Unreported National Court Decisions
N331
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
AIDA VANALIU
Rabaul & Waigani
Quinlivan AJ
21 August 1981
25 August 1981
20 November 1981
CRIMINAL LAW - PROCEDURE - alteration of charge - proper procedure - Soanes Case (1948) 1 All E.R. 289 disting distinguished. - valued of reading depositions in certain cases - taking of confessional evidence from certain people discouraged.
QUINLIVAN AJ:  This accused was presented before me at Rabaul on 21st August 1981 on an indictment charging her with the crime of WILFUL MURDER. When he presented the indictment, however, Mr. Jalina, the learned State Prosecutor asked me if I would accept a plea of guilty to a charge of INFANTICIDE under section 306 of the Criminal Code. I explained that such a course presented difficulties because of the Ruling in Soanes’ Case[dccvii]1. and that the proper course was for the State to lay the charge which, in its unfettered and undoubted discretion, it wanted the Court to accept whether that decision was as a result of discussions with Counsel for the defence or for any other cause. I pointed out that Soanes Case had been introduced into this country in the mid-1950’s in a case which I could not then name and, as far as I knew, it had never been distinguished or disapproved. Mr. Jalina said that he knew of several instances where other Judges had adopted the course proposed so, although I repeated that the proper practice for the future would be for the technical charge of infanticide to be laid instead of wilful murder, I conformed, pointing out that there were reasons why I considered that Soanes’ Case was not really binding in this country.
I explained those reasons in a summary way - I said that although the depositions appeared to make it clear that Soanes’ Case applied, there were internal evidences that caution should be exercised in the use of them; that although the indictment was technically for wilful murder the learned State Procecutor had specifically spoken, before the indictment was presented, of the case being for infanticide only; the Soanes’ Case was, when it was introduced here, regarded by many as inappropriate to the circumstances of this country and my view in this regard remains the same - and I said that, now that I was finally assured of typing facilities, I would deliver those reasons when I returned to the Capital. Apart from the Ruling on an Application under Section 564[dccviii]2 which I also reserved at Rabaul (although I had actually written my Reasons for delivery on the morning of the Court’s departure) and the judgments in those few appeals which have been forced on me in the dying days of a Circuit, I have never reserved a judgment for “handing down” later because of the ruling in Appeal of Ryan[dccix]3 and because I have a bank-up of over 50 judgments and rulings which need to be typed and the list, very naturally, grows continually.
I mention this because it may appear, from the long delay between the day of the hearing and the date of this judgment that it is of some special significance. This is not so. It was written in the normal course but not be handed down until today. In fact, were it not that it constitutes what might be called No. 4 of the “depositions” series (that is, had it not been that it suppliments what I have so often said in KEMI BOMAI[dccx]4, LASTIN INOM[dccxi]5 and WAPE & VARAVON[dccxii]6), it might not be delivered as early as this.
The fact is that, where there is an application for the Court to accept a plea to a lesser charge than that on which an accused person is indicted, it is mandatory - if Soanes’ Case applies herefor the Judge to read the depositions which were taken in the lower court. So, naturally, I read them as soon as the application was made in this case. Soanes’s Case was introduced into this country in R. v. JOSEPH AH WONG[dccxiii]7 and in Soanes’s Case the Court of Appeal (Lord Goddard C.J. presiding) said:
“In the opinion of the court, where nothing appears on the depositions which can be said to reduce the crime from the more serious offence charged to some lesser offence for which ... a verdict may be returned, the duty of counsel for the Crown would be to present the offence charged in the indictment, leaving it as a matter for the jury, if they see fit in the exercise of their undoubted prerogative, to find the lesser verdict. In this case we think that the learned judge was not only right but, indeed, bound, to insist on the applicant being tried for murder. There was nothing disclosed in the depositions which would have justified a reduction of the charge from murder to infanticide”[dccxiv]8.
Soanes’ Case is mentioned in all the text-books but, beyond being mentioned it has, as far as I am aware, never been discussed. This is curious, especially in view of the modern development of “open plea bargaining” (see Turner[dccxv]9, and Cain[dccxvi]10). I am left to wonder whether it might not be, as far as we are concerned, a vestigal reminder of the solemnity which used to attach to an indictment in the days when it was a document “returned” or “found” by the Grand Jury after the hearing of sworn testimony. Whatever the situation may be elsewhere I feel, with respect, that the relevance of Soanes’ Case to the conditions of this country is questionable.
