Limagwe v The State [1976] PGSC 8; [1976] PNGLR 382 (3 September 1976)

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[1976] PNGLR 382 - NaI'u Limagwe, NeI'Awolo Nuwapi, Frari Ai'lomo and Apieri Worisi'Au v The State

CRIMINAL LAW - Practice and procedure - Plea - Application to enter plea of not guilty under s. 575[cdxliii]¹ of the Criminal Code - When application should be made - Power to enter plea within discretion of Court - Grounds for exercise of discretion - Duress as defence to charge of wilful murder - Duties of defence counsel.

N1>CRIMINAL LAW - Defences - Duress, compulsion - Whether defence available on charge of wilful murder - Offence committed before coming into operation of Criminal Code - Criminal Code s. 31[cdxliv]²

N1>LEGAL PRACTITIONERS - Counsel and client - Duties - Duties where confession of guilt by client - Putting State to proof of charge.

N1>(1) (Frost C.J. dissenting), An application under s. 575 of the Criminal Code, to enter a plea of not guilty should not be made until after the accused has been informed of the offence with which he is charged, and asked to plead to the indictment and after the plea has been heard.

(Per Prentice Deputy C.J.: The ancient common law practice which requires the accused to make his own plea, enshrined as it is in s. 569 of the Papua New Guinea Criminal Code was not intended to be altered by the addition of s. 575 to the procedural law.)

(Per Williams J.: Section 575 of the Criminal Code is to be regarded as additional to s. 579 and not in substitution for it; it cannot be interpreted as requiring the personal plea to be dispensed with; it is intended to provide an additional safeguard to accused persons who, whilst they may freely admit certain facts alleged against them, may be unaware of legal defences open to them (e.g. provocation and self defence), notwithstanding the existence of the admitted facts.)

N1>(2) (Frost C.J. dissenting). Leave to enter a plea of not guilty, after a plea of guilty has been heard, is a matter for the exercise of the Court’s discretion; where there is no material before the court beyond an expression of opinion by counsel that the matter ought to go to trial, refusal of leave to enter such a plea cannot be regarded as an exercise of that discretion upon a wrong basis.

(Per Prentice Deputy C.J.: The interposition of a plea of not guilty by counsel, when the accused express guilt of the crime charged ought to be made only after most careful consideration and with the utmost sensitivity.)

N1>(3) (Frost C.J. dissenting). Whether or not duress is available as a defence to a charge of wilful murder is a question which may be decided on an application to substitute a plea of not guilty, as being relevant to the exercise of the Court’s discretion.

N1>(4) (Frost C.J. not deciding). The defence of duress under s. 31 of the 1974 Criminal Code is not available as a defence to a charge of wilful murder laid under the Criminal Code (Queensland adopted); (Per Prentice Deputy C.J. nor is it available to a charge of wilful murder laid under the 1974 Criminal Code).

N1>(5) (Per Frost C.J. and Prentice Deputy C.J.) Where an accused person makes a confession of guilt to his counsel, counsel is under no duty to withdraw from the case; he may proceed to defend the accused so long as he goes no further than putting the State to proof of the charge; he is entitled to test the evidence given by each individual witness, and to argue that the evidence taken as a whole is insufficient to amount to proof that the accused is guilty of the offence charged.

Report of the General Council of the Bar in England in 1915 as set out in the Law and Conduct of the Legal Profession in New South Wales, Teece 2nd ed. pp. 64-66 and Tuckiar v. The King [1934] HCA 49; (1934) 52 C.L.R. 335 approved.

These were appeals by four appellants against their conviction for wilful murder on pleas of guilty, the trial judge having refused leave to enter pleas of not guilty pursuant to s. 575 of the Criminal Code. (See The State v. Nai’u Limagwe and Others, [1976] P.N.G.L.R. 314.

FROST CJ: This is an appeal against the conviction of the appellants for wilful murder at the March sittings 1976 of the National Court at Ambunti. The appellants seek to have the verdict set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; and on the ground of a wrong decision on certain questions of law by the trial judge: Supreme Court Act 1975, s. 22 (1) (a) and (b).

The point of the appeal is whether in the case of each of the appellants the trial judge was right in declining leave to enter a plea of not guilty to the charge. The case is an important one and I have found it necessary to write a lengthy judgment.

Each of the accused (as I shall refer to the appellants) came from a remote part of the Ambunti sub-Province. As so often is the case each spoke only their own place language so that two interpreters were required for them, an interpreter from English, the language of the Court, into Pidgin, and also an interpreter from Pidgin to the place language.

After the indictment was presented, the prosecutor, in the usual way, gave a short summary of the facts to enable the accused to be arraigned.

The State allegation, it appeared, was that the four accused jointly with others — the party included about 20 persons — wilfully murdered a woman named Tamu Waro. Each of the accused, other than the second accused, it was alleged took an active part and aided the others in the commission of the offence; Nai’u stabbing the deceased with an arrow, Frari stabbing her twice with a cassowary bone dagger and Apieri stabbing her twice with an arrow. So far as the second accused, Nei’Awolo, is concerned, the prosecutor alleged that that accused, knowing the way to the deceased’s house, led the others there, and in so doing either did an act for the purpose of enabling the killing, or by virtue of that act and his presence at the time of the killing aided the three other accused wilfully to murder the deceased. The case was thus brought under the Criminal Code, s. 7 (b) and (c).

The accused were then arraigned. The judge’s notes do not reveal the precise terms of the arraignment, but the interlocutory judgment later prepared by his Honour indicates that in accordance with the usual procedure in Papua New Guinea his Honour put to them the matters alleged by the State. Each accused was then asked to plead to the indictment.

It was at this stage that an application pursuant to (s. 575) of the Code was made by counsel who appeared for each of the accused except the second accused, and also by counsel for the second accused, that a plea of not guilty should be entered.

Notwithstanding anything in this Code contained, counsel for an accused person may, with leave of the court and after the accused has been:

The trial judge questioned whether the application should be made at that stage. His Honour’s view was supported by the State Prosecutor who submitted that the accused must first plead to the charge. His Honour then ruled that the plea must come from the accused before their counsel made an application under s. 575. The first accused then answered, “Yes, it is true”, and the other accused in the terms, “It is correct”. It is not surprising, in view of the primitive area from which it was clear that the accused came, that none of them pleaded in terms “guilty” or “not guilty”. But the established practice of the Court is to accept a plea of guilty where the accused admits each of the elements of the charge, if no other application is made by counsel for the accused, and upon an examination of the depositions, no other possible defence is shown.

Counsel for the three accused other than the second accused, following the judge’s ruling, then asked that a plea of not guilty be entered in each case. Counsel added, “I have perused depositions and additional statements and I have taken instructions from my clients and I have formed an opinion that a plea of not guilty should be entered and matter should proceed to trial.” His Honour then put to counsel, “How do I exercise my discretion, how do I decide whether to give you leave as to whether a plea of not guilty should be entered if you do not give me grounds?” Counsel replied, “If I were to elaborate it any further it would be disclosing my defence which I do not want to do.”

Counsel for the second accused, in support of his application stated that he had a possible defence based on duress.

The learned State Prosecutor then submitted that something more than a mere expression of opinion was required and added, as is the fact, that it has always been the practice of the Court for such applications not to be refused. He submitted that it was the proper practice for defence counsel to disclose the nature of the defence.

I should say at this stage that the Acting Public Solicitor stated with commendable frankness in this Court that it was unfortunate that counsel for the three accused did not in terms state his defence. In counsel’s support, it is possible that there has been some uncertainty as to whether putting the State to proof was generally regarded by the judges of this Court as a sufficient ground to obtain leave. However, I agree with the submission of the Acting Public Solicitor that it was implicit from the proceedings and accepted by the trial judge that counsel desired to test the State case. This is a point to which I shall have occasion to return.

After a short adjournment, counsel for the three accused was given a further opportunity to put to the Court something upon which the Court’s discretion could be exercised, but counsel had nothing further to say, and counsel for the second accused made admissions along the lines of the State case against his client, but conceded that much only. But in effect he stated his willingness to accept a ruling by the Court that the principle of duress would not apply.

His Honour then put to each of the accused, except the second accused, three further questions, as he explained in his interlocutory judgment, to make quite certain that there was no possible doubt that they were pleading guilty. The three questions were, did the accused admit killing Tamu Waro, did he admit he intended to kill, and did he admit stabbing the deceased, the first and fourth accused with an arrow and the third accused with a cassowary bone dagger. Each accused replied in the affirmative to each question. His Honour then found all four accused persons guilty of wilful murder and convicted them. In the case of the second accused the defence of duress was held inapplicable, by reason of the provisions of s. 31 (d) of the Code.

Acting on the view that as at the date of the offence the old Code was applicable and that the punishment for wilful murder thereunder was death, his Honour found that there were extenuating circumstances such that it would not be proper to impose the death penalty. His Honour took full account of the primitive purpose of the raid which was to kill the deceased who was a reputed sorceress. Sentences of imprisonment were then imposed of 5 years upon the first accused, 6 years upon the third and fourth accused, and taking into account the threats made to him by others who were party to the criminal design, a sentence of 2½ years upon the second accused.

