Junior v State [2017] PGSC 32; SC1629 (3 November 2017)

SC1629

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV NO 48 OF 2015

GORDON GALA JUNIOR
Appellant

V

THE STATE
Respondent

Waigani : Cannings J, Kariko & Shepherd JJ
2017:30^th October, 3^rd November

CRIMINAL LAW – appeal against conviction for murder – guilty plea – trial judge’s duty to be alert to possible defences apparent from depositions or allocutus – discretion to set aside conviction after guilty plea – Supreme Court Act, Section 23(1) – whether reasonable doubt about safeness or satisfactoriness of verdict.

LEGAL REPRESENTATION – hearing of appeal against conviction – whether appellant entitled to an advocate of his choice – whether leave should be granted to allow a non-lawyer represent an appellant.

The appellant was convicted after pleading guilty of one count of murder and sentenced to 15 years imprisonment. He appealed against conviction on the ground that the trial judge failed to properly consider the guilty plea in light of indications in the depositions and the allocutus that there was a possible defence of provocation, which if accepted would have resulted in conviction on the lesser offence of manslaughter. At the hearing of the appeal (which was incorrectly treated by the Registry as an application for review) the appellant applied for leave of the Court to allow a fellow prisoner to represent him. The application was opposed by the State.

Held:

(1) The right of a party to a legal representative of his or her choice is not absolute. If the party chooses not to appear in person, the legal representative must be a lawyer admitted to practice or a person to whom, following application, the Court grants leave to appear.

(2) In determining an application for leave to allow a non-lawyer appear as a legal representative, a range of matters should be considered including whether legal aid has been refused, whether objection is taken by the respondent, whether the proposed lay advocate appears to have basic legal knowledge and is in a position to assist the court, whether it is a complex matter requiring experienced counsel, whether the interests of the person to be represented are likely to be advanced, whether there is any prejudice to the opposite party.

(3) As part of the trial judge’s duty to ensure that an accused person is afforded the full protection of the law under Section 37 of the Constitution, the Judge must be alert to potential defences in the depositions or arising during arraignment or at any stage of the trial process to formal passing of sentence. The judge has an inherent discretion to vacate a guilty plea and set aside a conviction whenever it is in the interests of justice to do so. The discretion would generally only need to be exercised when the potential defence appears to have a reasonable prospect of success.

(4) Here, leave was granted to the prisoner colleague of the appellant.

(5) The potential defence of provocation was not readily apparent from the depositions or the allocutus and remained a possible defence only, without reasonable prospects of success. The trial judge did not err in law by not raising it with the defence counsel and by not vacating the guilty plea and by not setting aside the conviction.

(6) The verdict was not unsafe or unsatisfactory. The appeal was dismissed.

Cases cited:

The following cases are cited in the judgment:

Anton Yani v The State (1999) SC615
Cosmas Kutau Kitawal v The State (2007) SC927
Gabriel Laku v The State [1981] PNGLR 350
Gedai Kairi v The State (2006) SC831
In re Joseph Mavuk [1980] PNGLR 507
John Beng v The State [1977] PNGLR 115
O’Toole v Scott [1965] AC 939
Saperus Yalibakut v The State (2006) SC890
Tamara Player Tomscoll v The State (2012) SC1208
The State v David Yakuye Daniel (2005) N2869
The State v Joe Ivoro and Gemora Yavura [1980] PNGLR 1
Thress Kumbamong v The State (2008) SC1017

APPEAL

This was an appeal against conviction for murder.

Counsel:

T Joseph, with leave, for the Appellant
P Kaluwin, for the Respondent

03^rd November, 2017

1. BY THE COURT: Gordon Gala Junior was convicted by the National Court constituted by Justice Manuhu of one count of murder, after pleading guilty, and sentenced to 15 years imprisonment. He appeals against his conviction, on the ground that the trial judge failed to properly consider the guilty plea in light of indications in the depositions and the allocutus that there was a possible defence of provocation, which if accepted would have resulted in conviction on the lesser offence of manslaughter.
   
2. At the hearing of the appeal (which was incorrectly treated by the Registry as an application for review) the appellant applied for leave of the Court to allow a fellow prisoner to represent him. The application was opposed by the State. We granted leave and heard the appeal. In this judgment we explain why we granted leave and determine the appeal against conviction.
   