We have never had the Grand Jury and the only body with an “undoubted prerogative” in this regard is the Public Prosecutor and his delegates, the State Prosecutors in the particular cases which they are instructed to bring before the court. The essence of our system is, as Appeal of Smedley[dccxvii]11 makes clear, the fact that the decision of the Public Prosecutor, as to the maximum charge which a particular accused person shall face in respect of a particular set of acts, shall be absolutely untrammelled. He, after all, has done the additional research that I mentioned in In re Emmanuel Lavaki[dccxviii]12 and it could easily be that, as I mentioned in State v. Lastin Inom[dccxix]13 the depositions are, through no fault of the magistrate who took them, thoroughly unreliable. To compel the State to take a case to trial in such circumstances seems to be an infringement of basic principles.
In ex parte Hunter[dccxx]14. Baron Pollock said:
“It has never yet been suggested that the exercise by the Attorney-General of the discretion vested in him, either by common law or statute, has been controlled by the court”.
and eighty-five years later, in the 1968 case of R. v. Metropolitan Police Commissioner, ex parte Blackburn[dccxxi]15. Lord Denning M.R. said:
“Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere. For instance, it is for the Commissioner of police, or the chief constable, as the case may be, to decide in any particular case whether enquiries should be pursued, or whether an arrest should be made, or a prosecution brought ... No court can or should give him direction on such a matter. He can also make policy decisions and give effect to them, as, for instance, was often done when prosecutions were not brought for attempted suicide; but there are some policy decisions with which, I think, the courts can, if necessary, interfere. Suppose ...”
and so on. I should point out that, in the much more harrowing case of R. v. Metropolitan Police Commissioner ex parte BlackBurn (No. 3)[dccxxii]16 which Mr. Blackburn brought in regard to pictorial pornography being available to children in sweets-shops, Lord Denning repeated what he had earlier said with these words:
“In R. v. Metropolitan Police Commissioner, ex parte Bleackburn we made it clear that, in the carrying out of their duty of enforcing the law, the police have a discretion with which the courts will not interfere. There might, however, be extreme cases in which he is not carrying out his duty. And then we would. I do not think that this is a case for our interference.”[dccxxiii]17.
The point, of course, is the fact that our system is based on the principle of Separation of Functions. Non-interference, except in properly defined circumstances, is the sacred rule. This being so in the case of an official whose status and function has never been defined (as Lord Denning pointed out in the earlier case[dccxxiv]18) how much more so is it in the case of our Public Prosecutor who is guaranteed absolute freedom in the exercise of his discretion as to what charge he will lay (if any) in the Constitution itself. And if the principle of non-interference is so fundamental in regard to the laying of the charge why, one may ask, should the courts be able to direct that a trial take place on an unwanted higher charge when the delegate of the Public Prosecutor has clearly stated that, in the exercise of his/her proper function, the lesser charge is the proper one. After all, section 572 (a) of the Criminal Code does not imply any restriction based on what might or might not appear in the depositions.
I do not, however, base my ruling on that latter argument. Judge Carter has included R. v. Soanes as being a relevant authority to section 598 (the equivalent of s. 572 (a) of our Code) in every single edition of his magnificent work and to ignore this would be to act irresponsibly. But, added to all that I have already said, I feel that I have performed my duty of explaining why I say that it was proper for me to accept the plea to the lesser charge in this case.
I do repeat, however, that the proper course, in a case such as this, is for the individual Prosecutor to tear up the indictment which has previously been signed for the higher charge and to present a new one alleging that
on such and such a day the accused, while the balance of her mind was disturbed by reason of her not having fully recovered from the effects of giving birth to an unnamed female child of which she had but recently been delivered, suffocated that child (or whatever her actual act was) and caused its death.
It cannot be too strongly stressed that (as Kitto J. said in Zanetti v. Hill[dccxxv]19) although it is not what is normally called “an element”, the allegation that the balance of the mind was disturbed is “a condition which must be fulfilled” - a point which we shall see becomes important in a moment - and that there is no element of “unlawfulness” to be alleged or proved. This is a special “ameliorative” provision and it is probably the only exception (as far as indictable offences are concerned - nearly all offences of “strict liability” are to be dealt with summarily) to the basic rule that there must always be an element of “fault”, as I have mentioned in State v. Lastin Inom[dccxxvi]20.