However, under the new Code which came into operation on 1st November, 1975 — the trial was held on 24th March, 1976 —the punishment for wilful murder was a mandatory sentence of life imprisonment (s. 309) and, as put by the Acting Public Solicitor and conceded by the Public Prosecutor, in my opinion correctly, during the period until 1st April, 1976 when the amending Act was brought into operation, that was the sentence required under the Code. This result follows from the provisions of s. 11 (second paragraph) of the Code.[cdxlv]3 Although it has not been felt necessary for any action to be taken in respect of this invalidity, the point is not immaterial as it further emphasizes the gravity of the offence. Indeed if the point had been drawn to his Honour’s attention, even although the Act repealing the mandatory provision had been passed and it was only awaiting being brought into operation, I doubt whether his Honour would have refused leave. I have in mind the custom of the judges where the charge is murder to see that full consideration has been given to a plea of guilty and to accept the plea only if the Court is quite satisfied that this is so. R. v. David[cdxlvi]⁴. I would refer also to the case of The State v. Manga Kinjip[cdxlvii]⁵, a trial for wilful murder which took place on 15th March, 1976 at Mount Hagen — nine days earlier than the trial of the present accused. From the judgment distributed later, it appears that the trial judge, O’Leary A.J., in considering the related question of accepting a plea of guilty, adopted a very different approach from that taken at Ambunti. After referring to the presumption of innocence his Honour continued:[cdxlviii]⁶:

“When charged with a criminal offence, a person may remain silent. He cannot be required to incriminate himself. In fact, he cannot be obliged to say anything, and if he does say something that incriminates him, a Court will only listen to it if it is satisfied that he said it voluntarily and in the exercise of his own free will. When he is brought to trial he may take advantage of any weakness in the case presented by the State; he may test that case to the utmost of his, or his counsel’s ability; he may rely on any defence that is open to him in law.”

His Honour then referred to the responsibility which rests on a judge to ensure that, before he accepts a plea of guilty, “the accused person fully understands the course he has taken and the consequences of it. Where the offence charged is a grave one and the penalty provided by law heavy, the responsibility of the judge is correspondingly greater”. His Honour then had regard to the mandatory penalty for life imprisonment which he accepted was applicable, and decided to adopt the full precautions taken by Barry J. in R. v. David[cdxlix]⁷ before accepting a plea of guilty to murder. The judge accordingly required from the accused’s counsel a certificate that in pleading guilty the accused was not abandoning any defence open to him. If the same procedure had been adopted in this case it is clear that no such certificate would have been forthcoming from counsel, and a plea of guilty would not have been entered.

N1>The first ground of appeal is that the convictions were wrong in law in that the trial judge erred in law in ruling that, under s. 575 of the Code, the accused should first plead to the indictment before application could be made by their counsel to enter a plea of not guilty.

N1>In his interlocutory judgment the trial judge rejected in strong terms the defence contention, as his Honour put it, that the accused must be asked to plead, but the Court must not hear their plea. But, in my opinion, the defence submission based on the proper construction of s. 575 was clearly correct.

N1>The relevant sections of the Code concerning pleas commence with s. 569, which provides:

At the time appointed for the trial of an accused person, he is to be informed in open court of the offence with which he is charged, as set forth in the indictment, and is to be called upon to plead to the indictment, and to say whether he is guilty or not guilty of the charge.

The Code then provides that an accused person may before pleading apply to quash the indictment on certain grounds (s. 570) and, if he does not so apply, he must either plead to it, or demur to it, s. 572. It was on this section that at the trial the judge relied in holding that unless there is a motion to quash the indictment, the accused must plead. But in his interlocutory judgment his Honour rather took the view that the whole purpose of asking the accused to plead “was in order to hear what they have to say and not for the purpose of enabling defence counsel to say: ‘Your Honour has asked them to plead, s. 575 has been complied with and we can now make our application.’ “

The effect of that passage in the judgment is that the requirement that the accused should plead personally is to be inferred from the terms of s. 575. But the fundamental requirement that the accused should plead to the indictment is not left to inference. It is to be found not in s. 569 but in s. 572 where it is expressly laid down in mandatory terms that, except in the circumstances set out, the accused must plead to the indictment. It is however beyond doubt, in my opinion, that this provision is excluded from operation in cases where counsel proposes to make application under s. 575. This follows, as submitted by the Acting Public Solicitor, from the opening words in s. 575, “Notwithstanding anything in this Code contained” which mean that s. 575 is to be paramount irrespective of any other provision in the Code.

Of course in a normal trial the accused will at that stage plead guilty or not guilty. But other procedures are open to him. He may apply to quash the indictment (s. 570), or demur to it (s. 572). It is entirely appropriate that these steps are required to be taken immediately after the trial has begun which, as provided in s. 569, takes place when the accused is called upon to plead, and before pleading.

Although s. 570 expressly provides that an application to quash the indictment is to be made before pleading, it is consistent with that provision and also with s. 572 which enables an accused to demur without pleading, that a plea of not guilty should be entered if leave is granted to counsel under s. 575, also without the accused being required to plead.

I can find nothing in s. 575 to support the Public Prosecutor’s submission that the section is designed to secure in a proper case that, notwithstanding the express intent of an accused to plead guilty, his counsel may enter a plea of not guilty on his behalf.

As in the case of s. 569, the same procedural steps laid down in s. 575 do not go beyond calling upon the accused to plead. Those words in s. 575 serve the purpose of indicating to counsel that, the trial having at that point begun, his application for leave should then be made.

This construction is also supported, as submitted by the Acting Public Solicitor, by the significant omission from s. 575 of the words which appear in s. 569, “and to say whether he is guilty or not guilty to the charge”. It is true that those words are added perhaps needlessly because the traditional terms of the arraignment, that is the procedure of calling upon the accused to plead, are to the same effect. But their omission is a further indication that the accused is not to be required to plead personally unless his counsel is refused leave if it is sought under s. 575. In that event the accused is obliged to plead personally because s. 572 comes into operation.

The similar structure of s. 569 also makes the heading of that section significant. It is limited to the following, “Accused person to be called upon to plead to indictment”, which is entirely consistent with the construction of s. 575 put forward by the Acting Public Solicitor.

If an application to quash the indictment or a demurrer to it may be made upon the accused being called upon to plead, there can be nothing incongruous in a construction of s. 575 which enables an application for the entry of a plea of not guilty also to follow the arraignment.

The Public Prosecutor put an argument based on the final paragraph of s. 573 but that section, in my opinion, is confined to taking a plea from a person committed for sentence.

This construction is supported by two general considerations. First, to read into s. 575 an implied requirement that the accused should plead personally before counsel applies for leave is not only not open upon the scheme of this part of the Code, but would also introduce what is superfluous, for a plea of not guilty “puts everything in issue”. Carter’s Criminal Law, 4th ed., p. 474. There is even less warrant for implying a requirement for the accused to plead to enable his plea to be taken into account and used against him by the judge in making his decision whether leave should be granted.

Secondly, as the trial judge said, it appears that s. 575 is peculiar to Papua New Guinea. Its purpose is plainly grounded in the circumstances of the people of this country, a large proportion of whom, despite the expansion of education facilities, remains illiterate and entirely ignorant of the processes of the law. It was to deal mainly with this problem, in my opinion, that s. 575 was introduced, and to remove the great disadvantage to an accused person that he should be required to make a plea personally in legal proceedings when they are entirely beyond his comprehension.

My conclusion on the first ground of appeal therefore is that the pleas were improperly taken at the trial, and when counsel made their application under s. 575 the trial judge was wrong in requiring the accused to plead personally, before dealing with counsels’ application.

The Public Prosecutor was prepared for such a view being taken in this Court for he had an alternative submission that the error was one of procedure only and did not vitiate the conviction, as in the circumstances the trial judge, he submitted, was correct in refusing leave.

This brings me to the second and third grounds of appeal to the effect that the judge erred in law in not granting leave to enter a plea of not guilty.

At the trial the judge indicated that he would at a later stage give his ruling against the accused. The reasons for that ruling appear in the interlocutory judgment. There is much in it with which I cannot agree. The judge’s comment that there was nothing to prevent the accused from pleading not guilty ignores their primitive background. So far as making a plea is concerned, their mental ability was confined to answering certain questions of fact put by the Court as to the elements of the charge, the answers to which could be treated by the Court as tantamount to a plea of guilty — a legal process not capable of explanation to the accused.

The same misapprehension is seen in his Honour’s comment that “If, in spite of their counsel’s advice they choose to plead guilty counsel cannot prevent them from doing so.” The only warrant for his Honour to make this comment was, with respect, the tenuous basis that, having seen and heard the accused, he was “certain that they must have told their counsel that they were guilty”.

