N9446

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 443 OF 2020

THE STATE

V

BAFF TATAWA

Kerevat & Kokopo:  Tusais AJ
2021:  17th & 31st August, 3rd, 6th, 17th & 29th September
2022:   14th February

CRIMINAL LAW – Sexual penetration of girl under 12 years – Prisoner pleaded guilty – Denied commission of offence to Probation officer – Said defence lawyer had persuaded him to plead – Application by defence lawyer to vacate plea of guilty and have matter go to trial before another Judge – Clear and unequivocal plea during arraignment – Admitted to commission of crime during allocutus – Views expressed to Probation officer made outside of court – Clear evidence on court depositions – Prisoner did not raise any defence – Merely said that nobody saw him do the crime – Application to vacate plea refused.

Cases Cited:
Papua New Guinea Cases

 State v Joe Ivoro and Gemora [1980] PNGLR 1
 Alice Tombos (2015) N6097
 State v Jessie Manly (2019) N7902
 State v. Vincent Fong [2016] N6418  

Overseas Cases

R v Phillips and Lawrence [1967] Od.R.238

Counsel

 Ms J. Batil, for the State
 Ms C. Pulapula, for the Accused

14th February, 2022
1.	TUSAIS AJ.  On 17th August 2021 the state presented an Indictment against Baff Tatawa alleging that he on the 26th of December 2018 at Reiet Ward, Sinivit LLG, Pomio District sexually penetrated a 9 year old girl by inserting his fingers into her vagina, contrary to s. 229A (1) & (2) of the Criminal Code Act, Ch. 262 (the Code). The accused pleaded guilty. However, he said certain things to the probation officer during interview for pre-sentence report (PSR) and the defence lawyer made an application to the court to vacate the plea and remit the case for trial before another Judge. This is the court’s decision on that application.

2.	The case was initially set for trial before me at Kerevat. Before the matter came to trial on the allotted date, counsel advised the court that the accused would plead guilty to certain agreed facts. The state had amended the facts to allege penetration using a finger instead of penis. It is useful to set out the history of what transpired before me up to this application.

3.	During call over on 02nd August 2021 the case was set for trial on 20 August 2021. On 13th August both lawyers advised the court that they had discussed the matter and the accused would plead guilty to certain agreed facts. The accused was arraigned and said this when asked to plead… “That charge is true. That girl we did not walk in together”. Defence lawyer sought leave to talk to the accused and clarify what he meant and afterwards, advised the court that the accused had changed instructions. The plea was vacated, and the matter reset for trial at a later date before me as I had not read the witness statements yet.

4.	Four days later on the 17th of August, defence counsel again advised court that the accused had confirmed instructions and he would definitely plead guilty this time. He was therefore re-arraigned and when I asked if he heard and understood the charge, he answered in the affirmative and then went on to plead guilty. I read the court depositions and found strong evidence on file including eyewitness accounts of two men who saw the accused sexually penetrate the girl child. Other elements of the offense including age of the alleged victim was also satisfactorily proven by evidence on file. The provisional plea was confirmed, and I convicted the accused accordingly.

5.	Allocutus was administered the same day and the accused said this. “Iam sorry in the eyes of court for what I have done. I also say sorry to the victim and her family. I ask the court to have mercy on me and be lenient. Most of my properties already claimed by the victim’s family like house and pigs. Nothing is left. My adopted son is at university. I do not know what happened to him. I say thank you to all of you. God bless you all”. Defence lawyer applied for pre – sentence probation report and I then adjourned the case for submissions on sentence and ordered preparation of PSR and Means assessment report (MAR) by the Probation office. 

6.	On 6th September counsels were ready to make submissions after receiving PSR and MAR. Defence lawyer made a preliminary application asking the court to vacate the plea and remit the matter for trial before another Judge. She made the application because the accused had told the probation officer that he was forced by her to plead guilty. I adjourned the matter for both lawyers to make further submissions on the issue of whether statements made by prisoners in probation reports could be the basis for a court to discontinue hearing a plea of guilty and refer the matter back for trial before another Judge.

7.	This is what the accused told the probation officer. Under the heading “The offenders attitude towards his /her involvement in the offence” the writer reported as follows.

-	“ He stated to the author that there was no one who witnessed him do anything.
-	He still maintained his innocence, stating to the author that he only said he was guilty as he was continuously persuaded by Ms Pulapula of the Public Solicitor’s to admit to the charges.
-	The prisoner is still very much in denial of the charges made against him, however has accepted the fact that the courts have entered a guilty verdict.” 

