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State v Manly [2019] PGNC 172; N7902 (21 June 2019)

N7902

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1356 42 OF 2018

THE STATE

V

JESSIE MANLY

Kokopo: Anis J
2019: 17 & 19 & 21 June

CRIMINAL LAW – Hearing on whether the Court should vacate plea of guilty and replace that with a plea of not guilty – prisoner pleaded guilty to murder under section 300(1)(a) of the Criminal Code Act Chapter No. 262 – matter reserved for decision – Court realised that prisoner has denied the facts based upon which the plea was negotiated and entered into, in the pre-sentence report – prisoner indicated that she would have denied the charge and defended the matter had it not been for the lawyers – whether the Court’s discretion to vacate a plea before sentence is handed could include considering what a prisoner may have said to his probation officer and which is recorded in the pre-sentence report

Cases Cited:

State v. Joe Ivoro and Gemora [1980] PNGLR 1
State v. Sari [1990] PNGLR 48
State v. Vincent Fong [2016] N6418

Counsel:

Ms J. Batil, for the State
Mr N. Katosingkalara, for the prisoner

RULING

21 June, 2019

1. ANIS J: The prisoner was indicted on 10 May 2019 for the murder of the deceased David Manly (deceased). She pleaded guilty on the same day. Her sentence hearings were held on 21 and 23 May 2019. I reserved my ruling on sentence to 6, 12 and 19 June 2019.

2. A pre-sentence report had been requested, and it was produced to the Court on 21 May 2019. When considering sentence but before making a final determination, I noted what the prisoner had told the probation officer in the pre-sentence report. The points of concern were at the introduction at page 2 of the report. It reads, and I quote in part:

The offender, Ms Jessie Manly, from the beginning of the interview stated to the author that she after the hearing of the brief facts and/or story read to her by the State Prosecutor said that the events of the incident were all wrong, in so far as it being twisted around, and that the deceased came and argued with the offender at her younger brother’s house, Mr Ken Manly rather then it being at her own dwelling house at the Kurapalang Section inside their Kereba Block. This being said, the offender advised that she did not feel like correcting the mistake made by the State Prosecutor as she noted that from beginning of her intended trial the story was all wrong. The offender stated during the interview that she just pleaded guilty to the offence of MURDER, as she felt that she did not have the strength to continue arguing with lawyers to correct their story.

She stated also that if the story/version of events had been correct by the State Prosecutor’s office from the beginning she would have pleaded not guilty and fought for her innocence.

3. The brief facts which the prisoner had admitted to earlier on arraignment, were, and I quote in part:

On the 12^th of July, 2018, at between 10am and 11am, the accused Jessy Manly was at Kereba Block in East New Britain Province. She had a quarrel with her brother David Manly (deceased). The quarrel led to a fight between the deceased and their other brother Manly Mistai where the deceased was cut several times with bush knives and so died....The quarrel started that morning when the accused was at the house of their younger brother Ken Manly sitting down telling stories with her daughter Betty ToBata and her son-in-law Isaac Tama. The deceased arrived with a wheelbarrow containing tools to build the house of Ken Manly. He was planning to help Ken Manly build his house that day. The deceased then told the accused and her daughter and in-law that they should disperse as it was time for work....The accused replied telling the deceased to proceed on to doing his work and to leave them alone. The deceased got angry when the accused said that so he got a piece of wood and threw it against the wall of the house. He did it a second time....They all got up (the accused, her daughter and her son-in-law) and left. The accused told the deceased before leaving to wait for her there as she was going to go and get their other brother Manly Mistai....Manly Mistai arrived at the scene with a bush knife after he was told by the accused of what the deceased did. Manly Mistai started chasing the deceased. The deceased went and armed himself with a bush knife to defend himself. The deceased was chased into the cocoa patch and back to the house by Manly Mistai....At the house Manly Mistai came upon the deceased along with the accused’s husband Vincent ToBata and the accused’s son-in-law Isaac Tama. The accused stood at the side and was yelling in kuanua, “Da batia, da bulia, muria muria. Alup mala mala ngala” which means in English “chase him, cut him, follow him, follow him. He is always acting big.” The three men attacked the deceased. They deceased was severely wounded. He bled from the wounds and died shortly after he was attacked....The Sate says that the actions of the accused contravene section 300(1)(a) of the Criminal Code in that she murdered David Manly....The State invokes section 7 of the Code because the accused went and reported the deceased to Manly Mistai who came and fought with the deceased and she supported Manly Mistai and the two others through her words when she told them to chase after and cut the deceased. She therefore aided and abetted them in the commission of the crime and is a principle offender by virtue of section 7(1)(b)(c).