So far as the three accused are concerned — it is convenient to deal with their case first — his Honour held that if an accused person pleads guilty leave to enter a plea of not guilty will be granted if their is a real defence such as self-defence or provocation, but “If there is no real defence counsel will be in a difficulty because leave to enter a plea of not guilty will not be granted unless good grounds are shown”. The reason for the enactment of s. 575, his Honour considered, was to meet the situation “where an accused person of limited intelligence upon being arraigned for wilful murder would admit his guilt not knowing that the defence, say, of self-defence, would be open to him”. His Honour then went on to state, with respect correctly, that counsel must first obtain leave, and the Court has a discretion whether or not to grant leave, but it was a discretion which must be exercised judicially.

Let me again refer to the predicament of an accused person who has no English and is unable to comprehend the court’s procedure. If his case is a denial of the acts constituting the offence, he is able to make on arraignment the typical response, “I did not do it”, and a plea of not guilty is entered without difficulty. But what if it is desired to put the prosecution to the proof of its case? Under the Code this can only be effected by a plea in the terms “not guilty”. I have never heard it suggested that, in the Hiri Motu, Pidgin or any of the several hundred place languages spoken in Papua New Guinea it was possible to achieve a satisfactory translation of this term. Accordingly, if such an accused is to be properly arraigned, were it not for s. 575, it would seem necessary, before putting any questions to him as to the elements of the offence, to put to him the simple question, “Do you require the State to prove the case against you?”, a question which he would be incapable of answering without the assistance of his counsel.

The reason for refusing leave was that his Honour felt that if counsel “was not prepared to disclose the slightest grounds, not even to give a hint, to enable me to exercise my discretion in his favour perhaps he had no defence and was hoping to exploit some weakness in the prosecution case, or seek to raise doubt.”

It is thus apparent that, although the ground was not expressly stated by counsel, his Honour accepted that from what counsel said the reality of the situation was that counsel’s only defence was that he wished to test the prosecution case, a ground which his Honour rejected as being no “real defence”. This is confirmed by his Honour’s reference to the difficulties involved in the police investigation as they appeared from the depositions which his Honour read in the usual way before entering a plea of guilty. His Honour said, “In the event of a trial prosecution witnesses would be accomplices whose evidence would have needed to be corroborated, and, no doubt applications would have been made that prosecution witnesses must be warned that they are not bound to answer questions that are likely to incriminate them. Defence counsel would have had a field day and the prosecution a hard time proving its case. If the trial had ended in acquittal persons guilty of a heinous offence would go unpunished. But would this be justice?” His Honour’s final comment I shall refer to later.

The question now to be considered is whether there was a proper exercise of the judge’s discretion. The relevant rule of the common law which is applicable by virtue of the Constitution, Sch. 2.2. (1), is that there is in the eye of the law no valid exercise of a discretionary power if the Court acts on wrong principles or takes into account extraneous considerations. R. v. St. Pancras[cdl]⁸; R. v. McGill[cdli]⁹.

I have given full consideration to the submissions of the Public Prosecutor to the contrary but for reasons which I shall now set out, in my opinion, the learned judge acted on a wrong principle in refusing to grant the application, the ground of which was, in effect, that the State case was insufficient to prove the accuseds’ guilt, and the judge also erred in taking into account the admissions by each accused, which ought not to have been required under s. 575.

First, the effect of a plea of not guilty has under the Code the same breadth of meaning as at common law, which is to render it “incumbent upon the prosecution to prove every fact and circumstance constituting the offence charged in the indictment”. Archbold, 38th ed., para. 369. This rule is enshrined in its full force in the Constitution which preserves as a fundamental right that a person shall be presumed innocent until proved guilty, s. 37 (4) (a).

If the State is put to strict proof once a plea of not guilty is entered, I can see no reason why an application for leave by counsel to enter such a plea on the ground that it is desired to test the State case should not be a sufficient reason for leave to be granted. I shall consider in relation to the appeal of the second accused the question of the extent to which it is open to the judge to go into the merits of the application. However, in the case of the three accused, as his Honour said, counsel would have had a “field day”, so the merits of the application are not in issue.

Secondly, the provision in s. 575 that the plea is to be entered on behalf of the accused person is significant because, in my opinion, it is some indication that the power is conferred on counsel, with the leave of the Court, for a reason personal to the accused. Now the Code makes special provision for accused persons whose incapacity to understand the proceedings is due to some physical or mental disability, s. 581. It is not that sort of case that s. 575 deals with. In my opinion s. 575 is directed mainly to the case of an accused person of limited intelligence, as the trial judge put it, that is a person who is unable to understand the legal processes and, in particular, the full significance of entering a plea in terms of guilty or not guilty to the charge.

If an accused person whose standard of education is such that he is fully capable of understanding the procedure of making a plea under the Code, has the right to enter such a plea of not guilty without satisfying the judge that he has a good defence, or that the state of the prosecution case is such that he should be given leave to put it to the test, then I can see no reason for an accused who is unable to comprehend the criminal process being placed in a worse position.

As I understand the purpose of this section the real basis for leave being granted in a case such as the present is not so much to ensure that counsel should be able to satisfy the judge that there is a good defence, but rather is it the existence of a large proportion of accused persons in the country who are incapable of understanding the imported legal system.

It is true that a real responsibility both to the accused and the Court is placed upon counsel for the accused in deciding to seek leave. But there is no less responsibility upon counsel when the Court accepts a plea of guilty. No judge would feel fully satisfied to accept such a plea unless, in addition to resort to the depositions, he had the assurance of counsel that, upon an investigation of the case, there was no defence which would prevent the Court accepting as a plea of guilty the accused’s admissions to the elements of the charge.

These considerations may lead to the conclusion that proof by counsel of the accused’s lack of comprehension and inability to make a plea of not guilty in the terms required by the Code would in itself be a sufficient ground to grant counsel leave under s. 575. But it is not necessary in this case to go so far. The judge had deduced that counsel wished to test the State case, and in deciding that that was not a sufficient ground to grant leave, in my opinion, his Honour acted on a wrong principle.

For this reason and also because, in acting on the admissions of the accused which were improperly required of them under s. 575 in refusing leave, there was a resort to extraneous considerations, in my opinion there was no valid exercise of the judge’s discretion, and the conviction of the first, third and fourth accused must be set aside. As one of the basic procedures required for the proper administration of justice has miscarried, this is not a case for the application of the proviso contained in the Supreme Court Act, s. 22 (2). See R. v. McGill[cdlii]¹⁰; R. v. Barnes[cdliii]¹¹. Further, so far as these accused are concerned it could not be said that if leave had been granted the judge would have come to the same conclusion. Mraz v. The Queen[cdliv]¹².

N1>In relation to the appeal of the second accused, it follows from the above reasons that in requiring this accused also to plead before hearing counsel’s application for leave, there was a failure to comply with the provisions laid down in s. 575. The Public Prosecutor however submitted that, at the most, there was a breach of procedure only and it should not vitiate the conviction. He also submitted that his Honour was correct in refusing leave, and as there is no reason to suppose that the accused would have answered the arraignment in terms other than the admissions he had made, the result would have been the same, and accordingly there was no miscarriage of justice under the proviso contained in Supreme Court Act, s. 22, (2), and the appeal should be dismissed. (The Public Prosecutor also criticized the terms of the grounds of appeal, in their application to all appellants, but in my opinion the grounds are sufficient to raise the propriety of the trial judge’s exercise of discretion in each case).

N1>I have already referred to the course the trial took in relation to the second accused. In effect counsel invited the judge to consider the defence of duress as a matter of law and, as the judge said, indicated that he would accept the decision. At the outset I would point out that it was not open for the trial judge to act on the concessions of fact made by counsel because the Code goes no further than to enable the Court to act on admissions made by the accused personally (s. 601).

N1>This interpretation is supported by the fact that in Queensland it was felt necessary to amend the section to enable the accused to make admissions by his counsel. However, this point does not seem crucial for the concessions presumably went no further than the admissions already made by the accused in answer to the arraignment, and it was necessary for counsel to state sufficient of the facts if he wished the judge to rule on the defence.

N1>From the interlocutory judgment it appears that the only issue raised by counsel upon the terms of s. 31 (d) was the effect of the repeal of the death penalty when the Code came into operation on 1st November, 1975. As was pointed out by Williams J. during the course of the argument, his Honour’s ruling that as at the time the offence was committed the offence of wilful murder was punishable by death, on the terms of the section, the defence of compulsion was not open, is supported by the saving clauses following a repeal which are to be found in the Interpretation (Interim Provisions) Act 1975, s. 63 (1) (d) (e). Upon that basis his Honour ruled that the point went only to mitigation of penalty. Leave was refused and a plea of guilty entered.

In this Court the Acting Public Solicitor argued that the judge’s exercise of discretion was wrong, not only on the ground decided at Ambunti, but also because, from further consideration of the point, two further arguments were available. These were, first, that the particular words of s. 31 (d) provided no exception to the general provision in s. 23 that a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will; and secondly, that the recent statement by the House of Lords[cdlv]¹³ that at common law the defence of duress was open to a person charged as an aider and abettor, was, by a process of reasoning not clear to me, capable of application under s. 31 (d) (to which no consequential amendment has been made), following the abolition of the death penalty, as part of the criminal law of Papua New Guinea.

