Kairi v The State [2006] PGSC 8; SC831 (28 April 2006)

SC831

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA No. 55 of 2004

BETWEEN:

GEDAI KAIRI
-Appellant-

AND:

THE STATE
- Respondent-

WAIGANI: Kapi,CJ., Kandakasi, and Gabi, JJ.
2005: 31^st August
2006: 28^th April

APPEALS – PRACTICE & PROCEDURE – Power of the Supreme Court on appeal – Failure of trial judge to raise possible defence with appellant – Appropriate to remit the matter back to the trial court for retrial before different judge.

CRIMINAL LAW – Guilty plea by accused – Accused raising defence known to law during his allocutus – Trial judge failing to properly raise the issue with the accused – Effect of – Guilty plea and conviction a nullity – Retrial appropriate remedy - Retrial ordered.

Papua New Guinea Cases Cited:
The State v. Joe Ivoro & Gemora Yavura [1980] PNGLR 1.
Dinge Damane v. The State [1991] PNGLR 244.
Martin Ferry v. The State SCA (Unreported and unnumbered) SCRA 64 of 2000 (November 2000).
The State v Joe Butema Arua (28/03/01) N2076.
The State v. John Gurave Guba (19/12/00) N2020.

Counsel:
Appellant in Person.
Mr. R. Auka for the Respondent.

28^th April 2006

BY THE COURT: This appeal arises out of a decision of Mogish J in the National Court delivered on 18^th June 2004. Following a guilty plea to manslaughter, His Honour convicted the appellant of the charge and sentenced her to 8 years in hard labour less the time she spent in custody of 9 months and two weeks waiting for her trial.

Grounds of Appeal

The appellant advances the following grounds of appeal:

“(a) The plea of guilty was wrongly entered by my lawyers at the trial;

(b) That injustice was caused when the learned trial judge failed to determine the exact cause of death of the deceased (my late husband), and influenced by the plea of guilty presumed the outcome of the case thereby resulting in my conviction.
(c) For the reason stated in paragraph (b), I claim that my conviction was against the weight of the evidence my lawyers submitted, especially the medical evidence of Dr. Philip Golpak.
(d) The learned trial judge erred in law and fact in not examining all of the evidence exhaustively.
(e) The learned trial judge erred in law in not considering all of the defences available to me at law to dispense culpability.
(f) On sentence, I claim that the sentence is excessive and is otherwise harsh and oppressive in that the learned trial judge failed to consider relevant matters and circumstances in my case.”

Grounds (a) to (e) concern the safeness of the appellant’s conviction, whilst the remaining ground concerns sentence. The respondent argues that the learned trial judge did not make any of the errors alleged. This therefore raises the following issues for us to determine:

1. Did the evidence placed before the learned trial judge disclosed a legal defence available to the appellant?
   
2. If the answer to the above question is in the affirmative, then did the learned trial judge err in recording the conviction against the appellant? and
   
3. Was the sentence of 8 years less time already spent in custody excessive?
   

The first two issues concern the correctness of the learned trial judge accepting the guilty plea and recording a conviction against the appellant. These can be dealt together as one. Then depending on the outcome of those issues, the third issue may be addressed. Before addressing these issues however, it is necessary to turn to the relevant facts and the background to this appeal for a proper understanding and determination of the issues presented. Accordingly, we turn to these aspects first starting with the relevant facts.

Relevant Facts

The charge, conviction and sentence against the appellant was over the death of her then Husband. On the afternoon of 2^nd September 2003, the deceased picked up two of his and the appellant’s children from school and drove to their house at Morata here in the National Capital District. As the deceased had been drinking alcohol during the day, he felt sleepy and went straight to bed when he and the children got to the family home. Meanwhile, the appellant and the children had dinner and went to sleep.

Around 8:00pm, the deceased woke up and called for the elder child and daughter of the family. When she got to her father, he asked about the appellant and his daughter informed the deceased that she was asleep in her bedroom. The deceased asked his daughter to go back to sleep and he then call for the appellant to go to him. The appellant got out of her sleep and went to the deceased. The deceased started to assault the appellant without any warning or notice. The daughter on noticing what was happening tried to intervene and stop the fight but the deceased managed to fight her off. He then grabbed an incandescent light bulb and hit the appellant with it on her neck area and smashed an incandescent light bulb into pieces. By this time, the deceased had the lights turned off and he tried to burn the whole house down with the aid of some kerosene. However, the shouts and screams over that by the children stopped the deceased from burning the house down. However, that did not stop the deceased from continuing to bash up the appellant. The appellant tried to take refuge in the children’s bedroom. Unfortunately, the deceased over powered her and dragged her out into the dinning room and continued to beat her up.

The elder daughter tried to go and call for help from the neighbours but the deceased overpowered her, belted her up and send her back into the house. The deceased then turned on the appellant again and tried to further assault her. The appellant got hold of a kitchen knife and stabbed the deceased on his left foot with the aim of stopping him from further attacking her, which she achieved.

