Yangesen v The State [1978] PNGLR 465 (30 November 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 465 - Kuraba Yangesen of Meremanda v The State  

[1978] PNGLR 465

SC141

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

KURABA YANGESEN OF MEREMANDA

V

THE STATE

Waigani

Prentice CJ Raine DCJ Pritchard J

28 November 1978

30 November 1978

CRIMINAL LAW - Appeal against conviction - Whether plea of guilty improperly entered - Unequivocal plea - Accused represented by counsel - Prima facie proof of charge - Appeal dismissed.

An accused was indicted on a charge of dangerous driving causing death and pleaded guilty. When called up for sentence the accused said on the allocutus that a steering pin came out and the trial judge then invited counsel for the accused to give this some thought, which having been done, the matter was proceeded with on the basis that the plea be regarded as one to a charge of dangerous driving “simpliciter”.

On appeal against conviction on the ground that the plea of guilty should not have been entered,

Held

(1)      There are occasions when it is proper for a court of appeal to say that a trial judge should have refused to accept a plea of guilty or should have set it aside.

(2)      In the circumstances, including the representation by counsel throughout, the formal unequivocal plea of guilty, fortified by a second similar plea to a lesser charge, and the fact that the dangerous driving of the accused prior to the allegation of mechanical defect, was, prima facie, established, the plea of guilty was properly entered.

Appeal

This was an appeal against conviction on a charge of dangerous driving, on the ground that a plea of guilty should not have been entered.

Counsel

A. K. Amet, for the appellant.

K. B. Egan, for the respondent.

Cur. adv. vult.

30 November 1978

PRENTICE CJ RAINE DCJ PRITCHARD J: This is an unusual appeal, as the facts and the grounds of appeal will demonstrate.

The appellant was indicted on a charge of dangerous driving causing death under s. 336(4) of the Criminal Code. At his trial the notes of the learned trial judge reveal that prior to arraignment, as is usual here, the prosecutor gave the judge a short outline of the case so that his Honour could arraign the accused in a way that would be comprehended by the latter. His Honour noted the following:

“Particulars of charge:

Unlicensed learner’s permit.

Speed excessive in the circumstances.

Toyota loaded with nineteen people — ten would have been excessive.

Fell down steep embankment — sixty to eighty feet below road level.”

When arraigned the appellant said “True”. Mr. Sevua, counsel for the appellant, then announced his appearance and said that he had “no application”; in other words, that he did not apply, under s. 575, to enter a plea of not guilty on behalf of his client, as can be done in a proper case.

His Honour then read the depositions and accepted the plea of guilty.

When called up for sentence the accused said on the allocutus that a steering pin came out, and this was then reasserted by his counsel. It seems clear that his Honour felt that this must have occurred, if it occurred at all, at a point when the admitted dangerous driving had well and truly commenced, but before the point of time when remedial action might have prevented the Toyota Stout plunging down the cliff. So his Honour intervened, most properly, and invited counsel to give this some thought. His Honour was concerned lest there be some doubt that the admitted dangerous driving actually caused the death. It may well be that this was indulgent, but on a plea of guilty a judge is not nearly as well informed as he is after a contested trial. We think his Honour acted wisely.

The issue could have been resolved in the way suggested by Raine J (as he then was) in R. v. Gabai Vagi and Ors.[dclxvi]¹, but the prosecutor was content to proceed on the basis that the plea only be regarded by his Honour as one to a charge of dangerous driving “simpliciter”. Defence counsel agreed in this, and his Honour awarded a sentence of six months imprisonment with hard labour.

The ground of appeal is that the plea of guilty should not have been entered. (We note that in reality two pleas of guilty were really entered, this with counsel appearing for the accused.)

The ground is particularized:

(i)       The depositions disclosed a defence of accident due to a mechanical defect.

(ii)      There was no evidence or insufficient evidence of speed.

(iii)     There was no evidence that the overloading of the car affected the driving of it by the appellant.

(iv)     There was no evidence or insufficient evidence that the appellant was an inexperienced driver.

We will return to the factual matters later.

