Dinge Damane v The State [1991] PNGLR 244

• Jurisdiction: Papua New Guinea
• Judge: Amet J and Woods J:
• Judgment Date: 05 August 1991
• Court: Supreme Court
• Judgement Number: SC412

Full Title: Dinge Damane v The State [1991] PNGLR 244

Supreme Court: Kapi DCJ, Amet J, Woods J

Judgment Delivered: 5 August 1991

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

DINGE DAMANE

V

THE STATE

Waigani

Kapi DCJ Amet Woods JJ

17 December 1990

5 August 1991

APPEAL — Practice and procedure — Leave to add ground of appeal — Out of time — Exceptional circumstances required — Prisoner appeal — Appeal against sentence — Delay in obtaining legal representation — Notice of ground not objected to by prosecutor — Leave to appeal against conviction granted.

CRIMINAL LAW — Appeal and new trial — Practice and procedure — Leave to add ground of appeal — Out of time — Exceptional circumstances required — Prisoner appeal — Appeal against sentence — Delay in obtaining legal representation — Notice of ground not objected to by prosecutor — Leave to appeal against conviction granted.

CRIMINAL LAW — Practice and procedure — On plea of guilty — Where not supported by depositions — Plea of not guilty to be recorded — Trial before another judge required.

CRIMINAL LAW — Practice and procedure — Alternative verdicts — Where plea of guilty changed to plea of not guilty — Plea to lesser charge available only on re-arraignment.

Held

(1) An application out of time for leave to amend a notice of appeal should only be allowed in exceptional circumstances and in the discretion of the Court.

Schubert v The State [1979] PNGLR 66 and Birch v The State [1979] PNGLR 75, followed.

(2) The following matters constituted exceptional circumstances warranting the grant of leave to amend the grounds of appeal against sentence, to include an appeal against conviction:

(a) the filing of a prisoner appeal;

(b) the passage of two years from the time the prisoner filed his notice of appeal to the time at which legal representation was assigned to him;

(c) the fact that the Public Prosecutor had adequate notice of the proposed application to amend and did not oppose the application.

Observations on the rationale and policy behind prisoner appeals.

Held further

(3) Where a trial judge, upon perusal of the committal depositions, declines to accept a plea of guilty:

(a) a plea of not guilty should be recorded and the matter should then proceed to trial before another judge of the court;

(b) where the prosecution elects to accept a plea of guilty to a lesser alternative change in satisfaction of the indictment, the trial judge must re-arraign the accused on the lesser charge as supported by the depositions.

The State v Joe Ivoro [1980] PNGLR 1, referred to.

Cases Cited

Avia Aihi v The State [1981] PNGLR 81.

Birch v The State [1979] PNGLR 75.

Callender v Edwards (1972) 66 QJPR 102.

Kooba Pty Ltd v Hughes (1986) 22 A Crim R 241.

Schubert v The State [1979] PNGLR 66.

Smith v Samuels (1976) 12 SASR 573.

State, The v Joe Ivoro [1980] PNGLR 1.

Appeal

This was an appeal against sentence and an application for leave to appeal against conviction for manslaughter.

Counsel:

E Kariko, for the appellant.

K Bona, for the respondent.

Cur adv vult

5 August 1991

KAPI DCJ: The appellant was indicted and arraigned on a charge of murder. She pleaded guilty to the charge. However, it appears from the record that the trial judge having perused the depositions was satisfied that there was a defence of provocation which could have been raised on the murder charge.

After having discussed the matter with counsel, he recorded a verdict of manslaughter and sentenced the appellant to six years imprisonment. I will come back to the question of the proper procedure later on in my judgment.

The appellant in person appealed against the decision of the National Court by filling in the appeal form provided by the court. The reasons for appealing are set out as follows:

" (1) Sentence was too excessive for unlawful killing.

(2) It was not the lawyer who represented me, who took instructions but the lawyer who was responsible for the May sitting of the National Court in Kundiawa, therefore, I feel that he did not have a good understanding of the circumstances of my case.

