Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Doledole [1997] PGNC 11; N1529 (13 February 1997)

Unreported National Court Decisions

N1529

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 459 OF 1996
THE STATE
v
KINGSLEY DOLEDOLE

Waigani

Batari AJ
11-13 February 1997

CRIMINAL LAW - Practice and Procedure - Trial - Change of plea of not guilty - Substitution of plea of guilty to lesser offence - Discretion of court - Application made during State’s case - Duty of Counsel for State.

CRIMINAL LAW - Practice and Procedure - Plea - Guilty to lesser offence - Re-arraignment.

Cases Cited:

R v Iwari [1963] PNGLR 175

R v Suk Ula [1975] PNGLR 127

R v Soanes (1948) 1 ALL ER 289 32 Cr. App. R 136

Interlocutory Ruling

The accused pleaded not guilty to one count of wilful murder. Halfway through the State’s case, he indicated through his counsel that he wished to change his plea to guilty to the lesser offence of murder. In thiort, I deal only wity with the ruling made on this matter.

Counsel:

L Maru for the State

M Apie’e for the Accused

13 February 1997

BATARI AJ: The accused Kingsley DoleDole having presented for trial on the charge that he wilfully murdered one, Isaac Koke Lapa, pleaded not guilty upon arraignment. Mrs Maru for thee listed 27ed 27 witnesses on the indictment but proposed to call 18 only. Seven of the State wses, oes, one of whom was the Investigation Officer and the other six eye-witnesses have completed their evidence. The acc#8217cord of Intervnterview and the Medical Report had also been admitted into evidence by e by consent. At this stage of the State&#s case, Defence Counsel indicated that the accused wished to change his plea to guilty to t to the alternate verdict of murder. I also understood the State Prosecutor to be in agreement with that course.

I stood the matter over temporarily in order that I might have further assistance from Counsels’ submissions on the procedure and duty of the Court in a matter as it now arises. After the adjournmeoth Couh Counsels confirmed their positions as stated earlier have not changed. Mrs Maru submitowever that that despite State’s consent, the Court has the discretion to accept the change of plea.

At the commenc of a trial, the accused might plead guilty to an offence (other than the offence with whic which he is charged) of which he might be convicted, but with the consent of the State Prosecutor. . 560(2)(a) of the Criminaiminal Code Act Ch. No.262. That prov permits acceptaneptance of plea of guilty to a lesser charge, and at that stage of the trial, the matter is entirely betwee Staosecutor and the the accused to resolve at pre-trial conference, if possible. The sihe situatire has hows however gone past that stage. The accused has been gned gned and the trial is half-way through the State’s case. The issue is ther, whether or not it is permissible for the prisoner to chan change his plea of not guilty to a plea of guilty to a lesser offence during tial.

The practice in English Courts is stated by the learned author of Archbold Crim Criminal Pleading, Evidence and Practice in his 43rd ed. At para 4-/p>

“A 20;A plea of Not Guilty may, by leave of the judge, be withdrawn during the trial, and a plea of Guilty substituted.” (emphasis mine).[1963] PNGLR 175 Smithers, J stated at p. 176:

“However, when the prisoner has pleaded and has been put ‘in charge of a jury’ on theral issue, it does not rest rest with the Crown and prisoner to secure his conviction or discharge otherwise than by the verdict of the jury. See R v Heyes, R cock.

Authority indicates that it is not inconsistent with this that the prisoner should in proper circumstances be permitted to change his plea from not guilty to guilty or from guilty to not guilty. It is neveess clear that what whether or not such a change should be permitted is a matter in the discretion of the Judge.

There isr authority in R v Plummer that the Court has power to allow the accused to withdraw his plis plea of guilty at any time before but not after judgment.”

That common law position which permits the accused to change his plea of not guilty by adding a plea of guilty to a lesser offence, in the exercise of the judge’s discretion was also followed in the case of Regina v Suk Ula (No.2) [1975] PNGLR 127. His Honour, Prentice SPJ (as he then was) in refusing the accused’s application to change his plea at the end of State’s case and during cross-examination of the accused in his evidence, was of the view thah common law practice oughtought to be the appropriate practice applied here. I consider that tthe propeproper basis for me to decide the issue in the matter before me.