After stabbing the deceased, the appellant got scared and went to relatives who lived at Morata No.2. When she got there, she informed her relatives of what had happened and told them to call the police, which they did. Police went to the appellant’s and the deceased’s house, which enabled the appellant to return to the house. With the help of the police, the appellant tried her very best repeatedly to persuade the deceased to go to the hospital for medical treatment, which the deceased continuously refused. Eventually, the appellant and the police gave up their attempts to get the deceased to the hospital. It seems the police felt and so did the appellant, who went with her children to her relatives’ house for the night as she wanted to ensure that the children got to school in good form the next day.

Meanwhile, the deceased appears to have continued to bleed from the knife wound he received during the night of the incident and he eventually died. His relatives found him dead in his house the next morning. Medical evidence was not able to determine the actual cause of the death. However, it did observe that, the deceased sustained a superficial wound to his left foot. It stated that no major blood vessels were cut but the superficial cut that he received was capable of bleeding slowly resulting in an eventual excessive loss of blood if not treated.

Proceedings Before the National Court

In the National Court, the prosecution presented an indictment charging the appellant with one count of manslaughter. The essence of the above facts in summary was read out in the brief facts supporting the presentation of the indictment. After putting the facts and charge to the appellant, the learned trial judge asked the appellant for her plea. She pleaded guilty to the charge by saying, “I plead guilty”. The counsel for the appellant announced her appearance and told the Court that the plea was consistent with her instructions. Thereupon, the learned trial judge entered a provisional plea of guilty and proceeded to read the depositions.

After reading the deposition, the learned trial judge raised with counsel for the appellant that there appear to be the defence of provocation. Counsel for the appellant said that will be taken up in her submissions on sentence in a non legal sense as opposed to a legal defence. After that exchange, the learned trial judge accepted the guilty plea and convicted the appellant on the charge presented. He then administered the appellant her allocutus.

In her allocutus, the appellant said, for many years the deceased used to beat her up and her body bears some scars of that. She reported those incidents to the police at Waigani but the police there did nothing about it saying, it is a family matter and the deceased continued to beat her up. She then repeated what happened on the day of the incident as noted above and highlighted the fact that, the deceased had switched the lights off and in the darkness; he tried to beat her up again. That is when she got a kitchen knife and stabbed him to stop him from further attacking her. She also emphasized the deceased’s repeated refusals of the various attempts of herself, the police and neighbours at getting him to the hospital for treatment.

Correctness of the Conviction

With the above facts and background in mind, we now turn to a consideration of the issues presented before us, starting with the issue of correctness of the conviction first. The law on guilty pleas to charges, disclosure of a defence known to law in the evidence or in an accused person’s plea or allocutus is very clear and settled.

A member of this Court, Kandakasi J., in our view, correctly considered all of the authorities on point starting with National Court judgment in The State v. Joe Ivoro & Gemora Yavura^[1] to the Supreme Court decisions in Dinge Damane v. The State ^[2]and Martin Ferry v. The State^[3]and summarized the position in this way:

“These lines of cases make it very clear that, once a trial judge finds something inconsistent with a guilty plea either from a perusal of the depositions or in the accused person’s allocutus, the plea should be changed to a not guilty plea. That must happen whether or not the defence counsel makes an application under s.563 of the Code in order to accord to the accused his constitutional rights and or guarantees. Once a guilty plea is changed to a not guilty plea, the trial judge must disqualify from conducting a trial of the case. There is than a prerogative for the prosecuting counsel to decide whether or not to proceed with an alternative charge that may be available and supported by the depositions and one which accords well with the accused’s statement in allocutus if that stage has been reached. If the prosecution takes that option, the accused must be re-arraigned on the alternative charge and be dealt with in the normal way.”

In His Honour’s later judgment in The State v Joe Butema Arua^[4] he referred to his above judgment and the authorities he considered in that judgment and correctly commented further on the procedure in our view at page 2 as follows:

“[T]hat is the correct procedure to follow if that which makes the guilty plea inconsistent goes to an essential element of the offence with which the Defendant has been charged. Thus, if all that the Defendant does is raise the possibility of a legal defence, then the authorities seem to suggest that, the court must raise that with the defendant’s counsel and if a choice is made to maintain the guilty plea that should be allowed. In other words, if a defendant decides to maintain a guilty plea despite having a possible legal defence and that fact being raised with his counsel, the court is not obliged to change the guilty plea.

There is a good reason for this as was stated in The State v. John Gurave Guba,^[5] at page 3 of the judgment. There the court said:

“What is not clearly expressed one way or the other is, what should be the procedure if the defence decides to forego any defence that may appear to exist or is disclosed in the depositions or in the statement in his allocatus. For clarity on that aspect, in my view, it ought to be stated in clear terms that, just as the court is duty bound to accept an indictment presented following a plea bargain for a lesser charge, when a more serious one is disclosed in the depositions, the court should also be duty bound to accept the defendant’s decision to forego any defence he may have and supported by the depositions. ... [A] defendant may take such a position because of the obvious benefits a plea bargain may bring to him in addition to the benefits a guilty plea may bring to him. He may also see difficulties succeeding on the defence that may be disclosed in the depositions or in his statement in allocatus and decide not to raise it.”

