Leonard Sabadi v The Police (2002) N2164

• Jurisdiction: Papua New Guinea
• Judge: Lenalia J
• Judgment Date: 25 January 2002
• Court: National Court
• Citation: [2002] PNGLR 641
• Year: 2002
• Judgement Number: N2164

Full Title: Leonard Sabadi v The Police (2002) N2164

National Court: Lenalia J

Judgment Delivered: 25 January 2002

N2164

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

APP. NO. 24 OF 2001

BETWEEN: LEONARD SABADI

- Appellant -

AND: THE POLICE

- Respondent-

KIMBE: LENALIA, J.

2001, 2002 : 23 Nov & 25 January.

Appeal — Appeal against conviction and Sentence — One statement of facts — Two convictions — Two charges laid arising from one set of statement of facts — Two.

Appeal — Appeal from decision of District Court — Allocutus not properly administered — Must be properly recorded — Though records show statement made in response to allocutus being administered, no record on worksheet.

CASES CITED

The following cases are cited.

Wari Mugining -v- R. [1975] PNGLR 352

Charles Bougapa Ombusu -v- The State [1996] PNGLR 335

Kereku -v- Dodd [1969 — 1970] PNGLR 176

Mames Wewiong -v- Zania [1967-68] PNGLR 79

Michael Siwi and Others -v- John Bayam [1980] PNGLR 3000

Peter Man -v- John Korul [1996] PNGLR 426

Public Prosecutor -v- Tom Ake [1978] PNGLR 469

Benson Bareto -v- Donatus Kilimito [1990] PNGLR 125

H. Waninara, for Appellant

F. Popeu , for the Respondent

25 January, 2001

LENALIA, J. The Appellant appeals from his two convictions and sentences by the Bialla District Court which Court convicted him and sentenced him on the first count of discharging a firearm with intent to or in a manner likely to frighten, annoy or injure another person pursuant to s. 28 (3) and the second charge of carrying an offensive weapon pursuant to s.12 (1)(a) of the Summary Offences Act, Ch. No. 202. Convictions and sentences were recorded against the Appellant on the 2nd of August 2001.

The first charge laid against the Appellant was that pursuant to s. 28 (3)(a) of the Act. On this charge, the first information presented before His Worship on the 26th of June would look to have been faulty on which the magistrate put two amendments by two lines drawn on words amended and by insertion of a person's name as "Luke Tari".

The second information of the name nature still with the same CB. No. 161/01 (AB. 17) carries the same wording but carries the name of a different complainant as "Anton Marinki". What is not clear both from the appeal book nor even from the written submissions is whether, the two information were intended to be presented separately since the two information bear the names of two separate complainants or not.

The Appellant first appeared on the 20th of June, 2001 and entered a not guilty plea to the charge of discharging a firearm. The case was adjourned for trial on the 26th of the same month. On that date, when the appellant appeared for trial, two things happened. First instead of conducting a trial, the Appellant personally amended his not guilty plea into guilty. He submitted a statement to that effect. (see AB. 24). On the basis of that statement His Worship amended the not guilty plea to guilty and adjourned to the 10th of July for submission on sentence.

The second factor happened on the 26th of June was that the Police Prosecutor filed a new Information. The new information was the one for carrying offensive weapon in the public place pursuant to s. 12 (1)(a) of the Summary Offences Act. When the second charge was put to the Appellant he also entered a guilty plea. Accepting the two guilty pleas, one for discharging a firearm and the second one for carrying offensive weapon, the magistrate further adjourned for sentence on 2nd of August 2001.

On the above date, the Appellant appeared and was sentenced to six months imprisonment on the first charge for unlawfully discharging a firearm and to three months for the charge of carrying an offensive weapon. The three months for the charge of carrying offensive weapon was made concurrent upon the six months first imposed.

On the date prior to prosecuting the appeal, Mr. Waninara of counsel for the Appellant sought leave to add two additional grounds of appeal. No objection was taken by Mr. Popeu of counsel for the Respondent. Leave was granted. Grounds of appeal relied on are -

1. The learned magistrate erred in law in proceeding to enter a guilty plea when there was only one statement of facts for both offences, and

2. The learned magistrate erred in law by accepting the statement of fact, which did not support the particulars alleged in the information.

3. a) The learned magistrate erred in law in that he did not administer the allocutus prior to handing down the sentence.

b) The leaned magistrate erred in law in taking the guilty plea in both cases as sufficient to require the administering of allocutus before sentence.

c) The leaned magistrate erred in law in imposing sentences on both charges without any evidence or merits on the basis of which sentences

appropriate to the Appellant would be set.

d) The learned magistrate erred in law in sentencing the Appellant without any regard to sentencing principles in law.

e) The learned magistrate erred in law in failing to explained the nature of the charges to the Appellant, before taking the plea.

f) The learned magistrate erred in law in failing to record an amendment to the charge.

g) The learned magistrate erred in law in that it should have not directed police to need the statement of facts after taking guilty pleas in relation to both counts.

h) The magistrate erred in law in imposing a K400.00 cash fee the appeal.

i) The learned magistrate erred in law in failing to keep a detailed and full written account of proceedings.

In arguing this appeal Mr. Waninara of counsel for the Appellant submitted that there were two different charges and there ought to have been two separate statements of facts. He further argued that the learned magistrate should have proceeded with the more serious offence or alternatively should have disqualified himself from dealing with the second charge.

I now deal with the first two grounds. What is clear is there were two different charges contained in two separate informations. The first ground relied on is a guilty plea should not have been entered as there was only one single statement of facts presented to the learned magistrate. The basis of this argument is that since there were two distinct charges, their essential elements requiring proof were different and thus two different sets of statement of facts should have been presented and filed before the presiding magistrate. Due to this, Mr. Waninara of counsel for the Appellant argued that, the most serious of the charges should have been preferred and laid.

No authority was cited to support the proposition that there ought to have been two separate sets of statement of facts since there were two informations. The reverse of that argument is set out in s. 29 of the District Courts Act Ch. No. 40 which requires that there must be only one information for one matter only. Obviously this provision guards against the principle of duplicity.

My view is there was nothing wrong or irregular with laying a second information. It was in the discretion of the charging authority to lay a second charge. However, it raises an even stronger argument in favour of the Appellant, which was not addressed by counsel for the appellant nor the respondent's counsel or even the submissions by the Appellant. The issue is, the Appellant could not have been properly charged and arrested on the second information. No warning could have been given the Appellant on carriage of an offensive weapon.

The court take it that the original charge laid against the Appellant was the one on which he was charged for discharging a fireman for which the Appellant entered a not guilty plea on the 20th of June 2001. The brief facts (AB. Page 19) presented to his worship does not specify if there were two charges to be laid although at the bottom of the statement of facts it says "NB… Refer to first charge for Antecedent Report." It is thus clear from the appeal book that only one set of statement of facts was accepted and used by His Worship to enter two convictions and sentences on the appellant.

The next issue is whether it was lawful and proper for the learned magistrate to accept one statement of facts for two separate charges, which constituted a series of acts done in prosecution of an unlawful purpose. The practice in the National Court pursuant to s. 531 of the Criminal Code is that several distinct counts may be joined against one single accused provided such counts arose out of closely related facts in prosecution of a single purpose: Wari Mugining -v- R. [1975] PNGLR. 352.

The issues posed on grounds one and two of this appeal are distinct from the situation in the National Court where it is not permissible to join a charge of rape with wilful murder, murder or manslaughter in the same indictment: Charles Bougapa Ombusu -v- The State...