N1>I do not find it necessary or desirable to decide the question for, as will appear, I have decided that there must be a new trial. In my opinion the appeal is to be determined upon the propriety of the procedure adopted at the trial.

N1>It is useful at the outset to mention how s. 575 has worked out in practice since its forerunner came into operation in 1964. No other case is known to counsel in which an application has been refused. As I understand it, and in my own experience, the practice, say, in cases of offences against the person, is for counsel to state that he has a defence of self-defence, provocation, or a defence under s. 23 such as accident. In such cases the judge does not feel it necessary to depart from the long-standing practice of this Court of not reading the depositions or to examine the application further before granting leave.

N1>The approach to the problem, in my opinion, is to bear in mind that in the administration of criminal justice in Papua New Guinea, the Legislature could not have intended to depart from the basic standards laid down by the Code to ensure a fair trial, which is now stated as one of the fundamental rights under the Constitution, s. 37 (3). To my mind this consideration militates against the construction of a procedural section such as s. 575 is, in such a way as to enable a judge to give a binding decision that some specific defence is not open to an accused person, prior to his plea being taken, and on that ground refuse leave to enter a plea of not guilty. Such a procedure is unknown to our law and contrary to the spirit of the Constitution, s. 37 (4) (a).

N1>In my opinion it would be a gave departure if a judge was enabled to rule finally on a defence except upon the trial after a plea of not guilty, and after the evidence has been placed before the judge. The fact that it is also not a practical construction is against its adoption. If the judge rules against the accused and refuses leave, and then calls on the accused to plead and, as might well happen in certain provinces, the accused at that stage decides to plead “I did not do it”, a plea of not guilty would have to be entered. Presumably the previous decision would have to be treated as otiose and perhaps a new trial ordered.

N1>I do not consider that s. 575 was intended to introduce a procedure analogous in one basic respect to that upon an application by a plaintiff for leave to sign judgment in a civil case where the defendant must show a good defence on the merits before obtaining leave to defend, or that such a procedure has any place in the criminal justice system of this country.

N1>It follows from these considerations, in my opinion, that in a case such as the present where by reason of the language barrier and his primitive condition the accused is unable to comprehend properly the significance of the pleas open to him upon the charge, it is sufficient ground to obtain leave under s. 575 for counsel to state either that he wishes to put the State to proof of its case, or to put forward a defence, such as duress in this case, which is relevant to the nature of the charge, unlikely although it may be to succeed. That is a sufficient statement for the purpose of this appeal. But as may be apparent from this judgment, if necessary, I would be inclined to go further and hold that the inability of such an accused to enter a plea personally would in itself be a sufficient ground for leave to be granted.

N1>To the objection that this construction takes the control of the proceedings away from the judge, and, as the trial judge put it, reduces “the role of the judge to that of a rubber stamp for the endorsement of counsel’s opinion upon the Court record”, I would say that the entry of a plea has traditionally never been the subject of judicial control, except, of course, to ensure that a plea of guilty is not accepted unless it is properly understood by the accused. The objection also fails to take account of the fact that it is fully open to an accused who is capable of pleading personally, on the advice of his counsel or of his own option, to plead not guilty although the prosecution case is watertight and the defence without substance.

N1>This case illustrates the recurring difficulty which arises from accused persons who are charged with committing an offence in their own country being tried under a foreign criminal justice system imported without adequate adaptation. In Australia, from which the Code was brought, the indigenous population is aware from youth up that a criminal trial starts with a plea of guilty or not guilty. But these pleas are beyond the comprehension of most accused in Papua New Guinea. What has been done is to provide an inbuilt safety valve. It is the enactment of s. 575 of the Code which enables counsel with the leave of the Court to enter a plea of not guilty, and it is made effective by the long-standing practice, continued since the pre-Independence era, of assigning counsel to appear for accused persons. For the reasons I have stated, in the case of the three accused, the trial judge should have had regard to their primitive background and the apparent ground for counsel’s application, and the judge acted on a wrong principle in refusing leave to enter a plea of guilty. It meant that these accused were effectively deprived of the chance of acquittal on the State case.

N1>So far as the second accused is concerned, in my opinion, there was no proper exercise of discretion on the part of the judge, even at the invitation of counsel, in refusing leave to enter a plea of not guilty. The ground his Honour acted on was that on the facts as admitted by the accused and upon the arguments of counsel, the defence stated could not succeed. That issue should have been left to be decided on the trial in the ordinary course of the administration of justice which the Code maintains. Because a basic standard for a fair trial was not observed, the conviction of this accused also cannot be supported under s. 22 (2) of the Supreme Court Act 1975.

Before leaving this case I should refer to passages in the interlocutory judgment in which his Honour stated his view of counsel’s duty following a confession by a client. The first is, “I would have thought counsel’s duty was clear: to follow his client’s instructions and not seek by devious means to get the Court to record a plea of not guilty.” The other is as follows: “An English barrister may not defend a client who tells him he is guilty. He must advise him that if he wishes to defend the case he must engage another counsel but not tell him he is guilty. It is a code which I would commend to counsel in this country.”

These views, with respect, are unjustified and cannot be supported by the authorities. They go beyond counsel’s responsibility as stated in Archbold, 38th ed., para. 367, citing R. v. Hall[cdlvi]¹⁴, which was referred to by the Acting Public Solicitor:

“The responsibility of pleading guilty or not guilty is that of the defendant himself, but it is the clear duty of defending counsel to assist the defendant to make up his mind by putting forward the pros and cons of a plea, if need be in forceful language, so as to impress on the defendant what the result of a particular course of conduct is likely to be: ...”

and also the entirely practical observation in R. v. Turner[cdlvii]¹⁵ as follows:

“Counsel must be completely free to do what is his duty, namely to give the accused the best advice he can and if need be, advice in strong terms. This will often include advice that a plea of Guilty, showing an element of remorse, is a mitigating factor which may well enable the court to give a lesser sentence than would otherwise be the case,”

More specifically the duty of counsel where an accused person makes a confession to him will be found stated in the Report of the General Council of the Bar in England in 1915 which is set out in Teece, The Law and Conduct of the Legal Profession in New South Wales, 2nd ed., pp. 64-66, also cited by the Acting Public Solicitor. That Report makes it clear that although such a confession imposes very strict limitations on the conduct of the defence, counsel is under no duty to withdraw from the case. The Report states the duty of counsel to whom such a confession is made as follows:

“No clearer rule can be laid down than this, that he is entitled to test the evidence given by each individual witness, and to argue that the evidence taken as a whole is insufficient to amount to proof that the accused is guilty of the offence charged. Further than this he ought not to go.” (p. 65).

In Australia the situation arose in Tuckiar v. The King[cdlviii]¹⁶ where a confession was made during the trial to counsel by an accused charged with murder. The High Court said of counsel’s predicament:

“He had a plain duty, both to his client and to the Court, to press such rational considerations as the evidence fairly gave rise to in favour of complete acquittal or conviction of manslaughter only ... Whether he be in fact guilty or not, a prisoner is, in point of law, entitled to acquittal from any charge which the evidence fails to establish that he committed, and it is not incumbent on his counsel by abandoning his defence to deprive him of the benefit of such rational arguments as fairly arise on the proofs submitted.”

I see no reason why these statements should be regarded as inapplicable to the circumstances of Papua New Guinea. I therefore have no doubt that if the accused in this case made statements amounting to a confession of guilt to counsel there was nothing to have prevented him from proceeding with their defence, so long as he put the State to proof of the charge.

In the final passage of his judgment his Honour made further general comments in relation to the conduct of counsel. His Honour’s comments as to the duties of counsel to his client and the Court, with respect, would be accepted by all judges.

But, with due respect, his Honour went too far in saying of counsel, was he “speaking with the frankness which is expected of counsel in suggesting he had a defence when he had none? And is it in the interests of the public that guilty persons should go unpunished?” In suggesting that he wished to test the case or, as his Honour put it, that he hoped “to exploit some weakness in the prosecution case”, or sought to raise a doubt, it is clear that counsel was doing no more than his plain duty. Of his Honour’s remaining comment (which is in similar vein to the comment I said I would return to) all I wish to say is that it appears to be quite contrary to the presumption of innocence.

I would therefore allow the appeal in the case of each accused, and set aside the conviction. I would also order a new trial.

PRENTICE DCJ: The appellants are said to have killed a woman during the month of June 1975. They were committed for trial on a charge of wilful murder on 27th November, 1975.

They were tried at Ambunti on this charge early in March 1976 after pleas of guilty had been entered. Sentences of 6 years, 5 years and 2½ years of imprisonment were imposed. Some days later the trial judge gave reasons for his previous decision that applications to set aside pleas of guilty and to substitute pleas of not guilty, be refused.

At the time the deed was allegedly committed, the Criminal Code (Queensland adopted) as it applied in the New Guinea section of Papua New Guinea, was in force.

