[1997] PNGLR 579

PAPUA NEW GUINEA

[national court of justice]

THE STATE

v

KINGSLEY DOLEDOLE

waigani: batari aj
11, 12, 13 February 1997

Criminal Law - Practice and Procedure - Trial - Change of plea of not guilty - Substitution of plea of guilty to lesser offence - Discretion of court - Application made during State’s case - Duty of Counsel for State. 

Criminal Law - Practice and Procedure - Plea - Guilty to lesser offence - Re-arraignment.

Facts

The accused pleaded not guilty to one count of wilful murder. Halfway through the State’s case, he indicated through his counsel that he wished to change his plea to guilty to the lesser offence of murder. The counsel for the state consented to the accused’s change of plea*.

Held

1.	The conditional concession made by the counsel for the State to induce the accused to change his plea imposts a distorted view of the prosecutory powers and duties on the issue of change of plea when the trial has commenced and the accused is in charge of the trial judge.

2.	The accused’s exercise of free choice to change his plea during trial must not be over-whelmed, induced, influenced or distorted by what may be tantamount to "plea bargain" or compromise.

3.	Despite the consent by the counsel for the State, the Court would allow the change of plea if evidence before the Court sufficiently justifies a reduction of the charge and there is real possibility that a conviction on the lesser crime might result.

Papua New Guinea cases cited

R. v Iwari [1964] PNGLR 175.
R. v Suk Ula [1975] PNGLR 127.

Other case cited

R. v Soanes (1948) 1 All ER 289; 32 Cr. App. R 136.

Counsels

L Maru, for the State.
M Apie’e, for the accused.

13th February 1997

Batari aj. The accused Kingsley DoleDole having presented on indictment for trial on the charge that he wilfully murdered one, Isaac Koke Lapa, pleaded not guilty upon arraignment. Mrs Maru for the State listed 27 witnesses on the indictment but proposed to call 18 only. Seven of the State witnesses, one of whom was the Investigation Officer and the other six eyewitnesses have completed their evidence. The accused’s record of interview and the Medical Report had also been admitted into evidence by consent. At this stage of the State’s case, defence counsel indicated that the accused wished to change his plea to guilty to the alternate verdict of murder. I also understood the Public Prosecutor to be in agreement with that course.

I stood the matter over temporarily in order that I might have further assistance from counsels’ submissions on the procedure and duty of the court in a matter as it now arises. After the adjournment, both counsels confirmed that their positions as stated earlier have not changed. Mrs Maru submitted, however, that despite the State’s consent, the court has the discretion to accept the change of plea.

At the commencement of a trial, the accused might plead guilty to an offence (other than the offence with which he is charged) of which he might be convicted, but with the consent of the State Prosecutor (see s 560(2)(a) of the Criminal Code Act Ch. No. 262.). That provision permits acceptance of plea of guilty to a lesser charge, and at that stage of the trial, the matter is entirely between the State Prosecutor and the accused to resolve at pre-trial conference, if possible. The situation here has, however, gone past that stage. The accused has been arraigned and the trial is halfway through the State’s case. The issue is, therefore, whether or not it is permissible for the prisoner to change his plea of not guilty to a plea of guilty to a lesser offence during the trial.

The practice in English Courts is stated by the learned author of Archbold Criminal Pleading, Evidence and Practice (43rd ed.) at para 4-121 -

"A plea of not guilty may, by leave of the judge, be withdrawn during the trial, and a plea of guilty substituted". (Emphasis mine).

In the case of Regina v Iwari [1964] PNGLR 175 Smithers, J. stated at p.176 -

... However, when the prisoner has pleaded and has been put ‘in charge of a jury’ on the general issue, it does not rest with the Crown and prisoner to secure his conviction or discharge otherwise than by the verdict of the jury. See R. v Heyes, R. v Hancock.

Authority indicates that it is not inconsistent with this that the prisoner should, in proper circumstances be permitted to change his plea from not guilty to guilty or from guilty to not guilty. It is nevertheless clear that whether or not such a change should be permitted is a matter in the discretion of the Judge.

There is clear authority in R. v Plummer that the Court has power to allow the accused to withdraw his plea of guilty at any time before but not after judgment".