LEAVE TO ALLOW A LAY ADVOCATE TO REPRESENT THE APPELLANT

3. In dealing with an application for a non-lawyer or lay advocate to appear on behalf of a party, there are a number of principles to consider:
   
   • the Supreme Court has inherent power in regulating its own proceedings to allow any person to appear before it to represent a party, irrespective of whether the person is a lawyer admitted to practice with a current practising certificate (O’Toole v Scott [1965] AC 939);
     
   • the court has a discretion to exercise taking into account the circumstances of the particular case, to decide whether it is in the interests of justice to grant leave;
     
   • the discretion should be exercised sparingly, so as to protect parties against the spectre of being represented by inexperienced and/or incompetent persons against whom there is no right of redress if they fail to properly represent the party’s interests;
     
   • a party does not have an automatic right to have anyone of his or her choice represent them;
     
   • a party only has the qualified right to have a certain class of persons represent him or her, for example a person charged with an offence (and by necessary implication a person such as the appellant appealing against a conviction) has the right under Section 37(4)(e) of the Constitution:
     

to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law;

• the right to choice of legal representative is not absolute as a lawyer might be prevented by the Court from appearing on conflict of interests or other ethical grounds (In re Joseph Mavuk [1980] PNGLR 507).
  

4. In determining any application for leave to allow a non-lawyer to appear as a legal representative, matters relevant to the exercise of discretion include:
   
   1. whether legal aid has been refused (if yes, that will favour granting leave);
      
   2. whether objection is taken by the respondent, (if no, that will favour granting leave);
      
   3. whether the proposed lay advocate appears to have basic legal knowledge and be in a position to assist the court (if yes, that will favour granting leave);
      
   4. whether it is a complex matter requiring experienced counsel (if no, that will favour granting leave);
      
   5. whether the interests of the person to be represented are likely to be advanced, (if yes, that will favour granting leave);
      
   6. whether there is any prejudice to the opposite party (if no, that will favour granting leave).
      
5. That is not intended to be an exhaustive list but an indication of the main considerations we have taken into account in the present case, as follows:
   
   1. We were notified by the proposed lay advocate that the Public Solicitor advised the Court during the pre-hearing process that legal aid would not be available to the appellant. This favoured the granting of leave.
      
   2. Strong objection was taken by the Public Prosecutor on the ground that the appellant had no right to anyone of his choice, and that Section 37(4)(e) of the Constitution only allowed him to represent himself or be represented by a legal representative of his choice at his own expense or, if entitled to legal aid, to be represented by the Public Solicitor or by another legal representative assigned to him in accordance with law. The Public Prosecutor also argued that the Supreme Court must insist on legally qualified persons appearing before it, to preserve the integrity of the Court. We noted these matters, which weighed against the granting of leave.
      
   3. The proposed lay advocate, Mr Tande Joseph, is a prisoner himself. He told us and we accept his undertaking that he was a final year University of Papua New Guinea law student at the time of his incarceration. He appeared to us, having observed his demeanour and submissions on the leave application, to be an intelligent, educated and articulate person with a sound basic legal knowledge. We considered it likely that he would assist the Court in the expeditious determination of the appeal.
      
   4. This is not a routine matter as it involves an appeal against conviction following a guilty plea. But nor is it an overly complex matter necessarily requiring experienced counsel.
      
   5. It is likely that the interests of the appellant will be advanced by Mr Joseph appearing for him as it is evident that Mr Joseph has spent time and effort drafting a written submission and is in a better position than the appellant to articulate the grounds of appeal.
      
   6. We see no prejudice to the State in allowing Mr Joseph to appear for the appellant.
      

Only one of those criteria (No 2) weighs against granting of leave. The others weigh in favour of granting leave. We decided therefore that it was in the interests of justice to grant leave to Mr Joseph and leave was granted accordingly.

APPEAL AGAINST CONVICTION

6.The appellant’s primary contention is that although he pleaded guilty to the charge of murder the trial Judge erred in law in accepting the plea and convicting him as his Honour failed to alert himself to indications in the depositions and the allocutus that there was a possible defence of provocation, which if accepted would have resulted in conviction on the lesser offence of manslaughter.

