Liwage, NeI'awalo, The State v [1976] PNGLR 314 (25 March 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 314 - The State v NaI'u Liwage, NeI'awalo Nuwapi, Franri Ai'iomo and Apieri Worisiau 

[1976] PNGLR 314

N41

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

NAI’U LIMAGWE, NEI’AWALO NUWAPI, FRARI AI’IOMO AND APIERI WORISIAU

Ambunti

Saldanha J

24-25 March 1976

CRIMINAL LAW - Practice and procedure - Plea - Application to enter plea of not guilty under s. 575[ccclxix]1 of the Criminal Code - When application should be made - Power to enter plea discretionary - Principles applicable - Duties of defence counsel.

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[ccclxx]²

On the trial of four accused for wilful murder, counsel for all accused sought to make an application under s. 575 of the Criminal Code to enter pleas of not guilty. The application was made after the accused were arraigned, the matters alleged by the prosecution had been put to them and after they had been asked to plead to the indictment, but before any reply was made.

Held

(1)      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.

(2)      Leave to enter a plea of not guilty after a plea of guilty has been heard will not be granted unless good grounds are shown. It is not sufficient for counsel for the accused to state that in his opinion a plea of not guilty should be entered.

(3)      Counsel for three of the accused, having informed the court that he had formed the opinion that a plea of not guilty should be entered and that he did not wish to elaborate the matter any further as it would disclose his defence, leave to enter pleas of guilty on behalf of these accused should be refused.

(4)      As at the date of the offence (June 1975) the Criminal Code (Queensland adopted) was applicable and the punishment thereunder for wilful murder being death, the defence of compulsion under s. 31 of the Criminal Code was not available to the accused Nei’Awalo, who was charged as a principal offender under s. 7 of the Criminal Code (Queensland adopted).

(5)      Leave to enter a plea of guilty on behalf of the accused Nei’Awolo should be refused also.

Application

This was a ruling made on applications made by defence counsel for leave to enter pleas of not guilty pursuant to s. 575 of the Criminal Code,  during the course of the trial of four accused on charges of wilful murder.

Counsel

KR Roddenby for the State

JB Avery for the first, third and fourth defendants

AJ Alpine for the second defendant

Cur. adv. vult.

25 March 1976

SALDANHA J:  The four accused persons were indicted on a charge of wilful murder. The first, third and fourth accused were represented by Mr. Avery and the second accused by Mr. Alpine. Mr. Roddenby appeared for the State.

I had not read the depositions. To enable me to arraign the accused, and, in accordance with the usual practice in this jurisdiction Mr. Roddenby gave me a summary of the matters alleged by the State against the accused. He said:

“The four accused jointly with others wilfully murdered Tamu Waro. In respect of the first, third and fourth accused they mutually aided each other and others wilfully to murder Tamu Waro, each taking an active part, the first accused Nai’u stabbing deceased with an arrow, the third accused Frari stabbing twice with a cassowary bone dagger and the fourth accused stabbing twice with an arrow.

In respect of the second accused Nei’Awalo knowing the way to deceased’s house he led others to the house and in so doing either did an act for the purpose of enabling the killing or by virtue of his presence at the time when the killing took place and his leading others to deceased’s house aided the other three accused and others wilfully to murder Tamu.

There were a large number of persons, about 20 altogether.”

After I had arraigned the accused and put to them the matters alleged against them by the State and after I had asked them to plead to the indictment, but before the accused could reply both defence counsel informed me that they wished to make an application under s. 575 of the Criminal Code. They desired that I should not hear what accused persons had to say in answer to the charge but that I should record a plea of not guilty.

Section 575 of the Criminal Code provides 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:

(a)      informed of the offence with which he is charged; and

(b)      asked to plead to the indictment,

enter a plea of not guilty on behalf of that accused person.”

Both counsel argued that the moment I had asked the accused persons to plead to the indictment I had complied with s. 575 and that they had the right at that stage to ask me to enter a plea of not guilty without my hearing what the accused had to say.

