Yani v The State [1999] PGSC 20; SC615 (25 June 1999)

Unreported Supreme Court Decisions

SC615

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCRA 16 OF 1999
BETWEEN: ANTON YANI
APPELLANT
AND: THE STATE
RESPONDENT

Waigani

Kapi DCJ Sheehan Kirriwom JJ
22 June 1999
25 June 1999

CRIMINAL LAW - Practice and procedure - Allocutus - Statements which raise a defence - duty to clarify issue with counsel

Counsel

A. Kintau for the Appellant

P. Kaluwin for the Respondent

25 June 1999

KAPI DCJ SHEEHAN KIRRIWOM JJ: The appellant was charged with two counts (1) that on 18^th July 1998 at Gordons he took away one Janet Mek against her will contrary to s 350 (1) of the Criminal Code (2) that on 18^th July 1998 he had sexual intercourse with the said Janet Mek against her will contrary to s 347 of the Criminal Code.

On 9^th March 1999, he came before Salika J. for trial. He was arraigned on both counts. He pleaded not guilty to the first count but pleaded guilty to the second count. The trial judge entered plea of not guilty on the first count and plea of guilty in respect of the second count.

Counsel for the State indicated to the Court that he would stand down the rape charge and proceed with the trial on the abduction charge. After a brief discussion, counsel for the State then offered no evidence on the abduction charge. The trial judge acquitted the appellant of the abduction charge.

In respect of the rape charge, counsel for the State then tendered the depositions in Court. After reading the depositions, the trial judge confirmed the plea of guilty to rape and sentenced the appellant to an effective period of five years imprisonment.

He has appealed against both conviction and sentence.

In respect of appeal against conviction, the appellant relies mainly on the ground that the trial judge erred in law in accepting a plea of guilty.

The law with regard to when a plea of guilty may be vacated is set out in The State v Joe Ivoro and Gemora Yavura [1980] PNGLR 1. The principles set out in that case were endorsed and applied by the Supreme Court in Gabriel Laku v The State [1981] PNGLR 350. In so far as it is relevant to the present case, if an accused person makes a statement subsequent to his plea of guilty which may throw some doubt as to the correctness of his plea, a trial judge should clarify the matter with counsel for the accused person and satisfy himself of the matter before proceeding to confirm a plea of guilty.

In the present case, counsel for the appellant submits that the appellant on allocutus made a statement which made reference to a statement made in the District Court which raised the issue of consent. He submits that the trial judge erred in law in not vacating the plea of guilty in those circumstances.

On allocutus the appellant said the following:

“This is my first time to come before the National Court and also in God’s eyes and the National Court. This is not at my own will. I look after this people. I was pushed by his own brother. I have mentioned everything and it is in my committal file. I have five children. My two children attend the High School and two in Community School and one back at home. This is not my will. I am worried about my family because their school fee has gone up. I was forced by them. She came to my house and I mentioned everything. Now I do not have anything to say. I do not know whether they want money or other things. I am not sure about that. That is all, your Honour.”

Significantly, the trial judge had the following exchange with counsel representing the appellant:

“YOUR HONOUR: Yes, all right. Is there any statement there that might cause the court to abandoned the plea of guilty, counsel? Mr Kari? Although he has said that this is their own will, whose will is it?

MR KARI: Your Honour there is---

HIS HONOUR: Whose will is it? Their own, when he says it is their own will, not my will. Whose will is he talking about, their will? We are not talking about their will, we are talking about her will.

MR KARI: Your Honour, there is sworn statement made to the committal court.”

At this point, the trial judge read the statement in the committal court as follows:

“HIS HONOUR: Yes. ‘This trouble true. Not for my wish but his brother pushed me. They came, I looked after them properly. Her brother going around with me and drinking beer and I want to come with them to the house. I was in the house and he went to the house boy and he said, girl want you. He told me three times so I went, the door locked. I came back to my house and brother came in and told me to go so I went. He showed me room and I went in, and girl came and held me. We slept for five minutes and I want to go and she asked me for money and I said no money, as I drank with brother. So, he put on light and woke up brother, and so I ashamed and punched her on the mouth. You sent for me and now and you made me ashamed. I held her top collar, it tore and I left her and went to my house and slept. She later followed me to my house. I woke up and apologised and we both had sex once. After that we slept for some time and police went. I not refused and they asked me and I said I was wrong. I family man, I do not know what to do. What do they want? I do not know and now I am in custody. My family in trouble. I do not know but I am worried about them, their future. Two children in High School, two at community school and two at Laloki and I do not know. I am not on bail and I am worried about my children’ He talks about the girl and - sorry, him the girl’s brother, is it. And the girl’s brother is supposed to have told him that the girl wants him. This is the complete opposite of what the girl says and to when the charges were put to him. I had no reason to doubt that he understood what the - what was put to him. The first charge in relation to abduction he clearly understood that to mean that that was not true and in relation to the second count that it was rape against the will of the - of Janet Mek, he says, yes, that is true. Yes, all right. Yes, Mr Kari, anything else?

MR KARI: Your Honour, this matter, according to instructions, your Honour would turn out the way it has turned out to be.

HIS HONOUR: Sorry?

MR KARI: This matter according to - as per instructions would turn out the way it should this morning, your Honour

HIS HONOUR: Yes. So what? What do you say? You do not have any problems with what he has said and the court going on to proceed on to sentence.

MR KARI: Yes, it should proceed on that”

In our view the trial judge quite rightly asked counsel for the appellant to clarify the statement on allocutus. Counsel referred the trial judge to a statement made by the appellant in the District Court. This statement in our view raised the issue of consent by the victim. After having read the statement, the trial judge quite rightly asked counsel whether counsel had any difficulty with this statement. Clearly, at this point the trial judge was seeking to clarify with counsel whether he had sought instructions on the issue of consent and whether he would enter a plea of not guilty under s 552 of the Criminal Code.

Counsel for the State was also concerned about the issue of consent raised in the District Court.

We are satisfied that the trial judge clarified the issue of consent with counsel and that the appellant had pleaded guilty in accordance with instruction given to his lawyer. In the circumstances, the trial judge did not err in confirming the plea of guilty to the rape charge. We would dismiss the grounds of appeal against conviction.

Counsel for the appellant did not pursue the appeal against sentence. Consequently we dismiss it.

The order of the Court is: appeal against conviction and sentence dismissed.

Lawyers for the Appellant: Wal & Company

Lawyer for the Respondent: Public Prosecutor