicitor.

Solicitor for the accused: N. H. Pratt, Acting Public Solicitor.

R>

[cxlv][1920] 2 K.B. 183.

[cxlvi](1972) Tas. Irr. No. 1077.

[cxlvii][1973] P.N.G.L.R. 310.

[cxlviii][1969-70] P. & N.G.L.R. 194.