An application under s. 575 can be made only “after the accused has been (a) informed of the offence with which he is charged; and (b) asked to plead to the indictment” (emphasis mine). The defence contention is that I must ask accused persons to plead but I must not hear their plea. I would have thought that the whole purpose of asking them 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.” To interpret the section in this way is to make a mockery of the use of language. The defence contention is so puerile — almost an insult to one’s intelligence — that I am surprised that two competent and responsible counsel thought fit to advance it. I am asked to go through a meaningless ritual, to utter a kind of magic incantation, some mumbo-jumbo, purely for the convenience of enabling defence counsel to make their application without being embarrassed by their clients possibly pleading guilty.

Words must be given their natural meaning. Obviously I am required to ask the accused to plead in order to hear what their plea is. There is nothing to prevent them from pleading not guilty. Presumably their counsel advised them to plead not guilty and, if, in spite of their counsel’s advice they choose to plead guilty counsel cannot prevent them from doing so. If contrary to counsel’s advice accused persons plead guilty when they have a good defence their plea will not be fatal. Counsel will no doubt ask the Court to enter a plea of not guilty stating the grounds, as for example, that it is intended to set up the defence of self-defence or provocation or whatever. No judge would refuse such a request. Of course, one can appreciate that if accused persons plead guilty against their counsel’s instructions when counsel wish to defend and if there is no real defence counsel will be in difficulty, because, leave to enter a plea of not guilty will not be granted unless good grounds are shown. In such a situation 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.

I overruled the submissions of both defence counsel and recorded the following pleas:

Nai’u Limagwe: “Yes, it is true”.

Nei’Awalo: “It is correct”.

Frari: “It is correct”.

Apieri: “It is correct”.

Both defence counsel then renewed their application that pleas of not guilty be entered.

Mr. Avery said that he had perused the depositions and additional statements and taken instructions from his clients and formed the opinion that a plea of not guilty should be entered and the matter should proceed to trial.

I asked Mr. Avery whether it was sufficient for him to say that it was his opinion that a plea of not guilty should be entered and whether he should not give me some grounds upon which to exercise my discretion. Mr. Avery replied that if he were to elaborate the matter any further it would be disclosing his defence and he did not wish to do so.

After a short adjournment I asked both counsel if they had anything more to say. Mr. Avery said: “I have nothing further to add. My application stands as it is.” I told Mr. Avery that his opinion that a plea of not guilty should be entered was not good enough, that I was giving him another opportunity, and, unless he gave me some grounds to enable me to exercise my discretion in his favour I would rule against him. Mr. Avery said he had nothing to say.

Mr. Alpine said that he intended to set up the defence of compulsion. He admitted that his client led the party to the place of the deceased in order to enable others to commit the offence; he admitted that he was a principal offender within the meaning of s. 7 of the Criminal Code. He said that if I ruled as a matter of law that the defence of compulsion was not available to the second accused he would accept my decision.

I dismissed both applications and in view of the importance of the subject and in order to save time reserved my ruling.

Before sentencing the first, third and fourth accused persons I wished to make quite certain that there was no possible doubt that they were pleading guilty. I therefore asked each of them the following three questions: did he 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 replied to each question in the affirmative.

The facts which emerged from my reading of the depositions and additional statements and after hearing both defence counsel were briefly as follows.

There was a sing-sing at Warinapi village. The second accused lived in the area where deceased lived, the other three lived in another village. Two ringleaders, who have absconded, persuaded the people at the sing-sing that the deceased was a sorceress who had caused the death of a man by sorcery. The second accused under threat of death was forced to lead the way to the house of the deceased. About twenty men followed him and killed the deceased by stabbing her with arrows. The first and fourth accused stabbed her with an arrow and the third accused with a cassowary bone dagger.

I shall deal first of all with the case of the second accused. Mr. Alpine concedes that he is a principal offender within the meaning of s. 7 of the Criminal Code, that whatever he did he did for the purpose of enabling or aiding the other accused persons and others to kill the deceased within the meaning of s. 7 (b), or that he could be said to have aided others to kill the deceased within the meaning of s. 7 (c).

