Papua New Guinea Law Reports - 1981
[1981] PNGLR 350
SC209
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
GABRIEL LAKU
V
THE STATE
Waigani
Kidu CJ Pratt J Miles J
29-30 July 1981
31 August 1981
CRIMINAL LAW - Practice and procedure - Setting aside conviction after plea of guilty and conviction - Discretionary power.
CRIMINAL LAW - Practice and procedure - Arraignment - Dangers in putting specific questions to accused - Evaluation of answers in conflict with statements on allocutus - Presumption of innocence.
CRIMINAL LAW - Practice and procedure - Allocutus - Statements conflicting with answers to questions put on arraignment - Evaluation of - Presumption of innocence.
It is within the discretion of the court to grant leave to withdraw a plea of guilty after conviction and at any time up until the final disposal of the case by entry and recording of conviction and sentence.
The State v. Joe Ivoro and Gemora Yavura [1980] P.N.G.L.R. 1. adopted and applied.
On Arraignment:
(a)      an accused person is not required to plead either guilty or not guilty;
(b)      the practice of a trial judge putting to the accused the various ingredients of the offence alleged and asking if he admits that they are true is proper only if the trial judge feels there is any doubt that the accused will not otherwise understand the nature of the charge; and
(c)      the trial judge must ensure that in seeking answers to specific questions he is not in effect depriving the accused of his right to insist on the constitutional presumption of innocence until proven guilty.
On Allocutus:
(a)      where any statement of the accused conflicts with answers to questions put on arraignment, any admission of guilt arising from the answers to those questions must be regarded as tainted, and the inconsistency is sufficient ground for the exercise of the discretion to set aside the plea of guilty.
R. v. Chiron [1980] 1 N.S.W.L.R. 218 adopted and applied.
Appeal.
This was an appeal against conviction upon a plea of guilty on a charge of unlawful carnal knowledge.
Counsel:
K. Wilson, for the appellant.
L. Gavara-Nanu, for the respondent.
Cur. adv. vult.
31 August 1981
KIDU CJ PRATT J MILES J:  This is an appeal against conviction by the National Court Judge sitting at Lae on 7th July, 1981. The appellant was charged with unlawful carnal knowledge of a girl under the age of sixteen years. Upon arraignment he pleaded guilty. However when he was called upon to say what he wished in relation to sentence, the appellant denied an essential element of the charge, namely penetration. The learned trial judge was then asked by counsel to vacate the plea of guilty which, in the exercise of his discretion, he declined to do. His Honour then proceeded to sentence the appellant. It is now submitted that in exercising his discretion not to vacate the plea of guilty, the learned trial judge was in error.
Leave to withdraw a plea of guilty after conviction is a discretionary matter. It is to be contrasted with the entering of a plea of guilty when the plea has been equivocal. If there is any doubt about whether an accused person intends to plead guilty or not guilty, it should be resolved by recording a plea of not guilty and proceeding to trial. There is a constitutional presumption of innocence up until the time of conviction. The various precautions which have traditionally been taken in order to ensure that an accused person pleading guilty does in fact fully understand and appreciate what he is doing, were considered by O’Leary A.J. in The State v. Manga Kinjip[dlxxvi]1.
Once an unequivocal plea has been entered and the court proceeds to consider sentence, the prisoner is regarded as having been convicted, and it is a matter of the court’s discretion as to whether the conviction should be set aside and the plea of guilty vacated.
These matters are carefully considered and set out in the judgment of Kapi J. in The State v. Joe Ivoro and Gemora Yavura[dlxxvii]2 and this Court would with respect endorse and adopt his Honour’s observations. In Papua New Guinea, upon arraignment, it is not the usual practice simply to ask the prisoner whether he pleads guilty or not guilty. The ingredients of the charge are put to him by the trial judge (very often through an interpreter) and the prisoner is asked whether the allegations are true or not true. If he says that they are true, the judge may regard the prisoner as pleading guilty, or he may prefer not to accept the plea of guilty until the next step has been taken, namely a consideration of the prosecution case which is comprised in the depositions taken before the magistrate at the committal hearing. If the judge is satisfied in the light of the prosecution case that it is safe and proper to accept the plea of guilty, he will go on to administer the allocutus, when the prisoner is asked whether he has anything to say before sentence is passed. It is at this stage that the prisoner may be regarded as having been convicted. Until then the accused has the right to insist on pleading not guilty.
Nevertheless it is quite clear that even after conviction and at any time up until the final disposal of the case by the passing of sentence and the entry of the conviction and sentence in the record at the end of the sittings, the court has power to set aside its own conviction (and sentence if already passed). The exercise of this power is wholly discretionary. These principles have been laid down in many decisions in other places and they may be regarded as part of the underlying law of Papua New Guinea: see S. v. Recorder of Manchester[dlxxviii]3; R. v. Phillips and Lawrence[dlxxix]4; Griffiths v. The Queen[dlxxx]5; R. v. Plummer[dlxxxi]6; Customs and Excise Commissioners v. Menocal[dlxxxii]7.