At the outset of his argument Mr. Amet was properly concerned to persuade us that an appeal would lie where a trial judge failed to cause a plea of not guilty to be substituted for an initial plea of guilty, where this was the proper course to adopt, even though the accused was represented by counsel.

Mr. Amet referred us to a deal of authority in a most careful way, and, as we see it, Mr. Egan does not seek to counter it, as a matter of law. But as we understand him, he says this is not a proper case to go behind the plea.

We believe that there can be occasions when it is proper for a court of appeal to say that the trial judge should have refused to accept a plea of guilty or should have set it aside.

The plea of guilty here was unequivocal. For a discussion of equivocal and unequivocal pleas see the judgment of O’Connor J in P. Foster (Haulage) Ltd. v. Roberts[dclxvii]².

The appellant pleaded guilty. He was represented by counsel. When the trial judge, of his own motion, queried whether there was any causation between the earlier dangerous driving and the death, the accused and his counsel virtually pleaded guilty to the lesser charge. Of course the accused was not re-arraigned, he was, in effect, told that there would only be a conviction for dangerous driving “simpliciter”. But, as a matter of practical politics, it really amounted to a second plea of guilty, and, once again, counsel for the accused was there, and assented to it.

We now turn to the depositions themselves. In reading them, as he was bound to do, his Honour is not to be taken, as it were, to be conducting a trial, in the sense of a contested trial. His Honour was reading them in the light of an apparently unequivocal plea of guilty by a man represented by counsel. Further to this, it is clear that the trial judge gave no mere lip service to his task, for after reading the depositions his Honour himself took up this causation problem with counsel, and did so most seriously.

The depositions show us that two passengers on the Toyota gave lengthy evidence about the speed their vehicle was driven. The police prosecutor asked many questions as to this. It was careful work on his part. Speed alone is not the end; it is speed in all the circumstances of the case that counts. This was a Highlands road, in good condition, but with plenty of bridges to cross and corners to negotiate.

Prima facie, the Toyota Stout was grossly overloaded, probably not so very serious on a good flat road, but most imprudent on Highland roads. The driver was not highly experienced. One witness said the driver maintained his speed. The accused himself, on the allocutus, volunteered that the road was a dangerous one. The complaint as to mechanical defect does not excuse the prior driving, which was, prima facie, established. We might add that it seems clear to us that his Honour never had, in the back of his mind, the nagging thought that death resulted, and that his Honour only paid regard to dangerous driving “simpliciter”; witness the sentence, six months in hard labour only.

Mr. Amet had a difficult case to argue. It seemed to us that he was trying rather to shy away from the “potentiality” aspect in the offence and so to excuse the accident. It is “potentiality” that the section aims at. That death results as a result of dangerous driving does not alter the quality of the dangerous driving, it only results in a greater maximum sentence. Many dangerous drivers have been caught by police before any harm to them or others was caused at all. See McBride v. The Queen[dclxviii]³, judgment of Barwick CJ

In our opinion his Honour was quite correct in accepting this plea. Possibly there was a defence, we cannot say, but the depositions revealed a real case against the accused, fortified by a formal plea of guilty, and, virtually, a second similar plea, to the lesser charge.

In our opinion the appeal must be dismissed.

In conclusion, we would wish to add something to this joint judgment. Mr. Amet told us at the outset, that he was seeking no retrial, but the discharge of the appellant, if we believed the trial judge wrong in entering a plea of guilty. We queried this, and still do.

It seems to us that this would place the Supreme Court in a most invidious position. If the trial became a nullity because the plea should not have been accepted, were we to discharge the appellant then, so it seems to us, we would be acting as a fact finding tribunal on mere depositions, and the issue would really never have been tried at all. Had we been of opinion that the trial judge was in error we would have ordered a new trial.

Appeal dismissed.

Solicitor for the appellant: M. Kapi, Public Solicitor.

Solicitor for the respondent: K. B. Egan, Public Prosecutor.

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[dclxvi][1973] P.N.G.L.R. 30.

[dclxvii][1978] 2 All E.R. 751.

[dclxviii][1966] HCA 22; (1966) 115 C.L.R. 44 at p. 49.