For these reasons it would be wrong (in the sense that it would frustrate the intention of the Legislature and produce a non-legal document) if the State were either to:
(a)      leave out the allegation regarding the balance of mind (a matter I will deal with in a moment) or
(b)      do anything except say, in non-legal terms, what it is that the accused is alleged to have done (that is, she smothered the baby, she drowned it, she buried it alive, and so on).
It is also “wrong” for the State to rely too much on any alleged confession by the mother, particularly if the balance of the mind was clearly disturbed (as distinct from those cases where, although it was disturbed, this was not immediately apparent). I must not be misunderstood here. In State v. Kemi Bomai[dccxxvii]21 I said that we have come a great distance in the past two or three years towards regaining the proud condition we once had in regard to the administration of justice. And I instanced the fact that, just before Independence, things were so bad that the then Chief Minister ordered a Special Inquiry into “confessions to police” and other matters. I edited that portion of the transcript out when I settled the judgment for typing but it is appropriate now for me to note that, on revising the draft for this judgment I am involved in my one hundred-and-first criminal matter (25 trials, most of them major) and in those cases the voluntariness or authenticity of the alleged confession has only been contested once - and that was in State v. Wesley Molgime[dccxxviii]22 which is still part-heard (because the prisoner absconded) so I do not know whether the objection was valid or not. I did reject an alleged confession in State v. Nima Ele[dccxxix]23 and I criticised another in State v. John Manga[dccxxx]24 but these were both for “other reasons” and do not reflect in any way adversely on the Police - except in the latter case where I commented on their training (although I did point out that the same mistake is made by most lawyers the world over).
This record of one hundred cases randomly picked is reminiscent of how things used to be in this country. What we need is to now get back into the habit of having independent evidence which was always our first resolve. This brings me back to the fact that the depositions in this case are unreliable, and to the general proposition that reliance on confessional evidence in any case of this nature is so highly questionable as to be unwarranted.
There is nothing about it in the depositions but the fact is, as the learned State Prosecutor so properly mentioned from the Bar Table and as Counsel for the Defence relies on, that accused is in a very special category of person. She is a woman whose life has been gravely affected by the fact that she once carried a baby by her own father and she was, immediately before the birth of the baby the subject of this charge, pregnant again without benefit of marriage. Happily, there must be very few people in the world who can have any idea of just what those circumstances mean to a human being but there can be no doubt that, by any objective test, it would have to be said that “the balance of the mind was disturbed”. This does not mean, by any stretch of the imagination, that she was insane. It means precisely what it says: her “balance” was not the way it normally would have been had she (taken as an individual with all that makes her what she is) not had the second baby. Her “mental balance” (that is, her sense of proportion, her sense of values, her ability to resist the attractions of despair) was impaired. Her ability, in short, to be in that condition which the law requires for a confession to be accepted in court as being made voluntarily, had temporarily ceased.
In this regard I wish to adopt some words which I used for teaching purposes but the citation for which I have been unable to find despite a great deal of research when finally brushing-up the draft I had written so that it could be typed. They come from page 104 of the otherwise excellent article by Muna Ndolo in the Zambia Law Review entitled: “Confessions - Tainted Evidence.”:
“... that word (i.e. “voluntary”) is to be understood in a wide sense, as requiring not only that the prisoner should have free will and power to speak, or refrain from speaking, as he may think right, but also that his will should not be warped by unfair, dishonest or fraudulent practices, to induce a confession .... upon this principle ... a confession will be rejected if it appears to have been ... by pestering interrogatories, or if it appears to have been made by the party to rid himself of importunity ...”[dccxxxi]25
I should note that the word “unfair” does not necessarily have the same meaning as the other words: “dishonest ... fraudulent”. In the type of case we are dealing with here it is really unfair to rely on confessional evidence because, as Lord Reid said in R. v. Harz[dccxxxii]26, at page 306, line E - F:
“one must remember that not all accused are reasonable men or women: they may be very ignorant and terrified by the predicament in which they find themselves.”