7. To understand this argument it is necessary to set out the process by which the appellant was convicted.
   

Process by which the appellant was convicted

8. The indictment, which originally contained a charge of wilful murder, was changed to a charge of murder following a plea bargain. The judge informed the appellant that he was charged with murder. His Honour then put the allegations to the appellant as follows:
   
   • On 26 October 2013 he was 17 years old and doing grade 11. At 3.00 pm he was on the side of a mountain at Hohola 4, National Capital District, drinking home brew with 20 schoolmates. Local residents noticed the activity and chased the appellant and his friends and threw stones at them. The appellant and his friends ran up the mountain and some of them threw stones back at the residents. The deceased, Joshua Luta Tokali, who was very drunk, was one of the friends running behind the appellant. The deceased swore at another of the appellant’s friends and when the appellant heard that he scolded the deceased, then ran down to the deceased and kicked him twice and then he got a knife and stabbed him in the back. Another friend intervened, the appellant did not stab the deceased again, dropped the knife and walked away. The deceased was taken to hospital but died due to loss of blood caused by the stab wound.
     
9. Asked how he pleaded, the appellant replied without equivocation that he pleaded guilty. He was represented by a lawyer from the Office of the Public Solicitor, Mr Tine, who advised the Court that the plea was consistent with instructions and he had no application to make.
   
10. The Prosecutor, Mr Tamate, tendered the committal depositions and drew the judge’s attention to admissions in the record of interview. The judge stated that he had read the depositions and confirmed the guilty plea. He then asked the appellant if he had anything to say on punishment. The appellant made a lengthy statement, beginning with these words:
    

First of all, in PNG we call ourselves a Christian country and we believe in the word of God. So I have foolishly violated the very command of God Almighty by committing murder and also breaking the mother law of the country.

11. He apologised for his actions and asked the judge to give him a reasonable time in custody. The judge then proceeded to sentence the appellant to 15 years imprisonment less the pre-sentence period in custody of two years, ten months.
    

The alleged indications of a defence of provocation

12. Mr Joseph submitted that the primary judge should have detected a possible defence of provocation in the record of interview and in the allocutus.
    
13. Mr Joseph highlighted question-and-answer 26 of the record of interview:
    

Q 26: What happened when you were running into the mountain?

I was running up the stiff mountain with [X], one of my class mates when I was schooling at Gordons Secondary School and we were tired and resting and at the same time the deceased, who I don’t know very well, came up behind us with his other school mates and was swearing in Pidgin language “Kai kai kan bilong mama bilong yu” [“Eat your mother’s vagina”]. Then I thought he is from the Hohola residents who was chasing us and was swearing [at] us so I went to him and kicked him with my leg on his face then I used a small kitchen knife which I was holding and stabbed him once only on his side, maybe left or right, I could not recall.

14. Mr Joseph highlighted the following part of the appellant’s allocutus:
    

I have just lost a friend and I am really sorry. I did not mean to do that. I did not have the intention to kill Joshua Tokali but under the influence of alcohol, with the intense pressure of the fighting that brought this result where Joshua passes away. I am really sorry, please, I ask you for your forgiveness.

Principles

15. We summarise some of the primary duties of a judge dealing with a criminal case in the following terms:
    
    • A judge must ensure that an accused person, including an accused who pleads guilty, is afforded the full protection of the law under Section 37 of the Constitution.
      
    • The Judge must be alert to potential defences in the depositions or arising during arraignment or at any stage of the trial process up to formal passing of sentence.
      
    • If the judge detects a clear defence then, even if it has not been raised by the defence counsel, the judge should raise the issue and invite counsel and the accused to reconsider the plea.
      
    • Unless there are good reasons for the accused wishing to maintain a guilty plea, the Judge should vacate the plea and set aside the conviction.
      
    • The judge has an inherent discretion to vacate a guilty plea and set aside a conviction whenever it is in the interests of justice to do so.
      
    • A judge who accepts a guilty plea and convicts an accused and proceeds to sentence while failing to detect a clear defence to the charge – even if the issue is not raised by the defence counsel – in the depositions, during arraignment or allocutus or in anything said by the accused, will commit an error of law, giving rise to reasonable doubt about the safety and satisfactoriness of the verdict (and necessarily the sentence).
      