On 1st November, 1975 the replacement Criminal Code of 1974 came into effect. The Criminal Code (Amendment) Act No. 2 of 1976 came into effect on 1st April, 1976. At the time the appellants were convicted and sentence the only punishment available in cases of wilful murder under Act No. 2 of 1976 was life imprisonment.

On the trial the indictment was translated to the accused on arraignment — and they were asked to plead. The actual form his Honour’s words took is naturally not available. At this stage and before replies, counsel intervened and asked that pleas of not guilty be entered. The judge queried whether this could be done before a plea was taken from the accused personally. Argument was heard on the point. His Honour ruled that a plea must come from the accused before counsel may make application under s. 575 of the (1974) Code to change the plea. We must assume, I think, when nothing to the contrary is suggested, that his Honour had plainly and fairly stated the ingredients of the charge and in accordance with the prosecutor’s opening. Each accused had answered in terms which would on their face justify entry of pleas of guilty.

“I would ask for a plea of not guilty to be entered. I have perused the depositions and additional statements and I have taken instructions from my clients and I have formed an opinion that a plea of not guilty should be entered and the matter should proceed to trial.”

“Is it sufficient for you to say that it is your opinion that a plea of not guilty should be entered? How do I exercise my discretion, how do I decide whether to give you leave as to whether a plea of not guilty should be entered if you do not give me grounds?”

“If I were to elaborate it any further it would be disclosing my defence which I do not want to do.”

Counsel for the remaining accused Nei’Awolo, apparently is to be taken as joining in the above-mentioned application on his own client’s behalf; but stated that he sought to raise the question of duress as a defence.

The prosecutor addressed, supporting the view initially taken by the judge. Counsel for the three accused subsequently said: “I have nothing further to add. My application stands as it is.” The judge then stated: “In my view it is not sufficient for counsel to say that in his opinion a plea of not guilty should be entered. If the Court has a discretion whether or not to allow a plea of not guilty to be recorded counsel must tell me something upon which I can exercise my discretion. I give him another opportunity to enable him to tell me why I should exercise my discretion and enter a plea of not guilty.”

It will be seen that counsel gave no inkling of the basis on which he considered the pleas of guilty should be set aside, nor has it been suggested, even at the hearing of this appeal, that any special defence such as compulsion, self defence or provocation lay open; nor that the evidence taken on committal did not support a conviction. Counsel for the appellants, as I understand him, suggests that though counsel for the three accused should have disclosed his hand to assist his Honour, nevertheless his remarks indicated an intent to challenge the State case by testing the evidence, and that this was sufficient to justify exercise of the judicial discretion in his favour.

The argument on behalf of Nei’Awolo, raising as it did a question of duress, stands on a different footing and I shall come to it later.

In these circumstances appellants’ counsel contends that the trial judge erred (1) in ruling that a plea must be taken from accused persons before an application to substitute a plea of not guilty may be made by counsel; and (2) in refusing counsel leave so to substitute a plea of not guilty after pleas of guilty had been initially entered. The relevant sections appear to be as follows:

Notwithstanding anything in this Code contained, Counsel for an accused person may, with leave of the Court and after the accused has been:

Section 575 of the present Code had its origin in a section numbered 601a, identical in terms, which was introduced by Act 31/1964 into the Code then applicable in New Guinea. That section has been much used, and has been found very useful and suitable to the condition of trials in this country where people are naturally in difficulty appreciating the defences open to them to charges under the introduced law. A perusal of the section leads inevitably to the conclusion that it vests the trial judge with a discretion either to grant or refuse leave to enter a plea of not guilty on behalf of an accused person after certain procedures have been gone through. Counsel for the appellants concedes that this is so, and that something must appear upon which the discretion may be exercised.

In contending that counsel may intervene to prevent a reply to the arraignment, it was submitted that such had been the practice on occasions of some of the judges of the Court in Papua New Guinea, both before and after Independence. Appellants’ counsel in his submission on the interpretation of the section, relied heavily on the omission from s. 575 of the words of s. 569 “... and to say whether he is guilty or not guilty of the charge.”

I do not recall this matter having hitherto been the subject of submissions before me. My recollection is that I myself may have allowed such interventions by counsel in some cases. Perhaps it was on the basis that the nature of the material indicated in the prosecuting counsel’s opening remarks, which the judge uses to frame an arraignment in terms understandable by the accused, of itself indicated that a plea of not guilty should properly be allowed in any event.

After hearing submissions on the point, I am of the opinion that the Code requires the accused to be heard from. The ancient practice in the United Kingdom was and is that a plea is made by the accused himself, not by counsel (see Archbold 38th ed., para. 367, Rex v. Heyes[cdlix]¹⁷ and R. v. Turner[cdlx]¹⁸). The rule of practice was no doubt founded on the necessity for proper identification and to ensure understanding on the part of the accused. One can envisage that it became even more desirable in a joint trial.

N1>That the ancient practice enshrined as it is in s. 569 of our Code, was not intended to be altered by the addition of s. 575 to the procedural law, appears from a number of considerations. Firstly, recourse to s. 575 is reliant upon the exercise of the judge’s discretion, and the accused’s replies to the charge by way of plea might well form a substantial, perhaps one of the most important elements to be considered by the Court on the application. What the accused says may become of considerable use to the Court upon sentence, if the trial proceeds to conviction. The accused, or one of many accused may have changed his mind after conference with his counsel and may be at odds with his counsel or fellow accused. There may be differential pleas put in by various accused which may help consideration of s. 575 applications in the cases of others. I consider that “pleading” is as the Public Prosecutor submits, a term of art, indicating a process which is spelt out in s. 569 under the section heading “... Called upon to Plead ...”. This process is I think being referred to in s. 575 when it refers to being “asked to plead”. The effect of the words “Notwithstanding anything in this Code contained” is I think, that despite an expression of guilt by the accused, counsel may nevertheless be allowed to enter a plea of not guilty. That the accused’s plea on arraignment should be actually recorded would also seem to be necessary, when one considers that should the Court refuse leave, it would then be necessary for the Court to re-arraign in order that a plea be recorded from the accused. The legislation makes no provision for such an eventuality.

N1>For these reasons I am satisfied that his Honour made no error in insisting that the accuseds’ replies to the charge should be taken before entertaining an application under s. 575.

Counsel maintains that even though an application under s. 575 made prior to plea taken may be regarded as premature, his Honour, the trial judge, should have acceded to the application when it was renewed subsequently. The failure to do so, has had the effect, he submits, that the accused have been deprived of their right to a trial. In this Court it is suggested that there were many factors which might have militated against the accuseds’ having a proper appreciation of the charge and of their right to plead not guilty. He points to the number of interpreters (3) being used in this case, and the remoteness of the area from which the accused came. He points to the decision of Wickham J. in R. v. Grant[cdlxi]¹⁹ wherein the Court refused to accept statements amounting to a plea of guilty from a full-blood Australian aboriginal. Wickham J.’s decision would appear to suggest that where difficulty is experienced in Western Australia in translating phrases and concepts of the Criminal Code into an aboriginal dialect, a trial of the issue of fitness to plead should ensue, and upon it being answered affirmatively a plea of not guilty should be entered. One phrase which was purportedly translated therein was “How say you — are guilty or not guilty?” to which the accused aboriginal was interpreted as replying “Yes” (to the surprise of his counsel). A series of questions were then asked which led the judge to the conclusion that many of the questions were not understood. The judge’s conclusion was that it was impossible to obtain a plea.

N1>Now in Papua New Guinea it is not the practice to use the time- honoured phrase when seeking a plea; nor is the indictment sought to be translated literally. Prosecuting counsel on request of the judge gives a very short statement of alleged facts and the judge then puts to the accused these facts incorporating the ingredients of the offence charged, with the addition that what was done was said to be contrary to Government law. The accused is then asked to say whether it be true or not “What the Government says”. Little difficulty is usually encountered in obtaining an answer “true” or “not true”. There is no suggestion that the trial judge in this case put the “facts” in arraigning the accused, in an unacceptable, unusual or confusing form. To my mind nothing appears in the depositions on committal or in the record of the trial to support the suggestion that the accused had an insufficient understanding of the charge or that answers thereto were made under misapprehension of rights or duties, where mistranslated, or made as the result of misunderstanding of the law.

N1>His Honour the trial judge in his judgment delivered subsequent to his ruling, made some remarks critical of counsel’s attitude and relevant to counsel’s professional rights and duties, once an accused had confessed guilt to him or pleaded guilty. With the greatest respect, I find myself unable to agree with some of these comments.

N1>Though in certain parts of the world it is now being urged that defences in criminal trials should be raised with some particularity, the law under the Criminal Code of Papua New Guinea is that a plea of not guilty may be put in general terms. By merely pleading “not guilty” an accused is deemed to challenge the State case in detail. It is then incumbent upon the prosecution here, as it is in the United Kingdom (Archbold 38th ed., para. 369) “To prove every fact and circumstance constituting the offence or offences charged in the indictment”. And it would seem that by virtue of s. 578, as in the United Kingdom, “Under this plea the defendant may give in evidence not only everything which negatives the allegations in the indictment but also all matters of excuse and justification, and all matters which bring him within exceptions and provisos in his favour contained in the enactment creating the offence if the burden of proof thereof lies upon him.”