That common law position which permits the accused to change his plea of not guilty by entering a plea of guilty to a lesser offence, in the exercise of the judge’s discretion, was also followed in the case of Regina v Suk Ula (No.2) [1975] PNGLR 127. His Honour, Prentice SPJ (as he then was), in refusing the accused’s application to change his plea at the end of State’s case and during his (accused person’s) cross-examination was of the view that such common law practice ought to be the appropriate practice applied here. I consider that to be the proper basis for me to decide the issue in the matter before me.

A pertinent issue which I think causes uncertainty, if not misunderstanding is whether or not the State Prosecutor is free to accept a change of plea during the trial without leave of the Court.

As indicated earlier, both counsel are in agreement that the accused alter his plea of not guilty to wilful murder by pleading guilty to the lesser crime of murder. Mrs Maru added that she would not call further evidence and would close State’s case in consideration of the accused pleading guilty to the lesser offence. The inference is clearly that the accused’s change of plea is subject to consent by the State. As to whether or not the State is free to accept the change of plea without leave of the Court, I adopt what in my view is the proper approach as alluded to by Smithers, J in Iwari’s case at p.176 -

"As to this, the Court in Soanes’ case said:-

When the applicant had been given in charge of the jury, her counsel informed the judge that she was willing to plead guilty to infanticide, and counsel for the Crown expressed his willingness to accept that plea. The judge refused to accept it, and said that the charge was one of murder and that charge must be tried, although of course, it would be for the jury to say whether the verdict should be guilty of murder or guilty of infanticide. The judge’s reason for refusing to accept a plea of infanticide was that he could find no indication on the depositions that the circumstances existed which must exist before a verdict of infanticide, as distinct from one of murder, can be returned. While it is impossible to lay down a hard and fast rule in any class of case as to when a plea for a lesser offence should be accepted by counsel for the Crownand it must always be in the discretion of the judge whether he will accept itin 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, under statute, 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 also indeed, bound, to insist on the applicant being tried for murder. There was nothing disclosed on the depositions which would have justified a reduction of the charge from murder to infanticide, and, accordingly, this application is refused".

I understand the case of R. v Soanes [1948] 1 All ER 289; 32 CR. App. R 138 to be stating a general rule that the prosecutor should not consent to a plea of guilty to a lesser offence when there appears to be nothing disclosed on the deposition which could reduce the offence. The duty of counsel for the State is to present the offence charged in the indictment and leave it to the jury or in this jurisdiction, the trial judge to find the lesser verdict.

In this case, counsel for the State was purportedly consenting to the change of plea. In fact, she played the active role in inducing the accused’s change of plea by undertaking to close State’s case if the accused pleaded guilty to the lesser offence. Whilst the conduct of State’s case is entirely the prerogative of prosecuting counsel, the conditional concession made, though may have been well intended, and unfortunately imparts a distorted view of the prosecutory powers and duties on the issue of change of plea when the trial had commenced. It is also most undesirable that the accused’s exercise of free choice to change his plea during the trial is overwhelmed, induced, influenced or dictated by what may be tantamount to "plea bargain" or compromise - I use the term advisedly - in this case.

In the upshot, the question is entirely for the trial judge to consider and may, in his discretion, accept or decline the change of plea on the facts admitted at the time of the application. The State is not empowered to accept the change of plea during the cause of trial without leave of the Court and should resist the temptation to do so in line with its duty 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": see Soane’s case, supra.

In view of the position undertaken by the State, I am not bound to consider any other material pertaining to the wilful murder charge other than the evidence admitted thus far on the central issue of intent. The evidence as its stands, reveal instances of beatings, which resulted in death. There has been no direct evidence adduced on the issue of intent, though inferences could be drawn from the nature of the assault and the resultant injuries, which caused the deceased’s death. The evidence strongly suggests intent to cause the deceased grievous bodily harm. There is real possibility that a conviction on the lesser crime might result. In my conclusion, the evidence before me sufficiently justifies a reduction of the charge from wilful murder to murder. Accordingly, I grant the application.

The only issue, which remains, is, how does the Court proceed from here? In Archbolds, Criminal Pleading, Evidence and Practice, (ibid) the learned author states:-

"The procedure is for the relevant count or counts to be put to the defendant again and the new plea should be tendered by the defendant and not someone (eg counsels) on his behalf".

I adopt and apply this as the appropriate practice to follow. The accused will be re-arraigned on the evidence and the agreed facts on the charge of murder.

Lawyer for the State: P Mogish, Public Prosecutor.
Lawyer for the accused: D Koeget, A/Public Solicitor.