4. I alerted both counsel of the above remarks or statements contained in the pre-sentence report, on 17 June 2019. I requested counsel to make submissions on why I should not exercise my discretion and vacate the guilty plea of the prisoner, and enter a not guilty plea in its stead. When the matter was recalled on 19 June 2019, the Court heard submissions from both counsel. I reserved my ruling thereafter to 1:30pm on 21 June 2019.

5. This is my ruling.

ISSUES

6. The issues before me are as follows, (i), is it too late for the Court to exercise its discretion and change the prisoner’s plea from guilty to not guilty? (ii), if not, whether the Court, in the exercise of its discretion, can take into account matters that are stated in the prisoner’s presentence report? (iii), if so, whether what the prisoner had said which was captured in the pre-sentence report are sufficient or good grounds to warrant the Court to exercise its discretion and covert the plea from guilty to not guilty, and (iv), what consequential orders should the Court make?

DISCRETION

7. Ms Batil submits that the Court has jurisdiction and discretionary powers which are provided for under section 57 and section 155(4), of the Constitution. I uphold the submission. See also the case of State v. Sari [1990] PNGLR 48. I need not discuss in detail the Court’s jurisdiction and discretion as they are not contested.

8. In relation to how the discretion may be exercised, I refer to the case of State v. Joe Ivoro and Gemora [1980] PNGLR 1. The Court held, and I quote in part,

1. The court has power to change a plea of guilty after the plea is confirmed and the allocatus administered but before sentence is passed;
2. A plea of guilty may be changed where circumstances indicate that:
   1. the accused had not really pleaded guilty;
   2. there was a mistake on the part of the accused;
   100. there is a clear defence to the charge;
3. Where a plea of guilty has been changed to a plea of not guilty, the court should not as a matter of course proceed to find an alternative verdict if the depositions support that alternative offence: to do so would be equivalent to finding the accused not guilty of the offence charged without the issue being tried according to law as required by section 578 of the Criminal Code;
4. Where a plea of guilty has been changed to a plea of not guilty the proper procedure to be adopted is to ascertain whether the State wishes to proceed with the charge, or, to consent to a plea on a lesser or alternative charge which is supported by the evidence.
5. A judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he is not unprejudiced or impartial.
   

9. I adopt the above as my own herein. In the present case, sentence is pending; the prisoner has pleaded guilty to murder under section 300(1)(a) of the Criminal Code Act Chapter No. 262 (Criminal Code); the prisoner’s plea was confirmed by the Court; and allocatus has been administered. This case, in my view, qualifies me and I am able to consider whether I should exercise my discretion and change the plea from guilty to not guilty, that is, after I consider the submissions of the defence and the prosecution.

PRE-SENTENCE REPORT

10. Can I take into account or rely on information which the prisoner has stated in her pre-sentence report, to determine whether or not I should over-turn her plea? I am unassisted by case law that have similar facts where the consideration would involve a pre-sentence report.

11. The prosecution submits that the Court should not exercise its discretion and overturn the guilty plea to a not guilty plea. Counsel submits that the brief facts which was presented with the indictment had been negotiated with the defence, thus was drafted in the manner, that is, as I have quoted above in my ruling. The prosecution also submits that the plea should not be changed because the prisoner did not indicate her dissatisfaction when allocatus was administered nor in any of the depositions that had been tendered. The prosecution further submits this. It says that the statement in the pre-sentence report was not first hand information like those adduced directly from the prisoner in her allocatus or from the court depositions. The prosecution’s final submission is this. It says the pre-sentence report is a confidential report that is prepared under sections 13 and 25 of the Probation Act Chapter No. 381 (Probation Act); that it cannot be regarded as evidence that is before the Court. As such, the prosecution submits that the pre-sentence report cannot be used or be regarded by the Court in instances like in the present case.

12. The defence agrees that the Court should exercise its discretion and convert the plea from guilty to not guilty. It says the prisoner’s statement made in the pre-sentence report is substantially contradictory to the brief facts. Counsel submits that what the prisoner said in the pre-sentence report has now tainted her guilty plea, and therefore, it is unsafe for this Court to proceed and impose sentence. The defence also submits that the prisoner appears to raise substantive defence in the matter by her said statement.

13. The real question I note this is, and it came from the defence. Counsel submitted that the pre-sentence report, despite its purpose(s) as prescribed under section 13 and 25 of the Probation Act, should be treated and considered no differently to or like in the situation where the Court is considering the remarks or statements made by a prisoner at allocatus. The prosecution in reply said otherwise on the basis that the information obtained in the pre-sentence report was second-hand.