There can be no doubt that it was open to the accused in this case as in all, to put the prosecution to the proof of its case, so that the content and reliability of the prosecution witnesses’ evidence might be tested. Even in a case where an accused has privately admitted guilt to his counsel, he is still entitled to plead not guilty; and I consider it correctly said that if his counsel is put in such a position and is unable without prejudice to his client to retire from the case, he has “... a plain duty to both his client and to the Court to press such rational considerations as the evidence fairly gave rise to in favour of a complete acquittal or conviction ... .” Tuckiar v. The King[cdlxii]²⁰.

N1>With great respect to his Honour the trial judge’s remarks on this topic, I consider “... whether he be in fact guilty or not, a prisoner is, in point of law, entitled to acquittal from any charge which the evidence fails to establish that he committed, and it is not incumbent upon his counsel by abandoning his defence to deprive him of the benefit of such rational arguments as fairly arise on the proofs submitted ...” (Tuckiar’s case[cdlxiii]²¹.)

N1>Some of the remarks of the trial judge as to an advocate’s duties when admissions of guilt are made do not accord with the observations of many great masters of the Criminal Law on the subject, as collected in an article by Barry J. in 15 A.L.J. 166 (rulings of the English Bar are quoted at p. 203). Some Australian suggested qualifications of the English Bar ruling of 1915 are collected in Teece Law and Conduct of the Legal Profession in N.S.W. (2nd ed., p. 66).

N1>However, the question the trial judge met here was one different from that involving only counsel and client conferring privately. In open court the accused plainly pleaded guilty. Counsel did no more than state he had “formed an opinion that a plea of not guilty should be entered and the matter should proceed to trial”. Despite further opportunities to do so, he refused to elaborate. At no stage did he indicate that he would be seeking to test the witnesses’ statements and would urge their unreliability. He did not suggest that witnesses would prove unavailable to the State. The Court was left without even an expression of opinion that the State case would fail, merely that an opinion had been formed that the matter should “go to trial”.

N1>Now it is admitted that in Papua New Guinea there yet remain many situations in which counsel will be under a professional duty to make s. 575 applications. But the decision whether an expressed plea of guilty may be put aside is not for counsel — it remains statutorily within an exercise of the judge’s discretion. No doubt judges will from time to time find themselves greatly assisted in considering such applications by an understanding of the shown discretion, prudence, skill and experience of counsel practising before them. On a number of occasions I have myself felt anxious concern at the apparent readiness of some counsel and the frequency with which they wish to make such applications. I have endeavoured to suggest that young counsel in general, and expatriate counsel particularly, should tread most warily in this field. It is clear that a great number of considerations apply with the majority of Papua New Guineans, and especially those in more primitive areas, in the formation of their attitudes when arraigned with crimes. Some of these considerations do not obtain in other countries. The village men, and indeed those living in urban conditions, have a precise understanding, which may frequently elude counsel and judge, of the consequences of crime committed by them. There are tribal and line responsibilities, compensation problems, pay-back vengeances, questions of pressures of status, shame, sorcery, custom, culture, traditions, religious feelings; all of which may be in realms quite beyond expatriate counsel’s and judge’s imagination. It would be agreed I think, that an interposition of a plea of not guilty by counsel, when accused express guilt of the crime charged, ought to be made only after most careful consideration and with the utmost sensitivity. This places an added and heavy burden on counsel in Papua New Guinea that he does not bear elsewhere. Though he exercises that responsibility in his own mind with propriety and carefulness; the results may be catastrophic emotionally to individuals, socially, tribally, or in the vengeance wreaked on the accused or his relations. I hope that in the vast majority of cases this duty has been and is being carried out manfully and discreetly.

Under s. 575 the responsibility does not stop with counsel. The Statute carries it through to the judge. In effect in this case, counsel declined to assist the judge. He should have done so, as appellants’ counsel on this appeal conceded. His motive for so acting does not appear with certainty.

It would not I think, be fitting for the Supreme Court to attempt to constrict the exercise of the discretion, proper to counsel and to judges of the National Court in such matters, by formulating guidelines. I have formed the conclusion that on the material before his Honour, there was no exercise of discretion upon a wrong basis, in his refusing the application.

Having refused to accede to counsel’s requests, his Honour proceeded to ask three questions of each of the principals who had allegedly wounded the victim. This procedure has been heavily criticized on appeal. It is said that the questions were not asked in genuine inquiry as to whether the accused were stating they were guilty or not guilty. Objection is taken to the questions having been asked at all — there was no statutory basis for them, it is said, and they were in direct conflict with s. 37 (10) of the Constitution. The accused were given no freedom of choice in answering, the questions should have been objected to.

Section 37 (10) of the Constitution provides that “No person shall be compelled in the trial for an offence to be a witness against himself”. In my opinion, there is no room for its application to the circumstances being canvassed. It is of course essential that when persons of no education are being charged with offences the legal elements of which they may not comprehend, and arraigned through the medium of interpreters, the Court should inform itself assuredly that its arraignment and any consequent plea is understood by the accused and the Court. For this purpose it is sometimes necessary to put questions supplementary to those translated in the initial arraignment. In view of the unusual attitude taken by counsel herein in regard to the plea, his Honour was no doubt concerned to ascertain again and in more detail, that he was not mistaking the answers of the accused. I do not regard his additional questions as inapt for this purpose, and I do not appreciate how they can be interpreted as amounting to compulsion to give evidence. No doubt, if thereafter counsel had renewed his application, stated reasons and been allowed to substitute pleas of not guilty, the Court would have been requested to disregard any answers to the supplementary questions; or alternatively his Honour could have been asked to stand the trial over for hearing before another judge, if prejudice was thought to have occurred.

In the upshot I do not find the second ground of appeal, applicable as it is to all four accused, as was the first, made out.

SHOULD A PLEA OF NOT GUILTY HAVE BEEN ENTERED TO TEST NEI’AWOLO’S POSSIBLE RELIANCE ON DURESS?

The Criminal Code applicable in June 1975 and that applicable in March 1976, each provided by its s. 31 for a defence of compulsion in certain circumstances. So far as applicable this section read:

“A person is not criminally responsible for an act or omission if he does or omits to do the act under any of the following circumstances, that is to say:

(d) When he does or omits to do the act in order to save himself from immediate death or grievous bodily harm threatened to be inflicted upon him by some person actually present and in a position to execute the threats, and believing himself to be unable otherwise to escape the carrying of the threats into execution; But this protection does not extend to an act or omission which would constitute an offence punishable with death or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element...”

In June 1975, wilful murder was punishable potentially with death (s. 305). Under the 1974 Code (with effect from 1st November, 1975) the punishment for wilful murder was a mandatory life sentence (s. 309).

“A person cannot be punished for doing or omitting to do an act unless the act or omission constituted an offence under the law in force when it occurred, nor unless doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when he is charged with the offence.

If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorized by the former law, or to any greater extent than is authorized by the latter law.”

“No person shall be convicted of an offence on account of any act that did not, at the time when it took place, constitute an offence, and no penalty shall be imposed for an offence that is more severe in degree or description than the maximum penalty that might have been imposed for the offence at the time when it was committed.”

Now by virtue of s. 7 of the Code, to have committed as a principal or been an accessory to the committal of, wilful murder in June 1975, would have been an offence even if the act had been done under duress; because wilful murder was “an offence punishable with death”. Nei’Awolo was technically “charged” with the offence of wilful murder, it would seem on 4th November, 1975. But perhaps the phrase “when he is charged with the offence” in s. 11 of the Code, should be construed as “when he is indicted for the offence”.

On either construction, “... at the time he was charged”, wilful murder was not an offence punishable with death. His Honour the trial judge formed the view that duress was not available as a defence, and that therefore the plea of guilty should not be set aside.

The prosecution contends that criminal liability must be determined in the light of the law as at June 1975. It submits that s. 11 of the Code relates only to punishment and not to the determination of liability.

Mr. Pratt on behalf of the appellant Nei’Awolo submits that the mere mention of the defence of duress potentially raised additional questions as to lack of intention under s. 23 of the Code. He urges that such a point should not be decided as a pleading point, but only after the reception of evidence. He also raised as a possibility the applicability of the Common Law principles of duress as recently altered by the House of Lords in D.P.P. Northern Ireland v. Lynch[cdlxiv]²².

N1>I am unable to appreciate how the Common Law developments could be thought to be appropriate to the situation under the Criminal Code. And I am of the opinion that the relevant law to be applied had to be derived from a construction of s. 31 of the Act. The provisions of s. 23 are I consider, clearly inapplicable. Where duress is being raised the contention of its nature, is not that an event occurred “independently of the exercise of will”, but that a willed act was compelled. In my opinion the effect of s. 31 is that compulsion may be raised as a defence only in the circumstances provided for in the section itself.