In this case the accused steadfastly denied that the baby had been born alive; she claimed that she had had a miscarriage due to a fall on slippery ground at a time when she was without the assistance of any other adult. And it is clear beyond doubt that she did have the baby during the daytime, but while there was no other adult about. How then can one explain the fact that she immediately confessed to deliberately killing her baby after it was born alive? In the absence of anything else, such a confession would have to be excluded if the case were to go to trial.
I have, however, declared the accused GUILTY OF INFANTICIDE ON HER OWN PLEA and, since I consider that Soames’s Case should be distinguished, I really ought not to know what is in the lower court depositions.
I have already said that the infanticide provision is an ameliorative one and I cannot imagine a better case for it to be used. This woman is, in years, still a girl. She was forceably made pregnant by her own father and that, in Tolai Society - as I mentioned in a Local Court case which I dealt with here many years ago - is an unheard-of matter because every living human being belongs to one or other of two moieties and sexual relations are, in this way, strictly regulated from birth. She was the innocent victim but that did not alter the fact that she was a victim. And, when she and her young man wanted to marry, obstacles were put in her path which made life for her unbearable. Then, she says, there were further pressures put on her at the time the baby died. She is much better off with the Welfare Officers at her elbow whenever she needs help and that is what the WeLfare Officers have promised to do.
I appreciate that, the evidence being what it probably is, I would probably assure her of a convictionless future if I were to vacate the plea but I do not see that it would be proper for me to do this. My reading of the depositions is, in a way, an exception to what I have explained elsewhere to be a purely personal rule. And now that I have shown that Soanes Case ought to be distinguished - now that I have, to the extent that I can do so, distinguished it and held it to be not binding in the circumstances of this country - the need for me to read these particular depositions has ceased. The only fact that remains is the series of admissions which the accused freely made to me in Open Court. These show that she fully and freely admitted that she was guilty of infanticide and that, as far as I am concerned - and since she did it on the advice of competent Counsel - is the end of the matter. In any event I feel that, with the Rabaul Welfare Officers as her support she will have a much better chance of returning to Society so that she can take the proper and honourable place in it which ought to have been hers in the first place.
Solicitor for the State: L. Gavara-Nanu, Public P Public Prosecutor.
Counsel: M. Jalina Esq.
Solicitor for the Accused: A. Armet Public Solicitor
Counsel: M. Dilon Esq.

[dccvii](1948) 1 All E.R. 289.
[dccviii]Unreported RULING, Rabaul, 24th August, 1981.
[dccix]Unreported judgment, Waigani, 3rd May 1979, issued as S.C. 148, at pages 20, 21.
[dccx]Unreported judgment issued as N. 327.
[dccxi]Unreported judgment issued as N. 329.
[dccxii]Unreported judgment issued as N. 331.
[dccxiii]Unreported judgment, Port Moresby, 8th March, 1954, bound as Judgment N. 51 at p. 349 ff. of Volume One of S.C. Judgments.
[dccxiv](1948) 1 All E.R. 289 at p. 290.
[dccxv](1970) 54 Cr. App. R. 352; (1970) 2 Q.B. 321.
[dccxvi]1976 Crim. L.R. pages 462 and 561.
[dccxvii]Unreported judgment, Waigani, 31st October 1980; S.C. 182.
[dccxviii]Unreported judgment, Waigani, 12th January, 1981; N. 324.
[dccxix]Unreported judgment, GOROKA, 24 February, 1981; N. 329.
[dccxx](1883) J.P. 724.
[dccxxi](1968) 1 All E.R. 763 at p. 769.
[dccxxii](1973) 1 All E.R. 324.
[dccxxiii](1973) 1 All E.R. 324 at p. 331.
[dccxxiv]At page
[dccxxv](1962) 108 C.L.R. 433 at p. 442.
[dccxxvi]Unreported judgment, Goroka, 24.2.1981, issued as N. 329.
[dccxxvii]Unreported judgment, Waigani, 27. 1.1982, issued as N. 327.
[dccxxviii]Unreported judgment, Goroka, 9.2.1981, issued as N. 328.
[dccxxix]Unreported judgment, Vanimo, 15th May, 1981. (to be issued).
[dccxxx]Unreported judgment, Madang, 11th June, 1981 (to be issued).
[dccxxxi](1973) 5 Zambia Law Journal 101 at page 104.
[dccxxxii](1967) 2 W.L.R. 297 at p. 306.