Applying these principles to the case before us, we note that the above outline of the facts and what the appellant said in her allocutus clearly disclosed three possible defences. The first one was the possible defence of provocation. The appellant claimed in her allocutus with the support of the evidence on file that, she was a victim of long time domestic violence at the hands of the deceased. She had reported to police on all of those occasions but police took no action, saying it was a family matter. On the day of the incident, she was attacked again by her violent husband who was then drunk. He acted violently not only toward the appellant but also toward the children of the marriage. He even attempted to burn down the family home. He fought off attempts of his children to stop him from attacking the appellant and or get help from the neighbours. Clearly, this disclosed the possible defence of provocation.

The second possible legal defence that was raised in the appellant’s allocutus and in her record of interview and other evidence in the depositions was the defence of self-defence. This was clearly disclosed in the appellant’s own statement in allocutus in terms of:

“I went into the room, he came, he switched off the lights. He was trying to hit me again. I got the knife and stabbed his leg. And he told the children to turn on the lights. When I came out, he was bleeding. I went to my relative’s house to bring them to help him to the hospital but he refused.

...

I did not mean to kill my husband. All I wanted to do was to give him pain so he can leave me alone or stop hitting me.”

The deceased had been beating the appellant in the past. Police have failed to act on her complaints. On the day of the offence, the deceased came drunk and started to beat up the appellant. His elder daughter tried to stop him more than once and she tried to get help from the neighbours but the deceased successfully stopped her from doing so. The deceased then turned off the lights and in the darkness, he tired to attack the appellant. Surely, the appellant would have been under some fear of serious harm to her person and she had to act to protect herself. She took a knife and stabbed the deceased on his foot to stop him and did not attack him further. The wound was only superficial according to the medical report.

The medical report did not conclusively connect the cause of the death of the deceased to the appellant’s stab would. However, it did not rule out the fact that a continuous untreated superficial wound such as the one received by the deceased could lead to one’s death. Herein lays a third possible defence of the accused not causing the deceased death. It could have been an intervening cause. That possibility was not explored. The duty was on the prosecution to negative this possibility and therefore this possible defence.

As noted, the possible defence of provocation was identified by the learned trial judge and he did the right thing by raising it with the appellant’s counsel. The appellant through her counsel decided not to take up that possible defence. Instead, she decided to take it up as a mitigating factor in her submissions on sentence, which was done. Unfortunately, the record does not bear any witness to the learned trial judge raising with the appellant or her counsel the possible defences of self-defence and causation. If the learned trial judge did not pick up these defences in the evidence, he had the opportunity to pick them up from the appellant’s allocutus but he did not. His Honour instead, proceeded to receive submissions on sentence. During submissions, counsel for the appellant emphasized the point that, the deceased could not have died had he accepted the repeated offers of assistance and requests for him to get to the hospital for appropriate medical treatment.

We are of the view that, the learned trial judge fell into error when he failed to raise with the appellant or her counsel the possible defences of self defence and not directly causing the death of the deceased the moment those issues came to light and well before receiving submissions on sentence. That error resulted in denying the appellant her right to reconsider the possible defences of self-defence and the issue of causation before accepting her guilty plea. In our view, that amounted to a denial of a fair trial in terms of the appellant not being accorded the opportunity to reconsider her defences properly before maintaining her guilty plea and her conviction thereupon. Clearly therefore, this amounted to an improper conviction which must now be corrected.

Section 23 of the Supreme Court Act vests the Supreme Court with a number of powers to exercise in criminal appeal cases. This includes the power to set aside and quash a conviction and or sentence, especially where the Court is satisfied that the there has been a substantial miscarriage of justice, or the conviction and or sentence is unsafe and unsatisfactory or wrong in law. In this case, we are of the view that the errors committed by the learned trial judge were serious and did amount to substantial miscarriage of justice and further that the conviction is unsafe and wrong in law.

The case authorities dealing with substantial procedural errors such as the one raised in this case, invariably allow for a quashing of the convictions and remitting the matters back to the National Court for a proper retrial before a different judge. That is the cause this matter must take.

In view of the above decision, it is not necessary for us to deal with the appeal against sentence except to make an appropriate order reflecting the fact that the conviction is quashed. By reason of that, the sentence cannot stand.

The formal orders of the Court therefore are that the:

1. Appeal against conviction and sentence is upheld.
2. Conviction and sentence of the National Court are quashed.
3. Matter is remitted back to the National Court for retrial before a judge other than Mogish J.

______________________________________________________________________
Lawyers for the Appellant: Appellant in Person.
Lawyers for the Respondent. Public Prosecutor.

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^[1] [1980] PNGLR 1.
^[2] [1991] PNGLR 244.
^[3] SCA (Unreported and unnumbered) SCRA 64 of 2000 (November 2000).
^[4] (28/03/01) N2076.
^[5] (19/12/00) N2020, per Kandakasi J at p.3.