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State v Maran [2021] PGNC 634; N9701 (27 September 2021)

N9701

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 13 OF 2021

BETWEEN:
THE STATE

AND:
JACOB MARAN

Vanimo: Rei, AJ
2021: 10^th, 20^th, 21^st, 22^nd, 23^rd & 27^th September

CRIMINAL LAW – Practice and Procedure – Pleas – Plea of not guilty – Power of court to enter – Plea of guilty – Depositions read – No evidence of any defence – PSR reports self-defence - Court has discretionary power – Failure to enter plea of not guilty may be breach of constitutional rights – Constitution, ss 37(1) (4) (a).

CONSTITUTIONAL LAW – Basic rights – Protection of law – Criminal law – Right to be proved guilty – Plea of guilty – Depositions read – Plea of guilty entered – PSR filed – Self-defence pleaded in PSR - No evidence of any defence disclosed – Application by Counsel to change plea - Failure to enter plea of not guilty may be denial of constitutional rights – Constitution, 37(1), (4).

Cases Cited:

Papua New Guinean Cases

The State -v- Sari [1990] PNGLR 48
Eliza -v- Madina [1971-72] PNGLR 422
The State -v- Joe Ivoro & Gemosa Yavura [1980] PNGLR 1
The State -v- Jessie Manly [2019] N7902

Overseas Cases

R. -v- Blandford (an infant) [1971] IQB 82

Legislations Cited:

Section 96 District Court Act
Section 300 (1) (a) of the Criminal Code Act
Section 578 of the Criminal Code Act
Section 37(1) & (4)(a) 54 & 155 (4) of the Constitution of Papua New Guinea

Counsel

Ms. D. Ambuk, for the State
Mr. P. Moses, for the Accused

27^th September, 2021

1. REI AJ: BACKGROUND: This matter came before me on the 10^th of September 2021 for the purposes of taking a plea in which the accused was charged under S.300 (1) (a) of the Criminal Code Act (“the CCA”) for the alleged murder of late Nelson Mugare.

2. The accused was charged on the 9^th of June 2020.

3. Upon reading the indictment as presented and the statement of facts, to the accused he was asked to plead to the charge.

4. The accused then entered a plea of guilty and his lawyer, Mr. P. Moses submitted that the plea was consistent with his instruction. He then submitted a pre-sentence report (“PSR”) be compiled and presented for the purposes of sentencing.

5. The matter came before the Court on the 20^th of September 2021 for submissions to be made on sentence.

6. At that juncture, Mr. P. Moses raised a technical issue that, as there is evidence contained in the PSR that the defence of self-defence was available, the plea of guilty be set aside or vacated, a plea of not guilty entered.

SELF DEFENCE PRE-SENTENCE REPORT (“PSR”)

7. The statement of the accused in the PSR is quoted herein to show that he pleads self-defence as a defence:
   

“Nelson swung his bush knife at me and I blocked his knife with my knife and a wooden stick I was holding. Nelson swung the second time and I blocked his knife again with the half meter bush knife I was holding. The wooden handle of the knife was broken and I fastened it together with rubber cut from an old tube.

The force from the knives as they met dislodged the sharp edge of the knife I was holding from its wooden handle and it flew and penetrated Nelson’s chest. I was left holding onto the wooden handle while the half meter knife was lodge in the right side of his chest.”

“Jacob expressed great remorse over the death of his Brother Nelson. He says he never planned or intended to cause Nelson’s death as they were Brothers married to the same family. He says he used the half knife he was holding as a shield to protect himself from Nelson’s knife.

Jacob says Nelson’s death was accidental and he is very sorry and ask forgiveness from Nelson’s immediate family and relatives from Paup and Ulau.

He accepts responsibility for his death and will accept any penalty imposed by Court. He ask Court for mercy and consider a non-custodial sentence which he can serve in Wewak, East Sepik.”

(emphasis are added)

8. It can be assumed that self-defence is available in this case. More so, the accused says in the PSR that the two knives met and the blade of his knife flew off and penetrated the body of the deceased. He did not use any direct force.

RECORD OF INTERVIEW – SELF-DEFENCE OR PROVOCATION NOT RAISED

9. A careful perusal of the record of interview conducted on the 17^th of June 2020 does not show or contain any evidence of the accused raising the defence of self-defence or provocation.

10. Hence when the plea of guilty was taken on the 10^th of September 2021, I had nothing to act on to refuse that plea in the exercise of my discretion. This also influenced the defence Counsel by confirming the plea of guilty as being consistent with his instructions.

11. The admission by the accused that self-defence is available to him only surfaced when the PSR was compiled and presented.

