The State v Jack Gola and Mopa [or Mopana] Aure [1990] PNGLR 206

• Jurisdiction: Papua New Guinea
• Judge: Brunton J
• Judgment Date: 05 June 1990
• Court: National Court
• Citation: [1990] PNGLR 206
• Year: 1990
• Judgement Number: N893

Full Title: The State v Jack Gola and Mopa [or Mopana] Aure [1990] PNGLR 206

National Court: Brunton J

Judgment Delivered: 5 June 1990

N893

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

JACK GOLA AND MOPANA AURE

Lae

Brunton J

5 June 1990

CRIMINAL LAW — Practice and procedure — Indictments — Laying of — Role of State prosecutor — Role of trial judge — Plea bargaining — Discussion of.

The power of the Public Prosecutor and the State Prosecutors deriving from the Constitution, s 176 and s 177, the Public Prosecutor (Office and Functions) Act (Ch No 338), s 4 (1) and the Criminal Code (Ch No 262), ss 524, 525 and 526, to lay indictments is an absolute one; it is for the Prosecutor to choose the charge and to decide what plea will be accepted: the role of the judge is to offer observations on the course of action proposed in the light of which the Prosecutor may reconsider his position.

Discussion of the respective rights and duties of the trial judge and prosecuting counsel and the matter of plea bargaining.

The need to maintain public confidence in the legal system requires that plea bargaining and the appearance of having decisions made out of court between opposing counsel should be avoided.

Where an indictment is presented for a lesser offence than the evidence on deposition discloses, the judge may offer observations in the light of which the prosecution may reconsider its position. It may however be more appropriate in particular cases to present an indictment on the more serious charge for which there is proper evidence to go to the tribunal of fact and to let the court decide.

Cases Cited

The following cases are cited in the judgment.

R v Coward (1979) 70 Cr App R 70.

R v Marshall [1981] VR 725.

R v Ryan (1977) 67 Cr App R 177.

R v Simbene Dandemb [1969-70] P&NGLR 207.

R v Soanes (1948) 32 Cr App R 136.

R v Turner [1970] 2 QB 321; (1970) 54 Cr App R 352.

The State v Principal Magistrate, District Court, Port Moresby; Ex parte Public Prosecutor [1983] PNGLR 43.

Trial

On the trial of an accused for unlawfully wounding, the accused pleaded guilty and the depositions were tendered. The trial judge, on reading the depositions, formed a view as to other more serious charges that might have been laid which he discussed with counsel. The following reasons were delivered for his entering a verdict of guilty on the indictment as laid.

Counsel:

M Peter, for the State.

M Konido, for the accused.

Cur adv vult

5 June 1990

THE CHARGE

BRUNTON J.: The State Prosecutor presented an indictment against the accused alleging an offence of unlawfully wounding contrary to s 322 of the Criminal Code (Ch No 262).

THE BRIEF FACTS

For the purpose of arraignment the State Prosecutor presented the brief facts of the case to the Court:

"... on the 1st of April 1989, in Lae, the accused Jack Gola and Mopana Aure got together with the victim Kidomore Joseph at the PNG Sand and Gravel Pit, Butibum. Between 9 pm and 9.30 pm the two accused carried Kidomore, a woman, from where she was sleeping, to the office of the PNG Sand and Gravel Pit. She was thrown down, she sustained injuries [that] resulted in bleeding to her face. Both accused were drunk. And the prosecutrix was asleep."

At that point the Court asked the State Prosecutor —

Court: "Those facts appear to me, at least, to lead up to a situation that is close to attempted rape. Does the State have evidentiary problems with attempted rape and that is why you are accepting something less?"

State Prosecutor: "That is correct."

Court: "What is the nature of the evidentiary problem?"

State Prosecutor: "Lack of corroboration."

Court: "I intend to arraign in terms of the brief facts you have given."

The accused were arraigned on charges of unlawful wounding and pleaded guilty to the indictment. The depositions were tendered. After the reading of the depositions the following interchange between the Court and counsel took place.