8.	The issue before this court is to decide whether to terminate the guilty plea and have the case go to another Judge for a trial to be run. To decide that I have to make a determination on whether remarks made to a probation officer outside of court can negate an earlier unequivocal plea of guilty made on record before the court.

9.	There are only a few PNG cases on this issue starting with State v Joe Ivoro and Gemora (1980) PNGLR 1, the first ever reported case of a Papua New Guinean Judge.  Justice Kapi  in that case set aside a plea of guilty after hearing what the two accused said in allocutus after the plea was confirmed and before sentence. His honour found that both had raised valid defences to their charge and so the pleas were vacated and the Judge disqualified himself from going on to hear the trial.

10.	The court in Ivoro’s case (supra) adopted and applied R v Phillips and Lawrence [1967] Od.R.238 at 288 where the following was decided. A plea of guilty may be changed where circumstances indicate that:

I.	The court has power to change a plea of guilty after the plea is confirmed and the allocatus administered but before sentence is passed;

II.	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;

III.	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;

IV.	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. 

V.	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.

11.	In the case of State v Alice Tombos (2015) N6097, Nablu AJ (as she was then) vacated a plea of guilty after she herself read the depositions and considered what the accused had said in allocutus. The accused in that case said the following in allocutus. 

"Your Honour, when I was interviewed, I denied the charge, reason why because I was in my house and three ladies came and attack. It wasn't my intention to murder that woman. I was in my house in the process of cooking and the lady came to me and she came and attack me so therefore as soon as she attack me I fell down and I swing the kitchen knife and attacked her that is why I denied the charge. I swing the knife and offended her so I feel guilty to the charge. For her death I feel guilty for the charge."

12.	Defence lawyer in Tombos’ case (supra) submitted that there was only defacto provocation and no defence was available. The learned trial Judge decided otherwise, and considered that the accused had raised a clear defence.  Plea of guilty was vacated and the matter adjourned for trial before another Judge.

13.	A more recent case with similar circumstances as this one was decided here in Kokopo by Anis J in State v Jessie Manly (2019) N7902. In that case his honour saw statements made by the accused in the Pre – sentence probation report which he regarded as the accused raising a defence. I reproduce parts of his honour’s judgment where he referred to the PSR.

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”.

14.	His honour asked counsel to make submissions on the case and decided that the accused had indeed raised a valid defence. His honour referred to his ruling in  State v. Vincent Fong [2016] N6418  and said:

“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

Plea was vacated and the case referred for trial before another Judge.

15.	I consider the statements made by the accused in this case during the interview with the probation officer to be different in nature to those made by the accused Alice Tombos and the later case of Jessie Manly. Both accused persons in those two different cases raised valid defences under the law. Alice Tombos spoke to the Judge in court during allocutus while Jessie Manly complained to the probation officer during interview process. Baff Tatawa on the other hand does not directly deny committing the offense. He only said that no one saw him commit the crime. Nor does he raise a defence, for example that he never actually penetrated the girl sexually or if he did sexually penetrate her, the girl was above the age of consent of 16 years or over.

16.	The accused in this case also does not say that the defence lawyer forced him to plead guilty. The Pre- sentence report states that the accused was “continually persuaded” by public solicitor lawyer to admit to the charges. They are two different things. One is to coerce or force someone to do or say something against their will. To be persuaded is in my view, to be convinced by good reason to do a certain thing. A competent defence lawyer is obliged, and duty bound to explain the state’s case and advise the accused person of the strength of the case against him. It is also the defence lawyer’s duty to explain to the accused about the options that he has and if the case is strong to advise the accused that he has the option to plead guilty. 

17.	I agree with the probation officers insightful remark that the accused is in denial and does not want to own up to the crime. This is not a new phenomenon. Accused persons all over the world still continue to deny their offence even after admitting in court. It is human nature.

18.	I consider that to allow plea matters to be vacated in the current scenario is an abuse of the court process. It may lead to opening of the flood gates whereby accused persons who have a change of heart after pleading guilty and want to get a second bite at the cherry may simply tell the probation officer that they are innocent and not guilty, knowing that the court will vacate the plea. This would lead to undesirable results and impact negatively on the efficient administration of and disposition of criminal cases. 

19.	I am of the view that the accused second plea of guilty is safe. There is overwhelming evidence on the court file. I will refuse the application to vacate the plea and go on to hear submissions on sentence. 
Orders accordingly.
________________________________________________________________
Office of the Public Prosecutor:		Lawyer for the State
Office of the Public Solicitor:		Lawyer for the Accused