Vetari v The State [1979] PGSC 3; SC156 (10 August 1979)

Unreported Supreme Court Decisions

SC156

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

S. C. APPEAL 24 OF 1978
BETWEEN: LAUNCE VETARI
APPELLANT
AND: THE STATE
RESPONDENT

Waigani

Raine DCJ Greville Smith J Andrew J
31 May 1979
10 August 1979

Appeal

Against conviction where the appellant had pleaded guilty and the trial Judge had accepted the plea. Appellant was represented by Counsel. Most unusual for appellate court to interfere in these circumstances.

R. V. Forde 17 Cr. App. R.99, Udy and Another v. Police [1963] NZPoliceLawRp 17; (1964) N.Z.L.R. 235 and R. v. Dawson 18 Cr. App. R. 111.

Appeal dismissed.

Order of the Court

Leave to appeal granted.

Appeal dismissed.

Conviction and sentence confirmed.

RAINE DCJ: This appeal has had an unfortunate history. Notice of appeal was filed by a private practitioner on behalf of the appellant on 9th October, 1978. The appellant says that he paid the solicitor K300.00 but that the latter required more than this to mount the appeal properly. K300.00 would be excessive for merely receiving instructions, perusing the trial judge’s notes (which were not lengthy for the appellant pleaded guilty) and drafting and filing a notice of appeal.

Nothing happened as a result of this problem as to fees None of the appropriate steps were taken, no appeal book has been prepared. The papers are in a mess.

Counsel for the respondent took objection to our hearin the appeal at all. However, the appellant being unrepresented the court felt that the desirable thing was to hear the whole appeal, as it would have done, of course, had the papers been in proper form.

In recent months we have expressed dissatisfaction with the sloppy and indifferent approach being adopted from time to time in the preparation of appeals. But here I believe our lenient approach will not be misunderstood where the appellant is unrepresented and possibly might have a grievance against his former solicitor. I hasten to add that I am not to be taken as pre-judging the gentleman, we have only heard the appellant’s side of the story.

Speaking for myself I do not propose to express concluded reasons on Mr. Byrne’s submission that the non-compliance by the appellant with Rule 26 of the Supreme Court Rules, 1977 is fatal, and that the court has no discretion to dispense with such compliance.

Mr. Byrne had to take over the appeal from another prosecution officer, and, through no fault of his own, was at a disadvantage when he appeared. But he has given us helpful assistance in the form of written submissions on the point, which he has framed in a fair and frank way. It is not out of disrespect to Mr. Byrne that I decline to rule on the matter. In view of my strong feelings as to the fate of the appeal, in a substantive sense, there is no need for me to say something that would be “obiter” in any event, thus I leave open the question whether the word “shall” in Rule 26 is peremptory or mandatory, or, on the other hand, is no more than a strong directive.

I will say this much. It would seem a very sad thing to me were a sincere appellant denied any right of appeal because, for example, having done all that he could to get his appeal on, a solicitor completely let him down. It seems quite wrong that such a thing could come about.

I now come to the appeal itself. It may well be that leave to appeal should have been sought. But, for the same reasons I have given “qua” Rule 26, I do not need to consider this.

The facts of this case are not uncomplicated, but I do not believe they need to be set out in great detail. The Development Bank has set in motion a highly imaginative scheme in the last four years. Carefully chosen Nationals are given the management of a store or shop, they are coached and instructed, and most carefully watched. The idea behind the scheme is that in the fullness of time they will take over the asset as full owners. It is a bit like a Lay-By Sales agreement, except that on Lay-By one does not lay hands on the asset until one fully complies with the terms of the agreement. In the case here, there are Lay-By similarities, but the “purchaser” controls the asset, and helps its growth, but has no true equity in it until he has got the business into good shape and has paid the bank out. Until then he is no more than a servant of the bank and has very limited rights to purchase stock.

The appellant was charged with stealing over four thousand kina. The prosecutor had anticipated a plea of guilty but this did not eventuate, on arraignment the appellant pleaded not guilty in the clearest terms.

The prosecutor then asked that the appellant be arraigned on the same charge but only as to an amount of K1,774.00. This course was followed and the appellant pleaded guilty. He was represented by Mr. Tatireta of counsel, who took no objection, provided that nothing got before the court indicating that money in excess of K1,774.00 was involved. But then Mr. Tatireta said “My client claims to have owned the company. He controlled the company, got a loan of K1,000, and traded.” His Honour’s notes then read:

“Court:

Necessary that this be cleared up, will adjourn to 1 p.m. on 24.8.78 for that purpose. Accused’s bail extended until then.”

