Gabriel Laku v The State [1981] PNGLR 350

• Jurisdiction: Papua New Guinea
• Citation: [1981] PNGLR 350
• Date: 31 August 1981
• Court: Supreme Court
• Year: 1981

Full Title: Gabriel Laku v The State [1981] PNGLR 350

Supreme Court: Kidu CJ, Pratt J, Miles J

Judgment Delivered: 31 August 1981

1 Criminal law—practice and procedure—discretion of trial judge to set aside conviction after plea of guilty

2 Criminal law—practice and procedure—practice upon arraignment and upon allocutus—dangers involved in putting specific questions to accused on arraignment—evaluation of answers to such questions when they conflict with statement on allocutus

3 Criminal law—practice and procedure—presumption of innocence—whether violated by requirement of trial judge that accused answer prosecution allegations

4 CRIMINAL LAW—Practice and procedure—Setting aside conviction after plea of guilty and conviction—Discretionary power.

5 CRIMINAL LAW—Practice and procedure—Arraignment—Dangers in putting specific questions to accused—Evaluation of answers in conflict with statements on allocutus—Presumption of innocence.

6 CRIMINAL LAW—Practice and procedure—Allocutus—Statements conflicting with answers to questions put on arraignment—Evaluation of—Presumption of innocence.

It is within the discretion of the court to grant leave to withdraw a plea of guilty after conviction and at any time up until the final disposal of the case by entry and recording of conviction and sentence.

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

On Arraignment:

(a) an accused person is not required to plead either guilty or not guilty;

(b) the practice of a trial judge putting to the accused the various ingredients of the offence alleged and asking if he admits that they are true is proper only if the trial judge feels there is any doubt that the accused will not otherwise understand the nature of the charge; and

(c) the trial judge must ensure that in seeking answers to specific questions he is not in effect depriving the accused of his right to insist on the constitutional presumption of innocence until proven guilty.

On Allocutus:

(a) where any statement of the accused conflicts with answers to questions put on arraignment, any admission of guilt arising from the answers to those questions must be regarded as tainted, and the inconsistency is sufficient ground for the exercise of the discretion to set aside the plea of guilty.

R v Chiron [1980] 1 NSWLR 218 adopted and applied.

Appeal.

This was an appeal against conviction upon a plea of guilty on a charge of unlawful carnal knowledge.

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By the Court: This is an appeal against conviction by the National Court Judge sitting at Lae on 7 July 1981. The appellant was charged with unlawful carnal knowledge of a girl under the age of sixteen years. Upon arraignment he pleaded guilty. However when he was called upon to say what he wished in relation to sentence, the appellant denied an essential element of the charge, namely penetration. The learned trial judge was then asked by counsel to vacate the plea of guilty which, in the exercise of his discretion, he declined to do. His Honour then proceeded to sentence the appellant. It is now submitted that in exercising his discretion not to vacate the plea of guilty, the learned trial judge was in error.

Leave to withdraw a plea of guilty after conviction is a discretionary matter. It is to be contrasted with the entering of a plea of guilty when the plea has been equivocal. If...