Gordon Gala Junior v The State (2017) SC1629

• Jurisdiction: Papua New Guinea
• Judge: Cannings J, Kariko & Shepherd JJ
• Judgment Date: 03 November 2017
• Citation: (2017) SC1629
• Docket Number: SC REV NO 48 OF 2015
• Court: Supreme Court
• Year: 2017
• Judgement Number: SC1629

Full Title: SC REV NO 48 OF 2015; Gordon Gala Junior v The State (2017) SC1629

Supreme Court: Cannings J, Kariko & Shepherd JJ

Judgment Delivered: 3 November 2017

SC1629

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV NO 48 OF 2015

GORDON GALA JUNIOR

Appellant

V

THE STATE

Respondent

Waigani : Cannings J, Kariko & Shepherd JJ

2017:30th October, 3rd November

CRIMINAL LAW – appeal against conviction for murder – guilty plea – trial judge’s duty to be alert to possible defences apparent from depositions or allocutus – discretion to set aside conviction after guilty plea – Supreme Court Act, Section 23(1) – whether reasonable doubt about safeness or satisfactoriness of verdict.

LEGAL REPRESENTATION – hearing of appeal against conviction – whether appellant entitled to an advocate of his choice – whether leave should be granted to allow a non-lawyer represent an appellant.

The appellant was convicted after pleading guilty of one count of murder and sentenced to 15 years imprisonment. He appealed against conviction on the ground that the trial judge failed to properly consider the guilty plea in light of indications in the depositions and the allocutus that there was a possible defence of provocation, which if accepted would have resulted in conviction on the lesser offence of manslaughter. At the hearing of the appeal (which was incorrectly treated by the Registry as an application for review) the appellant applied for leave of the Court to allow a fellow prisoner to represent him. The application was opposed by the State.

Held:

(1) The right of a party to a legal representative of his or her choice is not absolute. If the party chooses not to appear in person, the legal representative must be a lawyer admitted to practice or a person to whom, following application, the Court grants leave to appear.

(2) In determining an application for leave to allow a non-lawyer appear as a legal representative, a range of matters should be considered including whether legal aid has been refused, whether objection is taken by the respondent, whether the proposed lay advocate appears to have basic legal knowledge and is in a position to assist the court, whether it is a complex matter requiring experienced counsel, whether the interests of the person to be represented are likely to be advanced, whether there is any prejudice to the opposite party.

(3) As part of the trial judge’s duty to ensure that an accused person is afforded the full protection of the law under Section 37 of the Constitution, the Judge must be alert to potential defences in the depositions or arising during arraignment or at any stage of the trial process to formal passing of sentence. The judge has an inherent discretion to vacate a guilty plea and set aside a conviction whenever it is in the interests of justice to do so. The discretion would generally only need to be exercised when the potential defence appears to have a reasonable prospect of success.

(4) Here, leave was granted to the prisoner colleague of the appellant.

(5) The potential defence of provocation was not readily apparent from the depositions or the allocutus and remained a possible defence only, without reasonable prospects of success. The trial judge did not err in law by not raising it with the defence counsel and by not vacating the guilty plea and by not setting aside the conviction.

(6) The verdict was not unsafe or unsatisfactory. The appeal was dismissed.

Cases cited:

The following cases are cited in the judgment:

Anton Yani v The State (1999) SC615

Cosmas Kutau Kitawal v The State (2007) SC927

Gabriel Laku v The State [1981] PNGLR 350

Gedai Kairi v The State (2006) SC831

In re Joseph Mavuk [1980] PNGLR 507

John Beng v The State [1977] PNGLR 115

O’Toole v Scott [1965] AC 939

Saperus Yalibakut v The State (2006) SC890

Tamara Player Tomscoll v The State (2012) SC1208

The State v David Yakuye Daniel (2005) N2869

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

Thress Kumbamong v The State (2008) SC1017

APPEAL

This was an appeal against conviction for murder.

Counsel:

T Joseph, with leave, for the Appellant

P Kaluwin, for the Respondent

03rd November, 2017

1. BY THE COURT: Gordon Gala Junior was convicted by the National Court constituted by Justice Manuhu of one count of murder, after pleading guilty, and sentenced to 15 years imprisonment. He appeals against his conviction, on the ground that the trial judge failed to properly consider the guilty plea in light of indications in the depositions and the allocutus that there was a possible defence of provocation, which if accepted would have resulted in conviction on the lesser offence of manslaughter.

2. At the hearing of the appeal (which was incorrectly treated by the Registry as an application for review) the appellant applied for leave of the Court to allow a fellow prisoner to represent him. The application was opposed by the State. We granted leave and heard the appeal. In this judgment we explain why we granted leave and determine the appeal against conviction.

LEAVE TO ALLOW A LAY ADVOCATE TO REPRESENT THE APPELLANT

3. In dealing with an application for a non-lawyer or lay advocate to appear on behalf of a party, there are a number of principles to consider:

· the Supreme Court has inherent power in regulating its own proceedings to allow any person to appear before it to represent a party, irrespective of whether the person is a lawyer admitted to practice with a current practising certificate (O’Toole v Scott [1965] AC 939);

· the court has a discretion to exercise taking into account the circumstances of the particular case, to decide whether it is in the interests of justice to grant leave;

· the discretion should be exercised sparingly, so as to protect parties against the spectre of being represented by inexperienced and/or incompetent persons against whom there is no right of redress if they fail to properly represent the party’s interests;

· a party does not have an automatic right to have anyone of his or her choice represent them;

· a party only has the qualified right to have a certain class of persons represent him or her, for example a person charged with an offence (and by necessary implication a person such as the appellant appealing against a conviction) has the right under Section 37(4)(e) of the Constitution:

to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law;

· the right to choice of legal representative is not absolute as a lawyer might be prevented by the Court from appearing on conflict of interests or other ethical grounds (In re Joseph Mavuk [1980] PNGLR 507).

4. In determining any application for leave to allow a non-lawyer to appear as a legal representative, matters relevant to the exercise of discretion include:

1. whether legal aid has been refused (if yes, that will favour granting leave);

2. whether objection is taken by the respondent, (if no, that will favour granting leave);

3. whether the proposed lay advocate appears to have basic legal knowledge and be in a position to assist the court (if yes, that will favour granting leave);

4. whether it is a complex matter requiring experienced counsel (if no, that will favour granting leave);

5. whether the interests of the person to be represented are likely to be advanced, (if yes, that will favour granting leave);

6. whether there is any prejudice to the opposite party (if no, that will favour granting leave).

5. That is not intended to be an exhaustive list but an indication of the main considerations we have taken into account in the present case, as follows:

1. We were notified by the proposed lay advocate that the Public Solicitor advised the Court during the pre-hearing process that legal aid would not be available to the appellant. This favoured the granting of leave.

2. Strong objection was taken by the Public Prosecutor on the ground that the appellant had no right to anyone of his choice, and that Section 37(4)(e) of the Constitution only allowed him to represent himself or be represented by a legal representative of his choice at his own expense or, if entitled to legal aid, to be represented by the Public Solicitor or by another legal representative assigned to him in accordance with law. The Public Prosecutor also argued that the Supreme Court must insist on legally qualified persons appearing before it, to preserve the integrity of the Court. We noted these matters, which weighed against the granting of leave.

3. The proposed lay advocate, Mr Tande Joseph, is a prisoner himself. He told us and we accept his undertaking that he was a final year University of Papua New Guinea law student at the time of his incarceration. He appeared to us, having observed his demeanour and submissions on the leave application, to be an...