The State v Peter Sari [1990] PNGLR 48

• Jurisdiction: Papua New Guinea
• Judge: Jalina AJ
• Judgment Date: 26 January 1990
• Citation: [1990] PNGLR 48
• Court: National Court
• Year: 1990
• Judgement Number: N800

Full Title: The State v Peter Sari [1990] PNGLR 48

National Court: Jalina AJ

Judgment Delivered: 26 January 1990

N800

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

SARI

Rabaul

Jalina AJ

18 January 1990

23-24 January 1990

26 January 1990

CRIMINAL LAW — Practice and procedure — Pleas — Plea of not guilty — Power of court to enter — Plea of guilty — Depositions read — No application from lawyer to change plea — Court has discretionary power — Failure to enter plea of not guilty may be breach of constitutional rights — Constitution, ss 37 (1), 57, 155 (4), 158 (2).

CONSTITUTIONAL LAW — Basic rights — Protection of law — Criminal law — Right to be proved guilty — Plea of guilty — Depositions read — Plea of not guilty entered by court — Failure to enter plea of not guilty may be denial of constitutional rights — Constitution, s 37 (1), (4).

CRIMINAL LAW — Practice and procedure — Pleas — Plea of guilty — Depositions read — View of evidence formed — Plea of not guilty entered by court of own motion — Whether judge should disqualify himself for bias.

COURTS AND JUDGES — Judges — Disqualification for bias — When judge should stand down on request.

COURTS AND JUDGES — Judges — Disqualification for bias — Particular cases — Criminal trial — Plea of guilty — Depositions read — View of evidence formed — Court of own motion entering plea of not guilty — Request to disqualify acceded to.

Held:

(1) The National Court has power, in an appropriate case, to enter a plea of not guilty on behalf of an accused person who pleads guilty but whose lawyer does not make an application under s 563 of the Criminal Code for a plea of not guilty to be entered on his behalf. This discretionary power is derived from the power to enforce guaranteed rights and freedoms under s 57 of the Constitution and the inherent jurisdiction under s 155 (4) of the Constitution and its exercise complies with the direction in s 158 (2) of the Constitution to give paramount consideration to the dispensation of justice.

Kavali v Hoihoi [1986] PNGLR 329 and The State v James Bero Popo [1987] PNGLR 286, considered.

(2) Failure to exercise the discretion to enter a plea of not guilty where the depositions do not disclose any offence, do not disclose all the elements of the offence charged or disclose possible defences, involves a denial of the right of the accused to the full protection of the law under s 37 (1) of the Constitution and his right to be proved guilty under s 37 (4) (a) of the Constitution.

Eiserman v Nanatsi [1978] PNGLR 457 at 458, considered.

(3) Where a judge is asked to disqualify himself for bias, whether or not it has been shown that there is a real likelihood of bias or a reasonable suspicion of bias and provided the objection is not unprincipled, frivolous or futile, the judge ought to disqualify himself.

Romeyko v Samuels (1972) 2 SASR 529 at 537; 19 FLR 322 at 329, adopted and applied.

(4) Where a trial judge was asked to disqualify himself for bias after having read the depositions (on a plea of guilty) and entering a plea of not guilty on behalf of the accused, it was appropriate, in the interests of integrity and impartiality, that he disqualify himself.

Cases Cited

The following cases are cited in the judgment:

Amaiu v Commissioner of Corrective Institutions [1983] PNGLR 87.

Eiserman v Nanatsi [1978] PNGLR 457.

Eliza v Mandina [1971-1972] P&NGLR 422.

Kavali v Hoihoi [1986] PNGLR 329.

Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577.

Nai'u Limagwe v The State [1976] PNGLR 382.

Prowse v Bartlett (1972) 3 SASR 472.

R v Australian Stevedoring Industry Board (1953) 88 CLR 100.

R v Blandford Justices; Ex parte G (An Infant) [1967] 1 QB 82.

R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546.

R v Gabai Vagi [1973] PNGLR 30.

R v Joseph-Kure [1965-66] P&NGLR 161.

R v Watson; Ex parte Armstrong (1976) 136 CLR 248.

