DC8020

PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS SUMMARY JURISDICTION

CASE. NO 173 OF 2021

BETWEEN:
THE POLICE
Informant

AND:
SHEENA COOK
Defendant

Buka: M. Pepi

1 March 2022 

SUMMARY OFFENCE- Section 4 of Summary Offences Act for drunk and disorderly manner.
PRACTICE AND PROCEDURE- Arraignment and plea of guilty of charge- under section 4 of Summary Offences Act.
PRACTICE AND PROCEDURE- Court has power to strike out defective charge laid against a person.
PRACTICE AND PROCEDURE- the Court has the power to change the plea of guilty to plea of not guilty even after the allocatus is been confirmed and before the sentencing.
	
Reference:
Legislation:
Summary Offences Act 1977

Cases cited
State v Ivoro and Yavura [1980] PGNC 58; PNGLR 1 (14 January 1980)
Police v Sebi [2011] PGDC 45; DC2033

Counsel: Police Prosecutor: Chris Markoe
Offender: Appearance in person.

RULING ON THE CHARGE:

1  March 2022

M. Pepi: The Defendant pleaded guilty to the charge for drunk and disorderly manner under section 4 of Summary Offences Act, 1977.

1.	The Police laid this charge against the Defendant on 14 August 2021 and matter came before me on 16 February 2022.

2.	 The charge against the Defendant was stated and read as-

Was found in a public place to wit main public foot path near SSQ Police Barrack and did act in a manner that disturbed a reasonable member of the public.
3.	The Defendant was arraigned and pleaded guilty to the charge under section 4 of the Summary Offences Act.

4.	The Defendant in her allocatus apologized to the Court for her action. 

5.	I noted that, there was a defect in the charge under section 4 of the Summary Offences Act 1977 after the Defendant pleaded guilty of the charge for Drunk and Disorderly Manner.

6.	This is my ruling on the charge and admission of facts by the Defendant.

7.	 BRIEF FACTS

8.	On the 14th day of August at about 2:30am, the Defendant now before the Court, named Sheena Cook, a female of age 43 of Itakara villag, Morgan, Panguna was at section 18, SSQ Police Barracks, Arawa Town, Autonomous Region of Bougainville.

9.	 It was alleged that on the above mentioned date, time and place, the Defendant whilst being under the influence of alcohol, did act in a manner that disturbed a reasonable member of the Public at SSQ Police Barracks.

10.	At that time the Defendant was shouting, swearing, and accusing Regional Commander Spencer Aili, Victor Sihung, Cornelius Anugu, Bryan Freddie and his wife whilst standing on the main public foot path near SSQ Police Barracks, Arawa Town.

11.	The Defendant was saying to them, “Bryan Freddie, yu na meri blong yu kam na facim mi nau iet, kan yupela, yupela man ah?” Come and face me here, kan yupela.

12.	“Corne na Victor, yu tupelo kam daun na facim mi. Victor, Corne, yupela na Spener, yupela ting mi no save long yupela, yupela save pamukim ol meri ya”.

13.	The Defendant continued to repeat the same language as she continued to shout at the top of her voice in the public place.

14.	The matter was reported to the duty Police officer and the Police arrested, cautioned and formally charged the Defendant for being drunk in a public place and disturbed the public.

15.	The Defendant was informed of her Constitutional right under section 42 (2) of the Constitution.

16.	Afterward, the Defendant was released on Bail.

17.	After perusing the statement of facts presented by Police, I noted that, the statement of facts is inconsistent with charge under section 4 of Summary Offences Act.

18.	ISSUES

19.	This Court is faced with two (2) issues to determine-

a.	Whether there was a defect in the charge laid against the Defendant or not?

b.	What should the Court do in such circumstance where a person pleaded guilty to charge that is defective in law before sentencing?

20.	LAW
Section 4 of Summary Offences Act-Drunk and Disorderly Manner

A person who is found drunk in a public place and who acts in a manner that disturbs a reasonable member of the public or is likely to disturb a reasonable member of the public, is guilty of an offence.

21.	Under section 4 of Summary Offences Act, the charge should identify or state the followings-

i.	 a person- the charge should specifically identify or state the name of the Defendant, Sheena Cook as a person.

ii.	who is found drunk in a public place- the charge should specifically state clearly that the Defendant, Sheena Cook was found drunk  or found drinking in a public place.

iii.	who acts in a manner that disturbs a reasonable member of the public or likely to disturb a reasonable member of the public- the charge should specifically identify or name one or two or three members of the public who are affected by the action of the Defendant, Sheena Cook or likely to be affected by the action of the Defendant.

