N454(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL NO. 56 OF 1984

BETWEEN:

HAROLD MARK SWANN
APPELLANT

AND

SIMON SUL
RESPONDENT

Waigani: Pratt J
22 February 1984, 5 March 1984

PLEA OF GUILTY - Subsequent statement of allocutus casts doubt on plea - Failure to understand seriousness of charge - Complete independence of mind not exercised on decision to plead.

Fuller court working sheets recommended, especially where lack of legal representation.

Legislation
District Courts Act s.138, s.236(2)

Authorities Cited
Cooling v. Steel (1972) 2 S.A.S.R. 249
Browne v. Smith (1974) 4 A.L.R. 114
Salter v. Seebohm (1972) 4 S.A.S.R. 192
Jones v. Holmwood (1974) W.A.R. 33
Jensen v. McGrath [1965-66] PNGLR 91
Regina v. Cervetto & Ibara [1965-66] PNGLR 110
Laeka Ivarabou v. Nanau [1967-68] PNGLR 12
Leonard Eliza & Ors. v. Mandina [1972] PNGLR 422
Gabriel Laku v. The State [1981] PNGLR 350
Henderson v. Blackwell [1973] PNGLR 223
Mraz v. The Queen (1955) 93 C.L.R. 493

PRATT J: The appellant is a Fijian seaman who became involved in an altercation with a Harbours Board security guard at about 4.00 o’clock in the morning of the 4th January 1984 as he was returning to his ship considerably under the influence of alcohol. As a result, the appellant was subsequently arrested at about 10.00 a.m., charged with assault under the Summary Offences Act, and brought before the Boroko District Court later that day.

The offence is now one which carries a minimum penalty of six months imprisonment and a maximum of two years, unless the magistrate feels that the provisions of s.138 of the District Courts Act permitting imposition of a bond in absence of conviction is an appropriate penalty. The provisions allowing a fine to be substituted for a period of imprisonment, in minimum penalty cases was repealed by the Parliament on the 8th of November last year.

The magistrate says in his helpful reasons for decision, that immediately following the reading of the charge, he advised the prisoner that the offence carried with it a minimum period of six months imprisonment and a maximum of two years. The appellant has given evidence before me that if the magistrate did say such a thing at that particular point in time, then either he did not hear it properly, or he did not understand it. I agree with the learned magistrate that the appellant’s command of English is quite reasonable. The magistrate goes on to say in his reasons, that after he had drawn attention to the penalty, the charge was then explained in detail and the appellant indicated that he wished to plead guilty. On that intimation, a provisional plea of guilty was entered. Following a reading of the statement of facts, and the defendant’s reply, the magistrate felt it was safe to continue on with the proceedings on the basis of a "plea of guilty" and did so. It is rather a pity that the appellant’s evidence before me had not been committed to an affidavit rather than evidence from the witness box. As the ground of appeal sought a dismissal of the charge against the appellant on the basis that there was a substantial miscarriage, the respondent could not be denied the right to cross-examine the appellant at large, as it was the appellant who went into the witness box of his own volition. It was not a matter of granting leave to cross-examine on an affidavit. It may be, that the accuracy of the magistrate’s recollection apparently sometime after the 19th January 1984, may have been affected by the passage of time, it being some three weeks more or less to the time when he was asked to cast back his mind to the occasion in question. As often happens however in the appeal court in these matters, the nature and content of the allocutus has given me a considerable cause for concern. The appellant said to the learned magistrate after conviction, and before sentence was passed, the following:

"I drunk too much beer at the time I did that. I want to pay a fine and compensate the complainant (unreadable) for the injuries caused. My parents are very old so I wish to go back to my home".

This seems a rather odd statement to be made by someone who has been clearly told even before he was ask to plead, that the Court, except in the very special circumstance where it considers a bond adequate punishment, must send him to gaol for at least a period of six months, and is not permitted to impose a monetary penalty.

The defendant’s statement should have immediately placed the learned magistrate on the alert, as to whether or not the accused had appreciated the seriousness of the offence and the fact that the Court was obliged to send him to prison. I did not think it requires any forensic learning to appreciate that where one talks about the seriousness of the offence, what one really means is the seriousness of the penalty which can be imposed if the person is found guilty of that offence. After all it’s only the penalty which makes the matter serious from the point of view of one’s pocket or personal liberty, though there are no doubt some exceptions where the trauma and personal shame of admitting to a particular type of offence may even be worse than the penalty imposed.

There are many and varied reasons which may influence a person into deciding to plead "guilty" rather than "not guilty" when he comes before a Court. This characteristic has been commented upon by many judges in different jurisdictions, and any judge or magistrate who disregards the tendency does so at his peril. One of the reasons was expressed in the present case in the form that he just wanted to get it over with and get back to his ship. No doubt he was still not functioning at his best in view of the fact that he had been considerably under the influence a few hours earlier that day.

It has been submitted to me that where a defendant has failed to appreciate the seriousness of the charge, then as a matter of law, such a situation meant that any plea of guilty became ineffective. Emphasis was particularly laid on the words of Wells, J. in Cooling v. Steel (1971-72)2 S.A.S.R. 249 at 251:

"If the case is to be proceeded with, the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed - especially where the court has the power to ... record a term of imprisonment."