12. When Mr. Moses then made his application to change the plea to that of not guilty, I did point out to him that I had read the PSR and noted that the accused raises the defence of self-defence.

13. Ms. Ambuk submitted that the defence of self-defence was raised at the point of sentencing was too late.

FAIR HEARING

14. Section 37(1) of the Constitution of Papua New Guinea provides that the accused person is given his right of full protection of the law and that he must be accorded the right to be proven guilty according to law – S.37(4)(a) of the Constitution. Section 37(1) (a) provides:

“(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that right is fully available, especially to persons in custody or charged with offences.”

15. Section 37(4) (a) provides:
    

“(4) A person charged with an offence –

(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would with the exercise of reasonable care be, peculiarly within his knowledge;”

16. If I were to proceed and hear the submissions on sentence and to sentence the accused to imprisonment for the offence of murder without hearing him on the defence of self-defence, I would be seen as not giving him the right of full protection of the law, amounting to a serious breach of his constitutional rights of a fair hearing.

17. His Honour Jalina AJ said in The State -v- Sari [1990] PNGLR 48:

“A plea of guilty which has been wrongly accepted can be found to be a nullity on appeal (see Eliza -v- Madina [1971 – 1972] PNGLR 422 at p. 425 – 426) and R. -v- Blandford Justices; Ex parte G (an infant) [1971] IQB 82 per Widery J at p.87). It is therefore desirable (that) to be on the safe side in the early stages of the proceedings, particularly a criminal case. Where there are good grounds for substituting a plea of guilty with one of not guilty, then that should be done ...”

18. The statement that the accused acted in self-defence resulting in the death of the deceased was not made at any early stage of this matter, either to the Police or to his lawyer or to any of the witnesses or during allocutus.

19. It was made to the Probation & Parole Officer when the accused was interviewed.

20. The question is whether that statement is to be taken as a statement of defence as raised by the defence Counsel after all that had happened. Furthermore, whether at this sentencing stage of the proceedings the plea of guilty as voluntarily entered by the accused and confirmed by Counsel as consistent be set aside or vacated and replaced with a plea of not guilty, especially where a PSR had been presented in which a substantive defence has been raised.

21. On 21^st September 2021, I raised legal issues with Counsels and asked them to make Submissions on them by 22^nd September 2021. They did so which Submissions are very helpful.

PRE-SENTENCE REPORT

22. Both Counsels cited the authority of The State -v- Joe Ivoro & Gemosa Yavura [1980] PNGLR 1 in which the Court held that:

“(1) The Court has a power to change a plea of guilty after the plea is confirmed and the allocutus administered but before sentence is passed.”

“(2) A plea of guilty may be changed where circumstances indicate that:

(a) the accused had not really pleaded guilty;
(b) there was a mistake on the part of the accused;
(c) 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 the 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.”

23. Applying the principles set out in the above case, I find that the application to change the plea from that of guilty to not guilty was made at the point in time a decision had not yet been made as to sentence although one was ready to be handed down then. It was made on the 21^st of September immediately before a sentence was to be handed down.

24. I also find that the accused was not properly interviewed at the time his record of interview was conducted as no questions were asked as to whether he had any reason for doing what he did. He was, to some extent, misled by the investigating officer in that regard.

25. In his (District Court Act) Section 96, statement made in the committal he did make reference to this matter. I was urged by the defence Counsel to seriously consider this matter in handing down the decision on sentence.

26. This statement clearly constitutes substantive defence of self-defence.

27. As to whether a plea of guilty should be vacated after the filing of a PSR before sentence, I agree with the comments expressed in The State -v- Jessie Manly by Anis J. and quote:

“During allocutus, 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 allocutus 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 as 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 overturn a plea and that power exists right up to the time immediately before sentence is handed down.”

28. The court found that the accounts recalled by the prisoner in the pre-sentence report were serious enough for the court to conclude that the prisoner had not really pleaded guilty. The court therefore overturned the plea of the prisoner guilty to not guilty to the charge of murder under section 300(1)(a) of the Criminal Code.”

29. I again rely on Section 37(1) and 4(a), 55 and 155(4) of the Constitution.

30. It is a serious breach of the Constitutional rights of an accused person not to accord him the opportunity of fair trial within reasonable time in order that he avails himself of the full protection of the law, which in this case is the defence of self-defence.

31. I have taken this course because Section 155(4) of the Constitution of Papua New Guinea gives inherent powers to the National Court of Justice to do so. It is in the following terms:

“(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.”

(emphasis added)

32. I therefore order that the plea of guilty be vacated at this stage and a plea of not guilty entered.

33. The matter should be listed for trial in the November sittings before another Judge.

________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant