Gabriel Laku v The State [1981] PNGLR 350

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Pratt J, Miles J
• Judgment Date: 31 August 1981
• Citation: [1981] PNGLR 350
• Court: Supreme Court
• Year: 1981
• Judgement Number: SC209

Full Title: Gabriel Laku v The State [1981] PNGLR 350

Supreme Court: Kidu CJ, Pratt J, Miles J

Judgment Delivered: 31 August 1981

APUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

GABRIEL LAKU

V

THE STATE

Waigani

Kidu CJ Pratt J Miles J

29-30 July 1981

31 August 1981

CRIMINAL LAW — Practice and procedure — Setting aside conviction after plea of guilty and conviction — Discretionary power.

CRIMINAL LAW — Practice and procedure — Arraignment — Dangers in putting specific questions to accused — Evaluation of answers in conflict with statements on allocutus — Presumption of innocence.

CRIMINAL LAW — Practice and procedure — Allocutus — Statements conflicting with answers to questions put on arraignment — Evaluation of — Presumption of innocence.

It is within the discretion of the court to grant leave to withdraw a plea of guilty after conviction and at any time up until the final disposal of the case by entry and recording of conviction and sentence.

The State v. Joe Ivoro and Gemora Yavura [1980] P.N.G.L.R. 1. adopted and applied.

On Arraignment:

(a) an accused person is not required to plead either guilty or not guilty;

(b) the practice of a trial judge putting to the accused the various ingredients of the offence alleged and asking if he admits that they are true is proper only if the trial judge feels there is any doubt that the accused will not otherwise understand the nature of the charge; and

(c) the trial judge must ensure that in seeking answers to specific questions he is not in effect depriving the accused of his right to insist on the constitutional presumption of innocence until proven guilty.

On Allocutus:

(a) where any statement of the accused conflicts with answers to questions put on arraignment, any admission of guilt arising from the answers to those questions must be regarded as tainted, and the inconsistency is sufficient ground for the exercise of the discretion to set aside the plea of guilty.

R. v. Chiron [1980] 1 N.S.W.L.R. 218 adopted and applied.

Appeal.

This was an appeal against conviction upon a plea of guilty on a charge of unlawful carnal knowledge.

Counsel:

K. Wilson, for the appellant.

L. Gavara-Nanu, for the respondent.

Cur. adv. vult.

31 August 1981

KIDU CJ PRATT J MILES J: This is an appeal against conviction by the National Court Judge sitting at Lae on 7th July, 1981. The appellant was charged with unlawful carnal knowledge of a girl under the age of sixteen years. Upon arraignment he pleaded guilty. However when he was called upon to say what he wished in relation to sentence, the appellant denied an essential element of the charge, namely penetration. The learned trial judge was then asked by counsel to vacate the plea of guilty which, in the exercise of his discretion, he declined to do. His Honour then proceeded to sentence the appellant. It is now submitted that in exercising his discretion not to vacate the plea of guilty, the learned trial judge was in error.

Leave to withdraw a plea of guilty after conviction is a discretionary matter. It is to be contrasted with the entering of a plea of guilty when the plea has been equivocal. If there is any doubt about whether an accused person intends to plead guilty or not guilty, it should be resolved by recording a plea of not guilty and proceeding to trial. There is a constitutional presumption of innocence up until the time of conviction. The various precautions which have traditionally been taken in order to ensure that an accused person pleading guilty does in fact fully understand and appreciate what he is doing, were considered by O'Leary A.J. in The State v. Manga Kinjip [1976] P.N.G.L.R. 86 at p. 88.1.

Once an unequivocal plea has been entered and the court proceeds to consider sentence, the prisoner is regarded as having been convicted, and it is a matter of the court's discretion as to whether the conviction should be set aside and the plea of guilty vacated.

These matters are carefully considered and set out in the judgment of Kapi J. in The State v. Joe Ivoro and Gemora Yavura [1980] P.N.G.L.R. 1.2 and this Court would with respect endorse and adopt his Honour's observations. In Papua New Guinea, upon arraignment, it is not the usual practice simply to ask the prisoner whether he pleads guilty or not guilty. The ingredients of the charge are put to him by the trial judge (very often through an interpreter) and the prisoner is asked whether the allegations are true or not true. If he says that they are true, the judge may regard the prisoner as pleading guilty, or he may prefer not to accept the plea of guilty until the next step has been taken, namely a consideration of the prosecution case which is comprised in the depositions taken before the magistrate at the committal hearing. If the judge is satisfied in the light of the prosecution case that it is safe and proper to accept the plea of guilty, he will go on to administer the allocutus, when the prisoner is aked whether he has anything to say before sentence is passed. It is at this stage that the prisoner may be regarded as having been convicted. Until then the accused has the right to insist on pleading not guilty.

Nevertheless it is quite clear that even after conviction and at any time up until the final disposal of the case by the passing of sentence and the entry of the conviction and sentence in the record at the end of the sittings, the court has power to set aside its own conviction (and sentence if already passed). The exercise of this power is wholly discretionary. These principles have been laid down in many decisions in other places and they may be regarded as part of the underlying law of Papua New Guinea: see S. v. Recorder of Manchester [1971] A.C. 481.3; R. v. Phillips and Lawrence [1967] Qd. R. 237.4; Griffiths v. The Queen (1977) 137 C.L.R. 293.5; R. v. Plummer [1902] 2 K.B. 339.6; Customs and Excise Commissioners v. Menocal [1980] A.C. 598.7.

There have been decisions which limit the exercise of this discretion in certain ways, for instance R. v. Popovic [1964] Qd. R. 561.8; R. v. Murphy [1965] V.R. 187.9. To the extent indicated...