The State v Jack Oroko Tepol (1999) N1941

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J
• Judgment Date: 08 October 1999
• Citation: (1999) N1941
• Court: National Court
• Year: 1999
• Judgement Number: N1941

National Court: Kirriwom J

Judgment Delivered: 8 October 1999

N1941

PAPUA NEW GUINEA

(In the National Court of Justice)

CR No. 682 of 1999

THE STATE

-vs-

JACK OROKO TEPOL

GOROKA: KIRRIWOM J

1999: 10 August, 23 September and 8 October

CRIMINAL LAW –plea of guilty - manslaughter by provocation – Depositions disclose defence of aiding in self-defence - Directions to counsel for further address – Court rejects plea of guilty and substitutes not guilty plea after conviction but before sentence– Nolle Prosequie presented – Accused discharged – Criminal Code, s. 271.

PRACTICE AND PROCEDURE – Guilty plea – Multiple defences open to the accused including aiding in self-defence and self defence - No application to change plea of guilty to plea of not guilty by counsel – duty of court to act on its own volition – Criminal Code, ss. 271 & 563

PRACTICE AND PROCEDURE – Nolle Prosequi – When appropriate – Duty of counsel.

Brief facts

The accused was arraigned and he pleaded guilty to manslaughter under section 303 of the Criminal Code for repeatedly stabbing the deceased who subsequently died. Counsel for the accused and the State both accepted that there was overwhelming evidence of provocation. The accused saw the deceased tackle his wife to the ground and threw himself on her to have sex with her when he confronted him in the act. The deceased then fought the accused and they tackled each other to the ground when the accused stabbed the deceased several times.

After thoroughly reading the depositions the court rejected the plea of guilty because there was defence under section 271 and even section 269 that the accused could have pleaded and if he did not get up on either, he would still be liable under s.303.

When the trial was fixed to proceed, the key State witness, accused’s wife did not give evidence and the State presented a nolle prosequie. The undesirability of nolle prosequie when a case is part heard and the chances of resurrecting the case may be unlikely is discussed in the judgement.

PNG Cases Cited:

The State v Joe Ivoro and Gemora Yavura [1980] PNGLR 1

The State v Sari [1990] PNGLR 48

The State v Peter Painke [1976] PNGLR 210

Counsel:

Mrs C. Ashton-Lewis for the State

Mr D. Umba for the Accused

8 October 1999

KIRRIWOM, J. This case came before me on 10th August, 1999 as a short plea matter. The accused is a young man in his twenties, married with two children and is educated to Grade 10. He is represented by private counsel and he pleaded guilty on arraignment to a charge of manslaughter. The State represented by Mrs. Asthon Lewis, a senior State Prosecutor, upon outlining the facts for purposes of arraignment acknowledged provocation was the basis for preferring the charge of manslaughter by virtue of section 303 of the Criminal Code.

The prosecution case was that at about 8 pm on the night of 8th May 1999 at Ifiufa village the accused saw his wife, Edna Ken, in the company of two men, Petrus Pilisive, the deceased and Sisi Paul, Edna’s cousin. She and the accused had a domestic argument and she had gone to her village but had overstayed a normal cooling off period. The accused went that night to the village to check on her.

When he saw his wife with these men, he followed them at a distance and heard Sisi Paul suggesting to Edna, to sleep with the deceased and she refused. The accused next saw the deceased push his wife to the ground and mounted her trying to have sex with her while she was shouting for help.

He confronted the deceased and a fight ensued between them. In the course of the fight the accused repeatedly stabbed the deceased who died immediately.

The State alleged that at the time the accused stabbed the deceased he did so on the heat of passion caused by suddenly seeing his wife being about to be raped.

I entered a provisional plea of guilty and proceeded to reading the depositions. The evidence in the depositions supported the State’s allegations and I convicted the accused.

When allocatus was administered the accused made a short statement where he expressed his remorse and explained the reasons for his action. Because of what had ultimately transpired in this case, it is necessary to set out the verbatim of what the accused said as I recorded:

‘Trouble that happened was not intended. My only intention was to bring my wife back. When I arrived I saw Petrus Pilisive doing bad thing to my wife.

When we fought he tried to suffocate me and something I did not expect happened and I am sorry for that which had happened.

I say sorry to his parents and to the community of Ifiufa who lost Petrus. I say sorry for all this’.

I then adjourned the case to 6th September 1999 for my deliberation on sentence. Upon careful and closer examination of the facts and the entire circumstances pertaining to the incident that gave rise to this charge, I had trouble accepting the plea of guilty, especially in the light of section 271 of the Criminal Code. This section is headed AIDING IN SELF-DEFENCE and provides:

‘Where it is lawful for a person to use force of any degree for the purpose of defending himself against assault, it is lawful for any other person acting in good faith in his aid to use force of a like degree for the purpose of defending him.’

As neither the accused’s own lawyer or the counsel for the State adverted to this defence at the hearing, I decided that I need not proceed to sentencing until I have drawn their attention to this issue and have heard from both counsel. I subsequently confirmed that neither counsel had considered s. 271. My comments and the views I expressed on 6th September 1999 upon resumption are reproduced hereunder:

SENTENCE DIRECTIONS

The accused pleaded guilty to killing the deceased who was about to rape or already in the process of raping his wife. The facts as presented by the State for purpose of arraignment support this and are clearly consistent with the story the accused gave to the police and contained in his record of interview. To an extent his wife Edna also supports the story of her being about to be raped in front of her cousin’s house when the accused emerged from nowhere. A fight ensued between the deceased and the accused during which the accused stabbed the deceased four times with a pocket knife.

The incident occurred at his wife’s village of Ifiufa between 8:00 – 8:30 p.m. on 8th May 1999. The wife who had been in her village following a domestic quarrel at home with her husband failed to reunite with him and the children and the accused proceeded to the village to take her home. On arrival that night he encountered a scene where he saw his wife leave a gambling crowd and followed behind by two men calling out her name. One of the men was Sisi Paul, Edna’s cousin brother. The accused heard Sisi Paul telling Edna to sleep with Petrus Pilisive, the deceased, a suggestion which the accused heard his wife refused. Both Sisi Paul and Petrus Pilisive had been drinking and were intoxicated. The accused did not know this until later when he was close enough to the deceased to smell his breath. Sisi Paul even says that they had drunk some OP Rum. The accused kept some distance in the cover of the darkness and followed them as Sisi Paul led Edna to his place where he had planned for her to sleep or have sex with the deceased. The accused who knew the cousin’s house quickly took a short cut to the house and hid himself and waited. When they arrived the deceased and Edna were told to wait in front of the house while Sisi Paul disappeared at the back of the house to find a tool to open the door to let in the deceased and Edna. As soon as the deceased and Edna were by themselves, the deceased tackled Edna to the ground in front of the house and slept on top of her. He lifted up her skirt and tore her underwear. He unzipped his own trousers and was struggling with her to force open her legs when the accused appeared and prevented the deceased from going further than what he had already achieved.

Extracts of evidence in the depositions including what is contained in the record of interview between the Police and the accused clearly set out the facts for a defence of self-defence:

Apart from what the accused stated in the allocatus, the following excerpts are from the record of interview:

‘Q 17. When you arrived at Iufi-Iufa village from Rothmans Ufeto, where exactly did

you see your wife?

Ans. .I saw her when Sisi was seducing my wife to have her sleep with Petrus. I did not see her then but could hear her name being called, so I knew she was there so I walked towards where they were. I was walking behind them at about 2 – 3 meters and could hear Sisi telling my wife to sleep with Petrus. I heard Sisi say in Pidgin “Edna bai yu silip wantaim Petrus” (Edna, you will sleep with Petrus). I heard my wife reply and said “Sisi, yu save mi marit na mi gat pikinini” (Sisi, you know I am married and have children). Then I heard Sisi saying “Edna yu bai silip wantaim Petrus” (Edna, you will sleep with Petrus). Again I geard my wife replying “Dispela kain pasin em mi les, na tumora long sande bai mi go long Rothmans long man...