A pertinent issue which I think causes uncertainty, if not misunderstanding is er or not, the State Prosecutor is free to accept a change ange of plea during the trial without leave of the Court.

As indicated earlier, both counsels are in agreement that the accused alter his plea of not guilty to wilful murder by pleading guilty to the lesser crime of murder. Mrs Maru added that she would not call further evidence and would close State’s case in consideration of the accused pleading guilty to the lesser offence. The inference is clearly that the accused’s chaf plea is subject to consenonsent by the State. As to whether or notState tate is free to accept the change of plea without lea the Court, I adopt what in my view e the proper appr approach as alluded to by Smithers, J in Iwari’s case at p. 176:“As to this the Cour Court in Soanes’ case said:

‘When the applicant had been given in charge of the jury, her counsel informed the judge that she was willing to plead guilty to infanticide, and counsel for the Crown expressed his willingness to accept that plea. Thge refused to accept it,t it, and said that the charge was one of murder and that charge must be tried, although of course, it would be for the jury to say whether the verdict should be guilty of murder or guilty of infanticide. The judge’s reason for refusing to accept a plea of infanticide was that he could find no indication on the depositions that the circumstances existed which must exist before a verdict of infanticide, as distinct from one of murder, can be returned. While it is impossible todlay down a hard and fast rule in any class of case as to when a plea for a lesser offence should be accepted by counsel for the Crown - and it must always be in the discretion of the judge whether he will accept it - in the opinion of the court, where nothing appears on the depositions which can be said to reduce the crime from the more serious offence charged to some lesser offence for which, under statute, a verdict may be returned, the duty of counsel for the Crown would be to present the offence charged in the indictment, leaving it as a matter for the jury, if they see fit in the exercise of their undoubted prerogative, to find the lesser verdict. In this ce think that the the learned judge was not only right, but, indeed, bound, to insist on the applicant being tried for murder. was nothing disclosed on d on the depositions which would justified a reduction of thof the charge from murder to infanticide, and, accordingly, this application is refused.’”

In this case, counsel for the State was purportedly consenting to the change of plea. In fact, she played ttive tive role in inducing the accused’s change of plea by undertaking to close State’s case if the accused pleaded guilty to the lesser offence. W the conduct of State&;s e&;s case is entirely the pree prerogative of prosecuting counsel, the conditional concession made, though may have been well intended,rtunately imparts a distorted view of the prosecutors powerpowers and duties on the issue of change of plea when the trial had commenced and the accused is in charge of the trial judge. It is most undesirable thae that the accused’s exercise of free choice to change his plea during the trial is overwhelmed, induced, influenced or dictated by what may have tantamounted to &#8lea bargain” or comprcompromise - I use the term advisedly - in this case.

In the upshot, the question is entirely for the trial judge to consider and may in his discretion accept or decline the change of plea on the facts admitted at the time of the application. The State t empowered to a to accept the change of plea during the cause of trial without leave of the Court and should resist the temptation to do so in line with its duty to “present the offence charged in the indictment, leaving it as a matter for the jury, if they see fit in the exercise of their undoubted prerogative, to find the lesser verdict”. See Soane’s case, supra.

In view of the position undertaken by the State, I am not bound to consider any other material pertaining to the wilful murder charge other than the evidence admitted thus far on the central issue of intent. The nce as its stands, rev, reveal instances of beatings which resulted in death. There has been noct evidenvidence adduced onissue of intent, though inferences could be drawn from the nature of the assault and the rehe resultant injuries which caused the dec’s death. The evidence sty suggest aest an inte intent to cause the deceased grievous bodily harm. There is real possibithat that a conviction on the lesser crime might result. In my usion, the evidence ence before me sufficiently justifies action of the charge from wilful murder to murder. Accordingly, I grae applicpplicatiocation.

The only issue which remain how does the Court proceedoceed from here? In Archbolds, Criminal Pleading, Evidence and Practice, (ibid) the learned author states:

“The procedure is e is for the relevant count or counts to be put to the defendant again and the new plea should be tendered by the defendant and not someone (eg counsels) on his behalf.”

I adopt and apply this as the appropriate practice to follow. The accused wilre-arraigneaigned on the evidence and the agreed facts on the charge of murder.

Lawyer for the State: P Mogish Public Prosecutor

Lawyer for the Accused: D Koeget A/Public Solicitor