Papua New Guinea Law Reports - 1980
[1980] PNGLR 1
N212
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V.
JOE IVORO AND GEMORA YAVURA [i]1

Waigani
Kapi J
14 January 1980
CRIMINAL LAW - Practice and procedure - Pleas - Plea of guilty - When plea of guilty may be rejected and plea of not guilty entered - Power to change plea after allocutus administered but before sentence.
CRIMINAL LAW - Practice and procedure - Alternative verdict - Whether alternative verdict available when plea of guilty changed to plea of not guilty - Practice to be adopted.
COURTS AND JUDGES - Disqualification - Grounds for - Bias - Impartiality to be preserved - Preconceived views of evidence formed - Criminal trial - Judge disqualifying self.
On a trial of two accused on charges of breaking, entering and stealing, and of rape, each accused pleaded guilty to both counts, the trial judge entered a provisional plea of guilty in each case, then proceeded to read the depositions and record of interview: being satisfied that the pleas could be accepted the trial judge convicted each accused and proceeded to administer the allocutus pursuant to s. 605 of the Criminal Code, at which state it became apparent from the statements made by the accused that there might be some doubt as to the correctness of the pleas on both counts.
Held:
(1)      The court has power to change a plea of guilty after the plea is confirmed and the allocutus administered but before sentence is passed.
R. v. Phillips and Lawrence [1967] Qd.R. 238 at p. 288 adopted and applied.
(2)      A plea of guilty may be changed where circumstances indicate that:
(a)      the accused had not really pleaded guilty;
(b)      there was a mistake on the part of the accused;
(c)      there is a clear defence to the charge.
R. v. Le Comte [1952] N.Z.L.R. 564;
R. v. Jack Taylor [1967] N.Z.L.R. 577; and
R. v. Turrall [1968] N.Z.L.R. 312 applied.
(3)      In the circumstances the power to change the plea should be exercised.
(4)      Where a plea of guilty has been changed to a plea of not guilty, the court should not as a matter of course proceed to find an alternative verdict if the depositions support that alternative offence: to do so would be equivalent to finding the accused not guilty of the offence charged without the issue being tried according to law as required by s. 578 of the Criminal Code.
(5)      Where a plea of guilty has been changed to a plea of not guilty the proper procedure to be adopted is to ascertain whether the State wishes to proceed with the charge, or, to consent to a plea on a lesser or alternative charge which is supported by the evidence.
(6)      A judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he is not unprejudiced or impartial.
The Queen and his Honour Judge Leckie; Ex parte Felman (1978) 52 A.L.JR. 155 at p. 158 referred to.
(7)      In the circumstances, the State having elected to proceed with the trial, and the reading of the depositions and forming of opinions thereon, the trial judge ought to disqualify himself from the further hearing of the trial.
Trial.
This was the trial of two accused, both of whom pleaded guilty to charges of breaking, entering and stealing, and rape. After the plea was taken, the depositions read, the accused convicted and the allocutus administered, each accused made statements which indicated that there might be some doubt as to the correctness of the plea. The following rulings were then made.
Counsel:
K. Bona, for the State.
C. Marlow, for the accused.
Cur. adv. vult.
14 January 1980
KAPI J: In this matter the State presented an indictment against four accused persons, Joe Ivoro, Gemora Yavura, Doba Pilova and Rikoma Hava Yuli. On the first count, the four accused were charged with breaking, entering and stealing, and on the second count only Joe Ivoro and Gemora Yavura were charged with rape. However, the State amended the indictment by deleting Doba Pilova and Rikoma Hava Yuli from both counts. No objection was taken by defence counsel.
I then proceeded with the hearing of the two counts against Joe Ivoro and Gemora Yavura. Upon arraignment, the two accused pleaded guilty to both counts. Counsel for the accused made no application to enter pleas of not guilty; I then entered provisional pleas of guilty subject to reading the depositions. The depositions and the records of interview by the two accused were tendered. Upon reading the depositions and the records of interview, I was satisfied that it was safe for me to accept the pleas. I then proceeded to administer the allocutus pursuant to s. 605 of the Criminal Code.