There have been decisions which limit the exercise of this discretion in certain ways, for instance R. v. Popovic[dlxxxiii]8; R. v. Murphy[dlxxxiv]9. To the extent indicated later in this judgment we do not think that those decisions should be followed in this country.
In The State v. Joe Ivoro and Gemora Yavura[dlxxxv]10 where each of the accused upon allocutus made statements which, if accepted, were inconsistent with guilt, Kapi J. in the exercise of his discretion set aside the plea of guilty and directed that a trial take place, disqualifying himself, in view of what had occurred, from trying the case. In the present matter, in similar circumstances, the learned National Court judge declined to exercise his discretion to set aside the plea of guilty. In accordance with the conventional principles applied to appeals against an exercise of discretion, it is necessary for the appellant to show identifiable error of law on the part of the judge at first instance, or if error of law cannot be identified, that there has been a manifest miscarriage of justice.
The learned judge’s notes as to the proceedings in the National Court commence as follows:
“Unl. carnal knowledge of girl under age of 16 years (girl is 14 years).
Arraignment—it is true.
Mr. Glasgow for accused—no application.
Read deps, record of interview, medical report and clinic book which gives date of birth—1st December 1966. Note girl had just gone 14 years.
Safe.
Plea—guilty as charged.
Verdict—guilty as charged.
Allocutus: Accused speaks in English.”
The notes then record the statement of the appellant on allocutus. He said in effect that he was prepared to “take it as sexual intercourse” because he did not want the case going on and on but he denied that sexual intercourse had occurred. At this stage, twelve midday, the court adjourned and upon resumption at two o’clock, counsel for the appellant applied for the plea of guilty to be withdrawn on the basis of what his client had said before the adjournment. His Honour refused the application and the allocutus continued. The appellant continued to make statements inconsistent with guilt, some of which reflected on the motives of those responsible for laying charges. His Honour heard submissions from counsel and then sentenced the prisoner.
In his reasons for refusing to vacate the plea of guilty his Honour said as follows:
“In this case the defendant is a mature, sophisticated man. I noticed him sitting in the public area of this court most of this morning and was struck by his distinguished appearance. I took him to be, probably, a senior police officer in plain clothes, or such like. Whilst he was there several defendants, in succession, for different offences were sentenced to substantial terms of imprisonment. I am quite satisfied that this accounts for the course matters have taken today in the accused’s matter. I am quite satisfied that he has become apprehensive that the same thing might happen to him.
When the charge was put to accused it was put in Pidgin though he speaks English quite well. I used the expression ‘sexual intercourse’ and the charge was put in Pidgin quite explicitly by an experienced and able interpreter Mr. Mon. Mr. Mon used the words ‘Go upim lik lik Mary’. The accused stood mute. After a while I gently informed him that he must say if the charge was true or not true, and he replied quite distinctly in Pidgin ‘It is true’.
I am satisfied that the accused had last minute misgivings about pleading guilty, for the reason that I have mentioned, but found himself in a quandary because of his instructions to Mr. Glasgow, the nature of which were apparent from the fact that Mr. Glasgow at the appropriate time said that he had no application to make. Mr. Glasgow is an experienced and careful counsel and I cannot conceive that he would not have explained the element of penetration and taken instructions thereon. It would have been professional incompetence for him not to have done so.
On the allocutus the accused made a confused attempt to redress his situation. He has said that penetration did not take place. He also says that he has pleaded guilty to get the matter over with. I disbelieve him on both claims. The statement that he pleaded guilty to get the matter over with is untenable. The Court was ready to hear the case this Sittings, which would not have taken more than a day and a half. I am satisfied that the accused clearly, deliberately and intentionally pleaded guilty to the charge and that he did not do so under any mistake, misapprehension, misunderstanding, distress, weakness or ignorance. In the exercise of my discretion I refuse the application (R. v. Plummer [1902] 2 K.B. 339 and R. v. McNally [1954] 1 W.L.R. 933). The allocutus will continue.”
This Court is of the view that his Honour fell into error in not properly taking into account the circumstances in which the intention to plead guilty had been expressed. It was not correct to inform the accused person gently or otherwise that “he must say if the charge was true or not true”, although that may be in many instances a convenient procedure for obtaining a plea. An accused person is not obliged to plead one way or the other. A plea of not guilty does no more than indicate that the accused relies upon the constitutional presumption of innocence and his right to require the prosecution to prove the case alleged against him according to law. The Papua New Guinean practice of a trial judge upon arraignment putting to the accused the various ingredients of the offence alleged and asking if he admits that they are true is perfectly proper if the judge feels that there is any doubt that the accused will not otherwise understand the nature of the charge. Conversely it carries with it the attendant danger that the accused may believe that he is required to answer the question as to whether the allegations are true. If he does labour under that misapprehension, he may mistakenly forfeit his right to a trial, that is the right to require the prosecution to prove its case. A trial judge who chooses to seek an answer from the accused as to the truth of the prosecution allegations must be particularly careful that he is not in effect depriving the accused of his right to insist on the constitutional presumption of innocence until proven guilty. In order to overcome this problem a practice grew up in Papua New Guinea whereby counsel for the accused, with leave of the court and after the accused person has been informed of the offence with which he has been charged and asked to plead to the indictment, applied to enter a plea of “not guilty” on behalf of the accused. Some judges insisted that the accused gave his reply to the charge before counsel made application, whilst others did not make any issue of the point. Following the enactment of s. 601A in 1964 to the Criminal Code (Queensland, adopted) (now s. 575 of the present Criminal Code), a statutory basis was then afforded the practice and the Supreme Court by a majority in Nai’u Limagwe and Others v. The State[dlxxxvi]11 has ruled that the accused must be given the opportunity to respond before counsel makes his application.