16. These principles are based on the seminal decision of Kapi J as he then was in The State v Joe Ivoro and Gemora Yavura [1980] PNGLR 1, endorsed in a number of Supreme Court decisions including Gabriel Laku v The State [1981] PNGLR 350, Anton Yani v The State (1999) SC615, Gedai Kairi v The State (2006) SC831, Saperus Yalibakut v The State (2006) SC890 and Tamara Player Tomscoll v The State (2012) SC1208.
    

Provocation as a partial defence

17. We agree that provocation is a partial defence to murder arising under Section 303 (killing on provocation) of the Criminal Code, which states:
    

Where a person who unlawfully kills another under circumstances that, but for this section, would constitute wilful murder or murder, does the act that causes death in the heat of passion caused by sudden provocation within the meaning of Section 266 and before there is time for his passion to cool, he is guilty of manslaughter only.

18. However, it must be borne in mind that the defence of provocation has a number of elements. And there is a restricted meaning of “provocation” due to the cross-reference in Section 303 to Section 266 (provocation), which states:
    

(1) Subject to this section, "provocation" used with reference to an offence of which an assault is an element, means a wrongful act or insult of such a nature as to be likely, when done—

(a) to an ordinary person; or

(b) in the presence of an ordinary person to another person—

(i) who is under his immediate care; or

(ii) to whom he stands—

(A) in a conjugal, parental, filial or fraternal relationship; or

(B) in the relation of master or servant,

to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.

(2) When an act or insult referred to in Subsection (1) is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other or to whom the latter stands in a relation referred to in Subsection (1) the former is said to give to the latter provocation for an assault.

(3) A lawful act is not provocation to any person for an assault.

(4) An act that a person does in consequence of incitement given by another person in order to induce him to do the act, and thus to furnish an excuse for committing an assault, is not provocation to that other person for an assault.

(5) An arrest that is unlawful is not necessarily provocation for an assault, but may be evidence of provocation to a person who knows of the illegality.

19. So the defence of provocation only applies when the following elements exist:
    
    • the accused did the act that caused death in the heat of passion; and
      
    • the heat of passion was caused by sudden provocation within the meaning of Section 266; and
      
    • the accused did the act before there was time for his passion to cool.
      
20. If all those elements exist the accused will be guilty of manslaughter only, not murder. As to the meaning of sudden provocation, the following requirements apply:
    
    • the deceased must have done a wrongful act or offered an insult; and
      

• the act or insult was of such a nature as to be likely (when done to or in the presence of an ordinary person as defined by Section 266(1)(a) or(b)) to deprive an ordinary person of the power of self-control; and
  
• the act or insult was of such a nature as to be likely ... to induce an ordinary person to assault the person who did the act or offered the insult.
  

21. Once the accused puts evidence of provocation then, as in the case of self-defence, the onus rests on the prosecution to disprove the elements of that defence (Thress Kumbamong v The State (2008) SC1017, Cosmas Kutau Kitawal v The State (2007) SC927, The State v David Yakuye Daniel (2005) N2869).
    

This case

22. Having considered the rather intricate set of elements that must exist for the defence of provocation to apply, and considered the matters highlighted by Mr Joseph’s submission as to the indicia of provocation in the record of interview and the allocutus, we are firmly of the view that there was little indication in that material that the defence of provocation was available. We consider that the material considered by the Judge must give rise to a clear defence that has a reasonable prospect of success at a trial – not just a possible defence. We find that the trial Judge did not err by not raising the possibility of a defence of provocation.
    

CONCLUSION

23. To succeed on an appeal against conviction, an appellant must by virtue of Section 23 of the Supreme Court Act establish that the verdict is unsafe or unsatisfactory, the conviction entailed a wrong decision on a question of law or there was a material irregularity in the trial; and the Supreme Court must consider that a miscarriage of justice has occurred (John Beng v The State [1977] PNGLR 115).
    

None of those conditions exist in this case. The appeal must therefore be dismissed.

ORDER

(1) The appeal is dismissed.

(2) The decision of the National Court is affirmed

_________________________________________________________________
Public Prosecutor : Lawyer for the Respondent
Public Solicitor : Lawyer for the Defendant