Regina v Gabai Vagi and Others [1973] PNGLR 30

• Jurisdiction: Papua New Guinea
• Judge: Raine J
• Judgment Date: 17 October 1972
• Court: Supreme Court
• Citation: [1973] PNGLR 30
• Year: 1973
• Judgement Number: No707

Full Title: Regina v Gabai Vagi and Others [1973] PNGLR 30

Supreme Court: Raine J

Judgment Delivered: 17 October 1972

1 Criminal procedure—plea; Sentence—principles

2 Defendants who pleaded guilty given benefit of doubt in sentencing re denial of matters of aggravation in depositions taken at committal proceedings

3 CRIMINAL LAW—Plea of guilty—Dispute as to facts—Version of facts upon which Court to act.

Four accused pleaded guilty to a charge of rape but did not admit some of the facts relating to aggravation alleged in depositions taken at the committal proceedings.

Held:

(1) Where the court does not take sworn evidence but has before it unsworn material it is the duty of the court to act upon the version of the facts, which within the bounds of possibility, is most favourable to the accused.

Nash v Haas [1972] Tasmanian Irregular Notes 1077; [1972] ALMD par 862 followed; R v Maitland [1963] SASR 332; Schugman v Menz [1970] SASR 381; Law v Deed [1970] SASR 374; Weaver v Samuels [1971] SASR 116 referred to.

(2) In circumstances where sworn evidence had been given at the committal, not only as to the bare legal ingredients of the crime but also as to aggravating matter, and that aggravating matter was denied in unsworn material before the court, and not contested by the Crown, and the denials were not utterly unreal and in the teeth of the highest probabilities those matters of aggravation to the extent that they were denied ought to be ignored.

Judgment on Sentence.

The facts are sufficiently stated in the judgment.

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Raine J: The four prisoners, who are aged 20, 17, 17 and 16 years respectively, pleaded guilty and admit the various elements of a charge of rape but they do not admit some of the facts alleged in the depositions taken at the committal proceedings. Placed with the papers and initialled by me is a list of these matters. On Friday last, when the indictment was presented, but the trial could not further proceed, counsel drew my attention...