The two accused made statements on allocutus which raised doubts in my mind as to the correctness of their pleas on both counts. I set out below the relevant parts of their statements.
JOE IVORO: “On the 6th August that door was already opened and I entered ...”
GEMORA YAVURA: “... she told us to have sexual intercourse with her but not to damage anything in the house. She was asking to hurry otherwise the husband comes back. Both of us had intercourse with her after that we went and joined with 2 of our friends.” [sic]
These statements were made after I confirmed the pleas and convicted them but before sentence was given. Is there any defence raised by these statements on the two counts? Do I have power to change the pleas after confirming the pleas of guilty upon reading the depositions and the records of interview?
I shall first deal with the question of whether the court has power to change the pleas at this stage. In common law, the position is clear, that in a plea of guilty there is no conviction until the sentence is passed. See R. v. Cole[ii]2. It follows, that in common law the court has power to change a plea of guilty before sentence is passed but not after. See R. v. McNally[iii]3, R. v. Plummer[iv]4.
Under the Criminal Code, conviction is used in many instances with a different meaning as used in common law, such as ss. 19, 605 and 606 of the Criminal Code. That is to say, there can be conviction before sentence. Where the Criminal Code speaks of conviction before sentence, does the Court have power to change a plea where, upon reading the depositions, it convicts a person and then administers the allocutus before proceeding to sentence? In R. v. Phillips and Lawrence[v]5, Hart J after referring to the Queensland provision on allocutus said:
“This procedure has always been carried out, with the necessary modification caused by the abolition of the death penalty. In my view when the prisoner is thus addressed, the Associate speaks for the Court and what he says is an acceptance of a plea of guilt. This means that in Jerome’s case, on the assumption that the normal procedure had been followed, there had been a conviction. It does not mean however that the Court has no power to set aside a conviction before sentence. There are in the Code no express words abolishing the very just and convenient common law practice in force at the time of its enactment (for which see Rex v. Plummer (1902) 2 K.B. 339).
If it clearly appears, at the time when the Court is considering sentence, that an accused person has mistakenly pleaded guilty, it is unthinkable that the Court has no power to rectify the matter itself, but must leave it to the Court of Criminal Appeal.” (The emphasis is mine.)
Hart J then referred to R. v. Tatnell[vi]6 and R. v. Popovic[vii]7 as supporting the proposition that the Court has power to change a plea. He went on to say[viii]8:
“I think that probably the best way to regard a conviction on a plea of guilty is as provisional, in the sense that it is subject to be vacated ab initio until sentence, but is valid unless and until vacated.”
It is clear from these authorities that there is power in the Court to change a plea after the plea is confirmed and allocutus administered but before sentence is passed.
How should I exercise my discretion in this case?
The circumstances under which a plea of guilty may be changed were set out in R. v. Le Comte[ix]9.
Also see R. v. Jack Taylor[x]10 and R. v. Turrall[xi]11. The circumstances are:
(1)      The accused had not really pleaded guilty.
(2)      That there was a mistake on the part of the accused.
(3)      That there is a clear defence to the charge.
I now examine the facts in this case. Everything is to be taken together. They were all said at the same time, including the statements that were made on allocutus. Do the facts of this case fall within any of the circumstances referred to above?
On the issues raised in both statements, I need not determine the truth of the statements made at this stage where it conflicts with other evidence in the depositions. This is not my proper function at this stage; this is the function of my jury-half on the trial of the issues.
BREAK, ENTER AND STEALING:
It is clear from the statement made by Joe Ivoro that the door was open when he entered. It is also clear from the evidence that Gemora Yavura followed Joe into the house through the same door. Under these circumstances, it cannot be said that there was breaking of the dwelling house. This would be a clear defence to the charge. Breaking, entering and stealing is one indivisible offence. If one of the ingredients is missing, the offence is not proven. I cannot be satisfied beyond reasonable doubt that they broke or opened the door. See R. v. Daugamani Adamanika[xii]12. I would therefore exercise my discretion and change the plea of guilty to a plea of not guilty.