(3) There were very strong provocative circumstances which led to the crime."

At the hearing of the appeal, the Public Solicitor represented the appellant. His analysis of the notice of appeal is that it is an appeal against sentence only and not against the conviction. On this basis, he made an application to amend the notice of appeal by adding a ground of appeal against conviction, namely: "That the trial judge erred in entering a verdict of guilty of manslaughter."

According to the Public Solicitor, this ground of appeal would change the appeal from an application for leave to appeal against sentence to an appeal against conviction and sentence.

The Supreme Court in this jurisdiction has considered applications to amend notice of appeal outside the time limitation in matters in which the amendments seek to raise fresh grounds further to the original grounds of appeal against conviction. In seeking to amend by proposing fresh grounds which relate to the questions of conviction, Prentice CJ and Andrew J in Schubert v The State [1979] PNGLR 66 at 68 said:

"We should like at the outset to voice our disapproval to this growing practice of seeking to add new grounds at the eleventh hour. Any departure from the grounds of appeal stated in the notice of appeal is and will only be allowed in exceptional cases, and such allowance is in the discretion of the court."

In exercising its discretion in this case, Prentice CJ and Andrew J went on to say (at 68):

"It appears to us that in the special circumstances of this case where the respondent is not now taken by surprise and where the original adjournment was granted at the request of the respondent, then as no prejudice could be said to have arisen, we propose in the exercise of our discretion, to allow the amendment."

In exercising his discretion, Raine Dep CJ (at 71) said:

"Speaking for myself, but I think my brethren hold the same view, there is far too much of this going on. I am well aware of the pressure on busy counsel, but the pleader who drafts or settles a notice of appeal should be no less careful with it than with any other pleading. And the pleader knows that there are time limits under the Supreme Court Act 1975 and Rules.

There will, of course, be accidents from time to time, counsel get sick, papers get lost in the mail, the pleader, if not counsel at the trial, is misled by the transcript, and so on. What I complain about is these afterthoughts, when, as I see it, counsel should have entertained the thought long before, rather than a day or so before the hearing day.

None of this is directed at Mr McAlary, he has only just come into the matter, I suppose the previous leader was unavailable.

Despite all the above matters, I have formed the view that leave can be granted here, but the profession must not regard this as a precedent. Why do I take this view? Mainly because of the sudden change of counsel, the fact that Mr McAlary did not waste time on grounds which, as he abandoned them, I imagined he viewed as not up to the mark, and also, whilst not over-impressed with the broad merits of the point taken, I felt it would be useful for the ultimate court of appeal here to say something about it, for it has not been discussed before as far as I am aware."

In another case, Birch v The State [1979] PNGLR 75, the Supreme Court exercised the same discretion referred to in Schubert's case. In exercising his discretion, Prentice CJ (at 77) said:

"The tendency for counsel to seek to add further grounds of appeal on the day of hearing or shortly before (a factor presumably aggravated by the introduction at a late stage of overseas counsel who seek perhaps to improve what may appear to them as a weak brief), has now become alarmingly frequent, and threatens the efficiency of the work of this court. Such a course was taken in each of the four appeals brought on this month.

That possibly important points of principle in the criminal law can be raised and argued in such a fashion is unsatisfactory in the extreme, when the court organisation, the commitment to circuit duties of the judges by whom the Supreme Court is constituted, and the infrequency with which short sessions of the court can be mounted, are considered. Practitioners who seek to make such applications where a matter is called on for hearing, can confidently expect that if leave be granted, the hearing of the matter will normally be deferred to a later sitting."

Raine Dep CJ agreed with the Chief Justice in this matter. Kearney J (as he then was) said (at 85):

"I would refuse leave to add an additional ground of appeal. It is the duty of counsel when settling an appeal to see to it at the time, or reasonably promptly, that all grounds on which it is intended to rely are sufficiently set out. Here no adequate reason has been advanced for inaction in the period of seven months between the lodging of the appeal...