Romeyko v Samuels (1972) 2 SASR 529; 19 FLR 322.

State, The v James Bero Popo [1987] PNGLR 286.

State, The v Joe Ivoro [1980] PNGLR 1.

Weaver v Samuels [1971] SASR 116.

Interlocutory rulings

On an indictment charging rape the accused (by his counsel) informed the court that he would be pleading guilty. The trial judge read the depositions and formed a view thereof inconsistent with guilt.

The following judgment deals with the issues then raised.

Counsel:

N Miviri, for the State.

T Tamusio, for the accused.

Cur adv vult

26 January 1990

JALINA AJ.: During the callover in Chambers on Monday morning, 15 January 1990, counsel for the accused, Mr Tamusio, indicated that the accused would plead guilty to a charge of attempted rape. Consequently I read the depositions.

On Thursday, 18 January, the accused was indeed charged pursuant to s 348 of the Criminal Code (Ch No 262) with attempted rape and on arraignment he pleaded guilty to that charge. Counsel for the accused did not make any application for leave of the Court for a plea of not guilty to be entered pursuant to s 563 of the Code. I then entered a plea of "not guilty" on behalf of the accused using my powers under the Constitution (which I will consider later) as I was not satisfied that the evidence as contained in the depositions was sufficient to sustain a conviction for attempted rape bearing in mind the "overt act" requirements discussed in R v Joseph-Kure [1965-66] P&NGLR 161 at 166, coupled with doubts created by the accused's alibi, the doubts as to identification and his denial of the offence in the record of interview. These particulars were pointed out to counsel pursuant to s 575 of the Code after a plea of not guilty was entered on behalf of the accused.

Defence counsel even at this time did not apply for an adjournment to seek further instructions from his client, the accused, even though I invited him to consider it. I then adjourned the case for trial.

On 23 January, however, Mr Miviri for the State, relying on a passage in O'Neill and Desailly, Criminal Jurisdiction of Magistrates in Papua New Guinea, asked me to make a ruling on a point of law. That was that in view of my having read the depositions, I had formed a view or an opinion on the case and that being so, I should disqualify myself. Defence counsel also assisted the State Prosecutor and made similar submissions and relied on The State v Joe Ivoro [1980] PNGLR 1. They were, in effect, submitting that I should not proceed to sit on the trial because there was a likelihood of my being biased. I will consider this issue later.

Although counsel only asked me to rule on whether I should disqualify myself, for the reasons I have specified above, there is, in my view, another important issue which I consider should not be allowed to slip by since an opportunity has now arisen for such an issue to be considered in some detail. That issue relates to whether or not the court can (on a plea of "guilty" by the accused but without any application by his counsel for a plea of "not guilty" to be entered) of its own initiative or motion, enter a plea of "not guilty" on behalf of the accused.

Entry of a plea of not guilty by leave of the Court is covered by s 563 of the Criminal Code. It says:

"Notwithstanding anything in this Code, counsel for an accused person may, with leave of the court and after the accused person has been —

(a) informed of the offence with which he is charged; and

(b) asked to plead to the indictment,

enter a plea of not guilty on behalf of the accused person."

As stated by Chalmers, Weisbrot and Andrew, Criminal Law and Practice of Papua New Guinea, 2nd ed (1985) at 608, this section is intended to provide an additional safeguard to an accused who is unaware of legal defences (for example, self-defence, provocation) open to him through him admitting to certain alleged facts (see Nai'u Limagwe v The State [1976] PNGLR 382). As the plea of "not guilty" was not entered as a result of an application by defence counsel in this particular case, s 563 of the Code is not relevant for the purposes of determining the issue of whether or not the court can, of its own motion, enter a plea of "not guilty" on behalf of the accused. Where, then, does the court get its power to do this?

Section 57 (1) of the Constitution provides that a right or freedom referred to in this Division shall be protected by, and is enforceable in the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative (my emphasis) or on an application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority. Furthermore, s 158 (1) of the Constitution provides that, subject to this Constitution, the judicial authority of the people is vested in the National Judicial System. The National...