This view on the matters covered by His Honour was supported and followed by Muirhead, J. in Browne v. Smith (1974) 4 A.L.R. 114 at 120-121; by Walters, J. in Salter v. Seebohm, (1972) 4 S.A.S.R. 192 at 195, and then by Wallace, J. in Jones v. Holmwood (1974) W.A.R. 33. Their Honours made a number of observations on the course which should be followed in the Magistrates Court where there is an unrepresented defendant. I do not take any of their Honours however to be laying down their recommendations as actual matters of law, a failure to observe which will, in any particular instance, invalidate the plea. Rather, I believe it is clear that what must be shown is the absence of one vital factor of which the aspects referred to by their Honours are but examples. This essential factor is the existence of material which points to the fact that there has been an interference with the independence of the defendant in coming to his decision to plead guilty or not guilty. In short he has not come to a decision free of constraint or interference. I am not prepared to say myself, however, so far as the circumstances of this country are concerned, that any failure to advise the defendant of a right to legal representation, is a failure which affects the plea, unless it could be shown exactly in what way it affects the plea in the individual case. Our national Constitution casts an obligation on the Public Solicitor to give representation to all persons who fall within the category of "impecunious" when they are charged with an offence carrying a maximum of two years imprisonment or more. Even bearing in mind the Minimum Penalties legislation, there is still a great deal of work which goes through the Magistrates Courts throughout the length and breadth of the country which could not possibly gain any assistance from the Public Solicitor in view of the present and foreseeable financial constraints on that Office.

The matters mentioned by the various Judges above-cited are not new to this country. Some of them obtained their first airing in a published report under a judgment of Mann, C.J. in Jensen v. McGrath [1965-66] PNGLR 91 at 94 and of Minogue, J. in Regina v. Cervetto & Ibara [1965-66] PNGLR 110 at 119 ff. In both of those cases, the Queensland authorities are reviewed. For the same reasons as given by Sir Alan Mann on p.94 of Jensen & McGrath (supra), I repeat what his Honour said there:

"In Heffernan v. Ward (1959) Qd. R. 12, on a charge for dangerous driving, the defendant pleaded guilty, influenced by advice given to him by a police officer who was the driver of the other vehicle directly involved in the accident which took place. The defendant thought that if he pleaded guilty he would be dealt with more leniently but was surprised to find that the police officer, who had given him this advice, gave evidence against him placing great stress on the speed of the defendant’s car and other matters which the defendant was prepared to contest strongly. On appeal Stanley, J. expressed the following view that as a matter of prudence 'before accepting a plea of guilty in any case in which a policeman is the complainant and the accused is not represented by counsel or solicitor, the stipendiary magistrate would be well advised to point out to any such accused that the severity of penalties does not depend on whether he pleads guilty or not guilty, and to enquire whether anyone connected with the police force has suggested that he should plead guilty; and if the magistrate does not receive from the accused a prompt and convincing disclaimer of any such suggestion, he should suggest to the accused to plead not guilty and emphasise the impropriety of any such advice.’

In Hallahan v. Kryloff, ex.p. (1960) Q.W.N. 18, the defendant pleaded guilty before a stipendiary magistrate to a charge of vagrancy. The Full Court expressed agreement with the view of Stanley J. expressed in Heffernan v. Ward (supra) and repeated by him in Hallahan’s case (supra). The Full Court added one further point, 'that in a case at which my learned brother’s remarks were directed it would also be prudent on the part of the magistrate to intimate positively to the person who is before him his right of putting everything he wishes before the magistrate, provided it is relevant to the charge and then getting down on the record the agreement of the accused person that he has said all that he wishes to say’ - see Wanstall and Stanley JJ.

Without imputing any suggesting of malpractice on the part of the police, I think that this rule of prudence, so firmly recognised in Queensland, should be closely observed in the Territory where, as is well known, we commonly encounter the likelihood of misunderstanding and misapprehension on the part of unrepresented defendants. In many circumstances, quite apart from those which arise from some officer failing to realise that he is in a partisan position and that he should strictly avoid giving advice which may influence the course of action taken by an unrepresented defendant, one of the oldest, but still the best, methods of overcoming difficulties of this kind is to bring everything out into the open before the court which has the responsibility of determining the case in the first instance."