RAPE:
The statement made by the second accused raises the issue of consent. It is possible to draw from the accused’s statement that the prosecutrix was consenting, or, alternatively, that they thought she was consenting when she told them to have sexual intercourse. It is necessary to hear evidence on this issue. I therefore enter a plea of not guilty on this count as well. In entering pleas of not guilty on both counts I am reinforced in this by the remark of the defence counsel who immediately after the statements were made, remarked in court that the statements to the Court by both accused disclosed defences and that I would not accept the pleas. He then went on to say that these statements were in conflict with earlier instructions he received and that he would withdraw from the case if it proceeded to trial.
Counsel for the State further contends that if I cannot accept the plea of break, enter and stealing for the reasons stated above, I should convict the accused on the charge of entering a dwelling house with intent to commit a crime pursuant to s. 409 of the Criminal Code on the evidence contained in the depositions. He submits that the offence is an alternative verdict open under s. 550 of the Criminal Code. He also relies on R. v. Daugamani Adamanika[xiii]13.
In my opinion, where the plea has been changed to a plea of not guilty, as in the present case, the Court should not, as a matter of course, proceed to find an alternative verdict if the depositions support that alternative offence.
Where a plea of not guilty is entered, as in this case, it is like a plea of not guilty by the accused in the first place, pursuant to s. 572 of the Criminal Code. According to s. 578 of the Criminal Code, issues raised in the charge must be tried according to law. If a Court were to proceed straight to the alternative verdict, then what in fact it does is to find the accused not guilty of the offence charged (break, enter and stealing in this case), without a trial. This would deprive the State of proving the charge (break, enter and steal) in a trial.
However, the proper procedure, in my opinion would be to ask whether the State wishes to proceed with the trial on the charge. If the State proposes to do so then the trial will take place as in a normal trial. If, however, the State does not wish to proceed with the charge but consents to a plea on a lesser charge or any other charge authorized by law, and is supported on the evidence in the depositions, then it may do so.
I will ask the State what it proposes to do.
Can I try the two counts?
After giving much consideration to this matter, I have decided to disqualify myself from presiding at the trial of these two counts. I have come to this conclusion because of the peculiar way in which this matter proceeded before me. I have read the papers in this matter and at one point proceeded to conviction on the basis of the evidence contained in the depositions. In so doing I have formed an opinion regarding the evidence to be called by the State at the trial. Consequently I would not be seen to be impartial in the trial of the issues. In coming to this conclusion, I have had regard to the principle stated in The Queen and His Honour Judge Leckie; Ex parte Felman[xiv]14:
“... the principle is now established that a judge may not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he is not unprejudiced and impartial ... It must be a suspicion that a right-minded person would form.”
Orders accordingly.
Solicitor for the State: C. Maino-Aoae, Acting Public Prosecutor.
Solicitor for the accused: D. J McDermott, Acting Public Solicitor.

[i]Editorial Note: This was the first judgment delivered by and the first reported judgment of a Papua New Guinean Judge.
[ii][1965] 2 Q.B. 388.
[iii][1954] 1 W.L.R. 933; 2 All E.R. 372.
[iv][1902] 2 K.B. 339.
[v][1967] Qd.R. 238 at p. 288.
[vi][1962] Qd.R. 11.
[vii][1964] Qd.R. 561.
[viii][1967] Qd.R. 238 at p. 288.
[ix][1952] N.Z.L.R. 564.
[x][1967] N.Z.L.R. 577.
[xi][1968] N.Z.L.R. 312.
[xii][1965-66] P. & N.G.L.R. 80.
[xiii][1965-66] P. & N.G.L.R. 80.
[xiv](1978) 52 A.L.JR. 155 at p. 158.