The State v James Gurave Guba (2000) N2020

• Jurisdiction: Papua New Guinea
• Citation: (2000) N2020
• Date: 19 December 2000
• Court: National Court
• Year: 2000

Full Title: The State v James Gurave Guba (2000) N2020

National Court: Kandakasi J

Judgment Delivered: 19 December 2000

1 CRIMINAL LAW—Practice and procedure—Plea bargain—Role of the Court—Guilty plea—Depositions disclosing possible defence—Defendant deciding to forego defence

2 CRIMINLA LAW—Particular offence—Unlawful use of motor vehicle—Guidelines for sentencing—Two separate offences committed at different times against separate victims—Cumulative sentence appropriate—Criminal Code Act (Ch262) s383, s386 and s19.

3 LAWYERS—Duty of lawyers to properly prepare and present arguments or submissions with relevant cases or statutory authorities—Failing in that duty may attract serious consequences against them—Lawyers Professional Conduct Rules 1989 s15.

4 The State v Jason Dongoma (2000) N2038, The State v Jack Gola (1990] PNGLR 206, The State v Joe Ivoro and Gemora Yavura (1980] PNGLR 1, Gabriel Laku v The State (1981] PNGLR 350, Dinge Damane v The State (1991] PNGLR 244, Martin Ferry v The State (Unreported and unnumbered judgment of the Supreme Court delivered on the 22 November 2000 at Wewak) SCRA64 of 2000, The State v Danny Sunu (1983] PNGLR 396, SCR 1 of 1994; The State v Aruve Waiba (1996) (Unreported and Unnumbered Supreme Court judgment (Los J and Salika J) dated 4 April 1996), The State v Thomas Waim (1988] PNGLR 360, The State v Inema Yawok (1998) N1766, The State v Jimmy Robin (Unreported and unnumbered judgment of Injia J, delivered on 20 March 2000) CR 1130 of 1999, The State v Sabarina Yakal (1988–89] PNGLR 129, Allan Peter Utieng v The State (2000) SCR15 of 2000 (Unreported and unnumbered judgment of the Supreme Court delivered in Wewak on 23 November 2000), Acting Public Prosecutor v Konis Haha (1981] PNGLR 205, Public Prosecutor v Kerua (1985] PNGLR 85, The State v John Pesa (1994] PNGLR 317 and Tau Jim Anis v The State (2000) SC642 referred to

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Kandakasi J: Two separate indictments were presented by the State against the Defendant on 11 December 2000. The indictments charged the Defendant with one count each of unlawful use of a motor vehicle under s383 of the Criminal Code (Ch262) (hereinafter "the Code"). That followed a plea bargain between the parties from the more serious offence of armed robbery under s386 of the Code. The Defendant pleaded guilty to both counts.

Upon reading the depositions in relation to one of the charges I was satisfied that there was sufficient evidence to support the guilty plea. I therefore, confirmed the guilty plea in relation to that charge and convicted the Defendant of the charge. As for the other one however, I noted that the possible defence of compulsion was available. Hence, I raised that with the Defendant's Counsel as to what his client's instructions were on that. Counsel informed the court on his client's instructions that, his client was foregoing the possible defence and will only seek to raise it in mitigation before sentence. Counsel also informed that, that position was taken in view of the plea bargain from the possible high of armed robbery under s386 of the Code to the lesser one under s383 of the Code. On that basis, I proceeded to confirm the guilty plea and convicted the defendant on the second charge as well.

Preliminary issues

The case presents two separate but closely related preliminary issues. The first issue raises the question of what is the role of the Court when an indictment is presented pursuant to a plea bargain reached between the prosecution and the defence. The second issue concerns the correct procedure to follow after an accused person has pleaded guilty to the charge presented against him after a plea bargain to a lesser charge but a reading of the depositions raises a possible defence which he decides to forego. I have covered both these aspects in the case of The State v Jason Dongoma (2000) N2038, although not fully in respect of the second issue.

The case referred to and applied in that case, namely The State v Jack Gola (1990] PNGLR 206, provides authority for the proposition that, once the prosecution and the defence have reached an agreement or a plea bargain and an indictment is presented in accordance with such an agreement, the only role of the court in such a setting is to accept the presentation of the indictment. This emanates from the fact that, under our constitutional framework, the Public Prosecutor is the only one that has the power to decide whether or not to prosecute an offender and in what manner or for what offence. That power is not subject to any direction, control or supervision of any other authority, not even the courts. It also proceeds on the basis that the Public Prosecutor is in a better position to consider the interest of the people and the mechanics of proving a charge against an accused person and then proffers the charge he considers sustainable.

In relation to the second issue, the preponderance of the case authorities on point such as The State v Joe Ivoro and Gemora Yavura (1980] PNGLR 1, Gabriel Laku v The State (1981] PNGLR 350, Dinge Damane v The State (1991] PNGLR 244 and Martin Ferry v The State SCRA64 of 2000 (Unreported and unnumbered judgment of the Supreme Court delivered on 22 November 2000 at Wewak), make it clear that, a court is duty bound to point out to the defence anything in the depositions or in the allocutus that runs contrary to or inconsistent to a guilty plea. If such inconsistencies do in fact disclose a legal defence, the court or the judge must then change the plea of guilty to one of not guilty and allow the matter to go to trial in the normal way, if the prosecution is proceeding with the charge. In such a case, the trial judge must then disqualify himself and let a different judge run the trial. If however, the prosecutor decides to proceed with a lesser and alternative charge, which is available and is supported by the depositions then, the accused must be re–arraigned on the new charge and must be dealt with in the normal way.

What is not clearly expressed one way or the other is, what should be the procedure if the defence decides to forego any defence that may appear to exist or is disclosed in the depositions or in the statement in his allocutus. For clarity on that aspect, in my view, it ought to be stated in clear terms that, just as the court is duty bound to accept an indictment presented following a plea bargain for a lesser charge, when a more serious one is disclosed in the depositions, the court should also be duty bound to accept the defendant's decision to forego any...