I would of course most respectfully agree not only with the Southern Judges but with the words of Sir Alan Mann, and Sir John Minogue in the two cases reported in the 1965 Reports. A further case may be found in Laeka Ivarabou v. Nanau [1967-68] PNGLR 12 at 17-18 and once again in Leonard Eliza & Ors. v. Mandina [1972] PNGLR 422. Perhaps the most recent case published here is Gabriel Laku v. The State [1981] PNGL.R. 350 involving an appeal from a conviction in the National Court. I would strongly recommend to the Chief Magistrate that the Court’s working sheets for both the Local Court and the District Court should reflect the advice of the judges especially where the defendant is not legally represented. This would have a number of advantages: for example, at p.252 of Cooling and Steel, Justice Wells points out:

"It has become the well-established practice of this Court, where an appeal has been instituted against sentence upon a plea of guilty, to receive, when tendered by counsel for the respondent, an affidavit deposing to the details of the proceedings in the lower court. It is essential that such affidavits should be detailed and accurate. Often it is in the face of such affidavits that allegations are made of the kind embodied in the appellant’s written submissions. Great difficulty is experienced from time to time, not withstanding the affidavit, in ascertaining just what passed between the bench and the appellant... It seems to me that all prosecuting counsel and police prosecutors should make a note on the brief with the aid of which they will be able subsequently to depose to what happened in court, what procedures were observed, and what was said."

My only comment on this advice by Mr Justice Wells is that if all the details appeared on the magistrate’s working sheet which might perhaps set out a number of questions dealing with independence of decision concerning the plea, whether any assistance is required from a friend, whether any adjournment is sought for any reasons, that the nature of the charge has been explained together with the penalties, and the court is satisfied that the defendant understands the matters put to him, etc. This would of course remind not only the magistrate of what is required to be done but would assist in the introduction of a uniform system throughout the country. Of course, it would be of great assistance to both respondents and appeal courts as well as appellants, should any appeal be subsequently lodged. It goes without saying that if the matter is being dealt with at first instance or on appeal, both courts have the duty to ensure that justice is done irrespective of the pressure of work which may exist.

The serious consequences which flow from a failure by the magistrate to obtain a clear and unequivocal plea of guilty to the charge is underlined by the fact that such a basic error of principle cannot be remedied in a court of appeal by implementing the proviso under s.236(2) of the District Courts Act which reads:

"An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice."

In Henderson v. Blackwell [1973] PNGLR 223, particularly at 226, the magistrate had completely misinterpreted s.138 of the District Courts Act. Consequently, he had not considered what he could do under those provisions although it is clear that what he was seeking to do could have been done under that section had he reached another conclusion on the law. The case therefore is an illustration of where there is a breach of principle this must lead to a miscarriage of justice. There are other occasions in which a failure to refer to s.138 would certainly not be a breach of a principle. For example, where the appeal court itself reached a view on the re-hearing involved in a appeal, that any reference to s.138 by the magistrate or the appeal court is quite unnecessary on the facts. For reasons which will become apparent I shall not make any comment one way or the other in relation to s.138 in this instance.

The reasons why a faulty plea is always vital to the legitimacy of subsequent proceedings stems from the fact that without a proper plea the matter never really gets off the ground. Although I am adopting words used in respect of another type of case, I believe that what Fullagar, J. says at p.514 of Mraz v. The Queen (1955) 93 C.L.R. at 493 is still pertinent:

"If there is any failure... and the appellant may thereby have lost a chance which was fairly opened to him on being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to the law."

If there is any doubt at all, as to whether the defendant has pleaded guilty in the free exercise of his own will, then such a procedure from that point onwards, must amount to a miscarriage of justice. The only solution is to send the matter back to the magistrate and have the procedure properly followed. I do not think this is an occasion which would warrant this Court quashing the conviction and making no further order. It seems to me unarguable that the matter must go back to be dealt with de novo by the Boroko District Court. The appellant failed to appreciate the seriousness of the charge and thus failed to appreciate the plea.

Because the whole of the facts may be recanvassed in detail later on I say nothing about s.138 of the District Courts Act. A great deal of time and learning were spent in this area and the submissions do underline the fact that where no specific reference is made to this section in the magistrate’s working sheet (perhaps another matter which should be added to the new format I have earlier suggested), and the wording in the magistrate’s written reasons for decision may give rise to the contention that the matter was not adverted to by the magistrate, even though the facts of the case may be so glaring as to call for a heavy period of imprisonment from the magistrate, nevertheless, the omission lays at least some groundwork for an appeal point. In a glaring case however it does not matter whether the magistrate had adverted to the section or not, for a failure to do so could not be regarded as a substantial miscarriage of justice. Indeed it would be most unjust for an appeal court to remit the matter back to the magistrate when it is patently obvious on the facts that s.138 has no relevance. This is the very reason why the proviso exists.

I have given some anxious thought to the nature of the bail order I should make whilst the appellant is awaiting disposal of the matter in the District Court. In all the circumstances, I am of the view that his passport should be returned to him. It is either now expired or about to expire.

The reporting period should be reduced from twice a week to once a week. 
Consequently, I make the following orders:

1) 	The appeal is upheld and I remit the case for hearing before the District Court at Boroko or any other competent Court.

2) 	In the meantime, the appellant’s bail in the sum of K100 cash is extended.

3) 	His passport is to be returned to him.

4) 	He must report on the Monday of each week to the O.I.C. - Prosecution Branch, Boroko Police Station.

Lawyer for the Appellant: Young & Williams
Counsel: R. Thompson
Lawyer for the Respondent: L. Gavara-Nanu, Public Prosecutor
Counsel: J. Byrne & S. Maunsell