The State v Jack Oroko Tepol (1999) N1941

• Jurisdiction: Papua New Guinea
• Citation: (1999) N1941
• Date: 08 October 1999
• Court: National Court
• Year: 1999

Full Title: The State v Jack Oroko Tepol (1999) N1941

National Court: Kirriwom J

Judgment Delivered: 8 October 1999

1 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 prosequi presented—Accused discharged—Criminal Code, s271.

2 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, s271 and s563

3 Practice And Procedure—Nolle prosequi—When appropriate—Duty of counsel.

4 The State v Joe Ivoro [1980] PNGLR 1, The State v Peter Sari [1990] PNGLR 48, The State v Peter Painke [1976] PNGLR 210 referred to

5 The accused was arraigned and he pleaded guilty to manslaughter under s303 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 s271 and even s269 that the accused could have pleaded and if he did not get up on either, he would still be liable under s303.

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

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Kirriwom J: This case came before me on 10 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 s303 of the Criminal Code.

The prosecution case was that at about 8 pm on the night of 8 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 allocutus 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 6 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 s271 of the Criminal Code. This section is headed Aiding in self–defence and provides:

"Where it is lawful for a person to use...