N1>When it is intended to raise a defence of duress, that will normally be done under a plea of not guilty, and will be argued after all the evidence has been adduced. But here, a plea of guilty was entered, and it was for the judge to exercise his discretion as to whether the plea should be set aside so as to allow duress to be raised. It seems to me most material in exercising such a discretion to consider whether in terms of the Code such a defence was available. In considering the point, the judge would naturally assume in the accused’s favour that the facts necessary to establish a s. 31 (d) position were shown. I cannot see therefore that the decision of the point on plea rather than after a trial in which facts were found, could work to the prejudice of the accused. I do not therefore consider his Honour erred in concluding that he should decide the question of whether duress were available so as to exercise his discretion, on the application to substitute a plea of not guilty.

N1>Clearly, if the trial judge erred in holding that duress was not available as a defence; then his discretion miscarried. I proceed first to consider whether in a trial in March 1976, for a wilful murder allegedly committed in June 1975, duress could or could not be raised, on the basis that wilful murder was not “an offence punishable with death” within the meaning of the proviso to s. 31 at the time of the trial.

N1>Undoubtedly in June 1975, duress was unavailable as a defence to wilful murder, because wilful murder was then “punishable with death”. Can the bringing into effect of the 1974 Code on 1st November, render available thereafter a defence of duress to wilful murder when the killing occurred prior thereto? Such would require a retroactive operation of the Code so to speak.

N1>My view of the matter is that the question of liability must be considered in the light of the law at the time, short of the 1974 Act speaking definitively to the contrary. The question of what punishment is to be inflicted if criminal liability be shown, is to be decided however, in accordance with s. 11 of the Code. Section 309 of the present Code states, as did s. 305 of the previous Code “Any person who commits the crime of wilful murder shall be ...” These words indicate I think that penalty attaches at the time of the offence. The liability to punishment then spoken of in s. 31 is that arising on commission of the deed.

N1>The provision of s. 305 (1) of the former Code for “punishment of death”, was repealed by s. 7 of the 1974 Code. Section 63 (1) of the Interpretation (Interim Provisions) Act 1975 provides that:

(b) affect the previous operation of the provision so repealed, or anything duly done or suffered under the provision so repealed, or

Its effect I consider is to render the criminal liability of the accused examinable in the light of the Code as it existed when the relevant acts were done. It is to be noted that s. 63 (1) does not, unlike s. 63 (2), or s. 44 of the former Acts Interpretation Act of 1949-63, make use of the phrase “unless the contrary intention appears”. But in any event I am unable to discover such an intent in the new Criminal Code that would set aside the operation on its repealing action of s. 63 (1) of the Interpretation (Interim Provisions) Act 1975.

I consider that an examination of s. 31 itself requires one to consider whether the “protection” (of compulsion) spoken of, existed at the time when the act or omission occurred. This view seems to be in line with the intention of the Constitution s. 37 (7).

I am of the opinion in addition, that the phrase in s. 31 “... or an offence of which grievous bodily harm to the person of another or an intent to cause such harm is an element ...” must be construed as including wilful murder. I am unable to visualize a wilful murder which would not include an intent to cause grievous bodily harm. The reasoning of the High Court of Australia’s decision on the Queensland Criminal Code in Kaporonowski’s case[cdlxv]²³ would appear perhaps persuasive to the contrary. But to construe s. 31 in a fashion other than that which I suggest to be correct, would produce the completely illogical result that duress could excuse wilful murder but could not excuse the charge of grievous bodily harm. Such an intention could not have been in the minds of the legislators. On this basis, duress would be unavailable as a defence to wilful murder under both the 1974 Code and that preceding it.

N1>Appellants’ counsel submits overall, that a perusal of the trial judge’s reasons shows that his Honour proceeded on a misconception of counsel’s duty and expressed rules so strictly as to adversely affect his reasoning. This Court should, he says, in all the circumstances of the trial, hold the verdict unsafe and unsatisfactory such that it should be set aside and a new trial ordered.

N1>I am satisfied that his Honour exercised his discretion on a proper basis, and I am not persuaded, after a study of the depositions on committal in association with the clear pleas of guilt, that any miscarriage of justice has occurred. I would dismiss the appeals against conviction.

N1>At the time of the convictions herein, the law required the imposition of a sentence of life imprisonment for wilful murder. Though as a practical matter no death penalty had been imposed for many years (and none inflicted for a great many years), the death penalty was prior to 1st November, 1975 liable to be imposed unless extenuating circumstances were shown to require otherwise. I think, that a sentence of death must be regarded in terms of the Constitution, as “more severe in description” than one of mandatory life imprisonment. The effect of s. 11 of the Criminal Code would appear to be (and I understand both counsel to agree in this) that the punishment provided by the Code as it was in March 1976 should have been imposed; that is sentences of life imprisonment should have been imposed on the appellants. If this be so the sentences actually imposed were therefore a nullity.

N1>As the sentences imposed were not in accordance with Statute, I consider the appeal should be regarded as an appeal against sentence as well as against conviction. I would be in favour of this Court exercising the powers which it has on appeal against sentence s. 22 (4), and proceeding now to sentence. I understand the powers of the Court now to be those invested in the National Court by Act No. 2 of 1976, which include power to impose penalties of imprisonment less than life sentences. In my opinion the terms actually pronounced by the trial judge, should now be imposed, viz.:

with the direction that the terms concerned, run from the first day of the sittings at Ambunti in March 1976.

WILLIAMS J: The facts, the issues and the arguments of law put by counsel are set out in the judgments of the other members of the Court and I need not repeat them.

It is, to my mind, essential to consider this matter in the light of the events as they appeared at the time when the learned trial judge arraigned the appellants and heard argument on whether pleas of not guilty should have been entered. It appears that at some time subsequent to this the trial judge published the document called in the Appeal Book “Interlocutory Judgment”. In this document a number of observations were made by the trial judge which have given rise to the contention that his Honour misconceived the law, particularly that relating to the duties of defence counsel and the rights of an accused person in a criminal proceeding. But to become pre-occupied with the contents of this document is, to my mind, apt to lead to confusion regarding the real issues which arise in this appeal.

Central to this appeal is the question whether the trial judge erred in refusing the application of counsel to enter pleas of not guilty pursuant to s. 575 of the Criminal Code of Papua New Guinea. It is conceded by counsel for the appellants (and in my view properly) that s. 575 confers a discretion upon a trial judge whether or not to allow a plea of not guilty to be entered following an application made under that section. It is, of course, trite law that a discretion of this nature must be exercised judicially upon proper accepted legal principles. The record of the proceedings discloses that no ground whatever was put forward upon which the discretion might have been exercised. Counsel for the appellants other than Nei’Awolo contented himself with statements that from his perusal of the depositions and from his instructions he had “formed an opinion” that a plea of not guilty should be entered. Pressed to elaborate upon this counsel declined stating that any elaboration would involve disclosing his defence which he did not want to do.

Prior to this exchange between the trial judge and counsel the appellants had been arraigned. I think that this Court must assume, there being nothing to suggest the contrary, that the elements of the charge made against them were properly explained through interpreters and that, without any misunderstanding on their part, they agreed that the State allegations were true.

In this state of affairs unaided by the slightest indication from counsel as to the nature of any defence which might have been open what was the trial judge to do? It seems to me that he had two courses only open to him — to refuse the application or accede to it. In the latter event it appears to me to be beyond argument that he would not have been exercising the discretion reposed in him by s. 575. In effect he would have been abdicating his responsibility in the matter in favour of an opinion expressed by counsel unsupported by any reasons at all.

In argument some emphasis was put by counsel for the appellants upon the proposition that counsel at the trial wished to put the State to strict proof of its case. It is, of course, always open and proper for an accused person to put the prosecution to proof. If this was in counsel’s mind it is regrettable that he did not say so. There is nothing on the face of the record to indicate that this was the basis of his application for the entry of a plea of not guilty. Any suggestion that it might have been seems to flow from a statement in his Honour’s ex post facto “Interlocutory Judgment” that perhaps counsel was hoping to exploit some weakness in the prosecution case.

In the “Interlocutory Judgment” the learned trial judge made some observations concerning difficulties which the State may have experienced in proving its case and that the defence would have had “a field day” resulting in the acquittal of guilty persons. With all respect I cannot agree with these observations. In my view it is perfectly proper for an accused person to exploit any weakness which may emerge during the presentation of the State case.

However, to pursue these matters is, to my mind, unhelpful and apt to distract attention from the real issues involved in this appeal. As I have said earlier, the central question is whether there was any material before the trial judge upon which he could properly exercise his discretion under s. 575. In my view there was not. It seems to me that on the material before him the trial judge had no proper alternative than to refuse the application.

Argument was also directed to the question of whether the trial judge was correct in requiring the accused to plea personally on the arraignment before entertaining applications by defence counsel for the entry of pleas of not guilty. It seems to me that so far as this case is concerned the point is of no more than academic interest. Had counsel’s application preceded the appellants’ personal pleas it must, in my view, on the material before the Court have met the same fate. Thereupon, presumably, the appellants would have been asked to plead personally and there seems no room for any doubt that their answers would have been precisely the same. Thus, in my opinion, it cannot be said that there was any miscarriage of justice even assuming that counsel’s application should have been entertained before the personal pleas were taken.