22.	To establish whether the charge is defective or not under section 4 of Summary Offences Act against the Defendant, the charge is stated and read as-

Was found in a public place to wit main public foot path near SSQ Police Barrack and did act in a manner that disturbed a reasonable member of the public.
23.	To determine, I asked myself these questions-

i.	Is the charge under section 4 of Summary Offences Act against Defendant specifically identified or named the Defendant in the charge? No, the police failed to name the Defendant or Sheena Cook in the charge as required under section 4 of Summary Offences Act.

ii.	Is the charge under section 4 of Summary Offences Act against the offender specifically stated that the offender was drinking or drunk in a public place? No, the police failed to name the Defendant or Sheena Cook found to be drinking in a public place.

iii.	Is the charge under section 4 of Summary Offences Act specifically   stated that, the offender did disturb an identified or named the member of the public? No, the police failed to name one or several members of the public in the charge, who had been affected by the action of the offender or likely to be affected by the act of the offender.

24.	By raising these questions under this charge, I categorized the questions under answer “YES” is for charge which is not defective and under answer “NO” is for charge which is defective. 

25.	As for questions no. (i), (ii), and (iii) set out above in the Roman numeral arrangement, the answer “YES” is zero (0) for non- defective charge.

26.	As for questions no. (i), (ii), and (iii) of the Roman numerals arrangement, the answer “NO” is three (3) for defective charge.

27.	In conclusion of the above questions, the answer “NO” stands at three (3) for defective charge and answer “YES” stands at zero (0) for non- defective charge.

28.	I am satisfied that there are defects in the charge laid against the Defendant under section 4 of Summary Offences Act 1997 on 14 August 2021.

29.	The statement of facts are not consistent with the charge under section 4 of Summary Offences Act.

30.	The Defendant pleaded guilty to this charge under section 4 of SOA where there were defects in the charge and there was an oversight on my part during administrating of the charge to the Defendant.

31.	Senior Sergeant Chris Markoe from the Buka Police Prosecution did not assist the Court by pointing out to the Court that there was a defect in the charge laid against the Defendant under section 4 of Summary Offences Act 1997.

32.	Also, when the charge was laid against the Defendant, the Police Arresting Officer and the Police Prosecution failed to review the charge before filing this matter in the Court registry.

33.	If the Police Prosecution had identified the defect in the charge earlier and informed the Court about it, then the Court would have exercise its discretion to ask the Police Prosecution to amend the charge or to withdraw the charge or if not the Court will strike out the charge.

34.	The charge was laid against the Defendant on 14 August 2021, almost six (6) months after the commencement of this proceeding and the Police failed to take necessary steps to correct the defect in the charge all these times.

35.	This matter came up before me on 16 February 2022, and the Police failed to take proper steps to correct the defective charge.
36.	The matter ought to be strike out for defect in the charge.

37.	ISSUE NO. 2

38.	What should the Court do in such circumstance where a person pleaded guilty to charge that is defective in law before sentencing?

39.	LAW & CASE AUTHORITIES

40.	I rely and adopt the case of State v Ivoro and Yavura (1980 PGNC 58 PNGLR 1 (14 January 1980) which was also adopted by His Worship Kaumi (as then he was) in the case of Police v Sebi (2011) PGDC 45; DC 2033, the Court has the power to change a plea of guilty after the plea is confirmed and the allocatus administered before the passing of the sentence. The plea of guilt can be changed depending on the circumstances which indicate that-

i.	the accused did not really plead guilty;
ii.	there was a mistake on the part of the accused;
iii.	there is a clear defence to the charge

41.	The Court has the power to exercise its discretion under such circumstances stated above to change the plea of guilty to plea of not guilty, even when the plea is confirmed and the allocatus is taken before sentencing.

42.	The Defendant pleaded guilty to the charge which is defective in law and the change of plea of guilt must be changed to plea of not guilty.

43.	In this present case, the Defendant appeared in person and the Court is of the view that there is a defence to the charge on the basis of defectiveness.

44.	The issue of defectiveness could have been raised if the Defendant was represented, however, this the Court of Justice and must exercise discretion that the Defendant’s plea of guilty must be vacated on the basis of defectiveness in the charge.

45.	This Court finds that, the Defendant is not guilty under section 4 of Summary Offences Act.

46.	ORDERS

1.	The charge laid against the Defendant by Police is defective under section 4 of 	Summary Offences Act 1977.

2.	The Defendant’s plea of guilty is changed to plea of not guilty.

3.	The matter is strike out.

4.	The Defendant is discharged forthwith.

Lawyer for Informant: Police Prosecution
Lawyer for the Offender: In Person.