14. There is no contest to the purpose(s) of a pre-sentence report. The report is confidential and is prepared for the benefit of the Court, that is, to assist the Court determine the types of punishments which it may also consider imposing other than or in addition to imposing a custodial sentence (see section 13 of the Probation Act). The report is also not a public document. It may be accessed by prescribed persons with imposed conditions that must be adhere to, failure upon which a fine or a prison term may be imposed (see section 25 of the Probation Act). I also explain these in the case, State v. Vincent Fong [2016] N6418. I held in part, and I quote:

12. The Court must be careful not to fall into the trap of considering and applying facts or findings of a pre-sentence report to either increase or decrease a sentence, or use that as a basis or reason to impose or call for a deterrent sentence as if the pre-sentence report itself consists of evidence of facts before the Court. Pursuant to section 13(2) of the Probation Act, a pre-sentence report is only meant to assist the Court determine the most suitable method of dealing with a person convicted of an offence. It is not a public record or document like a normal court document (section 25(1) of the Probation Act). The information derived therein is not similar like real evidence. Evidence contained in a court deposition and tendered in Court by consent in a plea matter would normally be considered by the Court and be subject to separate rules or laws. [see cases: State v. Benjamin Makile (2016) N6251; Public Prosecutor v. Tom Ake [1978] PNGLR 469; Saperus Yalibakut v. State (2006) SC 890; Joe Nawa v The State (2007) SC1148; State v. Peter Yawoma (2001) N2032].

15. These said, I must say that I will uphold the defence submission on point. During allocatus, a prisoner is given the opportunity to speak freely. What he or she states in Court is not given under oath. Whatever is said, may or may not relate to what is contained in the court depositions. And what is said at allocatus is not subject to cross-examination or vigorous scrutiny, but rather, it is made and left entirely to the discretion of the Court. So, if a judge detects any anomalies that may affect the fundamental rights or raise a defence, of or for a prisoner, the judge is required to address that and where necessary, overturn a plea. In my view, the same can be said when considering a pre-sentence report. The report may be confidential. It also does not constitute or cannot be regarded as evidence that is before the Court (i.e., for example, like sworn statements and other documents that are contained in the court depositions that have been tendered). Nevertheless, a pre-sentence report that is filed is before the Court and it is to be considered by the Court at its own discretion. So, if the Court sees statements made by a prisoner in his or her pre-sentence report that taints the brief facts where based upon which the prisoner has pleaded guilty to, or if the prisoner alleges serious purported facts that may raise or suggest a substantive defence, the Court should, in my view, be concern, and by that, raise the question of whether the plea should be changed. And my second reason is this. As the case law states, the National Court has the power to over turn a plea and that power exists right up to the time immediately before sentence is handed down.

16. Let me make this remark. My position, however, will not be the same if the prisoner had been convicted after a trial and was found guilty of murder. In that type of situation (i.e., if the prisoner was convicted after a trial) and if the prisoner still denies the offence in her pre-sentence report, or raises other facts or defence, they would be irrelevant for consideration to overturn a plea because the triable issues have already been determined and the prisoner has been convicted based on evidence, that is, proof beyond reasonable doubt.

17. I therefore find that I am able to consider information in the pre-sentence report to exercise my discretion whether to overturn the prisoner’s plea.

CONSIDERATION

18. According to State v. Joe Ivoro (supra), I may exercise my discretion if the accused had not really pleaded guilty. In the present case, I refer to what the prisoner has said above as I have quoted in my introduction. Let me extract the main contentions she makes in the pre-sentence report:

(i) said that the events of the incident were all wrong, in so far as it being twisted around

(ii) the offender advised that she did not feel like correcting the mistake made by the State Prosecutor as she noted that from beginning of her intended trial the story was all wrong

(iii) she just pleaded guilty to the offence of MURDER, as she felt that she did not have the strength to continue arguing with lawyers to correct their story

(iv) She stated also that if the story/version of events had been correct by the State Prosecutor’s office from the beginning she would have pleaded not guilty and fought for her innocence

19. I find the accounts recalled by the prisoner in the pre-sentence report serious enough for me to conclude that the prisoner had not really pleaded guilty. I am satisfied, and therefore, I will overturn the plea of the prisoner, that is, from guilty to not guilty, to the charge of murder under section 300(1)(a) of the Criminal Code. I will also make consequential orders.

ORDERS OF THE COURT

20. I make the following orders:

(i) I exercise my discretion and I vacate the prisoner’s plea of “guilty and substitute that with the plea of “not guilt” to the charge of murder under section 300(1)(a) of the Criminal Code, the charge which was presented to her by virtue of the indictment dated 10 May 2019.

(ii) I recuse myself from further dealing with the matter.

(iii) The matter shall return before the next Criminal Court call-over in July at the Kokopo National Court for listing.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner