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State v Maika [2004] PGNC 164; N2605 (16 August 2004)

N 2605

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 903 0F 2004

THE STATE

V

GWEN MAIKA

WEWAK : CANNINGS J
10, 11, 12, 16 AUGUST 2004

CRIMINAL LAW – indictable offence – plea of guilty – provisional entry of plea – examination of District Court depositions – Judge’s discretion not to accept plea – questions to counsel – Criminal Code, Section 563 – entry of plea of not guilty by accused’s counsel despite earlier entry of guilty plea – issue of perceived bias – circumstances in which a Judge may continue to preside – trial Judge asked to continue – Criminal Code, Section 225 – procurement of miscarriage – elements – actus reus and mens rea of offence – State offering no evidence – no case submission – circumstances in which should be upheld – verdict.

Cases cited:
The State v Nau’U Limagwe and Others [1976] PNGLR 382
The State v Yaulipa Bulaim (1980) N234
The State v Lasebose Kuriday (1981) N300
The State v Peter Sari [1990] PNGLR 48
Dinge Damane v The State [1991] PNGLR 244
In the matter of a Leadership Tribunal; Timothy Bonga v Hon Justice Maurice Sheehan and Others [1997] PNGLR 452
The State v Jack Oroko Tepol (1999) N1941

Counsel:
Mr J Wala for the State
Mr L Siminji for the accused

CANNINGS J:

This is a criminal case. The accused, Gwen Maika, faced the following indictment:

Gwen Maika of Masandanai in East Sepik Province stands charged that she on the 7th day of January 2004 at Wewak in Papua New Guinea, unlawfully administered to herself a noxious substance, namely raw egg with lemon grass, with intent thereby then to procure her own miscarriage.

The indictment was presented under Section 225(2) of the Criminal Code.

Section 225(2) states:

A woman who, with intent to procure her own miscarriage, whether or not she is pregnant—

(a) unlawfully administers to herself any poison or other noxious thing, or uses force or any other means; or

(b) permits any such thing or means to be administered or used to her,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

BACKGROUND

This case first came before me at Wewak, for mention on 9 August 2004. The Court was informed that the matter would come as a plea, to be heard on 10 August 2004 at 1.30 pm, ie the Court was informed that the accused would plead guilty.

On 10 August 2004 the indictment was presented and the accused was arraigned. She pleaded guilty. I then entered a provisional plea of guilty subject to my reading of the District Court depositions. The Court was adjourned for 15 minutes and I examined the depositions and observed the following matters.

District Court depositions

In early January 2004 the accused was about eight weeks pregnant. On 7 January 2004 she allegedly consumed some raw egg and lemon grass. On or about the same day she had a miscarriage. She was admitted to hospital and given treatment. On 10 January 2004 she was discharged from hospital. There was then apparently a complaint made to the Police that the accused had deliberately procured her own miscarriage. Someone alleged that she did that, as her uncle was said to be the father of the unborn child. A Police investigation was carried out.

On 26 May 2004 the accused was interviewed by two officers of the Criminal Investigation Division attached to Wewak Police Station. This was part of what appeared to be a methodical and systematic investigation. A record of interview was made. It was put to the accused that she had aborted her child. She denied that. However, later the same day, 26 May 2004, she was arrested and charged under Section 225(2)(a) of the Criminal Code. On 28 July 2004 the accused was committed by the District Court at Wewak to stand trial. She was granted bail.

QUESTIONS TO COUNSEL

The purpose of my reading of the District Court file was to satisfy myself that the accused had properly pleaded guilty to the charge. I had to be satisfied that there was reasonable evidence available, on the face of the file, of all of the elements of the charge. Further that there were no reasonable defences available to the accused that may have been overlooked. An accused person has a right under Section 37(1) of the Constitution to the full protection of the law. The Court has a duty to satisfy itself that it is safe to accept a plea of guilty. The Court must not surrender its duty by relying merely on the word of defence counsel. (See The State v Yaulipa Bulaim (1980) N234 and The State v Peter Sari [1990] PNGLR 48 and, generally, Chalmers et al Criminal Law and Practice of Papua New Guinea 3rd edition, Lawbook Co 2001, at pages 471-479.)

After the adjournment of 10 August 2004 I put a number of propositions and questions to Mr Wala, for the State, and to Mr Siminji, for the accused.
I suggested that there appeared to be two elements to the offence created by Section 225(2):

• that there be unlawful administration by a woman of any poison or other noxious thing or use of force or any other means; and
  
• that the above act be done with intent to procure her own miscarriage (whether or not she is pregnant).
  

I suggested that the first element may be regarded as the actus reus of the offence; while the second may be regarded as the mens rea.

The questions I asked of counsel were: Was it reasonable to suggest that raw eggs and lemon grass are noxious things, as alleged in the indictment? What evidence was there that the accused had administered those things? How did she administer them? What evidence was there that she had done so with intent to procure her own miscarriage? Had her express denial in the record of interview, that she had aborted her child, been properly considered?

I informed counsel that I was giving consideration to vacating the provisional plea of guilty and entering a not guilty plea. An adjournment was then sought and granted to the following morning.

APPLICATION UNDER SECTION 563

On 11 August 2004 I was expecting to hear further responses to the questions I posed and submissions on whether I should exercise my discretion to enter a not guilty plea. However, instead of that happening, Mr Simingi, for the accused, made an application to himself enter a not guilty plea. He made the application under Section 563 of the Criminal Code.

Section 563 states:

Notwithstanding anything in this Code, counsel for an accused person may, with leave of the court and after the accused person 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 the accused person.