Court: "Mr Peter, I am troubled after reading the depositions that this matter is an unlawful wounding case — punishable by a maximum of three years in hard labour. The accused Jack Gola admitted in his section 103 to the learned magistrate: 'we two carried her off and hit her ... the reason she and I were naked [was] because I intended to have sexual intercourse with her.' These admissions would support a charge of abduction under section 350 (1) (a) of the Code, punishable with a maximum of seven years in hard labour, and a charge of attempted rape, punishable with a maximum of fourteen years. Why have you proceeded to accept a plea to unlawful wounding which is punishable by a maximum of three years?"

State Prosecutor: "The decision was not taken lightly — it was taken with some reservations. It was the plea put to us by the defence [and formed after] interviewing the prosecutrix, and ascertaining there was no medical report, no record of interview. There was a further problem of identification by the prosecutrix."

Court: "But the section 103 statement by Jack Gola admits to carrying her away?"

State Prosecutor: "That was a section that I did not consider with my learned friend in his plea bargaining. Those are my explanations."

Court: "Mr Konido: You have heard what I have said — is there anything you would like to say?"

Defence counsel: "These two accused have been arraigned on charges of unlawful wounding. Your Honour has to find a verdict because they have pleaded not guilty."

The Court then considered the matter and gave a short ex tempore ruling:

"The Constitution and the statutes give the power to the State Prosecutor to lay an indictment. Where an indictment is laid and there is a plea to a lesser charge than is alleged on the indictment then a judge, according to English common law, could scrutinise the propriety of accepting the plea to a lesser charge. But over-all I must be guided by the law in R v Simbene Dandemb [1969-70] P&NGLR 207 at 215-216:

'The law relating to the quashing of indictments in England has been set out by Lord Goddard LCJ in R v London Country Quarter Sessions Chairman; Ex parte Downes [1954] 1 QB 1 at 6, in the following terms:

"Once an indictment is before the court the accused must be arraigned and tried thereon unless (a) on motion to quash or demurrer pleaded it is held defective in substance or form and not amended; (b) matter in bar is pleaded and the plea is tried or confirmed in favour of the accused; (c) a nolle prosequi is entered by the Attorney-General, which cannot be done before the indictment is found; or (d) if the indictment disclosed an offence which a particular court has no jurisdiction to try ..."

This was generally accepted by the House of Lords in Connelly v Director of Public Prosecutions [1964] AC 1254 as being a correct exposition of the law on the subject except that Lord Devlin (after dwelling [at 1353] on the danger of abuse and injustice to defendants if the prosecution in respect of the same facts were at liberty to act indiscriminately so long as for each prosecution it could find a different offence in law) proceeds to add a fifth ground to that given by Lord Goddard, namely, that if there is a gross abuse of process the court can act to remedy the situation by refusing to allow the indictment to go to trial.'

In my view this is not a case of gross abuse and injustice to the defendants. The State has the power to choose the charge. I have accepted the indictment. The accused are entitled to a verdict. I Will publish further reasons later. I enter the plea subject to the allocutus."

The Constitution, s 176 (3), reads:

" (3) Subject to this Constitution:

(a) in the performance of his functions under this Constitution the Public Prosecutor is not subject to direction or control by any person or authority; but

(b) nothing in paragraph (a) prevents the Head of State, acting with, and in accordance with, the advice of the National Executive Council, giving a direction to the Public Prosecutor on any matter that might prejudice the security, defence or international relations of Papua New Guinea (including Papua New Guinea's relations with the Government of any other country or with any international organization)."

The importance given to the insulation of the office of the Public Prosecutor in s 176 (3) (a), is emphasised by the fact that the exception in s 176 (3) (b) has to be tabled in Parliament:

"Section 176 (4) The Prime Minister shall table in the National Parliament any direction to the Public Prosecutor at the next sitting of the Parliament after the direction is given unless, after consultation with a Leader of the Opposition, he considers that tabling of the direction is likely to prejudice the security, defence or international relations of Papua New Guinea."

The functions of the Public Prosecutor referred to in s 174 (3) (a) are set out in s 177 (1) (a) of the Constitution:

" (1) The functions of the Public Prosecutor are:

(a) in accordance with an Act of the Parliament and the...