At 1.15 on the 24th August the trial resumed. The following appears in the judge’s notes:

“Cagney:

Sikau P/L has 2 shares only; one held by Development Bank, the other by a subsidiary of the Development Bank. 2 Directors and a Secretary of the Co. both are officers of the Development Bank. Accused employed as an employee of the company - The Manager.

Tatireta:

That is agreed to be the position.

Court:

Ample evidence otherwise, to warrant accepting the admissions on arraignment as a plea of guilty. Now it is clear that the accused was an employee of the Co. from whom he stole the money, and it was not ‘his’ company. I have no hesitation in treating it as a plea of guilty; he is convicted.”

Long prior to this the depositions and exhibits had been tendered.

The ground of appeal is against conviction only and reads:

The conviction was wrong in law in that the learned trial judge should not have entered a plea of guilty and should have considered:

(a) the defence of mistake under s.24 of the Criminal Code Act 1974.

(b) the defence of bona fide mistake of right under s.22 of the said Criminal Code Act.

At this point of time, when he accepted the plea of guilty, I cannot see how it can possibly be said that His Honour erred. He had the accused’s admission on arraignment. Counsel appeared for the accused and clearly did nothing to indicate any opposition to the plea. Leave under s.475 was not sought. There was nothing rushed about the proceedings, the reverse. Wisely, if I might say so, His Honour had earlier adjourned the proceedings so that the matter could be examined closely by counsel.

It is most unusual for an appellate court to interfere in a case such as this where the appellant was represented by counsel in the court below. See R. V. FordeSC156.html#_edn24" title="">[xxiv]¹, Udy and Another v. PoliceSC156.html#_edn25" title="">[xxv]², and R. V. DawsonSC156.html#_edn26" title="">[xxvi]³. Of course, cases will arise, I imagine, where defence counsel are completely misled, where an appellate court might, deeming the circumstances exceptional, allow an appeal such as this and order a new trial.

But up to the point of time when His Honour finally accepted the plea I cannot conceive how it can be suggested that he could have done otherwise.

The appellant then made a statement on the allocutus. This was quite lengthy for the trial judge notes that at one point of time he ceased, or practically ceased, to take notes as the appellant read from lengthy notes which he indicated he would hand up later. This was done, and they are before us.

There are indications on the allocutus that the appellant had, or chose to have, a rather confused conception of his business situation “qua” the Bank. But while the allocutus proceeded His Honour, already alerted by the earlier proceedings, had a very good opportunity to observe the appellant, just as we did, for he appeared before us in person. He is a very well educated man, he writes well and he speaks just as well. I am sure that this would have weighed with His Honour. Then, further to this, Mr. Tatireta was still in court. When the allocutus concluded he addressed, as the judge records, “in mitigation”.

When Mr. Tatireta concluded his mitigation His Honour adjourned the trial once again as a result of some of the submissions that fell from counsel. As a result a Mr. Grey, an officer of the Bank, he was in charge of its Projects Department, gave evidence.

Needless to say, even after accepting the plea of guilty, the learned trial judge could have vacated this and entered a plea of not guilty, and heard the matter. If he felt that he was, or might be seen to be prejudiced by having heard all that he had, then he could have discharged himself and left the case to be heard by one of his brethren. But really, what more could he do than that which he did?

It seems clear to me that His Honour had a keen appreciation of his responsibilities when it came to accepting this plea of guilty.

This is being wise after the event, possibly the only additional thing His Honour might have considered doing was to ask Mr. Tatireta expressly whether he had given thought to a possible defence of bona fide claim of right. But no doubt counsel was alert to this, bearing in mind the way the trial proceeded.

In my opinion leave should be granted but the appeal must fail and the conviction and sentence should be confirmed.

GREVILLE SMITH J: I agree and have nothing to add.

ANDREW J: I agree with the reasons of the Deputy Chief Justice and have nothing to add.

Appellant in Person

Solicitors for the State: K.B. Egan, Public Prosecutor

Counsel: J.E. Byrne

SC156.html#_ednref24" title="">[xxiv] ^{17 Cr. App. R. 99.}

SC156.html#_ednref25" title="">[xxv]^{[1963] NZPoliceLawRp 17; (1964) N.Z.L.R. 235.}

SC156.html#_ednref26" title="">[xxvi] ^{18 Cr. App. R. 111.}