The State v Nickson Pari (No 1) (2000) N2037

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 14 December 2000
• Citation: (2000) N2037
• Court: National Court
• Year: 2000
• Judgement Number: N2037

Full Title: The State v Nickson Pari (No 1) (2000) N2037

National Court: Kandakasi J

Judgment Delivered: 14 December 2000

N2037

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No 1376 of 2000

THE STATE

-v-

NICKSON PARI (No. 1)

LAE : KANDAKASI, J.

2000: December 5, 12, 14

Criminal Law — Practice and procedure — On plea of guilty — Statement in allocutus contrary to plea and depositions — Pleas of not guilty to be recorded — Trial before another judge required.

Cases Cited:

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

Gabriel Lakau v. The State [1981] PNGLR 350;

The State v. Sari [1990] PNGLR 48

Dinge Damane v. The State (1991) PNGLR 244;

Martin Ferry v. The State (Unreported and unnumbered)

SCRA 64 of 2000

Counsel

N. Miviri, for the State

M. Mwawesi, for the Defendant

14 December 2000

KANDAKASI, J : On the 5th December 2000, the Defendant pleaded guilty to a charge of attempted murder under s.304 of the Criminal Code Act (Ch. 262)(hereafter "the Code"). Upon reading the deposition, I was satisfied that there was enough evidence to support the guilty plea. Hence, I confirmed the guilty plea and convicted the Defendant as charged.

Allocutus

In his allocutus pursuant to s.593 of the Code, the Defendant said he did not intend to kill or shoot the victim. It was an accident. He said his finger accidentally pressed the trigger of a home-made gun he was carrying and the bullet went off and injured the victim. He then said he has additional things to say and those are set out in a letter and he handed up the letter. The letter was dated 14th November 2000 consisting of 3 pages. That letter was admitted into evidence with the States consent. Set out below is the material parts of the letter.

Your Honour, on the 9th Friday of June 2000 about 8.00pm I left my house at five mile and I was walking down to four mile following the main highway. The reason why I came to four mile is to visit my uncle and his family, as I was approaching the junction to four mile I met those three (3) boys sitting along the street leading to my uncle's house. Your Honour, I do know them because they are my uncle's next neighbours so I stopped and ask them why they're sitting in the dark talking to themselves quietly. Your Honour, they told me that they were planning to rob those men playing cards, I heard this and know that it's gonna be a trouble so I wanted to leave them and go away. Your Honour, those three (3) boys are bigger than me and they resist that I must follow them to commit these offence. I was helpless that time so I follow them to where this trouble had been committed. They (the boys) gave me a home-made gun with a bullet and we went off to our mission. Your Honour, as we approached the playing party we saw the victim coming out of his sister's house, he saw us and try to run away but he was unlucky because my co-accuser was rushing behind him and held him with the knife. Your Honour, he then check his pocket and took his money about of K10.00. I was standing about 7 to 8 metres away from my three co-accused when they were raiding the victim. Your Honour, it was my very first time to do such a thing like that so I was in fear and shaking with my heart pumping rapidly. I was holding the home-made gun facing upward when suddenly it blew off. Your Honour, as I had said early that my hand was shaking so the pin locking the spring went off so the spring had come to position to fire the bullet. Your Honour, as the gun was fired I was really frighten and I drop the gun and ran away back to my home at five mile. The next day I went to Bulolo to hid there but the victim took the police and they went and arrested me. I admitted that I'm guilty for doing this offence and I was charge and now standing before you for my punishment to be given.

1. Your Honour, I and my family have pay a compensation of K600.00 to the victim for the pellets which he received. I can't prove to this higher Court the records of this compensation but my arresting officer is aware of these compensation.

2. Your Honour, the police have fail to prove to the Court how serious he (victim) received from that gun fire. I'm saying this because there is no medical reports in the file that will show the Court can know and punish me accordingly to the damage I caused.

3. Your Honour, I'm a first time offender and did not mean to shoot or fire that gun but it all went accidentally. I'm very sorry for what I had done and I promise it will never happen in my future life again.

4. Your Honour, it is injustice for my co-accused to be left back at home while I'm being charged for what I had done wrong. Your Honour, Demond Affaei is my co-accused and he had committed these trouble but I don't see why the arresting officer did not charge him and took him the trouble maker as State witness witnessing against me his co-accused.

(underlining mine)

This clearly differs from the record of interview and the other evidence on file. It essentially disputes the existence of an important element for the offence under s.304 of the Code, namely intention to kill. See R. v. Bena Forepe [1965-1966] PNGLR 329. After briefly considering the matter I decided to vacate the guilty plea and conviction thereupon and disqualified myself from conducting a trial if the State was proceeding with the charge. That was on the 12th of December 2000. At that time I said I will publish my reasons....