Section 31 of the Criminal Code makes provision for the defence of compulsion in the following terms:

“31.    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:

(a)      ...

(b)      ...

(c)      ...

(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, ...”

This offence was committed in June 1975, before the new Criminal Code came into operation. Under the old Code the punishment for wilful murder was death, and, therefore, the defence of compulsion is not open to the second accused. But the fact that he acted under compulsion could be taken into account in mitigation of sentence.

I found Mr. Alpine’s attitude not unreasonable. I got the impression that he was embarrassed by having been flown from Port Moresby to Ambunti at great expense to put up a defence which was not available to him and was now just going through the motions.

I turn now to the case of the other three accused persons. There is no dispute that the accused persons were properly arraigned. I have no doubt that they intended to plead guilty. I think I am right in saying that s. 575 is peculiar to this jurisdiction. I am not aware of a similar provision in any other jurisdiction. Obviously there was a purpose and a good reason for enacting it. One can envisage a 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 was open to him. In these circumstances his counsel could apply under s. 575 that a plea of not guilty be entered on the ground that it was sought to raise the defence of self-defence.

Counsel must first obtain leave. The Court has a discretion whether or not to grant leave. Like all judicial discretions it must be judicially exercised. But if defence counsel adopts the lofty posture that he is not going to state the grounds upon which he is asking the Court to exercise its discretion in his favour and contends that it is sufficient for him to state that in his opinion a plea of not guilty should be entered he has himself to blame if the discretion is not exercised in his favour. In adopting this attitude Mr. Avery is arrogating to himself powers he has not got and which can only properly be exercised by the Court. It is tantamount to reducing the role of the Judge to that of a rubber stamp for the indorsement of counsel’s opinion upon the Court record. I felt that if Mr. Avery 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 raise doubt. If he had a genuine defence I cannot see how the disclosure of that defence would prejudice or embarrass the accused. I therefore refused to exercise my discretion in his favour.

Having read the depositions and having heard all that Mr. Avery had to say I am confirmed in my view that the accused had no defence. This murder was committed in a remote and inaccessible area, about three days’ march from the nearest patrol post. Police investigations are poor at the best of times. In this case they could have been minimal. 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?

If an accused person pleads not guilty not only his counsel may but he must, it is his duty to, raise every possible defence on his client’s behalf. It is neither unethical nor unprofessional to take advantage of the lack of proper investigation or to exploit a weakness in the prosecution case or to seek to raise doubt with a view to securing an acquittal.

If, on the other hand, an accused person wishes to plead guilty and he has no defence in my view it is wrong for defence counsel to make an application under s. 575 with a view to exploiting some weakness in the prosecution case. I am of the view that s. 575 was not designed for such a purpose. An application in such circumstances is not in the interests of justice.

Having seen and heard the first, third and fourth accused, I am certain that they must have told their counsel that they were guilty. An English barrister may not defend a client who telIs 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.

If counsel owes a duty to his client he also owes a duty to the Court, and he has a duty in the interests of the general administration of justice. Was Mr. Avery 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? The duty of defence counsel is to ensure that his client has a fair trial, and, if he is convicted, that he is convicted by due process of law. It is not his duty to secure his client’s acquittal at all costs.

Orders accordingly.

Solicitor for first, third and fourth accused: N. H. Pratt, Acting Public Solicitor.

Solicitor for second accused: N. H. Pratt, Acting Public Solicitor.

Solicitor for the State: K. B. Egan, Acting Public Prosecutor.

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[ccclxix]Section 575 of the Criminal Code provides “Notwithstanding anything in this Code contained, counsel for an accused person may, with leave of the court and after the accused has been —

(a)        informed of the offence with which he is charged; and

(b)        asked to plead to the indictment, enter a plea of not guilty on behalf of that accused person.”

[ccclxx]Infra. p. 000.