However, I do not think that the trial judge erred in requiring personal pleas from the appellants before entertaining counsel’s application. Putting aside for one moment the provisions of s. 575 it has always been the law that a plea be entered personally. The question to my mind is the extent to which this situation has been modified by s. 575. I see nothing in that section which compels the view that the ordinary requirement of a personal plea has been dispensed with. What the section is intended to do, in my view, is to provide an additional safeguard to accused persons who, whilst they may freely admit certain facts alleged against them, may be unaware of legal defences open to them notwithstanding the existence of the admitted facts. Defences of provocation and self-defence are obvious examples. For an accused to admit that he struck “A” on the head with an axe causing and intending to cause his death may well still leave open the sort of defences mentioned. To my mind the section is designed to cater for this kind of situation where notwithstanding that the accused has, on arraignment, admitted facts constituting prima facie the elements of the offence charged, his counsel may, by application made under the section, raise the issue of a possible defence and that, in this sense, the section is additional to s. 569 which requires the accused to plead personally and not in substitution for that section. In my opinion the opening words of s. 575, namely, “Notwithstanding anything in this Code contained”, should be construed to mean that an application under the section may be made by counsel notwithstanding the fact that upon arraignment under s. 569 the accused pleaded guilty to the charge. Without s. 575 the accused’s answer on arraignment would ordinarily be conclusive as to his guilt.

Some emphasis was placed in argument by counsel for the appellants upon the omission from s. 575 of the words “and to say whether he is guilty or not guilty of the charge”. I am unable to see that the omission of these words has any significant bearing on the question. The words that “the accused has been asked to plead to the indictment” must necessarily involve the proposition that he is asked whether he admits or denies the charge made. That is implicit in the word “plead”. In my view the use of the words “and to say whether he is guilty or not guilty of the charge” in s. 569 really add nothing to the phrase immediately preceding it but merely serve to spell out what is meant by pleading to the charge.

A separate question arises in relation to the appellant Nei’Awolo. He was separately represented at the trial. His counsel did indicate that it was desired to raise a defence of duress. Some discussion followed from which it appears that it was accepted that the part alleged to have been played by this appellant took place under circumstances in which he was threatened with death if he did not participate. His Honour ruled that, as a matter of law, the defence was not open in the circumstances and declined to enter a plea of not guilty.

At the time of the occurrence of the events giving rise to the charge s. 31 of the then Criminal Code (Queensland adopted) provided that a person is not criminally responsible for an act or omission done or omitted in circumstances, inter alia, where his act or omission occurred in order to save himself from immediate death or grievous bodily harm threatened to be inflicted upon him by some person actually present and in a position to execute the threats and believing himself to be unable otherwise to escape the carrying out of the threats into execution. It is, however, further provided that this protection does not extend to an act or omission which would constitute an offence punishable with death or an offence of which grievous bodily harm to the person of another or an intention to do such harm is an element.

The appellant was charged with wilful murder, a crime which on the day of the commission of the acts alleged against him carried the penalty of death. Thus it is clear that on that date the protection of the section was unavailable to him.

However, at the time of the trial under the Criminal Code of Papua New Guinea the crime of wilful murder was punishable with life imprisonment and not with death.

The question which arises is whether the criminal responsibility of this appellant is to be determined by the law as it stood at the time of the doing of the acts alleged against him or at the time when he came before the Court.

The Criminal Code of Papua New Guinea contains no provision of a kind usually referred to as “saving provisions” concerning the effect of charges in the law following the repeal of the old Code. Section 11 of the new Code was referred to in argument but does not, in my view, touch the present case as that section in its plain terms is concerned with punishment for offences and not with criminal responsibility.

Ordinary logic suggests to me that a previous criminal responsibility should, in the absence of any specific statutory provision to the contrary, be governed by the law as it was at the time of the acts giving rise to the charge. Section 37 (7) of the Constitution of Papua New Guinea seems to proceed on this basis in that it provides that no person shall be convicted of an offence on account of any act that did not, at the time when it took place, constitute an offence. The subsection then goes on to provide with respect to punishment. The subsection appears to recognize that substantive liability is to be determined by the law in force at the time when the acts constituting the charge were done. Section 63 (1) of the Interpretation (Interim Provisions) Act 1975 is also relevant in that it provides, inter alia, that the repeal of a provision does not affect the provision, operation of the provision repealed or anything duly done or suffered under it. I am left in no doubt that the criminal responsibility of this appellant was governed by the law as it was at the time of the doing of the acts giving rise to the charge, and that at that time s. 31 did not protect him.

It was said by counsel for the appellants in the appeal that, in deciding this question in a preliminary way, this appellant was deprived of a trial. I am unable to see how the appellant may have suffered in this respect. The question raised was one purely of law and, in the resolution of it, it was assumed that the evidence would establish in his favour all the facts necessary to ground the defence. It does not seem to me that the defence was in any way prejudiced by the fact that no evidence was called to provide the evidentiary basis upon which to raise the defence.

It was also suggested in argument that this appellant was deprived of a right to raise other legal arguments. One was that his actions occurred independently of will within the meaning of s. 23 of the Code. In this respect it is to be noted that ss. 23 and 31 both fall within Chapter V of the Code under the general heading “Criminal Responsibility”. In my view it is plain that the sections are concerned with completely different considerations and do not overlap. I am unable to see any tenable argument that an act done consciously and deliberately albeit under threat of dire consequences in the event of failure to perform the act is an act done “independently of the exercise of the will” of the person concerned within the meaning of s. 23. Another ground was put forward involving the proposition that this appellant might gain assistance from cases, e.g., Director of Public Prosecutions for Northern Ireland v. Lynch[cdlxvi]²⁴, concerning the common law defence of duress. In this case, however, we are concerned with the interpretation of the Code provision and not with common law principles. I am unable to see how cases such as that mentioned afford any assistance in the resolution of the present problem.

In my view the trial judge did not err in refusing to enter a plea of not guilty on the ground stated in counsel’s application.

It emerged in the course of argument that it may be that the only sentence to which the appellants could have been sentenced, as the law stood at the date when the sentences were imposd, was life imprisonment. However this is not a question raised in the Notice of Appeal. In my view the only order open to the Court is to dismiss the appeal.

[cdxliii]span>Infra p. 384.

[cdxliv]Infra p. 405.

[cdxlv]11. ...

If the law in force when the act or commission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorized by the latter law.

[cdxlvi][1966] V.R. 358.

[cdxlvii][1976] P.N.G.L.R. 86.

[cdxlviii][1976] P.N.G.L.R. 86 at p. 87.

[cdxlix][1966] V.R. 358.

[cdl][1890] UKLawRpKQB 26; (1890) 24 Q.B.D. 371 per Lord Esher M.R. at pp. 375-376.

[cdli][1967] VicRp 79; [1967] V.R. 683 (Full Court of the Supreme Court of Victoria) at p. 685.

[cdlii][1967] VicRp 79; [1967] V.R. 683 (Full Court of the Supreme Court of Victoria) at p. 686.

[cdliii] (1970) 55 Cr. App. R. 100 per Parker L.C.J.

[cdliv][1955] HCA 59; (1955) 93 C.L.R. 493, per Fullagar J. at pp. 514-515.

[cdlv]D.P.P. for Northern Ireland v. Lynch [1975] UKHL 5; (1975) 61 Cr. App. R. 6. See also R. v. Harding [1976] VicRp 11; [1976] V.R. 129 (Full Court); R. v. Evans & Anor (1976) (unreported ruling by Lush J., Supreme Court of Victoria).

[cdlvi][1968] 2 Q.B. 788.

[cdlvii] (1970) 54 Cr. App. R. 352 at p. 360.

[cdlviii](1934) 52 C.L.R. 335.

[cdlix][1951] 1 K.B. 29.

[cdlx](1970) 54 Cr. App. R. 352.

[cdlxi][1975] W.A.R. 163.

[cdlxii][1934] HCA 49; (1934) 52 C.L.R. 335 at p. 346.

[cdlxiii][1934] HCA 49; (1934) 52 C.L.R. 335 at p. 346.

[cdlxiv](1975) 61 Cr. App. R. 6.

[cdlxv](1973) 1 A.L.R. 296.

[cdlxvi][1948] CthArbRp 459; (1975) 61 C.A.R. 6.

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URL: http://www.paclii.org/pg/cases/PGSC/1976/8.html

Nai’u Limagwe	5 years	I.H.L.
Nei’awolo Nuwapi	2 1/2 years	I.H.L.
Frari Ai’iomo	6 years	I.H.L.
Apieri Worisi’au	6 years	I.H.L.

Supreme Court of Papua New Guinea

Limagwe v The State [1976] PGSC 8; [1976] PNGLR 382 (3 September 1976)

Papua New Guinea Law Reports - 1976