Once the appellant in the present case had indicated on allocutus that he denied penetration of the complainant, the trial judge should have reminded himself of the circumstances in which he had obtained the plea of guilty from the appellant in the first place. It is upon a consideration of the trial judge’s requiring the appellant to say whether the charge was true or untrue, taken together with the appellant’s subsequent denial of one essential element of the charge, that we feel that we cannot be satisfied that no miscarriage of justice has occurred.
In a celebrated passage in Mraz v. The Queen[dlxxxvii]12, Fullager J. said:
“Every accused person is entitled to a trial in which ... the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted ... it is for the Crown to make it clear that there is no real possibility that justice has miscarried.”
In R. v. Chiron[dlxxxviii]13 the New South Wales Court of Criminal Appeal dealt with a case which raised similar issues as the present. The accused was being tried for rape. During the course of the trial the trial judge ruled that evidence of similar facts on the part of the accused was admissible and made some remark to the effect that the result of the ruling was likely to be “sudden death” for the accused. Counsel then advised the accused that if the similar fact evidence was called the defence case would be rendered virtually hopeless and further that if the accused wanted any leniency extended to him he should consider changing his plea to guilty. In the circumstances the accused changed his plea to guilty, was sentenced and convicted, and then appealed against the conviction. Upon appeal the Court of Criminal Appeal decided that the trial judge’s ruling to admit the similar fact evidence was wrong and the further question arose in the words of Nagle C.J. at C.L. (at p. 221) whether a plea of guilty “induced by an incorrect ruling of the trial judge as to the admissibility of material evidence proposed to be led by the Crown, can be said to result in a ‘miscarriage of justice’ “. By majority the court considered that on the application of the principles in Mraz[dlxxxix]14, it could not be satisfied that a miscarriage of justice had not occurred. Street C.J. (at p. 220) considered that the admission of guilt involved in the change of plea to guilty had to be regarded as tainted in that it was not a free and voluntary confession.
We consider that the approach in Chiron[dxc]15 is appropriate to the present case. The plea of guilty elicited as it was by a requirement by the court that the appellant must say whether the charge was true or not true, must be regarded as tainted, and in view of the inconsistency of the plea with the later statements of the appellant on allocutus, the trial judge should have exercised his discretion to set the plea of guilty aside.
Whilst there will undoubtedly be cases in which it will be proper to refuse to allow a plea of guilty to be withdrawn after conviction (for instance where the application is frivolous or based on a flimsy technicality), nevertheless generally speaking where the discretion is exercised against the prisoner it will be closely examined by the appellate court: R. v. Foley[dxci]16. It is well known that persons admit guilt for all sorts of reasons, including the wish to get the case over and done with. In particular, where the question turns on the reliability of an accused person’s statement to the court, it can be resolved satisfactorily only by the calling of evidence in the ordinary way. We would have thought, with respect to the learned National Court judge, that it would be dangerous to test the reliability of what the prisoner has had to say against impressions gained whilst he was sitting in the back of the court during the hearing of other matters. As that appears to be the chief ground upon which the learned judge rejected the appellant’s account of events, it affords further ground for upholding the appeal.
For these reasons we think that the conviction should be set aside and that a plea of not guilty should be entered on behalf of the appellant. There has accordingly been no determination of the issue of his guilt or innocence and a new trial must follow at which no reference is to be made as to his prior admission of guilt before the former trial judge.
Appeal upheld.
Conviction quashed.
New trial ordered.
Solicitor for the appellant: A. Amet, Public Solicitor.
Solicitor for the State: L. Gavara-Nanu, Public Prosecutor.

[dlxxvi][1976] P.N.G.L.R. 86 at p. 88.
[dlxxvii][1980] P.N.G.L.R. 1.
[dlxxviii][1971] A.C. 481.
[dlxxix][1967] Qd. R. 237.
[dlxxx](1977) 137 C.L.R. 293.
[dlxxxi][1902] 2 K.B. 339.
[dlxxxii][1980] A.C. 598.
[dlxxxiii][1964] Qd. R. 561.
[dlxxxiv][1965] V.R. 187.
[dlxxxv][1980] P.N.G.L.R. 1.
[dlxxxvi][1976] P.N.G.L.R. 382.
[dlxxxvii](1955) 93 C.L.R. 493 at p. 514.
[dlxxxviii][1980] 1 N.S.W.L.R. 218.
[dlxxxix](1955) 93 C.L.R. 493 at p. 514.
[dxc][1980] 1 N.S.W.L.R. 218.
[dxci][1963] N.S.W.R. 1270.