I observed that under this provision it is the accused’s counsel who actually enters the plea of not guilty. Not the accused; and not the Court. For such an application to be upheld the following preconditions must be satisfied. First, the accused must have been informed of the offence with which he or she has been charged. Secondly the accused must have been asked to plead. Thirdly the plea must have been heard. Once those preconditions are satisfied the Court has discretion whether to grant leave to the accused’s counsel to enter the not guilty plea. Good grounds for granting leave must be shown. It is not enough for the accused’s counsel to state that in his or her opinion a plea of not guilty should be entered. (See The State v Nau’U Limagwe and Others [1976] PNGLR 382 and generally Chalmers et al at pages 477-479.)

In the present case the three preconditions were satisfied. I therefore considered whether leave should be granted. I took into account the fact that I had already examined the District Court file and told counsel that I was considering entering a not guilty plea, subject to receiving further responses to my questions and propositions, and hearing submissions. I did not consider that that fact was a good reason to refuse Mr Siminji’s application. I considered that the application was made for good reasons. It was a genuine application – not one calculated to waste the Court’s time. So leave was granted. Accordingly Mr Siminji was permitted to enter a plea of not guilty on behalf of the accused. The plea of guilty, which had been entered the previous day, was vacated.

THE ISSUE OF PERCEIVED BIAS

I then sought submissions from counsel on whether I should continue to deal with the case. The normal practice in Papua New Guinea is that where a Judge sets aside a plea of guilty and enters a not guilty plea, the case should proceed before another Judge. This is to avoid any perception of bias. (The State v Peter Sari [1990] PNGLR 48 and Dinge Damane v The State [1991] PNGLR 244.) Here, I did not actually enter a not guilty plea. I was considering doing that. But the accused’s counsel interrupted that process and himself, with leave of the Court, entered the not guilty plea. Nonetheless, I had looked at the District Court file and formed a preliminary view as to the state of the evidence. So I was obliged to suggest that the case be tried before another Judge.

Both counsel, however, submitted that I should continue to deal with the case. There is no rule that a Judge must disqualify himself or herself in this situation. It is a matter of discretion. Relevant factors to be taken into account are (1) whether there is any objection raised by either counsel and (2) the public interest in ensuring the continuity and expedition of court proceedings that have already started. (See The State v Jack Oroko Tepol (1999) N1941, where Kirriwom J proceeded to preside in a trial after having vacated a plea of guilty and after taking those considerations into account.)

Here, both counsel encouraged me to continue. If I were to disqualify myself, the accused would have to wait until the next sittings of the Court at Wewak – which will probably not be for several months – before knowing her fate. So I decided to continue to deal with the case. I made a ruling to that effect on 12 August 2004.

NO EVIDENCE OFFERED

There was then a further twist. Immediately after I ruled that I would continue to preside, I asked Mr Wala to open the State’s case. His response was to say that "The State offers no evidence". I queried whether that was a proper course of action. He insisted that, in the circumstances, it was. I confirmed with him, that he was making that decision in his deliberate judgment. I then asked Mr Siminji for his response. He replied by making a no case submission.

NO CASE SUBMISSION

The nature and purpose of a no case to answer submission was carefully explained by Kearney DCJ in The State v Lasebose Kuriday (1981) N300. It raises a question of law. A no case submission should be upheld in two situations. First if there is no evidence or no more than an iota of evidence to support one or more of the elements of the offence. Secondly, if there is more than an iota of evidence, but the Judge really has no weighing of evidence to do by reason of the State’s evidence being so tainted or so obviously lacking in weight or credibility that no reasonable tribunal of fact could safely use it as the basis of a conviction.

The present case falls squarely into the first category. A Court can only convict a person of an offence on the basis of evidence tendered before it and other material of which the Court is authorised to take judicial notice. Even a tribunal appointed under the Organic Law on the Duties and Responsibilities of Leadership to inquire into, investigate and determine allegations of misconduct in office concerning a leader – which is expressly required to make its inquiry without regard to legal formalities or the rules of evidence – must have some evidence adduced to it, before it can determine that a leader is guilty of misconduct in office (In the matter of a Leadership Tribunal; Timothy Bonga v Hon Justice Maurice Sheehan and Others [1997] PNGLR 452). I therefore uphold the no case to answer submission.

VERDICT AND OTHER ORDERS

It follows that:

1. The accused, Gwen Maika, is acquitted of the charge of procuring her own miscarriage.
   
2. The accused is discharged from her bail obligations.
   

FINAL REMARKS

The way in which this case has been handled raises the question of whether all those involved properly looked at it before bringing it before the National Court. Section 225(2) of the Criminal Code is one of a number of so-called morality crimes whose place in today’s statute book should perhaps be questioned by the legislature. I could find no record of any woman in Papua New Guinea ever having been convicted of such an offence.

If the procuration by women of their own miscarriages is a serious social problem, then perhaps the best way of addressing it is not by imposing criminal sanctions. There seems to me a strong argument to say that any woman who seriously sought to procure her own miscarriage would be engaged in an act of desperation. She would be a person in need of guidance, counselling and caring. It seems that such a person might not be the sort of person who ought to be subject to a Police investigation and criminal sanctions.

I could not help but gain the impression, after examining the accused’s record of interview and the witness statements that were on the court file, that the Police and the lawyers and the other parts of the criminal justice system that were used to bring this case to trial, had really been misused.

I hasten to add that these final remarks are simply reflections on a peculiar case. They are not statements of law and ought not to be regarded as such. In the final result the accused has been acquitted by an application of legal principles to the case brought before the Court.

Orders accordingly.
______________________________________________________

Lawyers for the State : Public Prosecutor
Lawyers for the accused : Public Solicitor